[Senate Hearing 117-138]
[From the U.S. Government Publishing Office]
S. Hrg. 117-138
S. 648 AND S. 1911
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 6, 2021
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
46-589 PDF WASHINGTON : 2022
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COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana JAMES LANKFORD, Oklahoma
CATHERINE CORTEZ MASTO, Nevada STEVE DAINES, Montana
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico JERRY MORAN, Kansas
Jennifer Romero, Majority Staff Director and Chief Counsel
K. Williams, Minority Staff Director and General Counsel
C O N T E N T S
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Page
Hearing held on October 6, 2021.................................. 1
Statement of Senator Daines...................................... 32
Statement of Senator Murkowski................................... 35
Prepared statement........................................... 35
Statement of Senator Schatz...................................... 1
Statement of Senator Tester...................................... 2
Witnesses
Newland, Hon. Bryan Todd, Assistant Secretary--Indian Affairs,
Department of the Interior..................................... 20
Prepared statement........................................... 22
Thomas, Hon. Brian, Chairman, Shoshone-Paiute, Duck Valley
Reservation.................................................... 26
Prepared statement........................................... 27
Werk, Hon. Andrew, President, Fort Belknap Indian Community...... 3
Prepared statement........................................... 5
Appendix
Gianforte, Hon. Greg, Governor, State of Montana, prepared
statement...................................................... 41
Response to written questions submitted by Hon. Lisa Murkowski
to:
Hon. Bryan Todd Newland...................................... 49
Hon. Andrew Werk............................................. 42
Response to written questions submitted by Hon. Brian Schatz to:
Hon. Bryan Todd Newland...................................... 49
Hon. Andrew Werk............................................. 45
Wildlife Montana and The Wilderness Society, letter of support... 41
S. 648 AND S. 1911
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WEDNESDAY, OCTOBER 6, 2021
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:35 p.m. in room
628, Dirksen Senate Office Building, Hon. Brian Schatz,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BRIAN SCHATZ,
U.S. SENATOR FROM HAWAII
The Chairman. Good afternoon. During today's legislative
hearing, we will consider two bills, S. 648, Technical
Corrections to the Shoshone-Paiute Tribes of the Duck Valley
Reservation Water Rights Settlement Act of 2021, and S. 1911,
Gros Ventre and the Assiniboine Tribes of the Fort Belknap
Indian Community Water Rights Settlement of 2021.
The Federal Government has a special trust responsibility
to ensure the general welfare of Native communities. This
responsibility includes helping Indian tribes secure access to
clean and reliable water.
But as the Committee heard earlier this year, many Native
communities still don't have that access and continue to lack
basic infrastructure for water delivery to homes and businesses
on their lands. That is why Indian water rights settlements are
such a critical tool in the planning and management of water
resources, particularly in the west. Indian water rights
settlements not only resolve disputes among water users, but
they also gives tribes the tools to develop much-needed water
infrastructure, support their economies, and improve
environmental and health conditions on their lands.
Both bills before the Committee relate to Indian water
rights settlement, but they represent opposite ends of the
settlement process. In Senator Cortez Masto's bill, S. 648, the
Committee revisits an Indian water rights settlement Congress
already authorized and ratified. As part of the Omnibus Public
Lands Management Act of 2009, S. 648 would authorize
appropriations for the amount of interest earned on the
Shoshone-Paiute Tribes' water settlement trust funds between
2009 and 2016.
With Senator Tester's bill, S. 1911, the Committee will
turn its attention to the gratification stage of the Indian
water rights settlement process. In 2001, the United States,
the Fort Belknap Indian Community and the State of Montana
entered into a water rights compact that settled the tribe's
water rights claims. S. 1911 would ratify that settlement,
authorize Federal funds to develop water and other
infrastructure, and restore certain ancestral lands with
historic cultural and sacred value to the tribe.
Before I turn to any members of the Committee, I would like
to extend my welcome and thanks to our witnesses for joining us
today. I look forward to your testimony and our discussion.
Senator Tester, would you like to make an opening
statement?
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. I would, Mr. Chairman, and I want to thank
you and the Vice Chairman for holding this hearing. I am
incredibly pleased to see the Gros Ventre and Assiniboine
Tribes' water settlement before this Committee. It has been a
long time coming.
The Fort Belknap Indian Community has been working toward
this moment for over a century. That has included dozens and
dozens of meetings with local elected officials, irrigators,
State legislators, Federal agency and other stakeholders to
hammer out a fair compromise that honors FBIC's water rights
and protects irrigators.
We are lucky enough to have a man who has been leading the
way forward on those hard conversations for years in front of
us today. It is my pleasure to introduce Andy Werk, of Fort
Belknap Indian Community. I want to thank him for making the
trek from Montana to here to testify about the importance of
this settlement and what it means to the people that he
represents.
These are not easy water settlements. We have been here
before. It really does take a real leader to hammer out water
rights, and it takes a leader to be able to unite a community
behind it. We have talked countless times about the need to
move this settlement forward. I look forward to this hearing to
see what Chairman Werk has to say about the water settlement.
Thank you, Mr. Chairman.
The Chairman. We will now turn to our witnesses. We have
the Honorable Bryan Todd Newland, Assistant Secretary, Indian
Affairs, for the Department of the Interior, accompanied by
Brent Esplin, Missouri Basin Regional Director of the Bureau of
Reclamation, Department of the Interior. We also have, would
Senator Cortez Masto like to introduce the chairman? That is a
yes. Senator Cortez Masto, we can't hear you.
We will move on to Andrew Werk, whom Senator Tester has
already welcomed. I am going to go ahead and introduce the
Honorable Brian Thomas, Chairman of the Shoshone-Paiute Tribes
of the Duck Valley Reservation, Owyhee, Nevada.
I want to remind our witnesses that your full written
testimony will be made part of the official hearing record.
Please keep your statements to no more than five minutes.
Assistant Secretary Newland, the Committee's Rule 4(b)
requires that if a Federal witness misses the Committee's 48-
hour deadline for submission of testimony, that witness must
state on the record why the testimony was late. Please be
prepared to start your testimony with an explanation of why the
department was unable to comply again with the Committee's
rule.
Mr. Newland, please provide your testimony.
[Pause.]
The Chairman. We are having some technical difficulties.
Since we have the Honorable Andrew Werk in person, why don't
you go ahead and start, Mr. Chairman?
STATEMENT OF HON. ANDREW WERK, PRESIDENT, FORT BELKNAP INDIAN
COMMUNITY
Mr. Werk. [Greeting in Native tongue.] I am here to speak
to the truth to the Creator.
Good afternoon, Chairman Schatz and members of the
Committee. My name is Andrew Werk, Jr. I am the president of
the Fort Belknap Indian Community, or the Gros Ventre and
Assiniboine Tribe. We are the Aaniih Nakoda people.
I want to thank Chairman Schatz and Vice Chairman Murkowski
for having this hearing today. It has been a long time coming.
In 1898, we negotiated with the United States for a
permanent homeland on our Fort Belknap Reservation. Our
reservation is bordered by the Milk River to the north and the
Little Rocky Mountains and Missouri River breaks to the south
in Hays, where I live.
The United States asked us to stop hunting buffalo and to
become ranchers and farmers. Everyone knew we would need water
and irrigation to support this new economy and provide a
permanent homeland.
A few years later, Montana was established and became a
State, and was open for non-Indian settlement. Upstream from
our reservation, Henry Winters went into the Milk River to
divert and take our waters. In 1908, the Supreme Court ruled in
our favor. It held that when we reserved these lands, we also
reserved the waters needed to make a homeland. This is what
everyone knows as the Winters Doctrine. It should be known as
the Aaniih Nakoda Doctrine.
Our tribes fought for the waters we need to make a
homeland. The Supreme Court ruled that you can't have the water
without the land.
For more than 100 years, the Winters Doctrine has protected
the water rights of all Indian tribes. Now, our water rights
need to be protected. We won this important legal victory, but
over the next 100 years, the United States failed to protect
and support our water rights.
Our bill resolves our claims against the United States and
will allow us to move forward in harmony with our neighbors. If
we don't work together to reach a settlement, we will go back
to court and enforce our senior water rights. There is no
question who has the senior water rights in the Milk River.
Just ask Henry Winters.
The non-Indian irrigators in our area know this and support
our bill. No one wants litigation. This is our future. Our bill
will grow our economy and benefit the entire region for future
generations.
Our bill does a few important things. It improves our water
compact that overwhelming passed the Montana legislature in
2001 on a bipartisan basis. The compact sets out our senior
water rights and the compromises we made to allow non-Indians
to continue to irrigate their lands.
Our bill also settles litigation claims against the United
States. The settlement includes restoring tribal lands and
providing critical funding for our infrastructure and economic
development.
Our water settlement is an infrastructure bill. You can put
our projects into the Senate infrastructure bill and you would
never know the difference. More than $200 million will go
toward fixing our Federal irrigation project. This is funding
for the BIA project in desperate need of repair. Another $40
million will go for reservoirs, flood control, stock watering
and other irrigation facilities.
About $123 million will be used for safe drinking water
infrastructure, and about $230 million will support economic
development, training and operation costs related to water
development.
Our bill is a true Indian water rights settlement. It
provides Indian water for Indian people using our lands. Almost
all of our lands are held in trust, about 97 percent.
Agriculture is still the biggest private industry on our
reservation. These are Indian ranches and farmers that were
left behind. We need the waters that we reserved to make a
living and to expand our economy.
Our settlement also provides protections for non-Indian
users, non-Indian irrigators across the region. We have written
letters of support.
Our water settlement bill will also restore tribal
homelands. This includes addressing the impact of allotment and
restoring part of the Grinnell Notch that was cut from the
Little Rockies on our southern boundary. The Grinnell Notch was
taken by fraud and threat of starvation. The United States
discovered gold in the Little Rockies. Less than 10 years after
we settled on the reservation, the United States sent agents to
take more lands. The agents lied. The agents also made threats.
They said, I see that some of you people are pretty blind, you
can't see far. Two years from now, if you don't make any
agreement with the government, you will just have to kill your
cattle, then you will have to starve.
This was not true. We already ceded vast lands and
resources and had treaties and agreements with the United
States protecting these provisions. My great-great-grandfather
Lame Bull did not back down. He said, ``Look at my hair, it is
gray. I say the same thing as I said before. I don't want to
sell.''
But the United States wanted a gold mine, and cut 60,000
acres from our southern boundary. Now that mine is a Superfund
site and drains acid into the water. Some of these groundwaters
that flow onto our reservation will be polluted forever. These
waters pass by our celebration grounds, our ceremonial grounds
where our children swim. It is a perpetual nightmare.
We are not asking for all the Grinnell Notch to be
restored, just 14,000 acres we need to manage our headwaters
and the watershed in the Little Rockies.
Grinnell was wrong. Our people could see far. The Little
Rockies are a place of refuge and worship for the Aaniih Nakoda
people, they are sacred. We go to these island mountain
homelands to pray, heal, and gather medicines. Cutting the
Grinnell Notch out of our reservation scarred our hearts. Our
water settlement bill will help us heal this scar.
We ask that the Committee consider our bill and move it
forward quickly. Our bill is an infrastructure bill and will
promote economic development on our reservation and for all
across central Montana for future generations.
Mr. Chairman, Madam Vice Chairman and members of the
Committee, water is life. We are the Winters Reservation. That
should mean something. This is about the future of the Aaniih
Nakoda people.
Thank you for having this hearing today.
[The prepared statement of Mr. Werk follows:]
Prepared Statement of Hon. Andrew Werk, President, Fort Belknap Indian
Community
Chairman Schatz, Vice Chairwoman Murkowski, and Members of the
Senate Committee on Indian Affairs, my name is Andrew Werk, Jr. I serve
as President of the Fort Belknap Indian Community Council. Thank you
for the opportunity to testify in support of S. 1911, the ``Gros Ventre
and Assiniboine Tribes of the Fort Belknap Indian Community Water
Rights Settlement Act of 2021.'' It was our Tribes who fought for the
right to use the water on our Reservation and established the federal
law that governs all Indian reserved water rights in the United States.
This federal law is known as the Winters doctrine. Now, more than a
century later, it is time to confirm our historic water rights and
approve our Water Rights Settlement, which will provide us the ability
to develop and use our water.
In his writings as an Indian law scholar, Department of the
Interior Solicitor Robert Anderson recognized the importance of
Congressional action to approve Indian water rights settlements. He
wrote that:
The struggle of Indian tribes to maintain their property and
survival as distinct communities is revealed by examining the
status and treatment of Indian water rights by the federal
government. Indian reserved water rights are trust property
with legal title held by the United States. They were first
recognized in 1908 in Winters v. United States. As such, one
might expect to find that by now a trustee would have developed
an effective system for defining and protecting the trust
corpus. \1\
Through a series of treaties and agreements with the United States,
we reserved a permanent homeland in 1888, our Fort Belknap Reservation
for the Gros Ventre and Assiniboine Tribes. In these negotiations we
ceded millions of acres of our ancestral lands and resources. In
return, through the Treaty of 1855, the 1888 Congressional Act, and
other agreements, the United States promised to provide and support an
agricultural economy that would sustain our Tribes on our reserved
homelands. Over the next 100 plus years, the United States failed to
fulfill many of these commitments, including protecting and preserving
our waters, and we now have the highest poverty rate of any tribal
reservation in Montana. \2\
We support the renewed commitment of the current Administration to
settle tribal disputes. We now ask Congress to acknowledge our many
years of negotiations with the United States through our assigned
Federal Negotiations Team and the Secretary's Indian Water Rights
Office (SIWRO). Our Water Rights Settlement is based on long-standing,
historical principles of federal policy and related court decisions on
the reserved water rights of Indian people that ensure we will receive
the full benefit of the water rights promised to us in treaties and
agreements with the United States. These principles include (1)
recognition of a reservation of water for reservation homelands and the
promise of assistance in establishing an agricultural economy when
valuable tribal lands were ceded to the United States; (2) a method of
quantifying our Indian water rights based on the practicably irrigable
acreage (PIA) of the reservation; and (3) the importance and obligation
of the United States to honor its treaty promises and keep its word to
assist us with the establishment of a viable agricultural economy in
order to create a permanent homeland.
Irrigation began on our Reservation in 1889. Several years later,
Congress authorized the Fort Belknap Indian Irrigation Project. Soon,
non-Indian, upstream irrigators were depleting our main water supply,
the Milk River. The United States, our trustee, protected a portion of
our Indian water supplies and went to court to defend them. In 1908,
the U.S. Supreme Court concluded that the lands of the Fort Belknap
Reservation were ``practically valueless without irrigation-a barren
waste[,]'' Winters v. United States, \3\ and established what is now
the seminal legal doctrine for Indian reserved water rights, known as
the ``Winters Doctrine.'' The Indian reserved water rights began with
our Reservation, and we are the ``Winters Tribes.''
This critical federal Indian law doctrine has stood the test of
time. \4\ A final settlement of our Indian reserved water rights and
claims against the United States for the mismanagement and failure to
protect this critical natural resource will reaffirm the Winters rights
for all tribes. Additionally, as Department Solicitor Robert Anderson
has stated:
Most important is the fact that in the era of negotiated Indian
water settlements, PIA is the one component that can be
objectively evaluated and thus serves as a cornerstone for the
settlement framework. \5\
Settling our Indian reserved water rights claims in a manner that
acknowledges the United States' broken treaty promises and trust
responsibilities will demonstrate the historical Congressional
commitment to protecting tribal treaty rights and tribal natural
resources. It will fulfill the federal government's fiduciary trust
duties to the Fort Belknap Indian Community that derive from the early
Treaty and agreements between our governments. It will bring an end to
a 30-year process of negotiations between the United States, Montana,
and our Tribes. As stated in Final Report 23 of the Commission on
Indian Trust Administration and Reform (2013), the usual zealous
Departmental defense in litigation against the United States ``should
be tempered and informed by the federal-tribal trust.'' \6\ Both
Congress and President Biden's Administration, under Secretary
Haaland's leadership, have an historic opportunity to demonstrate this
approach to Indian reserved water rights settlements for the ``Winters
Tribes'' with a fair, monetary settlement that will support the
development of our Indian reserved water rights, promote our Tribal
self-determination and self-sufficiency, and result in an economically
healthy and permanent homeland for our people. Our Water Rights
Settlement will be an Indian water settlement for Indian people.
We ask Congress to put the brakes on a disturbing trend in federal
Indian water rights policy. There has been a slow but discernable shift
away from federal ownership of the centuries of mistreatment and broken
promises of the United States toward Indian people as it relates to the
promise of assistance in creating a permanent homeland and self-
sufficiency with the development of reservation Indian water rights.
However, under Congressional leadership, the pendulum can swing back
toward courageous, forthright, and fair decisionmaking to settle Indian
reserved water rights--in particular, after 30 years of negotiations
with the federal government and the State, the Indian water rights and
claims of the Fort Belknap Indian Community must now be approved. It is
long overdue.
We are not a wealthy Tribal government nor wealthy people; we do
not have fancy casinos or vast energy resources. A settlement of our
Indian water rights will bring long overdue investments in
infrastructure on our Reservation. With a population of 8,150 enrolled
members, and a large land base of 625,000 acres, our reservation lands
are 97 percent trust lands, held by the United States for the Fort
Belknap Indian Community (``FBIC'') and our allottees. \7\ Similarly,
our Fort Belknap Indian Irrigation Project serves primarily the trust
lands of Indian people.
In the 1980s, we chose settlement over litigation with the State
and Federal governments when we initiated negotiations with the Montana
Reserved Water Rights Compact Commission and an assigned Federal
Negotiations Team. President George H. Bush established the Secretary's
Office of Indian Water Rights Settlements in 1989, and the Department
of Interior (``Department'') adopted federal regulations promoting
Indian water settlements in 1990. \8\ This provided the structure and
guidance for the negotiations and settlement of claims concerning
Indian water resources over litigation, offering a promise to tribes
that their right to water would be developed at long last with the
support of its trustee.
We came to the bargaining table in good faith that our Federal
Negotiations Team was fully participating, not just it is governmental
capacity, but also as the trustee over what is our most valuable
natural resource-water. We adopted the court-approved principles of
practicably irrigable acreage (PIA) to quantify the volume of our
Indian reserved water rights, \9\ and negotiated the administration of
our water. Many hours of negotiations, extensive studies, public
meetings across northcentral Montana, and Tribal community meetings
took place to reach an agreement, not only on the quantity and
administration of our water rights, but also for the mitigation of the
impact of the full development of our agreed-upon reserved water rights
on non-Indian state water users.
After more than 10 years of negotiations, we reached an agreement
with the State and Federal governments-the 2001 ``Fort Belknap-Montana
Compact, entered into by the State of Montana, the Fort Belknap Indian
Community, and the United States of America'' (``Water Compact''). \10\
Our Water Compact easily passed the Montana Legislature with a large
bipartisan majority.
Our negotiations and settlement efforts have not been easy. Over
the three decades of our negotiations with the federal government
related to our damages claims, we have experienced the Department of
Interior's shift in the interpretation and implementation of the policy
of the Department. \11\ Unfortunately, the Winters decision did not
trigger a renaissance of funding commitment by the federal government
to develop reservation water rights. But acknowledgement and
recognition of the federal government's trust responsibility and
obligations over Indian water rights as held in trust by the United
States for the benefit of the Indians can be found in key documents.
We pull a few threads of history to illustrate the shifting policy
of the United States and disturbing trend in federal policies and
efforts to settle Indian water rights claims. For example, in 1956,
Congress enacted the Colorado River Storage Project Act and made a
phenomenal statement of its recognition of fiduciary responsibility in
the following provision for the Navajo Nation's participation in water
infrastructure development:
[T]he costs allocated to irrigation of Indian-owned tribal or
restricted lands within, under, or served by such project, and
beyond the capability of such lands to repay, shall be
determined, and, in recognition of the fact that assistance to
the Navajo Indians is the responsibility of the entire nation,
such costs shall be nonreimbursable. \12\
Assistance to the Navajo Indians, of course, was representative of
the Government's responsibility to Indian people, generally. But
progress in funding the federal support for Indian water rights
development has been exceedingly slow while the United States focused
on and built western water infrastructure projects for the non-Indians.
\13\
After Arizona v. California adopted and reinforced the Winters
doctrine for the recognition of Indian water rights in 1963, and
created the practicably irrigable acreage standard for quantifying a
tribe's water rights, \14\ Congress passed the Indian Self-
Determination and Education Assistance Act of 1975. \15\ President
Nixon signed and introduced it as the ``dawn of the self-determination
age,'' and described the following:
``[t]he special relationship between Indians and the Federal
government is the result of solemn obligations which have been entered
into by the United States Government . . . [T]he special relationship .
. . continues to carry immense moral and legal force.'' \16\
This was followed by President Jimmy Carter's adoption of the
Federal Water Policy initiative in 1978 to promote Indian water rights
settlements over litigation. \17\
Congressional frustration over the slow pace of Indian water
settlements by the Department of Interior was evident in 1989 when
Senators Mark Hatfield (OR) and James McClure (ID) drilled Interior
Secretary Manuel Lujan and asked: ``Why can't the administration agree
that these settlements are a national obligation now to be funded?''
\18\
But by the beginning of the 21st Century, federal policy
interpretation was shifting away from the historical recognition of the
United States' obligations as the trustee of Indian water rights. In
2008, the Department published revised Federal Regulations governing
Federal Indian Irrigation Projects. \19\ The Department declared, in
its response to ``Public Comments'' during the rule-making process,
that it ``does not have a trust obligation to operate and maintain
irrigation projects,'' \20\--shocking many in Indian Country. The
single case relied on by the Department to support its blanket
conclusion of application to all Federal Indian Irrigation Projects was
not justified and can be distinguished from other tribal claims and
circumstances characterizing the solemn promises of the United States
to develop an agricultural economy for a homeland reservation. This is
a striking shift from the declaration that Congress made in 1956, when
assistance in the development of Indian irrigation projects was ``the
responsibility of the entire nation.''
Subsequently, the Department issued Order No. 3335, ``Reaffirmation
of the Federal Trust Responsibility to Federally Recognized Indian
Tribes and Individual Indian Beneficiaries,'' in 2014. This again
caused a stir in Indian Country when the Department relied on another
single, judicial decision to limit the scope and narrow the definition
of its responsibilities by adopting the conclusion that specific
statutes and regulations must establish the fiduciary relationship and
define the contours of the United States' fiduciary responsibilities.
\21\ This position was expressly rejected by the Secretarial Commission
on Indian Trust Administration and Reform and by other decisions of the
United States Supreme Court. \22\
The Department seemed to ignore judicial guidance to apply a ``fair
interpretation'' rule when analyzing the government's fiduciary duty in
tribal treaties, Congressional Acts, and agreements, which ``demands a
showing demonstrably lower than the standard for the initial waiver of
sovereign immunity [under the Indian Tucker Act]''; it is enough that a
statute be reasonably amenable to a reading mandating a right of
recovery of damages--``a fair inference will do.'' \23\ The isolated
cases that the previous administrations have relied on from time to
time to seemingly narrow the scope of the federal government's trust
responsibilities to tribes should not form the basis for the
Department's carte blanche adoption of such a policy to guide the
settlement of our Indian water rights. We urge Congress to also
consider this historic trend away from its trust responsibilities to
tribes as it relates to Indian water rights and development, and
provide the leadership to reverse such a trend in the federal
government's policy.
We conclude that the recent decision by the U.S. Supreme Court, in
McGirt v. Oklahoma, \24\ should breathe new life into the federal
government's understanding of the importance of the early Treaty
promises and obligations the United States made to tribes and the
importance of the Government ``keeping its word.''
The McGirt decision was followed by President Biden's promise of a
renewed ``commitment to fulfilling Federal trust and treaty
responsibilities . . . [,]'' \25\ and the current Administration has
declared a policy that will reverse the slide away from the federal
obligations promised to tribes. In 2013, the Commission on Indian Trust
Administration and Reform expressly rejected the narrow standard for
breach of trust damages cases:
The federal government has rested on this narrow standard from
the damages cases to refuse to act to protect tribal resources
from prospective harm, and to resist tribal efforts to compel
agency action. As one respected commentator noted, ``The trust
responsibility should play a role in protecting tribal lands
and resources, but the trust doctrine stands in potential
jeopardy today as courts collapse protective trust requirements
into statutory standards.'' \26\
The Fort Belknap Indian Community has been negotiating our water
rights settlement with its trustee for the past 30 years. The pace of
negotiations and settlement is excruciatingly slow. During this period
of settling our Indian water rights, there seems to have been this
silent shift away from the commitments of the 20th Century to protect
and preserve Indian water rights. \27\ The federal government seems to
have backed away from a national commitment to fund Indian water
settlements and, in particular, its responsibilities to tribal water
projects funded at a level that supports full Tribal water rights'
development that will support economic opportunities on reservations
such as ours.
We played by the rules. But our effort to complete our water rights
settlement with the federal government over the past 2 decades has been
stymied by a series of past Administrations who have, without
explanation, seemed to take political aim at the PIA-based size and
scope of our agreed upon Indian reserved water rights by asserting the
need to reduce the Government's trust obligations to us and denying the
scope of our damages claim that address the federal government's
failure to build the water delivery infrastructure required to protect
and preserve our water rights and put them to use--the purpose of which
is to create our permanent homeland through the development of a stable
agricultural economy. We fear that this recent policy trend seems to
focus on an Indian water settlement funding policy that is based on the
size of the reservation and tribal population, for which there is no
legal basis, instead of a policy based on the PIA quantification
standard and Treaty promises.
The promise of a true commitment to tribal sovereignty with
economically viable homelands can become our reality. The promise of
our early agreements with the United States, when we ceded millions of
acres of land, was a permanent, livable homeland and assistance in the
development and use of our reserved water rights. The United States has
a continuing trust obligation and programmatic responsibility to
provide the Fort Belknap Indian Community a permanent and economically
sustainable homeland. Congressional approval of our Water Rights
Settlement will be the fulfillment of the United States' Treaty
promises to the Gros Ventre and Assiniboine Tribes.
Brief History of the Gros Ventre and Assiniboine Tribes
Our Gros Ventre and Assiniboine Tribal members are a resilient
people. But certain stark facts about our lives when compared to our
non-Indian neighbors supports the conclusion that the United States has
failed in its obligation to establish our permanent homeland as a self-
sufficient, economically vibrant Reservation and thriving people.
Population, Health, and Economic Hardship. We have 8,150 certified
enrolled members in the Gros Ventre and Assiniboine Tribes, \28\ half
of whom live on the Reservation. \29\ Due to a lack of adequate
housing, many of our members live in nearby towns or rural areas and
drive to the Fort Belknap Reservation each day or throughout the week.
\30\ About 92 percent of the people living on our Reservation are
American Indians. \31\ The median age at death of American Indians
residing in Montana is 18 years lower than that of white people. \32\
Poverty has become the norm fueled by economic depression and high
jobless rates, lack of infrastructure, and substandard housing. The
Fort Belknap Reservation economic hardship can be broken down as
follows: 40 percent poverty rate; 34 percent unemployment rate; $29,566
median household income; and $10,896 per capita income. \33\ Our very
high unemployment rate can be compared to the much lower unemployment
rates in neighboring Blaine County (10.4 percent) and Phillips County
(5.1 percent). \34\
Farming Economy. Agriculture remains the mainstay of our
Reservation economy and virtually the sole industry. Farms located on
the Reservation are largely operated by Tribal members. \35\ However,
the low level of agricultural productivity is reflected in the low
family incomes and standard of living currently experienced by our
members.
Conclusion. Increasing the availability of water on our Reservation
and supporting the FBIC development of its Indian water rights will
give the Tribes the kind of economic opportunity that can improve the
social and economic well-being of our people. In a partnership with the
Federal government, we can construct, develop, operate, and maintain
the infrastructure required to secure the settlement promise of ``wet
water,'' develop a sustainable agricultural economy, and provide
economic self-sufficiency for our permanent homeland.
FBIC Water Settlement is an Infrastructure Bill
After ceding millions of acres of territory, the Gros Ventre and
Assiniboine Tribes reserved the Fort Belknap Reservation in what is now
northcentral Montana. These lands were reserved and set apart ``as an
Indian reservation as and for a permanent home and abiding place.''
\36\ Our Reservation lands have never been broken apart and lost to
non-Indians. Our Fort Belknap Indian Irrigation Project is and remains
a federal Indian irrigation project. The quantification of our Indian
reserved water rights is based on the well-respected and legally
adopted principles of Practicably Irrigable Acreage (PIA). \37\ During
the negotiations of our rights, we successfully demonstrated that we
have an adequate water supply with arable soils to support irrigation
system infrastructure.
Therefore, the significant purpose of our FBIC Water Rights
Settlement is to settle our water-related claims against the United
States with sufficient compensation to support the development of our
2001 Water Compact water rights, described in the ``Fort Belknap Indian
Community Comprehensive Water Development Plan.'' \38\
In working with the SIWRO and Federal Negotiations Team for several
decades, we have responded to the shifting Administration
interpretations of the Indian water settlement policy and
Administrative preferences. The FBIC Water Settlement Bill has been
revised numerous times across this period based on the Administration's
feedback and preferences. We ask that Congress give serious
consideration to the policy requirement that tribes receive equivalent
benefits for rights released as part of a settlement and realize value
from confirmed water rights. \39\ And with regard to the state cost
share requirement of Indian water settlements, we ask Congress to
consider the fact that out of 26 settlements enacted by Congress by the
end of 2016, as summarized by SIWRO, the following state cost shares
were the following: 8 out of 26 settlements had 0 percent cost sharing;
6 settlements had cost shares between 0 percent and 5 percent; and 10
settlements had a cost share between 5 percent and 30 percent. After
the 2001 ratification of our Water Compact, the Montana State
Legislature approved financial commitments and contributions that will
support the State's cost-share to our settlement.
In 1942, the U.S. Supreme Court stated that the United States ``has
charged itself with moral obligations of the highest responsibility and
trust.'' \40\ We ask Congress to consider our historical circumstances,
the United States' moral obligation, and the responsibility of the
entire nation \41\ in providing the costs necessary to develop the
projects identified in our Comprehensive Water Development Plan that
are designed to allow us to put our Indian water rights to use.
Aaniiih Nakoda Settlement Trust Fund
The vast majority of the funding in our Water Rights Settlement
Bill will go toward supporting and developing long overdue human and
traditional infrastructure investments that the United States promised
to the Gros Ventre and Assiniboine Tribes. The Aaniiih Nakoda
Settlement Trust Fund in our Water Rights Settlement Bill, S.1911,
includes four funding accounts that will both compensate the FBIC for
damages, described in the following section, and provide for the
development of our Indian water rights. These accounts are the
following:
Tribal Land and Water, Rehabilitation, Modernization, and Expansion,
Account #1 ($240,140,000)
More than $221.5 million, will go to repairing, expanding,
and restoring the BIA's Fort Belknap Indian Irrigation Project,
including the Milk River unit, the Southern Tributary
Irrigation Project (STIP), and the Peoples Creek Irrigation
Project.
Develop two critical water storage reservoirs needed to
stabilize and create a more reliable water supply for
irrigation and other purposes.
Provide for the development of a stock-water distribution
system on the Reservation.
Provide for the purchase of lands within the Project, farm
loans, and the repair and re-establishment of wetlands.
Explanation. Ninety-two percent (92 percent) of the funding in this
account will benefit the United States' federal property, the Fort
Belknap Indian Irrigation Project (FBIIP), which is over 100 years old
and generally exists as a long-neglected federal property, in a
dilapidated and technologically outdated state with significant
deferred maintenance needs. It is in need of major reconstruction
(rehabilitation), infrastructure repair, and modernization. This is
needed for the FBIIP to function efficiently and effectively and to
conserve its water supply. The FBIIP was authorized for construction in
1895, but construction was never completed. \42\ Account #1 includes
the completion of the FBIIP on the Milk River and restoration,
rehabilitation, and modernization of some of the irrigation units that
were abandoned by the United States in the 1960s-1970s in the southern
portion of the Reservation and on Lower Peoples Creek, largely due to
the failure of the federal government to provide storage facilities to
stabilize the water supply for irrigation purposes and prevent the
flooding of arable lands.
The funding also supports the construction of an off-stream water
storage facility on the Milk River that will stabilize the water supply
and provide water delivery to the lands in the expanded area of the
FBIIP. This storage facility will benefit non-tribal water users
downstream due to return flows, timed to provide a contribution to the
Milk River water supply during the agricultural season when flows are
low. The Water Compact provides for the coordination of operations
between Fresno Reservoir, Nelson Reservoir, and the proposed, off-
stream Fort Belknap Reservoir that will improve water efficiency and
conservation.
This funding account supports the Peoples Creek Irrigation Project
that will provide flood control on the Lower Peoples Creek, protecting
irrigable trust lands, and the construction of the new Upper Peoples
Creek Dam and Reservoir. Finally, the funds will provide for a stock
water distribution system and smaller projects to benefit Tribal FBIIP
farmers and ranchers.
Account #1 of the Settlement Fund accounts for 40 percent of the
total compensation sought by the FBIC. This funding will primarily
improve the condition of and complete the FBIIP, prevent continued
failure by the United States to fulfill its trust obligations to the
FBIC to protect, preserve, and properly manage the FBIC water rights,
and contribute to FBIC's ability to realize the full potential of its
arable lands and the abundant water supplies available to us.
Water Resources and Water Rights Administration, O&M and Repair,
Account #2 ($61,300,000)
Funds will be used to create a trust fund to provide long-
term support for the Tribal Water Resources Department to
administer and manage the FBIC's water rights and an Operations
and Maintenance Fund to ensure repair and upkeep of the
irrigation projects.
Explanation. Account #2 supports the traditional Indian water
settlement activities crucial to the establishment of a Tribal Water
Resources Department. A Trust Fund will allow the Tribal Department to
operate on the annual interest earned on the trust fund and support the
costs of the regulation, administration, and enforcement of the FBIC
water rights with the development of a Tribal water code, as well as
capital projects that will provide the necessary infrastructure,
equipment, and data to support the Tribal Department activities.
Finally, Account #2 provides funds necessary to establish an Operation
and Maintenance Fund for the Tribal agricultural irrigation projects on
the Reservation, using annual earned interest to support a portion of
the annual operation and maintenance costs--proven to be important for
sustaining the agricultural economy on the Reservation. About 97
percent of the irrigable lands are trust lands.
Tribal Community Economic Development, Account #3 ($168,390,000)
Utilize water resources to develop Tribal natural gas
resources within the Reservation and supply energy resources
for an 80MW natural gas power plant.
Using increased agriculture production, develop an Integrated
Bio-Refinery producing 20-million-gallon-per-year of ethanol
and cattle feed by-products.
Improve and support the health of the Tribal work force and
Tribal communities by updating and expanding community wellness
centers to improve health outcomes and provide treatment and
prevention for diabetes, hypertension, obesity, mental health,
and substance abuse.
Explanation. The economic development account will provide capital
start-up funds for Tribal enterprises aimed at increasing Tribal
economic self-sufficiency through economic development within the
Reservation boundaries. These funds will be used to fund a portion of
the large-scale projects that have significant water requirements and
are directly related to the FBIC's overall water management. They are
intended to provide a base of good paying, stable jobs to Tribal
members, with the construction activities and economic growth
benefitting other off-reservation, local residents and businesses. The
FBIC is well-positioned to develop its potential natural gas reserves
for economic gain. Based on a comprehensive feasibility study
commissioned by the FBIC, the Integrated Bio-Refinery would directly
use irrigated and dryland crop production as input to the plant, as
well as support the use of by-product as an excellent feed for cattle,
providing a great economic advantage when used in conjunction with a
feedlot operation.
The health and wellness of our Tribal members remain a significant
concern. Wellness Centers are planned so that the health and well-being
of our Tribal work force, and the community in general, can be
improved. Wellness Centers are highly effective in combating prevalent
tribal health issues, such as diabetes, hypertension, obesity, mental
health, and substance abuse. Three centers within the Reservation are
planned.
Clean and Safe Domestic Water Supply and Wastewater Systems, Account #4
($123,280,000)
Construct and improve access to and the safety of a clean,
domestic water supply and wastewater removal systems on the
Reservation.
Develop two new wells at 300-ft deep, and one new well at
480-ft deep to provide water for the communities of the Fort
Belknap Agency, Hays, and Lodgepole.
Develop Homesite wells.
Construct new water treatment facilities in the Lodge Pole
and Hays communities.
Expand existing tribal domestic water delivery lines.
Explanation. The coronavirus pandemic resulted in an awakening in
America of the importance of tribal community access to reliable,
clean, and drinkable water-an essential human need. It is the
foundation for healthy communities and growing economies. The National
Congress of American Indians issued a report in 2017 stating that
tribes receive only 75 cents for every $100 needed for drinking water,
and estimated an Indian Health Service water sanitation facilities'
backlog at about $2.5 billion. On January 27, 2021, President Biden
issued Executive Order 14008, \43\ which provides that it is the policy
of the Biden Administration to secure environmental justice and spur
economic opportunity for disadvantaged communities that have been
historically marginalized and overburdened by pollution and
underinvestment in housing, transportation, water and wastewater
infrastructure, and health care.
FBIC has both drinking water supply issues and water quality
concerns. The cost estimates are intended to cover needed improvements
to the water facilities at each of the Reservation communities, as well
as at individual homes within the rural areas of the Reservation.
Renovation of the existing Fort Belknap Agency domestic water system
will support the anticipated future growth in domestic water demands on
the Reservation.
Damages Claim
The United States has yet to fulfill its promises under the Treaty
of 1855, and the 1888 and 1896 Congressional Acts \44\ that were to
provide a sustainable agricultural economy that can provide economic
self-sufficiency for our permanent homeland on the Fort Belknap
Reservation. The FBIC has suffered extensive damages resulting from
actions, as well as failures to act, of the United States that have
denied the FBIC the use of its reserved water rights. The statute of
limitations does not bar the FBIC's claims because the claims still
have not accrued: among other reasons, the FBIC's reserved water rights
have never been fully adjudicated, and the FBIC only began to research
the agricultural potential of the reservation starting in the mid-
1990s. Thus, the nature and extent of the FBIC's property rights in
water have not been sufficiently determined to invoke the statute of
limitations; the extent of the FBIC's reserved water rights is what
would be litigated if these settlement negotiations fail. Although
these facts were not fully known by the FBIC, the valuable interests of
the FBIC were known to the United States and should have been
vigilantly asserted and protected by the federal government, as trustee
of the reserved water rights. Instead, the Government intensively
developed the watershed for the benefit of non-Indians, without regard
for the plain economic and social needs of the members of the Tribes
and the FBIC.
The FBIC has determined an estimate of the amount of damages that
it has incurred with respect to its reserved water rights and
resources. The FBIC's Water Rights Settlement Act would settle
approximately $730 million in claims against the United States by
providing a total of $593,110,000 in damages to the FBIC, and includes
the return of some ancestral and Reservation homelands that will be
transferred back to the FBIC. When these damage claims are settled as
part of the settlement of our reserved water rights, such claims will
be relinquished.
Explanation of Damage Claims. The FBIC claims both historical and
future monetary damages as a result of the United States' past and
continued failure to protect the Reservation's water supply on behalf
of the FBIC (``U.S. Failure''). The damages are determined for each of
six claims and based on estimates of the income for irrigated farming
that the Tribes could have realized in the past and would be expected
to realize in the future had the U.S. Failure not occurred (``Lost
Income'').
There are two types of damage claims alleged by the FBIC. The first
type consists of damages due to the alleged taking of water from the
Reservation when the Canadian Boundary Water Treaty was signed, and the
alleged taking of tribal property when Dodson Dam was built in 1908.
The second type of damages claims arises from breach of trust
responsibilities and obligations due to the failure of the United
States to protect FBIC water rights, including against non-Indians, to
complete and properly operate and maintain the BIA Fort Belknap Indian
Irrigation Project, and to fulfill the expressed purposes of the Fort
Belknap Reservation by adequately developing our water supply,
including with irrigation systems and storage facilities, pursuant to
the Tribal Treaty and Congressional Acts, and the Winters decision,
\45\ which would support the promised, permanent homeland for the FBIC
and its Tribal members. The following are the summary descriptions of
each of the claims:
A. ``Taking'' of Milk River water in signing the 1909 Boundary
Waters Treaty. The Boundary Waters Treaty with Canada \46\ deprived the
Reservation of irrigation water. The highest and best use of water that
was taken from our Reservation would have been irrigated agriculture.
Natural Resources Consulting Engineers, Inc., the FBIC's water
resources experts, estimates that the water given to Canada in the
Treaty was sufficient to irrigate 9,400 acres of Reservation lands
beginning in 1909. Damages: $266,321,121.
B. ``Taking'' of land for Dodson Dam. When Dodson Dam was
constructed in 1908, Tribal land was taken both for the Dam itself and
for the use of a canal. In addition, seepage from the canal waterlogged
nearby land, rendering it unsuitable for irrigation. The total
irrigable land taken from the Tribe was 2,587 acres. Damages:
$74,640,836.
C. Breach of trust on land taken for Dodson Dam. Even prior to the
Dodson Dam's construction, the United States breached its trust
responsibility by not assisting the Tribes in developing its land for
irrigation. This claim is made for the same 2,587 acres as in the above
paragraph, but for the period 1900-1908, prior to the Dam. Damages:
$4,595,747.
D. Breach of trust on land that could have been flood-irrigated
from the Milk River. The United States failed to develop irrigation
works to use the water that was available on the Reservation, which
diminished the amount of irrigation that actually occurred on the
Reservation. The United States built a tribal project that irrigated
approximately 10,000 acres. However, 13,027 acres could have been
irrigated given contemporary technology. This claim is based on the
difference between historical actual acres irrigated and the potential
irrigation of 13,027 acres. Damages: $90,976,421.
E. Breach of trust on land that could have been sprinkler-irrigated
from the Milk River. By the end of World War II, the United States had
developed a large capacity for making aluminum, largely used during the
war to build aircraft. Following the war, this industrial capacity was
available for peacetime uses, including making the aluminum pipe that
made widespread sprinkler irrigation practical. The first post-war
shipment of aluminum pipe for use in sprinkler irrigation was in 1946,
and from then sprinkler irrigation grew rapidly. The United States
failed to utilize this new technology to support the promised
agriculture economy on our Reservation. Damages: $222,384,416.
F. Breach of trust on land that could have been irrigated within
the Southern Tributary Irrigation Projects (``STIP''). In the early
1960s through 1970 the United States failed to adequately maintain, and
effectively abandoned, the irrigation water delivery systems serving a
total of 8,313 acres of STIP lands. The responsibility for the
irrigation of 6,828 acres of this land was formally transferred by the
U.S. to landowner organizations, transferring all of the right, title,
and interest of the U.S. in the irrigation systems. The irrigation
delivery systems were in complete disrepair, were no longer functional,
and the United States did not provide any associated management
training to the landowners. Five other irrigation units consisted of
1,485 acres. No evidence has been identified to support a conclusion
that these units were officially transferred to the water users, and
the Federal government has failed to maintain them in an operable
condition. The operation and maintenance responsibility of these units
has remained with the Federal government to this day. Damages:
$69,711,463.
Explanation. The approach taken to estimate both types of damages,
D and E, above, was to reconstruct an agricultural economy that
reasonably could have been supported by the land and water resources of
the Fort Belknap Reservation. The income available from dry farming or
from grazing and the difference was used to determine the damages due
to a lack of a developed water supply. One difference in approach in
valuing the takings claims as opposed to the breach of trust claim is
the treatment of accumulated interest on historical damages. Interest
is applied to damages in the takings claims, but not for the breach of
trust claims. Historical damages have been restated in today's dollars
in order to maintain the purchasing power of the foregone income. The
cost of settlement is fully justified by the needs of the Reservation
and the FBIC potential claims against the United States.
Land Transfers. The Bill also provides for the transfer of 58,553
acres of lands to restore FBIC's homelands and provide for the
following:
Tribal management of the headwaters of streams that are part
of our Indian water rights, but currently below the southern
boundary of our Reservation. The land transfer includes only
14,495 acres of the more than 60,000 acres in the Little
Rockies that were removed from our Reservation barely 7 years
after it was established, and include our sacred sites that
support the traditional spiritual and cultural practices of our
Tribal members.
Shortly after our Reservation homeland was established, the Indian
Commissioners returned to secure a portion of our new 1888 homeland
because gold was discovered on our Reservation. They threatened us with
starvation if we did not agree. Our Tribal leaders were told that if we
did not sell more of our land, that ``there would be no way to get
beef, cattle, flour, wagons, or anything else . . . and your women and
babies [will be] crying for something to eat. . . .'' \47\ In other
words, that the United States would abandon us-in spite of its
promises-and we would starve to death.
As an agent of the United States, Commissioner Grinnell said to us,
``I see that some of you people are pretty blind. You can't see far.
Two years from now, if you don't make any agreement with the
government, you will just have to kill your cattle and then you will
have to starve.'' \48\ My great-great grandfather, Lame Bull did not
back down from these threats. He retorted, ``Look at my hair. It is
grey. I say the same thing as I said before. I don't want to sell.''
Grinnell was wrong.our Tribal leaders could see far into the future.
A leading scholar on Indian history offered the following
description from Indian people over their land losses: ``This is where
we worshipped-we prayed-where we got our spiritual sustenance and went
to commune with the Creator, who protected us.'' \49\ But, as this
historian explained, the Indian agents and the leaders of the new
country never understood the spiritual shock that the Indian people
suffered when their lands were stolen. But the Gros Ventre and
Assiniboine people were in a state of extreme destitution when these
lands were removed, and they still grieve over the loss of these sacred
lands.
Additionally, although our Tribal Leaders were told that the
portion of our Reservation that would be taken by the federal
government would be 40,000 acres, the subsequent land survey included
60,000 acres there were removed from the southern boundary of our
Reservation. But monetary compensation to the FBIC was only provided
for 40,000 acres.
Finally, the Indian agents told our Tribal Leaders that our water
rights would not in any way be impaired by this land removal. Now the
waters used by the miners south of our Reservation are polluted and are
part of a Super Fund to clean up the damages. The lands we are
requesting be returned to us, however, are north of this area of
environmental pollution.
Consolidation of Tribal lands both on and off the Reservation
(including the submarginal land area adjacent to the western
boundary of the current Reservation) for improved
administration; and
Better management of forested lands by our experienced land
management department and fire response team, and the
restoration and protection of the FBIC's cultural resources.
These lands include state trust lands (27,709 acres), and federal
lands (30,844 acres) (i.e., lands held by the Bureau of Land
Management, Bureau of Reclamation, and Department of Agriculture).
Mitigation for State Water Users
After our long-time cooperation and compromises with our non-Indian
neighbors, Congressional support of the agreed-upon mitigation
activities in our negotiated FBIC-State-Federal Water Compact will
create harmony at a time when water wars between water users are
increasing. In fact, Montana is in a severe drought this year.
Mitigation activities will stabilize the water supply, conserve water,
and improve water use efficiency. Consistent with the Federal
government's policy to resolve Indian water rights disputes through
negotiated settlements, \50\ our Water Compact (a) is an agreement to
which the federal government is a signatory party; and (b) will create
long-term harmony and continued cooperation among the interested
parties by respecting the sovereignty of the State and FBIC in our
respective jurisdictions. \51\
The Montana Reserved Water Rights Compact Commission
(``Commission'') was created by the State legislature to negotiate
tribal water settlements with tribes and the federal government. \52\
Negotiations among our Parties were conducted in earnest throughout the
1990s. The Commission conducted no fewer than 20 meetings between 1997-
2000 throughout our region, known as the Hi-Line area of northcentral
Montana, for public information and input on the proposed Water
Compact. The Commission documented over 18 negotiating sessions with
the FBIC and Federal government between 1990-2000. In addition,
substantial public information and drafts of the Water Compact were
distributed through numerous public and FBIC outlets. \53\ This
extensive public and tribal information effort led to the overwhelming
approval of our 2001 Water Compact by the State Legislature (94 percent
approval in the House and 87.5 percent in the Senate). The FBIC Council
also approved the Water Compact.
As described in the Fort Belknap-Montana Water Compact, the Parties
plan improvements in the operating capabilities of the Milk River
Project, where the Milk River is the FBIC's largest source of our
Indian water rights and forms the northern boundary of our Reservation.
These improvements will mitigate the impact of the FBIC's future water
development on Milk River Project and tributary water users. The Water
Compact also provides that the FBIC will subordinate its senior water
rights in the Upper Peoples Creek to upstream non-Indian irrigation
water users so that they will be able to continue their historical
irrigation water use.
Milk River Basin. The water diverted from the Milk River by the
FBIC is the most senior water right on the river. All water users in
this basin will benefit from the mitigation activities the Parties
agreed to in the Water Compact. Water Compact Article VI.B., Mitigation
of Impacts on the Milk River Project, provides the following:
The Parties agree that, as a result of development and use of
the Tribal Water Rights and protection of water use on
tributaries, the Milk River Project and its water users will,
at times, be adversely affected if no change is made to the
Milk River System. . . . to the level of 35,000 Acre-Feet Per
Year. . . .
Improvements in the Milk River Project will mitigate the impact of
the development and future use of our Tribal Water Rights in the Milk
River and provide protection of water use on upstream tributaries. With
the approval of the Water Compact, the Parties committed to working
together for the Congressional approval of the Water Compact. However,
because the improvements to the Milk River Project and the protection
for tributary water users will mitigate the impact of the development
of our Tribal Water Right, the mitigation measures were essential to
the State's agreement to the Compact. The State reserved the right to
withdraw as a party if ``Congress does not authorize and appropriate
the federal share of funding for the modification to the Milk River
Project or other alternatives necessary to mitigate the impact of
development on the Tribal Water Right.'' \54\
Extensive studies were conducted by each of the negotiating Parties
to analyze the impact of FBIC's water development and use on the Milk
River, and potential projects were identified by the ``Fort Belknap
Technical Team,'' a Technical Team that consisted of Federal, State,
and FBIC technical experts. Projects were identified that would provide
mitigation of 35,000 acre-feet per year for the Milk River Project and
tributary water users. Studies continued to be conducted after the
approval of the Water Compact. After years of study, and a recent
agreement between the State and FBIC on the preferred mitigation
measures, the Bureau of Reclamation is now proposing a mitigation
measure that was not selected as part of the most promising mitigation
measures identified by the Fort Belknap Technical Team. The Bureau of
Reclamation is taking the position that additional studies are now
needed to consider its mitigation preference before finalizing the
agreements between the federal government and the State that are
necessary to comply with this important Water Compact. The FBIC does
not agree that more studies will be fruitful in advancing completion of
these required negotiations. It is our position that further studies of
the relevant issues are unnecessary.
Upper Peoples Creek. The second mitigation-related agreement of the
Parties to the Water Compact is provided at Art. VI.C.:
The Parties agree, that, as a result of the protections
provided to the Upper Peoples Creek [non-Indian] water users in
the Compact and the variable natural water supply in the
Peoples Creek Basin, the water supply available for development
of the Tribal Water Right in the Peoples Creek may be limited.
The Parties agree that such impacts can and shall be mitigated.
. . through the construction of a dam and reservoir . . . and
to seek appropriations . . . for the benefit of the Tribes.
During the Water Compact negotiations, non-Indian, state irrigators
who have historically farmed on Upper Peoples Creek, upstream of the
western boundary of the Reservation, sought protection from the FBIC's
agreed-to Indian water rights quantification, development, and use in
the Upper Peoples Creek. Additionally, the Peoples Creek Basin has a
highly variable natural water supply, resulting in limitations in the
development and use of the Tribal Water Rights in Peoples Creek.
Therefore, the FBIC agreed to allow the current irrigation of lands
in Upper Peoples Creek by the non-Indian irrigators, subordinating the
FBIC's senior reserved water rights. In exchange for the FBIC agreement
with these state water users, the State and Federal governments agreed
to mitigate the impact on the FBIC water use by constructing a dam and
reservoir for the benefit of the FBIC in the Upper Peoples Creek. The
dam and reservoir will significantly improve the reliability,
availability, and use of the FBIC water rights from Peoples Creek on
the Reservation.
Montana Water Court Adjudication
In the 1970s, the State started a general stream adjudication of
all water rights through the Montana Water Court. \55\ The Legislature
set up a process that would allow tribes to negotiate their water
rights with the State instead of litigating them through the Water
Court. The negotiations process was carried out through the Reserved
Water Rights Compact Commission (``Commission''). In 1981, the FBIC
Council chose to negotiate and settle its Indian water rights with the
State and United States. In 1990, the FBIC stipulated to stay
proceedings in pending lawsuits in the federal court of Montana and the
pending adjudication in the Montana Water Courts.
However, the State Legislature terminated the activities of the
Commission in 2013 and set a deadline for all remaining Indian reserved
water rights claims to be filed with the Water Court by June 30, 2015.
The United States, as our trustee, filed the FBIC water claims on
behalf of the FBIC. Our water rights claims, therefore, are before the
Montana Water Court, and it is currently uncertain when the Court will
initiate the adjudication of our claims. However, an adjudication of
these claims after decades of negotiations, an agreed-upon Water
Compact, and a proposed Water Rights Settlement Bill before the Senate
would be tragic for all Parties at this point in time-resulting only in
a ``paper water right'' for the FBIC, with no ability to develop and
benefit from our Indian water. Therefore, time for Congressional
approval of our Water Rights Settlement is of the essence.
The FBIC should not be required to litigate its claims after good
faith bargaining with the Federal government. Yet, our Indian water
rights claims have been filed, as required under federal and state law,
with the Montana Water Court and its adjudication could proceed at any
time. We agree with Master Rifkind who observed in his 1963 Arizona v.
Colorado report that ``Indian water rights litigation turns into
sporting matches and endurance contests[,]'' and is followed by dozens
of years of ``a platoon of lawyers at work, committed to either
sustaining or destroying its result.'' \56\ The United States is too
far into our settlement effort, which can now result in fair monetary
compensation that will support the FBIC's development of its agreed-
upon Indian reserved water rights. The United States should see that
litigating the FBIC water rights claims is no longer an option and
should be avoided.
In short, litigation of Indian water rights is a lengthy and costly
process, with an uncertain outcome-for everyone. We are seeking a
settlement that provides us with ``wet water,'' with sufficient funding
to settle our damage claims and allow for the development and use of
our Indian water rights. That is the promise of settlement over
litigation.
Conclusion
With the passage of our Water Rights Settlement Bill, Congress has
an opportunity to address more than 100 years of neglect and failure of
the United States to fulfill its commitments made in treaties and
agreements with the Gros Ventre and Assiniboine Tribes. Indian water
rights are one ``of the four critical elements necessary for tribal
sovereignty.'' \57\ Our Water Rights Settlement provides ``the end of
the trail'' \58\ to recognition and enforceability of our reserved
water rights, self-sufficiency, and economic success-and supports the
permanent, livable homeland for our people that was promised to us by
the United States. Our Water Rights Settlement will confirm our
negotiated Indian water rights, is designed to provide us with the
ability to realize value from our confirmed water rights, will resolve
our water-related claims, and achieve finality on these claims. \59\
The United States' ``role in all stages of the settlement process
serves as a way to fulfill its trust responsibility to the tribes to
secure, protect, and manage the tribes' water rights.'' \60\ It
provides funding that will assist us in establishing a viable
agricultural economy and justifies desperately needed expenditures for
programmatic responsibilities, including for the federal Fort Belknap
Indian Irrigation Project. \61\ Rehabilitation, modernization,
expansion, and restoration of this Project will prevent continued
accrual of damages against the United States.
Our Indian water settlement is structured to promote economic
efficiency on our Reservation and our Tribal self-sufficiency. \62\ It
is an agricultural infrastructure plan; includes the development of
clean and safe drinking water; provides for the FBIC to administer,
manage, and enforce its reserved water rights; with additional economic
projects that will allow us to develop our Indian reserved water rights
and improve the poor economic condition of our members on the
Reservation.
Approval of our Water Rights Settlement is an historic event-we are
the Winters Tribes with a recognized Indian reserved water right since
1908, and we are the last tribes in Montana to achieve our water
settlement with the United States.
Approval of our Water Rights Settlement will also remove the cloud
over the non-Indian water rights holders from the uncertainty that
exists from a failure to approve our Water Compact.
In the promise of a permanent, livable homeland, the United States
promised an investment in community-a principal reason for justifying
reservation water projects where some doubt its cost-benefit.
Indian policy is a classic example of the recognition that there is
a community value [in water projects] and that subsidy can be an
investment in the community. . . . And community value is a reason to
support [Indian water] projects. \63\
This may require the United States to look beyond the strict
scrutiny of a cost-savings lens to settle our Indian reserved water
rights. The West was built on expansive water projects for the non-
Indian settlers, \64\ which has been called a period of disregard for
Indians while the United States subsidized water projects for non-
Indians rather than Indians. \65\
We have negotiated in good faith with our Federal Trustee, through
the SIWRO. We proceeded under the assumption that the United States was
also negotiating in good faith. Through transfer of federal power
across the decades-at the Federal, State. and Tribal levels-we have
persevered.
We urge the United States not to abandon the PIA standard for
determining our Tribes' Indian reserved water rights, and to provide us
with a fair settlement that allows us to develop our water rights to
account for nearly a century-and-a-half of failure to provide the water
delivery infrastructure needed for both our agricultural economy,
promised with the creation of the Fort Belknap Reservation and our vast
land cessions, and for other purposes that make our Reservation a
permanent homeland.
If Congress fails to support the FBIC water rights settlement after
three decades of negotiations with the United States, including
agreement with the quantification and administration of its Indian
reserved water rights in 2001, the FBIC will continue to be stripped of
its most valuable property right and tribal asset-water. We have
compromised with the state water users, and the Federal government
agreed to fund mitigation activities for non-Indian water users.
We ask that Congress support our urgency to pass our Water Rights
Settlement now. Demonstrate the United States' fiduciary responsibility
to the FBIC, as was done in another recent Congressional tribal water
settlement.
We ask that Congress support of our proposed Water Rights
Settlement and reaffirm the Winters Doctrine and PIA standards for
Indian water rights settlements. Why? In the end, perhaps, Charles F.
Wilkinson explained it the most eloquently in 1993:
``[I]t has been the role of morality that has touched my mind and
my heart. It is a morality that comes from a sense of community, a
sense of homeland, a sense of history, and a sense of promises. It is
fascinating the way an abstraction such as morality can be so intensely
practical. Without that morality, there would be no Winters doctrine
and no water settlements, because it is a sense of morality that drives
Indian policy. Tribal leaders are able to express this morality in an
evocative and fair way, explaining the history, the promises, and the
period of neglect, explaining the importance of homelands and other
values that none of us fully comprehend. This morality has carried
these Indian water settlements and other aspects of Indian policy.
Morality matters profoundly because it is the backdrop for all the
technical matters contained in these settlements.'' \66\
There is a fear in Indian country that the tide may continue to
move against us with a shift in judicial policy starting at the top.
The water wars are starting. But, with the passage of our Water Rights
Settlement Bill, Congress can reaffirm the historic Federal tribal
relations and understandings [that] have benefitted the people of the
United States as a whole for centuries and have established enduring
and enforceable Federal obligations to which the national honor has
been omitted. \67\
The continued policy of tribal self-determination and self-
sufficiency must include the use of our water, our most important
natural resource. \68\ Under the current policy of the Department, one
criteria under the framework for negotiating settlements is that
``Indians obtain the ability as part of each settlement to realize
value from confirmed water rights resulting from settlement.'' \69\
Our Water Rights Settlement Act is carefully balanced between our
claims and the development of our negotiated Indian reserved water
rights. Our Water Rights Settlement can support a renewed effort to
develop our agricultural economy, provide for economic development that
ensures the survival of our Tribes and people, and raise the standard
of living and social wellbeing of our people to a level comparable to
the non-Indian society. \70\ We respectfully ask for your support in
making our long journey complete. It is long overdue.
ENDNOTES
1 Robert T. Anderson, Indian Water Rights and the Federal Trust
Responsibility, Natural Resources Journal, 46:399-400 (Spring 2006),
citing Winters v. United States, 207 U.S. 564 (1908). [Hereinafter
``2006 Anderson Paper'']
2 U.S. Census Bureau, My Tribal Area, https://www.census.gov/
tribal/?aianihh-1150 (last visited May 12, 2019).
3 Winters v. United States, 207 U.S. 564 (1908).
4 See, e.g., Arizona v. California, 439 U.S. 419, 421 (1979); State
ex rel. Greely v. Confederated Salish & Kootenai Tribes, 712 P.2d 754,
768 (Mont. 1985); In re General Adjudication of All Water Rights to Use
Water in the Gila River System, 35 P.3d 68,76 (Ariz. 2001).
5 2006 Anderson Paper at 429.
6 2013 DOI Commission.
7 Montana Budget & Policy Center, Policy Basics: Taxes in Indian
Country Part 2: Tribal Governments (November 2017), quoting Tribal
Nations in Montana: A Handbook for Legislators, 2016.
8 1990 Criteria and Procedures for Participation of Federal
Government in Negotiating for Settlement of Indian Water Rights Claims,
55 Fed. Reg. 9223-9225, Mar. 12, 1990 [Hereinafter ``1990 Criteria''];
see also Tracy Goodluck, former Deputy Director of the Secretary's
Indian Water Rights Office (currently, policy advisor to the White
House domestic policy council), Presentation at the April 11, 2019, FBA
Indian Law Conference, Albuquerque, New Mexico. [Hereinafter ``Goodluck
2019 FBA Presentation'']
9 Arizona v. California, 373 U.S. 546 (1963), decree entered, 376
U.S. 340 (1964) (quantifying the tribes' Winters water rights on the
basis of practicably irrigable acreage (PIA), holding that PIA is the
only fair and feasible way to determine the measure of an Indian
reservation water right.); See also, e.g., Robert T. Anderson, Indian
Water Rights and the Federal Trust Responsibility, Natural Resources
Journal, 46:399-400, 429 (Spring 2006) (``Most important is the fact
that in the era of negotiated Indian water settlements, PIA is the one
component that can be objectively evaluated and thus serves as a
cornerstone for the settlement framework.''; Greely v. Confederated
Salish & Kootenai Tribes, 219 Mont. 76, 712 P.2d 754 (1985); and In re
General Adjudication of All Rights to Use Water in Big Horn River
System, 753 P.2d 76 (Wyo. 1988); aff'd by equally divided court per
curium, Wyoming v. United States, 492 U.S. 406 (1989), cert. denied,
Shoshone Tribe v. Wyoming, 109 S.C. 3265 (1989).
10 MCA 85-20-1001 through 85-20-1008 (ratified on April 16,
2001).
11 Presentation by the Secretary's Indian Water Rights Office
(``SIWRO'') Consultation on the ``Criteria and Procedures for
Participation of Federal Government in Negotiating for Settlement of
Indian Water Rights Claims, 55 Fed. reg 9223-9225 (1990).'' (2017). The
SIWRO presenter acknowledged that, although every Administration since
1990 has followed the Criteria and Procedures for settlement of Indian
Water Rights claims, the Administrations implementing them have had
differing interpretations of this policy. Also, although the SIWRO at
this time emphasized the position of Congressman Rob Bishop, Chairman
of the House Natural Resources Committee, sent to the Departments of
Justice and Interior (February 2015), the requirements set forth in the
letter were immediately withdrawn and revoked as one of Chairman Raul
Grijalva's first acts as the new Chairman of the House Natural
Resources Committee in 2019.
12 April 11, 1956, ch. 203, 6, 70 Stat. 109; 43 U.S.C. 620e,
Cost allocations, Indian lands; report to Congress.
13 E.g., see James P. Merchant & David M. Dornbusch, THE IMPORTANCE
OF WATER SUPPLY TO INDIAN ECONOMIC DEVELOPMENT (1977), stating that in
1968, 370,000 acres of Indian were irrigated (1 percent of all Indian
agricultural lands), contrasted with 5.1 percent of all irrigated
agricultural lands in the seventeen western states; Hearing Testimony
on S. 2969, Central Utah Completion Act, Committee on Energy and
Natural Resources (September 18, 1990), Dennis B. Underwood,
Commissioner of the Bureau of Reclamation, testified (p. 161): ``The
ceiling for CUP increased in 1972 and 1988. In 1990, the total cost of
the Colorado River Storage Project, meaning all components, as
authorized, is currently $2,938,059,000.''; At the 2019 Federal Bar
Association Indian Law Conference, Tracy Goodluck, Deputy Director of
the Secretary's Indian Water Rights Office, acknowledged what everyone
knows, that ``in the decades'' since the 1908 Winters decision,
``Federal policy and expenditures supported extensive development of
water resources to benefit non-Indian communities across the West.''
14 373 U.S. 546 (1963).
15 Pub. L. No. 93-638 (1975) (codified at 25 U.S.C. 5301 et
seq.).
16 Secretary of the Interior, Order No. 3335, Reaffirmation of the
Federal Trust Responsibility to Federally Recognized Indian Tribes and
Individual Indian Beneficiaries (August 20, 2014), quoting ``[t]he
special relationship between Indians and the Federal government is the
result of solemn obligations which have been entered into by the
Federal government is the result of solemn obligations which have been
entered into by the United States Government . . .[T]he special
relationship . . . continues to carry immense moral and legal force.''
Public Papers of the President: Richard M. Nixon, Special Message on
Indian Affairs (July 8, 1970).
17 ``Federal Water Policy, Message to the Congress,'' Public Papers
of the Presidents: Jimmy Carter, 1044-47 (June 6, 1978).
18 Michael J. Clinton, Dealing with the Federal Sovereign, Ch. 16,
Thomas R. McGuire, William B. Lord, and Mary G. Wallace (Eds.), Indian
Water in the New West (1993, University of Arizona Press).
19 25 C.F.R. Part 171 (2008).
20 73 Fed. Reg. 11,028, 11,031, citing Grey v. United States, 21
Cl. Ct. 285 (1990), aff'd without opinion, 935 F.2d 281 (Fed. Cir.
1991), cert. denied, 502 U.S. 1057 (1992). The FBIC claims can be
distinguished from Grey, a lawsuit brought by allottees.
21 United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011)
131 S. Ct. 2313, 2324-25 (2011), dissent (J. Sotomayor): ``We have
never held that all of the Government's trust responsibilities to
Indians must be set forth expressly in a specific statute or
regulation. To the contrary, where, as here, the statutory framework
establishes that the relationship between the Government and an Indian
tribe `bears the hall marks of a conventional fiduciary relationship,'
quoting [United States v.] Navajo [Nation], 556 U.S. [287,] 301 (2009),
we have consistently looked to general trust principles to flesh out
the Government's fiduciary obligations.'' 563 U.S. at 202.
22 U.S. Department of the Interior Commission on Indian Trust
Administration and Reform, Final Report 23 (Dec. 10, 2013) [Hereinafter
``2013 DOI Commission'']; See, also, United States v. White Mountain
Apache, 537 U.S. 465, 474-76 (2003); Cobell v. Norton, 240 F.3d 1081,
1101 (D.C. Cir. 2001) Hopi Tribe v. United States, 782 F.3d 662, 667
(Fed. Cir. 2015).
23 White Mountain Apache, 537 U.S. at 472-73 (2003).
24 140 S. Ct. 2452 (2020).
25 President Joe Biden, Memorandum on Tribal Consultation and
Strengthening Nation-to-Nation Relationships (January 26, 2021).
26 Mary C. Wood, The Federal Trust Responsibility'' Protecting
Tribal Lands and Resources Through Claims of Injunctive Relief against
Federal Agencies, 39 Tulsa L. Rev. 355 (2003-2004). See, e.g., 2013 DOI
Commission.
27 We recognize the recent exception with the water rights
settlement of the Confederated Salish & Kootenai Tribes in 2020, the
largest single water rights settlement approved by Congress.
28 President Andrew Werk, Jr., President, Fort Belknap Indian
Community, letter to Janet Yellen, U.S. Department of Treasury,
Washington, D.C. (March 9, 2021). [Hereinafter ``Werk 2021 Letter to
Yellen'']
29 FORT BELKNAP RESERVATION: DEMOGRAPHIC AND ECONOMIC INFORMATION
(Oct. 2013).
30 Werk 2021 Letter to Yellen.
31 U.S. Census Bureau, My Tribal Area, https://www.census.gov/
tribal/?aianihh=1150 (last visited May 12, 2019).
32 Mont. Dept't of Public Health and Human Services, 2016 Mont.
Vital Statistics (2018), https://dphhs.mt.gov/Portals/85/publichealth/
documents/Epidemiology/VSU/VSU_2016_Annual Report.pdf.
33 Werk 2021 Letter to Yellen.
34 U.S. Census Bureau, American FactFinder, https://
factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml (last
visited May 12, 2019).]
35 FORT BELKNAP RESERVATION: DEMOGRAPHIC AND ECONOMIC INFORMATION
(Oct. 2013).
36 United States Bill of Complaint, Winters v. United States, 207
U.S. 564 (1908).
37 2006 Anderson Paper at 429 (2006).
38 Fort Belknap Indian Community, Natural Resources Consulting
Engineers, Inc., Comprehensive Water Development Plan Report (February
2019). Dr. Wold Mesghinna, President of NRCE, and FBIC Water Engineer,
assisted in the development of this Plan and is a renowned, well-
respected Indian water rights engineer who is fair, measured, and has
devoted his career to the protection, preservation, and development of
Indian reserved water rights, working both for Indian tribes and the
federal government in litigation and negotiated settlements.
39 55 Fed. Reg. 9223-9225, Mar. 12, 1990; See, e.g., Presentation
by the Secretary's Indian Water Rights Office (``SIWRO'') Consultation
on the ``Criteria and Procedures for Participation of Federal
Government in Negotiating for Settlement of Indian Water Rights Claims,
55 Fed. Reg 9223-9225 (1990)'' (2017).
40 Seminole Nation v. United States, 316 U.S. 286, 297 (1941).
41 43 U.S.C. 620e, Cost allocations, Indian lands.
42 General Accounting Office Report to the Chairman, Subcommittee
on Interior and Related Agencies, Committee on Appropriations, U.S.
Senate, Indian Irrigation Projects (February 2006).
43 86 Fed. Reg. 7619 (February 1, 2021).
44 11 Stat. 657; Charles J. Kappler, Indian Affairs: Laws and
Treaties . . .Vol. II (Treaties), Washington, D.C., 1904, pp.736-739;
and Grinnell Agreement (October 9, 1895); 29 Stat. 353 (1896),
respectively.
45 Winters, 207 U.S. 564 (1908).
46 Treaty of January 11, 1909.
47 See Senate Report No. 117 with transcript, 54th Congress, 1st
Session, February 12, 1896.
48 Id.
49 Angie Debo, AND STILL THE WATERS RUN, Princeton University Press
(1940), also explaining that ``[t]he Indians had no conception of the
surveyors' numerical descriptions.''
50 1990 Criteria.
51 Id.
52 Jay Weiner Testimony, Senate Committee on Indian Affairs Hearing
on Addressing the Needs of Native Communities through Indian Water
Rights Settlements (May 20, 2015).
53 This information is taken from the Montana Water Rights
Commission archives, provided by the State.
54 Fort Belknap-Montana Compact, Montana Code Ann., 85-20-1001,
Article VII.A.4.c.
55 The following historical information is taken from a Briefing
Paper (June 2000) in the Commission archives (author unknown).
56 Teno Roncalio, The Horns of a Dilemma, Ch. 15, Thomas R.
McGuire, William B. Lord, and Mary G. Wallace (Eds.), INDIAN WATER IN
THE NEW WEST (1993).
57 City of Albuquerque v. Browner, 97 F. 3d 415, 418 (10th Cir.
1996).
58 McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
59 1990 Criteria and Procedures for Participation of Federal
Government in Negotiating for Settlement of Indian Water Rights Claims,
55 Fed. Reg. 9223-9225, Mar. 12, 1990.
60 CRS Report, Indian Water Rights Settlements (April 16, 2019),
https://crsreports.congress.gov.
61 1990 Criteria.
62 Id.
63 Charles Wilkinson, Lessons and Directions, Ch. 17, p. 222,
Thomas R. McGuire, William B. Lord, and Mary G. Wallace (Eds.), INDIAN
WATER IN THE NEW WEST (1993). [Hereinafter ``Wilkinson Lessons'']
64 See Goodluck 2019 FBA Presentation, stating that ``[I]n the
decades'' since the Winters decision, ``Federal policy and expenditure
supported extensive development of water resources to benefit non-
Indian communities across the West.''
65 Wilkinson Lessons, at 223 (referencing David Getches, a
respected scholar in Indian law).
66 Id.
67 Indian Trust Asset Reform Act, Pub. L. No. 114-178, 130 Stat.
432 (Jun. 22, 2016) (codified at 25 U.S.C. 5601).
68 See Stephen Cornell and Joseph P. Kalt, American Indian Self-
Determination: The Political Economy of a Successful Policy, Harvard
Kennedy School Faculty Research Working Paper Series (Nov. 2010), 3.
69 1990 Criteria.
70 American Indian Policy Review Commission, Final Report to
Congress, (May 17, 1977), 130, https://files.eric.ed.gov/fulltext/
ED164229.pdf.
The Chairman. Thank you, sir.
We will now move back to Mr. Bryan Newland, Assistant
Secretary for Indian Affairs, the Department of Interior.
STATEMENT OF HON. BRYAN TODD NEWLAND, ASSISTANT SECRETARY--
INDIAN AFFAIRS, DEPARTMENT OF THE
INTERIOR; ACCOMPANIED BY BRENT ESPLIN, MISSOURI BASIN REGIONAL
DIRECTOR, BUREAU OF RECLAMATION
Mr. Newland. Good afternoon, Chairman Schatz, Vice Chair
Murkowski, members of the Committee. Can you hear me all right?
The Chairman. Yes.
Mr. Newland. Great. My name is Bryan Newland. I am the
Assistant Secretary for Indian Affairs here at the Department
of the Interior. I am joined today by Brent Esplin from the
Bureau of Reclamation. I appreciate the opportunity to present
testimony on S. 648 and S. 1911.
Mr. Chairman, with respect to the timing of the
Department's submission of written testimony, we were still
reviewing the testimony through several agencies. I apologize
for the untimely submission and we will do better going
forward.
We have submitted our full testimony for the record and I
will be offering a brief summary of the Department's views.
Water is a sacred and valuable resource for tribal nations.
Longstanding water crises continue to undermine public health
and economic development in Indian Country. This Administration
strongly supports resolving Indian water rights claims through
negotiated settlements. Indian water settlements help ensure
that tribal nations have safe, reliable water supplies. They
also improve environmental and health concerns on reservations,
enable economic growth, promote tribal sovereignty and self-
sufficiency, and help fulfill the United States' solemn trust
obligation to Indian tribes.
Water rights settlements also have the potential to end
decades of controversy and contention among tribal nations and
neighboring communities and they promote cooperation in the
management of water resources. We are here to work with the
Committee and members of Congress to advance Indian water
rights settlements.
Water rights settlements also play a pivotal role in this
Administration's commitment to putting equity at the center of
everything we do. We have a clear charge from the President and
Secretary Haaland to improve water access and quality on tribal
lands.
Access to water is fundamental to human existence, economic
development, and the future of communities, especially Tribal
communities. To that end, the Biden Administration's policy on
negotiated Indian water settlements continues to be based on
the following priorities: the United States will participate in
settlements consistent with its legal and moral trust
responsibilities to tribal nations; tribes should receive
equivalent benefits for they rights which they, and the United
States as trustee, may release as part of a settlement; tribes
should realize value from confirmed water rights resulting from
a settlement; and settlements should contain appropriate cost-
sharing proportionate to the benefits received by all parties
benefiting from the settlement. Lastly, settlements should
provide finality and certainty to all parties involved.
S. 648 would amend the Shoshone-Paiute Tribes of the Duck
Valley Reservation Water Rights Settlement Act to authorize
funding equivalent to interest payments that would have been
earned between October 1st, 2009 and January 25th, 2016 if the
Department had then had the authority to invest those funds. A
provision in the Duck Valley Settlement Act prohibiting
investment until an enforceability date was reached is not
common in Indian water rights settlements. Five settlements
enacted between 2009 and 2010 included this provision: Duck
Valley Settlement, the Crow settlement, the Taos Pueblo
Settlement, the Aamodt Settlement, and the Navajo-Gallup
Settlement.
In each of these settlements, funds were inadvertently
invested and then returned to Treasury. In total, over $11
million was returned to the Federal Treasury.
The Department supports S. 648 and would support similar
legislation to resolve this same issue in four other similarly
situated Indian water rights settlements.
S. 1911 would approve and authorize funding to carry out
the water rights settlement negotiated between the Gros Ventre
and Assiniboine Tribes of Fort Belknap Indian Community in the
State of Montana. The Fort Belknap Reservation is the
birthplace of Federal Indian reserved water rights doctrine.
Yet despite the passage of more than a century since that
doctrine was established, the reservation's water rights
haven't been quantified.
The Department supports the goals of S. 1911, but does have
a number of concerns with the bill as introduced. Key among
them is the importance of achieving certainty in settlement. S.
1911 as introduced leaves important issues unresolved,
including the overall Federal cost of settlement and the
potential ongoing liabilities to the United States. As the
Department has done in previous settlement negotiations, we are
committed to working with the Fort Belknap Indian Community,
the State, and the bill's sponsors to craft a bill that all
parties, including the Administration, can support. Work toward
consensus has already started, and we are fully committed to
negotiating a language we can wholeheartedly support.
I want to thank the Committee once again for the
opportunity to present our views. I am happy to answer any
questions you may have. Thank you.
[The prepared statement of Mr. Newland follows:]
Prepared Statement of Hon. Bryan Todd Newland, Assistant Secretary--
Indian Affairs, Department of the Interior
Aanii (Hello)! Good afternoon Chairman Schatz, Vice Chairman
Murkowski, and Members of the Committee. My name is Bryan Newland. I am
the Assistant Secretary for Indian Affairs at the Department of the
Interior (Department). Thank you for the opportunity to present
testimony regarding S. 648, the Technical Correction to the Shoshone-
Paiute Tribes of the Duck Valley Reservation Water Rights Settlement
Act of 2021, and S. 1911, the Gros Ventre and Assiniboine Tribes of the
Fort Belknap Indian Community Water Rights Settlement Act of 2021.
Introduction
The Biden Administration recognizes that water is a sacred and
valuable resource for Tribal Nations and that long-standing water
crises continue to undermine public health and economic development in
Indian Country. This Administration strongly supports the resolution of
Indian water rights claims through negotiated settlements. Indian water
settlements help ensure that Tribal Nations have safe, reliable water
supplies; improve environmental and health concerns on reservations;
enable economic growth; promote Tribal sovereignty and self-
sufficiency; and help fulfill the United States' trust responsibility
to Tribes. At the same time, water rights settlements have the
potential to end decades of controversy and contention among Tribal
Nations and neighboring communities and promote cooperation in the
management of water resources. Congress plays an important role in
approving Indian water rights settlements and we stand ready to work
with this Committee and Members of Congress to advance Indian water
rights settlements.
Indian water rights settlements play a pivotal role in this
Administration's commitment to putting equity at the center of
everything we do and building back better to improve the lives of
everyday people--including Tribal Nations. We have a clear charge from
the President and Secretary Haaland to improve water access and water
quality on Tribal lands. Access to water is fundamental to human
existence, economic development, and the future of communities--
especially Tribal communities. To that end, the Biden Administration's
policy on negotiated Indian water settlements continues to be based on
the following principles: the United States will participate in
settlements consistent with its legal and moral trust responsibilities
to Tribal Nations; Tribes should receive equivalent benefits for rights
which they, and the United States as trustee, may release as part of
the settlement; Tribes should realize value from confirmed water rights
resulting from a settlement; and settlements should contain appropriate
cost-sharing proportionate to the benefits received by all parties
benefiting from the settlement. In addition, settlements should provide
finality and certainty to all parties involved.
I. S. 648
S. 648 would amend the Shoshone-Paiute Tribes of the Duck Valley
Reservation Water Rights Settlement Act to authorize funding equivalent
to interest payments that would have been earned between October 1,
2009 and January 25, 2016 if the Department had then had the authority
to invest the funds. The Department supports S. 648.
a. Background
The Duck Valley Reservation, home to the Shoshone-Paiute Tribes
(Tribes), straddles the Idaho-Nevada border along the Owyhee River, a
tributary to the Snake River. The Reservation was established by
Executive Order on April 16, 1877 and expanded by Executive Orders on
May 4, 1886 and July 1, 1910. The State of Idaho initiated the Snake
River Basin Adjudication (SRBA) in 1987. Soon thereafter, the State of
Nevada reopened its adjudication of the Owyhee River, a tributary to
the Snake River, an adjudication originally initiated in 1924. Both of
these adjudications involve the water rights of the Tribes. The United
States filed claims in Idaho's SRBA and Nevada's Owyhee River
adjudication on behalf of the Tribes.
At the request of the Parties, a Federal Negotiation Team was
formed, and a settlement was reached. In 2009, Congress enacted the
Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights
Settlement as part of the Omnibus Lands Act of 2009 (Duck Valley
Settlement Act). The legislation authorized $60 million across two
Trust Funds to rehabilitate the Duck Valley Indian Irrigation Project,
which is owned by the Bureau of Indian Affairs and operated by the
Tribes under a Self-Governance compact, and for other activities. Under
the legislation, the Trust Funds could only be invested and earn
interest on the ``enforceability'' date which is the date that the
Secretary published a statement in the Federal Register finding that
all conditions for full effectiveness and enforceability of the
settlement had occurred. The deadline to publish the statement of
findings was March 31, 2016, and the Secretary published it on January
25, 2016.
Under the Duck Valley Settlement Act, the Secretary had no
authority to invest the Trust Funds until January 25, 2016. However,
the Department began investing funds as they were appropriated and
transferred to the Department. The Department's Solicitor's Office
determined that the amounts earned prior to January 25, 2016 were
contrary to the Antideficiency Act and, in accordance with 31 U.S.C.
3302, must be returned to the Federal Treasury. Accordingly, the
Department returned to the Treasury all interest accrued before January
25, 2016.
S. 648 would authorize the appropriation of the interest that would
have accrued on balances in the Trust Funds during the period beginning
on October 1, 2009 (when the funds were initially appropriated), and
ending on January 25, 2016 (the enforceability date), for deposit into
the Trust Funds.
b. Department's Views
The provision in the Duck Valley Settlement Act prohibiting
investment until an enforceability date is reached is not common in
Indian water rights settlements. It appears in the Duck Valley
settlement and other settlements enacted in 2009-2010, including the
Crow Tribe Water Rights Settlement Act of 2010, Pub. L. No. 111-291;
the Taos Pueblo Indian Water Rights Settlement Act, Pub. L. No. 111-
291; the Aamodt Litigation Settlement Act, Pub. L. No. 111-291; and the
Navajo-Gallup Water Supply Project and Navajo Nation Water Rights, Pub.
L. No. 111-11. In each of these settlements, funds were inadvertently
invested and were returned to Treasury. In total for the five
settlements, over $11 million was returned to the Federal Treasury. The
Department supports S. 648 and, as a matter of equity, would support
similar legislation to resolve this same issue in the four other Indian
water rights settlements approved by Congress in 2009 and 2010.
II. S. 1911
S. 1911, the Gros Ventre and Assiniboine Tribes of the Fort Belknap
Indian Community Water Rights Settlement Act of 2021 would approve and
provide authorizations to carry out the settlement of the Tribes' water
rights in the State of Montana (State). The Department strongly
supports resolving the Tribes' water rights claims through a
comprehensive settlement, but we have concerns about a number of
provisions in S.1911 as introduced. The Administration is committed to
working with the Tribes and the bill's sponsors regarding those
provisions and reaching consensus on legislation to approve the Compact
entered into between the Tribes and the State.
a. Reservation and Historical Background
The Fort Belknap Indian Reservation (Reservation) was created by
the Act of Congress of May 1, 1888 out of much larger area in northern
Montana previously reserved by the President in 1874 for joint use by
the ``Gros Ventre, Piegan, Blood, Blackfoot, River Crow, and . . .
other Indians'' located upon it. Today, the Reservation is comprised of
approximately 605,338 acres situated mainly in the Milk River Basin in
north central Montana. The Milk River forms the Reservation's northern
boundary. The southern boundary is from 25 to 35 miles south of the
Milk River, extending on either side of the northern crest of the
Little Rocky Mountains. The United States holds the Reservation in
trust for the Fort Belknap Indian Community of the Fort Belknap
Reservation of Montana (Tribes).
According to Bureau of Indian Affairs (BIA) and Tribal data, 3,820
Tribal members currently live on the Reservation. The total Tribal
membership in August 2021, including members living off the
Reservation, was 8,314. The majority of on-Reservation residents reside
in three main towns: Fort Belknap Agency on the northern boundary of
the Reservation, and Lodge Pole and Hays on the southern portion of the
Reservation.
The primary sources of employment on the Reservation are Tribal and
Federal government services. The BIA, Indian Health Service, and the
Tribes are the major employers. The Inland Mountain Development Group
serves as the Tribes' economic arm and employs approximately 120 tribal
members. The Tribes are working to develop tourism on the Reservation.
They manage a 700-head buffalo herd on 23,000 acres. World class guided
hunting is available on the Reservation. The main industry is
agriculture, consisting of cattle ranches, raising alfalfa hay for
feed, and larger dry land farms. Unemployment is around 48.2 percent
based on a 2019 Montana State University study.
The low rain fall on most of the Reservation severely limits what
can be grown without irrigation. Not surprisingly, the major water use
on the Reservation is the Fort Belknap Indian Irrigation Project
(FBIIP). The BIA owns the FBIIP, which diverts water from the Milk
River and two tributaries, Threemile Creek and White Bear Creek, and
includes a 634 acre-feet (af) reservoir on Threemile Creek. The FBIIP
serves 10,475 assessed acres. Groundwater wells on the Reservation are
primarily used for domestic and municipal purposes and, to a lesser
extent, stock watering.
The Reservation is the birthplace of the federal Indian reserved
water rights doctrine. In 1908, the United States Supreme Court
resolved a water rights dispute on the Reservation and issued its
seminal decision in Winters v. United States, 207 U.S. 564, thereby
recognizing for the first time the implied water rights of Indian
reservations. Despite the passage of over a century since the Winters
decision, the Reservation's water rights have not been finally
quantified. Worse still, because of extensive deferred maintenance, the
FBIIP is unable to deliver even the minimum flows protected in Winters.
b. Proposed Fort Belknap Indian Community Settlement Legislation
The United States as trustee of the Tribes has filed water rights
claims in the Milk River and Missouri River basins in the ongoing
statewide water rights adjudication. Since 1990, the Tribes, State, and
United States have engaged in negotiations to resolve the Tribes' water
rights within the State. The initial goal of the negotiations was the
development of a reserved water rights Compact between the Tribes and
Montana. In 2001, the Montana legislature approved the Montana-Fort
Belknap Indian Community Water Rights Compact (Compact).
S. 1911 would authorize, ratify, and confirm the Compact to the
extent it is consistent with S. 1911, thereby resolving the Tribes'
water rights claims in Montana by recognizing the Tribal Water Right
established in the Compact. The Tribal Water Right entitles the Tribes
to over 446,000 acre-feet per year (afy) of surface water, plus
groundwater. In addition to the Tribal Water Rights provided by the
Compact, S. 1911 includes a 20,000 afy allocation of storage from Lake
Elwell, a Bureau of Reclamation facility. In addition, S. 1911 would
authorize funds to implement the provisions of the Compact and S. 1911.
S. 1911 authorizes at least $693.11 million in Federal
appropriations for a wide range of purposes including design and
construction of water projects that would benefit the Tribes but also
including projects unrelated to water development and projects that
solely benefit non-Indian state-based water rights users. Moreover, S.
1911 contains open-ended appropriations for some projects, along with a
number of unfunded mandates.
c. Department's Views
The Department supports the goals of S. 1911 but has a number of
important concerns with the bill as introduced. As the Department has
done in previous settlement negotiations, we are committed to working
with the Fort Belknap Indian Community, the State, and the bill's
sponsors to craft a bill that all parties, including the
Administration, can support.
While we will not enumerate all of the concerns with S. 1911 in
this testimony, we will highlight a few major items. The Department is
concerned about the ability of the Tribes to unilaterally modify the
authorized uses of the $593.11M Trust Fund established by the bill.
Section 1911 provides that the Tribes are authorized to use the Trust
Fund for any purpose described in the Tribes' Comprehensive Water
Development Plan (Plan), including any amendment to that Plan. The
Department believes that the uses of the Trust Fund should be governed
by statutory provisions, as has been the case in other Indian water
rights settlements, and that funds should be targeted to developing
water resources and expanding access to water on the Reservation.
The Department is also particularly concerned with the open-ended
funding authorized for the mitigation of impacts to junior non-Indian
and Milk River Project water users, including the construction of a
proposed dam and reservoir on Peoples Creek. These provisions open the
door to unknown Federal obligations, leaving the Department with no
certainty regarding the cost of this settlement.
In addition, S. 1911 includes in it several unfunded mandates that
have the potential to impact the budgets of several Departmental
bureaus. The Department believes that if the enacting legislation
requires it to complete surveys, studies, and other actions, then it
should also provide funding to cover those Federal responsibilities.
The Department also has practical concerns regarding its ability to
satisfy Compact provisions requiring mitigation of impacts on junior
non-Indian and Milk River Project water users caused by the development
of the Tribal Water Right. The Compact mandates mitigation totaling at
least 35,000 afy and authorizes the State to withdraw from the Compact
if impacts from the development of the Tribal Water Rights are not
adequately mitigated. Section 8(c) of S. 1911 incorporates the
Compact's mitigation mandate. The Bureau of Reclamation does not have
confidence that this level of mitigation is technically feasible based
on hydrologic and operations modeling. Furthermore, Section 8(c)
essentially authorizes such sums as are necessary to accomplish the
mandated level of mitigation. The actual mitigation cost will depend on
how it is accomplished and many of the alternatives included in the
Compact require significant infrastructure projects on the Milk River
and its tributaries. Some alternatives are impractical or could cost
hundreds of millions of dollars to complete. Impacts of full
development and the benefits of mitigation are based on outdated
studies that must be updated to take into consideration both current
basin conditions and potential impacts of climate change.
The Department recognizes that, as reflected in the Compact, there
are significant relationships between this Compact and the Blackfeet
Tribe's water rights settlement, which Congress enacted in 2016.
Because of this, finding solutions to the Compact--required mitigation
obligation while fulfilling our obligations under the Blackfeet Tribe's
settlement will require more discussion with both the Blackfeet Tribe
and the Fort Belknap Indian Community. Further adding to this concern,
in article VII of the Compact, the State reserves the unilateral right
to withdraw from the Compact if the 35,000 afy mitigation requirement
is not satisfied. Given uncertainty regarding how mitigation is to be
accomplished and the ultimate cost associated with that mitigation, the
State's right to withdraw is especially concerning.
Another significant concern for the Department is section 11(k) of
S.1911, which would require that the United States hold in trust the
FBIIP. This requirement would arguably create open-ended money-
mandating trust obligations and undermines the finality and certainty
sought in Indian water rights settlement. Section 11(k) would impose on
the United States, and specifically on the Department, significant
liability moving forward. Similar language has been proposed but
ultimately not included in other Indian water rights settlements.
Additionally, the Department is concerned that neither the Compact
nor S. 1911 establish an obligation for the State to contribute funding
for the settlement, leaving such an obligation for future negotiation.
The Proposed settlement provides significant benefits to the State and
the State's non-Indian water users, and that value must be reflected in
the State contribution.
As a final matter, the Department is concerned about changes that
S. 1911 would make to the Reclamation Water Settlements Funds (RWSF)
and funding priorities established in Pub. L. No. 111-11. The
Department is aware that there is pending legislation to amend the RWSF
and any proposed changes should be part of a broader dialogue.
Conclusion
The Department appreciates this Committee's efforts to resolve
these issues for the Tribes. With regard to S. 648, the Department
would like to work with Congress to similarly resolve the investment
issue for all other tribes with water rights settlements enacted in
2009 and 2010. Additionally, while the Department supports the goals of
S. 1911, we have significant concerns with a number of the provisions
as introduced. The Department is committed to working with the Tribes
and the State regarding our concerns with the bill and to reaching a
final and fair settlement of the Tribes' water rights claims.
Thank you again for the opportunity to appear before this Committee
to provide the Department's views on S. 648 and S. 1911. We look
forward to continuing working with the Committee in support of Indian
water rights settlements.
The Chairman. Thank you. We will now introduce the
Honorable Brian Thomas, Chairman of the Shoshone-Paiute Tribes
of the Duck Valley Reservation in Owyhee, Nevada.
STATEMENT OF HON. BRIAN THOMAS, CHAIRMAN, SHOSHONE-PAIUTE, DUCK
VALLEY RESERVATION
Mr. Thomas. [Greeting in Native tongue.] I want to thank
you, water is life, it is how we have been given life. I want
to thank the Committee Chairman Schatz and Vice Chairman
Murkowski.
My name is Brian Thomas and I am the Chairman of the
Shoshone-Paiute Tribes of the Duck Valley Indian Reservation.
Thank you for inviting me to testify on S. 648, Technical
Correction to the Shoshone-Paiute Tribes of the Duck Valley
Indian Reservation Water Rights Settlement Act of 2021.
I would like to also to thank Senator Cortez Masto for her
leadership and Senator Rosen, Senator Crapo, and Senator Risch
for championing this legislation.
In 2009, Congress enacted the Shoshone-Paiute Tribes of the
Duck Valley Reservation Water Rights Settlement. The Settlement
Act ratified the Nevada agreement quantifying the Federal
reserved water rights of the Shoshone Paiute Tribes. A separate
consent decree was entered into in Idaho. The Act further
directed the United States to establish and fund two trust
funds, a $45 million development fund, and a $15 million
maintenance fund.
The Secretary of Interior, through the Office of Special
Trustee, invested these trust funds from the time they were
deposited in the tribes' accounts and regularly consulted with
the tribes and provided periodic statements to the tribes
concerning the investment income in the accounts. The tribes'
understanding and expectation was that all investment income
from these funds would accrue to the tribes in order to help
the settlement to maintain its value, despite inflation during
the slow framework for finishing the funding of the settlement.
The settlement's effective date occurred in January 2016,
when the Secretary of Interior published a notice in the
Federal Register stating that all requirements for the
settlement had been fulfilled. Despite the tribes' objections,
the Department of Interior took the position that any interest
earned in the tribes' accounts before the effective date could
not be retained in the tribes' accounts because the settlement
act explicitly authorized investment of the funds on the
effective date of the settlement but was silent on investment.
Income before the effective date, the actual interest earned on
the tribes' trust funds during this period, was removed from
the tribes' accounts and was remitted to the Treasury rather
than to the tribes because of the Department of Interior's
position.
S. 648 would amend the 2009 Settlement Act to authorize the
United States to appropriate the amount of interest income,
approximately $5 million, that was earned in the tribes' trust
account before the settlement effective date and deposit it
back to the tribes' trust funds created by the Settlement Act.
This amendment is needed to fulfill the promise of the
Settlement Act for the tribes, which is to be able to make use
of their water rights to fulfill economic potential of the Duck
Valley Reservation.
As a result of the Department of Interior's position on the
settlement act's investment of interest income, the United
States Treasury, and not the tribes, profited from the tribal
trust funds. This is not acceptable. As trustee, the United
States should interpret ambiguous provisions in favor of
tribes.
Moreover, in the practical sense, the slow timeframe for
appropriating monies needed for this settlement and the lack of
interest earnings before the effective date eroded the value of
the trust fund due to inflation. This bill is consistent with
the Federal trust responsibility. Enacting this bill is an
important step to fulfilling the economic potential of the Duck
Valley Reservation.
Thank you again for considering my testimony. I would be
pleased to answer any questions the members of the Committee
may have regarding the legislation and the underlying
settlement act. Thank you.
[The prepared statement of Mr. Thomas follows:]
Prepared Statement of Hon. Brian Thomas, Chairman, Shoshone-Paiute,
Duck Valley Reservation
Committee Chairman Schatz and Vice Chairman Murkowski, my name is
Brian Thomas and I am the Chairman of the Shoshone-Paiute Tribes of the
Duck Valley Reservation. Thank you for inviting me to testify on S.
648, Technical Correction to the Shoshone-Paiute Tribes of the Duck
Valley Reservation Water Rights Settlement Act of 2021. I would also
like to thank Senator Cortez Masto for her leadership and Senator
Rosen, Senator Crapo, and Senator Risch for championing this
legislation.
Purpose of Technical Amendment
In 2009, Congress enacted the Shoshone-Paiute Tribes of the Duck
Valley Reservation Water Rights Settlement Act, P.L. 111-11, 10801-
10809 (``Settlement Act''). The Settlement Act ratified the Nevada
agreement quantifying the federal reserved water rights of the Shoshone
Paiute Tribes (``Tribes''). (A separate consent decree was entered in
Idaho.) The Act further provided that the United States would deposit
$45 million for the rehabilitation of the Bureau of Indian Affair's
(BIA's) Duck Valley Irrigation Project and other water-related projects
in a Development Fund and $15 million for operation and maintenance of
the projects be deposited in a Maintenance Fund. Pursuant to the
Settlement Act, the Development Fund and Maintenance Fund are held in
trust by the Federal Government for the benefit of the Tribe.
S. 648 would amend the 2009 Settlement Act to transfer interest
income earned through the investment of Settlement Act trust funds
during the five-year period of appropriation--back to the tribal trust
funds created by the Settlement Act. The amendment is necessary to
comport with the Tribes' understanding and expectation regarding the
availability of investment income before the settlement's effective
date. To this end, S. 648 authorizes funds to be appropriated of
approximately $5 million based on the amount of interest the trust
funds are estimated to have earned in the Tribes' accounts during the
five years before the effective date. The actual interest earned on the
Tribes' trust funds during this period was returned to Treasury and
removed from the Tribes' accounts because of the Department of the
Interior's interpretation of Settlement Act.
Background on Duck Valley Water Rights Settlement
The Duck Valley Reservation is the homeland of the Tribes and
encompasses 290,000 acres of remote land on the border between the
States of Nevada and Idaho. Although the reservation has significant
land suitable for agriculture and agriculture is the primary economic
activity on the Reservation, the Reservation has lacked sufficient
infrastructure necessary to provide dependable water supplies for
irrigation and drinking water. The lack of access to dependable water
supplies has been a chronic problem for the Tribes since the
reservation was established in 1877.
Inconsistent natural flows and non-Indian settlement south of the
Reservation in Nevada, and north of the Reservation in Idaho and Oregon
have led to chronic water stress and conflict. In addition, since the
1930s, the downstream Owyhee Project--a Bureau of Reclamation Project
that irrigates more than 100,000 acres of land in eastern Oregon and
western Idaho--has blocked anadromous fish passage and ended a once
valuable on-reservation fishery. When, in 1938, the Bureau of Indian
Affairs completed construction of Wild Horse Reservoir (the storage
facility for the BIA Duck Valley Irrigation Project) to provide
critical storage water for the reservation, the relief to the Tribe was
far from complete. Wild Horse Reservoir is located nearly 15 miles
south of the Reservation. This location failed to capture the full
amount of water available to the Tribes and set up the potential for
serious conflict with water users between the Reservoir and the
Reservation, thereby affecting the number of acres the Tribes could
cultivate and inhibiting reservation development.
The Settlement Act put an end to decades of tension over water
rights between the Tribes and their non-Indian neighbors. In addition
to providing certainty regarding the Tribes' water right, the Act
resolved tribal claims against the United States for its failure to
protect the Tribes' water rights and natural resources, claims which
the Tribe estimated could lead to the federal government having to pay
significantly more than the $60 million federal contribution authorized
in the 2009 Settlement Act. Due to the settlement, both Indian and non-
Indian farmers and ranchers in the area around the reservation now have
certainty regarding water allocations available to them for crops and
grazing, and the Tribes have much-needed funds to provide long-term
economic benefit to the Duck Valley Reservation.
The Settlement Act funds go toward assisting the Tribes in their
ongoing work to accomplish the goals of the Settlement Act, which
include rehabilitation of the Duck Valley Indian Irrigation Project,
provision of a municipal water supplies, and other critical water
related projects.
Statement of Need for the Amendment
An amendment is necessary because the Department of the Interior
interpreted the Settlement Act's silence on investment before the
settlement's effective date as precluding federal authority to invest
the settlement funds for the Tribe before that date. As a result, all
trust fund investment earnings prior to the effective date--
approximately $5 million--were withdrawn from the Tribes' accounts and
remitted to the Treasury. When legislation authorizing this water
rights settlement was enacted as part of the Omnibus Public Lands
Management Act of 2009, P.L. 111-11, the Settlement Act explicitly
authorized investment of the trust funds starting on the date the
waivers authorized under the settlement became effective (``effective
date''). The effective date under the Settlement Act occurred when the
Secretary of the Interior published a Federal Register notice stating
that all of the actions required had been accomplished. Among the
required actions was the establishment and funding of two trust funds,
the Development Fund and the Maintenance Fund, and full appropriation
of the $60 million settlement trust funds.
Over a five-year period beginning in fiscal year 2010 and ending in
fiscal year 2014, $45 million were appropriated to the Development Fund
and $15 million were appropriated to the Maintenance Fund, as required
under the terms of the Settlement Act. During this time, the Office of
Special Trustee (now the Bureau of Trust Funds Administration),
invested the Tribes' funds as they were appropriated. The Secretary
published the required notice in the federal register of findings
related to the implementation of the Settlement Act and underlying
Settlement on January 25, 2016. 81 Fed. Reg. 4063. This date of
publication was the effective date under the terms of the Settlement
Act.
As noted above, section 10807(e) of the Settlement Act required the
Secretary of the Interior to invest amounts in these Funds after the
effective date. However, the Act was silent with respect to pre-
effective date investment, and the Department of the Interior, through
the Office of the Special Trustee, invested trust fund monies prior to
this date for the Tribes and regularly consulted with the Tribes and
provided periodic statements to the Tribe concerning the investment
income.
In 2016, after the effective date and full appropriation of the
settlement funds, the Department of the Interior expressed the position
that the Tribe may not be entitled to the investment funds earned in
their accounts prior to the effective date. The Tribes immediately
inquired about the investment income earned by the trust funds. In a
letter dated February 29, 2016, from the Tribe to the Department of the
Interior, the Tribe informed then Acting Assistant Secretary--Indian
Affairs, Larry Roberts, that ``[w]e have been counting on the
investment revenues as part of the overall settlement funds available
to the Tribes, and such funds are essential to the settlement projects
that we undertake.'' (See attachment 1, a letter from the Tribes to the
Department of the Interior dated Feb. 29, 2016).
In response to this and one other letter from Tribe, the Department
of the Interior explained the agency's position that ``any interest the
Fund generated pre-effective date may not be used in connection with
the implementation of the Act and underlying Settlement'' and
accordingly, the Department withdrew the investment funds from the
Tribe's accounts and remitted the funds to the general fund of the
Treasury (See attachment 2, a letter to the Honorable Lindsey Manning,
Chairman of the Tribes, dated October 6, 2016). By enacting this bill,
Congress will confirm for the Bureau of Trust Funds Administration that
any ambiguity in the Settlement Act regarding investment of the
settlement funds must be interpreted in the way most favorable to the
Tribes, consistent with the federal trust responsibility to Tribes, and
the funds returned to the Tribe.
Conclusion
As a result of the Department of the Interior's position on the
Settlement Act's investment of interest income, the United States
Treasury, and not the Tribe, profited from tribal trust funds. As
trustee, the United States should interpret ambiguous provisions in
favor of tribes. Moreover, the slow timeframe for settlement and lack
of interest earnings before the effectiveness date eroded the value of
the trust funds due to inflation.
This amendment appropriates the amount of money that the trust
funds earned during the five-year period of appropriation, before the
January 25, 2016 effective date, and authorizes the amount to be
returned to the Tribes' trust funds. This will restore the value of the
trust funds provided to the Tribes to the level intended by Congress
and enable the Tribes to fulfill the promise of the Settlement Act: to
be able to make use of their water right to fulfill the economic
potential of the Duck Valley Reservation.
Attachment 1
Dear Mr. Roberts,
I am writing to provide you additional information concerning the
investment revenue issue relating to the Shoshone-Paiute Tribes of the
Duck Valley Reservation Water Rights Settlement funds. Vice Chairman
Buster Gibson and Councilmembers Cristi Walker and Rudy Blossom raised
this issue when they met with you on February 24, 2016.
The Shoshone-Paiute Tribe of the Duck Valley Reservation Water
Right Settlement Act, Pub. L. 111-11, Title X, Subtitle C (Mar. 30,
2009), became final on January 25, 2016, with the publication of the
Secretary of the Interior's findings. 81 Fed. Reg. 4063 (January 25,
2016). At that point the waivers became final and the settlement funds
became available to the Tribes. The settlement funds consist of $45
million in development funds and $15 million in operation and
maintenance funds. The funds were appropriated over a five year period
beginning in 2010, and all funds are now in the Tribes' Treasury
accounts. As the funds were appropriated, they were deposited in the
Tribes' development and O&M accounts, and OST began investing the
funds. Regular account reports were provided to the Tribes, including
the investment amounts. And, OST consulted with the Tribes concerning
appropriate investments for the funds. There is now approximately $5.5
million in investment revenue in the accounts.
At some point approximately a year and a half to two years ago--
after the majority of the funds had been appropriated, deposited in the
Tribes' accounts and invested--OST questioned whether the Settlement
Act authorized investment of the funds before the Secretary published
the final findings in the Federal Register. OST therefore stopped
investing the funds--without notice to the Tribes--apparently in
reliance on the following language in section 10806 (e) of the
Settlement Act:
(e) Administration of Funds.--Upon completion of the actions
described in section 10808( d) (publication of the findings),
the Secretary, in accordance with the American Indian Trust
Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.)
shall manage the Funds, including investing amounts from the
Funds. . .
We understand the Solicitor's office has been looking at this issue
and may issue an opinion concluding that there was no authority to
invest for the period before publication of the findings. Upon issuance
of the opinion, we understand the investment funds of over $5.5 million
may be returned to the Treasury.
We are seeking your assistance in making sure that the investment
revenues are not returned to the Treasury and that an administrative or
legislative solution be identified to insure that the investment funds
are paid to the Tibes. We are hopeful that an administrative solution
is possible since we understand that legislation will take some time
and is likely to be difficult.
This matter is of critical importance to the Tribes as we begin the
process of implementing our water rights settlement and spending the
settlement funds on crucial Reservation projects, including vital
rehabilitation activities at the BIA's Duck Valley Irrigation Project.
We have been counting on the investment revenues as a part of the
overall settlement funds available to the Tribes, and such funds are
essential to the settlement projects that we expect to undertake. We
ask that you work with others within the Department of the Interior to
find a way to make sure these critical funds are paid to the Tribes.
We very much appreciate your interest and willingness to look into
this matter and look forward to a favorable outcome.
Attachment 2
Dear Chairman Manning:
I am writing in response to your inquiry to Larry Roberts,
Principal Deputy Assistant Secretary--Indian Affairs, concerning the
investment revenue issue related the Duck Valley Reservation Water
Rights Settlement (Settlement) and the related appropriated monies
(Fund). Specifically, you have requested that any revenue generated by
the investment of the Fund prior to January 25, 2016, be paid to the
Shoshone-Paiute Tribes of the Duck Valley Indian Reservation (Tribes).
For the reasons discussed below, this is to inform you that the
Department of the Interior (Department) lacks the legal authority to
comply with your request. Moreover, the Department has a legal
obligation to remit any amounts generated by any investment of the Fund
prior to January 25, 2016, to the general fund of the Treasury and has
therefore, acted accordingly.
As you are aware, under the Shoshone-Paiute Tribes of the Duck
Valley Indian Reservation Water Rights Settlement Act, P.L. 111-11,
10807 (2009) (the Act), the Settlement became effective on January 25,
2016, upon the publication in the Federal Register of the Secretary of
the Interior's (Secretary) findings related to the implementation of
the Act and underlying Settlement. 81 Fed. Reg. 4063 (January 25,
2016). In addition to approving and ratifying the Settlement, the Act
provided for the creation of two funds, the development fund and the
maintenance fund, and autl1orized appropriation of monies to be
deposited into the respective funds. The Fund consists of $45,000,000
in development funds and $15,000,000 in maintenance funds. The Fund was
appropriated over a 5 year period beginning in fiscal year 2010 and
ending in fiscal year 2014.
Neither the Act nor the Settlement provides authority for the Fund
to be invested or to earn interest prior to the effective date of the
Settlement, January 25, 2016. Notably, upon publication of the
Secretary's findings, the Act directs the Secretary to ``manage the
funds, including by investing amounts from the Funds in accordance with
[25 U.S.C 161 and 25 U.S.C. 162a].'' Pub. L. 111-11 10807(e)
(2009). Congress's specific directive to the Secretary to invest
appropriated amounts post-effective date undercuts any argunient that
Congress--without specifically authorizing investment--intended the
Fund earn interest pre-effective date. This notwithstanding, the Fund
was inadvertently invested and earned interest for a period of time
prior to January 25, 2016.
While it is true that following the effective date, the Act
requires the Fund to be managed as a trust fund and that will bear
interest in accordance with 25 U.S.C. 161a, the Fund, prior to the
effective date of January 25, 2016, did not constitute a trust fund.
Rather, money held in the Fund prior to the effective date remained the
property of the United States set aside for the as-of -then
unconsummated Settlement. Therefore, since there is no explicit
language in the Act or the Settlement identifying interest as a source
of the Fund nor directing the payment of interest from the Fund pre-
effective date, it is the Department's position that it lacks the
authority to expend any interest generated by the investment of the
Fund prior to January 25, 2016. In conclusion, any interest the Fund
generated pre-effective date may not be used in connection with the
implementation of the Act and underlying Settlement. Accordingly, the
interest generated by investment of the Fund prior to January 25, 2016,
has been remitted to the general fund of the Treasury in accordance
with 31 U.S.C. 3302(b).
The Chairman. Thank you very much.
Senator Tester?
Senator Tester. Thank you, Mr. Chairman. I appreciate the
flexibility. I appreciate everybody who is testifying here
today.
I want to start with President Werk. The heart of this
settlement lives up to the trust responsibilities we have in
this Nation. Without this settlement, as with all settlements,
and by the way, this is the last settlement in Montana, as with
all settlements, there is going to be a lot of lawsuits. Nobody
wins when there are lawsuits, especially not the Federal
Government with over $700 million in liability on the line.
But we have an opportunity to invest in tribal
infrastructure. We have an opportunity to invest in economic
development. And we have the opportunity to make sure these
water rights claims don't go to court.
So, President Werk, from your perspective as a tribal
president and somebody who lives in Hays, Montana, can you tell
me what it will mean if the tribe, for the tribe, for the
tribe, if your water settlement claims go to adjudication and
we don't get this water settlement over the finish line?
Mr. Werk. First of all, it is a win-win for everyone.
Water, unlike land, it flows, and we have to share. All the
work that we have put into this, it is a win-win for the tribes
first on what we are proposing. And it is a good argument, when
you think about Winters, you think about PIA, and like I said,
Indian people using Indian water. It is justified.
The monetary amount that we are asking for goes way beyond,
is well beneath our claims that we are settling. We want
finality, we want certainty. Like I said, as far as water
flows, and Montana has been very progressive with its water
compacts, like you say, we are the last one. We want to settle.
We don't want a paper water right, we want a wet one for our
future, to be able to develop and use our water for our people.
On the flip side to that, if we are forced to litigate, the
courts, like they did in 1908, they are going to uphold and
they are going to enforce our senior water rights, and we are
all going to lose. That is not going to be good for anyone. It
is certainly not going to be good for the Aaniih Nakoda people.
But it is not going to be good for all the compromises that we
have made and all the work that we have done over the years,
and the agreement that we made in 2001 with the State of
Montana and the United States. There are protections in there
for everyone.
So that is all I will say about it, Senator. Thank you.
Senator Tester. Okay. Thank you. Look, I think you have
gone out of your way to make sure this settlement doesn't put
folks in a rough spot, on or off the reservation. Can you speak
briefly about the mitigation measures that you have for
irrigators who might be concerned with the tribes developing
their water rights?
Mr. Werk. We put a lot of work into that also. Especially
recently, mitigation is very important, I will say again, as
far as water flowing. There are protections in place. There are
a lot of compromises that the tribes have made over the years,
whether it is working with Congress or the Federal Government,
the Administration or prior Administrations, the State and
local stakeholders.
In one example, Upper Peoples Creek, which flows onto the
reservation, the tribes subordinated its water rights then, in
2001. You don't see tribes doing that. But that was a part of a
compromise back then, so we could continue to move forward with
an agreement and putting in protections forever, especially the
Aaniih Nakoda people first.
Our water rights, we are protecting about 115,000 acre-feet
of water outside of the reservation for people that have been
benefiting from the use of our water.
Senator Tester. I appreciate that. Really quickly, I just
want to ask about the Grinnell Notch. The Grinnell Notch
predates the Winters Doctrine, I believe, correct? The
agreement on Grinnell Notch? Is that correct?
Mr. Werk. Yes.
Senator Tester. Can you very quickly, there is just about
20 seconds left, very quickly talk about what was promised in
that Grinnell Notch agreement?
Mr. Werk. Well, I would encourage everybody that is in the
room or listening to read the Grinnell Agreement of 1895. The
commissioners that met with the council back then, they gave
their word to the Secretary of the Interior and to Congress
that by ceding that land, the tribal people ceding that land,
that their water rights would be protected. It talks about the
headwaters in there, no irreparable harm. Now there is a mine
out there that is creating perpetual, it is a perpetual
nightmare, like I said, it needs perpetual treatment.
All we are asking for is 14,500 acres on our side of the
mountain where we have senior water rights to where our
tributaries flow onto the reservation. But Grinnell, the
Grinnell agreement, it preceded Winters. That was in 1895. It
went into the record in 1896, but Winters was in 1908.
Senator Tester. Thank you very much. Thank you, Mr.
Chairman.
The Chairman. Members on both sides of the aisle are going
to be in caucus meetings right now. So we will recess until
approximately 4:00 p.m. We appreciate your patience and
forbearance. We apologize for the inconvenience.
[Whereupon, at 3:05 p.m., the Committee recessed, to
reconvene at a later time.][4:18 p.m.]
The Chairman. We will call the Committee back to order, and
thank everybody for their patience and participation.
Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Chairman Schatz, thank you, and I want to
extend a heartfelt thanks to our witnesses for being here
today.
I especially want to thank President Werk for joining us at
this most important hearing. It is always a pleasure to see
some familiar faces back here in Washington, D.C.
I am committed to settling the long and very overdue water
rights of the Fort Belknap Indian Community. As you all know, I
was proud to get the Montana Water Rights Protection Act over
the finish line to settle the CSKT's water claims. I want to
see the same for Fort Belknap. It is so important that we work
together to accomplish this most important task. We need
support from the tribes, local communities, and both State and
Federal governments to ensure that we are doing right by the
people of Fort Belknap.
Before I dive into questions, I would like to enter a
statement from Governor Gianforte into the record.
The Chairman. Without objection.
Senator Daines. I agree with everyone's assessment that we
need a settlement rather than litigation. I hope to get a
better understanding of what amount of work is left to get
everyone behind such a settlement.
President Werk, have you been in negotiations with local
county commissioners and other tribes on the high line
regarding this settlement?
Mr. Werk. Yes.
Senator Daines. Thank you. I know you have had a lot of
long discussions. I appreciate your continued dialogue with
tribe and local communities.
Mr. Werk. Can I expand on that?
Senator Daines. Yes, you can expand on that.
Mr. Werk. Yes, we have. It has been, like I explained
earlier, it has been a long time. It has been 2001 since our
water compact was passed, and it is a good compact, like I
said. It was passed with overwhelming support by the State of
Montana. So in Fort Belknap, we have continued to, obviously
there have been different administrations, with Governor
Gianforte now, we look forward to having continued meetings
with him and folks over at DNRCs, Jay Warner. Jay Warner has
been there a long time. He is on point for that.
We are the last ones. But also, it has been our council's
position that we will meet with anyone as far as a discussion
about water. We are very transparent about that, about meeting
with folks along the high line, commissioners, other tribes, to
come up with solutions and to work together. As I was talking
about earlier, we have to share. Water is getting more and more
scarce, especially out in Montana with the drought year.
Those meetings have been good meetings. We just try to keep
working together to come up with solutions so we can get this
thing done.
Senator Daines. President Werk, thank you. Thanks for
making the long journey out here. There is no easy way to get
from Fort Belknap to Washington, D.C. I appreciate that.
For the Administration, I have a question for Assistant
Secretary Newland. Does this bill adequately close all existing
Federal liabilities?
Mr. Newland. Thank you, Senator Daines. It is great to see
you again, and I appreciate the opportunity to be here.
We feel like there is more work to be done on the
provisions in this proposed settlement to get us across the
finish line. We have expressed some concerns here at the
department in our testimony about the lack of certainty or
finality, rather, in the current legislation. Overall, we are
committed to getting there.
So to go back to your question, Senator, about does this
provide that finality in its current proposal, I think there is
more work to be done.
Senator Daines. Thank you. That is something that is very
important, of course, in a settlement, is to make sure we close
all the existing Federal liabilities. I don't want to put words
in your mouth, but you said there is more work to be done. So I
guess the answer is, no, there is more work to be done. Is that
an accurate assessment, Secretary Newland?
Mr. Newland. Yes.
Senator Daines. Thank you.
Senate Bill 1911 calls the United States and the State of
Montana to enter into a cost share agreement regarding the
costs of mitigation within one year of the date of enactment of
this act. Secretary Newland, a couple of questions, is that a
reasonable deadline from the Administration's perspective?
Mr. Newland. I am sorry, Senator, the deadline of one year
to negotiate the details of mitigation? Is that what you are
referring to?
Senator Daines. Correct. So the bill calls the United
States and the State of Montana to enter into a cost share
agreement regarding the costs of mitigation within one year of
the date of enactment of the act. So the question is, is that a
reasonable deadline from the Administration's perspective?
Mr. Newland. Ideally, Senator, we would button these things
up as part of the legislation. We have, as I said, we have some
more work to be done with the tribe. We are committed to having
those conversations to get that, to get all of this sewn up so
that there is finality once this settlement is approved by
Congress.
Senator Daines. Maybe getting into a little more specifics,
do you know, has the United States Federal Government begun
negotiations with the State over a cost share agreement?
Mr. Newland. Senator, I will have to follow up with you and
the Committee on that one if the Committee holds the record
open.
Senator Daines. Thanks. Well, we need to be sure the
Administration stays in communication with the State and the
Tribe over the practical implications of any settlement.
My last question, as you know, Senate Bill 1911 provides
for an allocation of water to the tribes from Lake Elwell
behind Tiber Dam. It also includes a series of conditions and
sideboards related to the use of and accounting for that
allocation. Both the Montana Blackfeet Compact and the Chippewa
Cree Tribe of Montana Compact also included Tiber, Lake Elwell
allocations to those tribes.
My question is, has the Administration reviewed the
sideboards on Senate Bill 1911 and the conditions for
computability with the allocations made to the other tribes?
And what is the Administration's position on these conditions
and sideboards?
Mr. Newland. Thank you, Senator Daines, for that question.
This is a particularly complex settlement because of the
interconnection between what is on the table or what is being
discussed at this hearing and some of the other water
settlements in Montana. We want to make sure that, to the
extent there are impacts on other tribes and other settlements,
which I think we all agree the goal is to provide finality, so
we don't have to revisit them, that everybody is at the table
and has an opportunity to weigh in.
IF there are specific technical provisions that you want to
ask about on that one, Senator, I would invite Brent Esplin
here, who is from the Bureau of Reclamation, to answer any
technical questions you have about that. But for the bigger
picture, we want to make sure that if this settlement and this
legislation affect other tribes that we are sitting down and
talking things out.
Senator Daines. Mr. Newland, thank you. And just another
thanks to you and your help in getting the CSKT settlement
across the finish line and signed. I appreciate working with
you on that.
And to President Werk and the other tribal leaders here
today, again, a warm welcome. Thank you for making the long
trek. We are glad to have you here today.
Thank you, Mr. Chairman.
The Chairman. Senator Murkowski, Vice Chair Murkowski.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I appreciate
the hearing. Sorry that things have been a little disjointed,
but that is what happens around here.
The Chairman. Welcome to the Senate.
[Laughter.]
Senator Murkowski. Unfortunately.
But it has been said, and it is certainly important to
repeat, that Indian water rights are vested property rights.
They are resources for which the United States does have trust
responsibility here. We fulfill that responsibility by
assisting tribes with their water rights claims through
litigation and negotiation and implementation. So these are
some of the things that are being considered here today.
Prepared Statement of Hon. Lisa Murkowski, U.S. Senator from Alaska
Thank you, Chairman Schatz.
Good afternoon. Today, we will hear two Indian Water Settlement
bills introduced by our colleagues on this Committee, Senators Cortez
Masto and Tester.
But before I talk about these bills, I have to take a moment and
remind Assistant Secretary Newland of our Committee Rules regarding
submission of written testimony. Testimony is required to be submitted
at least two business days prior to the hearing. We did not receive the
Department's testimony on time. Not even close. This makes prep and
engagement at this hearing very difficult for members, myself included.
Water is a valuable resource for Tribes. It is fundamental for
Tribal public health and economic development on Indian reservations,
particularly in the West. So it is important that we understand the
role Indian water settlements play in tribal selfdetermination and why
the federal government is involved in these settlements.
Federal statutes and treaties reserved lands for Indian
reservations, but they did not typically address the water needs of
these reservations. This oversight by the federal government has given
rise to questions and legal disputes related to Indian water rights.
Indian water rights are vested property rights and resources for
which the United States has a trust responsibility. The United States
fulfills its trust responsibility by assisting Tribes with their water
rights claims through litigation and negotiation and implementation of
water settlements.
Negotiated settlements, rather than protracted litigation, has
become the preferred approach to resolving Indian water rights disputes
particularly because they result in not just a paper right but wet
water. These settlements typically have multiparty agreement, to
include states, holders of local water rights, such as agriculture
irrigation districts, Tribes and the Federal government.
When such an agreement is reached, the parties typically seek
Federal approval in the form of legislation. These settlements quantify
a Tribe's water rights, provide funding for water infrastructure and
economic development and provide water certainty to all water users.
So with that background, let's turn to the legislation.
S. 648, Senator Cortez Masto's bill for the Duck Valley
Reservation, would make a technical correction to the Tribe's existing
water settlement. It allows for the interest on the trust funds that
had been collected prior to the effective date of the settlement be
paid to the Tribe. I understand that these settlements usually
authorize this to occur but this one did not.
I would suggest that my colleague work with me on an amendment to
the bill to include the actual dollar amount of the interest payment,
which I believe is $5 million as we look to advance this bill to a
future markup.
S. 1911, Senator Tester's bill for the Fort Belknap Indian
Community, would ratify the Fort Belknap Indian Community's 2001 water
compact with the State of Montana, provide approximately $593 million
in funding for water infrastructure and economic development, and
transfer and exchange over 58,000 acres of public lands into federal
trust for the Community.
As I understand it, this water settlement does not yet have the
broad support of all the parties nor the entire Montana delegation. I
am hopeful that this hearing will help bring all of the parties
together, along with the federal government, to improve this settlement
legislation so that it can gain the full support necessary to advance
in this Committee.
Right now, the cost of this settlement seems too high and the land
transfers and exchanges need to be fully vetted and understood.
I look forward to working with both my friends, Senator Tester and
Senator Daines, on this settlement going forward.
Thanks to all the witnesses for being here today. I look forward to
hearing all of the testimony.
Senator Murkowski. I want to ask Assistant Secretary
Newland, the Department is generally guided in settlement
negotiations by the criteria and procedures for the
participation of the Federal Government in negotiation for the
settlement of Indian water rights claims. Those are the
criteria and procedures. So, under these, the Administration
carries out an analysis of the appropriateness of the cost of
an Indian water rights settlement.
So the question to you this afternoon is whether the
department has applied these criteria and procedures to the
Fort Belknap settlement as structured in the legislation that
has been introduced? And if so, what did the department
conclude regarding the cost of the settlement? If you can speak
to that this afternoon, I would appreciate it.
Mr. Newland. Thank you, Vice Chairman Murkowski. It is
great to see you again as well. I appreciate your question.
The Administration still, like prior Administrations,
follows the 1990 criteria and procedures. We have applied those
criteria to this instance as well.
I think it is important to note that when it comes to the
cost, we look at a number of factors. In addition to liability,
there are so many other things that go into deciding whether
the cost of the bill or the cost of the settlement is worth
supporting here. We applied those factors. As President Werk
has indicated in his testimony, and his answers here, there are
so many complexities with this that are unique to Fort Belknap
that have gone to our evaluation of the settlement.
Senator Murkowski. So let me ask on that, we do understand
that there is a unique aspect to Indian water claims that do
requires whether it is some level of tailoring or what it is.
But there is also, I would imagine, a matter of equity, a
matter of fairness that requires a settlement process that is
somewhat uniform with certain criteria that are applied
consistently across the board to all settlements.
So this is probably a broader question, and again to you,
Assistant Secretary Newland, is how the settlement for the Fort
Belknap Indian Community compares to other settlements that the
department has been involved in in settling? Perhaps more
specifically, how does it compare to those other settlements in
terms of the Federal contribution, the non-Federal
contribution, and any waivers that might be applied?
Mr. Newland. Thank you, Madam Vice Chair, for that
question. I think it is really difficult, so we want to apply
these criteria in a consistent way. That has been the
department's practice for the last 30 years. But every
settlement is unique. In terms of the Fort Belknap, the
legislation we are discussing today, I think there are a lot of
ways where we have applied that criteria in a consistent manner
to other settlements.
But as President Werk has articulated here, with a lot of
the factors unique at Fort Belknap, it is really hard to make
that comparison today. If I may, I would appreciate the
opportunity to provide the Committee with a follow-up answer to
that question if the record remains open.
Senator Murkowski. Sure. I would appreciate that. And I
guess as long as you are providing that, what about then with
land transfers and exchanges? Are such land transfers and
exchanges commonplace in a water settlement? How do any land
transfers and exchanges impact the overall cost of a
settlement? Is that something that you can provide an answer to
today?
Mr. Newland. Yes, sure. Thanks, Madam Vice Chair. The land
transfer provisions in the proposed Fort Belknap settlement are
unique unto themselves. But including land acquisition and land
transfer provisions within a water settlement is not unique. In
fact, the recent CSKT water settlement included land transfer
provisions in there.
So again, I don't want to sound cliche by saying every one
is unique. But it is not unique or it is not out of the realm
of the ordinary to include land settlement provisions in a
water claim settlement, or land acquisition provisions. Excuse
me.
Senator Murkowski. Okay. I will look forward to the
information that you can provide us on this, and thank you, Mr.
Chairman.
The Chairman. Thank you, Vice Chair.
Secretary Newland, it sounds like the Department of
Interior supports the technical fix to bring not just Duck
Valley but four other similarly situated tribes in line with
other Indian water rights settlements. Now Congress just needs
to authorize those fixes for each affected tribe.
Is that correct?
Mr. Newland. Yes, Mr. Chairman. There are four other tribal
settlements that are implicated here. I can list them again for
the record if you would like.
The Chairman. Yes, go ahead.
Mr. Newland. Sure. It is the Crow Tribe Water Rights
Settlement, from 2010, the Taos Pueblo Indian Water Rights
Settlement, the Aamodt Litigation Settlement, and the Navajo-
Gallup Water Supply Project Act from the last decade.
The Chairman. Thank you.
Chairman Thomas, thank you for your patience. Can you
provide the details on the scope and the impacts of the
projects your government has been able to undertake as a result
of this settlement?
Mr. Thomas. The impact our government took, the impact on
it?
The Chairman. Yes.
Mr. Thomas. The impact the government took on the
settlement is that we, our settlement is huge for this small
reservation here. It is continuously working for our tribe with
the settlement dollars that we received. We are looking at
completing the rehab sooner for our tribes on projects, to be
completed, which is going to continue to increase.
Because of the increase in price and our remote location,
the settlement would be much better with the use of the much-
needed funds that are going to continue to help our community.
We here on the Duck Valley Reservation are very, very remote,
100 miles north of us and 100 miles south of us is the nearest
providing contractors to provide our much-needed irrigation
project to be completed.
The Chairman. Thank you very much, Chairman. And thank you
for your patience and thank you for your leadership.
I know I will work with Catherine Cortez Masto and Jackie
Rosen to get this bill across the finish line. We very much
appreciate it.
If there are no more questions for our witnesses, members
may also submit follow-up written questions for the record. The
hearing record will be open for two weeks.
I want to thank all of the witnesses and the staff and the
members for their time and their testimony.
Mr. Werk, you wanted to say one more thing before we
adjourned.
Mr. Werk. If I could, Mr. Chairman.
The Chairman. Yes.
Mr. Werk. I really appreciate that.
I just want to say how much I appreciate Senator
Murkowski's questions. I appreciate Assistant Secretary Newland
answering them.
We all know there is well over 500 tribes in this Country.
The United States has only settled about 30 some Indian water
rights settlements. There is a lot of work that needs to get
done.
I have always been a fan of Executive Order 13175 since its
inception. President Biden reaffirmed that. And the
Administration has been doing a good job doing consultation. We
have had some very good consultation with that and Covid.
My point is that I think there is more work to be done when
it comes to Indian water rights policy. That needs to start
with that Executive Order. We need to go out and have
meaningful consultation and negotiated rulemaking with tribes
to where we can improve on that.
Now, listening even to the Assistant Secretary, that is
very correct, we all know tribes are unique. They are all
unique to manage their own affairs with their sovereign status.
But there are some things, like with criteria, that should be
the same. And one of the big things is Winters and PIA.
So as far as Fort Belknap is concerned, we are unique, like
I said. And it is Indian people using Indian water. That is
what I meant when I said earlier about justifying our water
rights, because we can through Winters, and we can through PIA
as far as our claims are concerned and what our asks are.
But that is just some comments. I think what would be
helpful is a Senate oversight hearing to have this discussion
further, Mr. Chairman. Thank you.
The Chairman. Thank you. We would welcome any additional
comments in writing for the record.
With that, we want to thank everybody. The hearing record
will be open for two weeks. I want to thank all the witnesses
for their time and their testimony.
This hearing is adjourned.
[Whereupon, at 4:38 p.m., the hearing was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Greg Gianforte, Governor, State of Montana
Thank you for the opportunity to provide a written statement to the
Senate Committee on Indian Affairs regarding S. 1911, the Gros Ventre
and Assiniboine Tribes of the Fort Belknap Indian Community Water
Rights Settlement Act of 2021. As the Governor of the State of Montana,
I recognize that finalizing Indian water settlements is preferable to
divisive, prolonged, and costly litigation. For decades, Montanans have
worked incredibly hard to resolve long-standing claims to water through
settlements. Montana has undertaken this endeavor with the
understanding that negotiated settlements create certainty, not only
for water users, but also for our tribal nations.
S. 1911 requires further discussion and coordination, particularly
with the State of Montana. As I witnessed during my time as Montana's
sole Congressman, ensuring the full participation of the Department of
the Interior, Department of Justice, and the Office of Management and
Budget is key in negotiating and securing a settlement. Similarly, the
State of Montana must be at the table as part of these ongoing
negotiations.
Further, the State would benefit from additional time and
coordination with the federal team, as well as stakeholders in Montana,
on the proposed legislative settlement and its alignment with the state
compact. The Fort Belknap-Montana Compact (MCA 85-20-1001) passed the
Montana State Legislature and was ratified by the State on April 16,
2001. Much has changed in the decades since this compact was entered
into by the State of Montana and the Fort Belknap Indian Community of
the Fort Belknap Reservation.
While I generally support and appreciate the long-term benefits
Indian water rights settlements offer to Montana, I urge this Committee
to allow for ongoing negotiations to occur prior to advancing S. 1911.
It is essential that the State have an opportunity to participate in
negotiations with the federal team to determine the terms of this
settlement.
______
Wildlife Montana and The Wilderness Society
October 7, 2021
Dear Chairman Schatz, Ranking Member Murkowski, and members of the
committee:
On behalf of Wildlife Montana and The Wilderness Society, we write
to support S. 1911, the Gros Ventre and Assiniboine Tribes of the Fort
Belknap Indian Community Water Rights Settlement Act, by Senator
Tester.
Our organizations are committed to working with Native communities
to ensure that America's public lands are managed in an equitable
manner. We understand the injustice inflicted upon the Gros Ventre and
Assiniboine Tribes by the Federal government in the mismanagement of
the tribes' water and the removal of land from the Fort Belknap Indian
Reservation.
The proposed water rights settlement will help to address this
inequity by resolving tribal water rights, supporting tribal economic
development, and restoring certain lands to the reservation. Among the
lands to be restored are sacred lands that were removed from the
reservation in an indefensible manner. The settlement will protect
sacred sites, maintain tribal cultural practices, preserve headwaters
for tribal water supply, and enhance tribal economic vitality and self-
determination.
We support restoring to the reservation lands that were removed
from the tribes by the federal government by placing the tribes under
extreme duress and are interested in ensuring that the important values
of these lands are maintained.
We look forward to working with the tribes, Senator Tester, and the
committee on the management of the restored trust lands and urge the
committee to approve S. 1911.
Sincerely,
Wild Montana and The Wilderness Society
______
Response to Written Questions Submitted by Hon. Lisa Murkowski to
Hon. Andrew Werk
Question. In your testimony, you state that the method the United
States should apply in quantifying your Indian water rights is the
practicably irrigable acreage of the reservation or PIA standard
established by the U.S. Supreme Court in Arizona v. California. As I
understand it, this is not the only standard for quantifying Indian
reserve water rights. Another standard that has been applied is the
``homeland'' standard. (Arizona Supreme Court in Gila V). Under this
standard, federal Indian reserved water rights are quantified based on
the Tribe's past, present, and future water needs, not just those needs
tied to agriculture. Please explain why you are urging the United
States to apply the PIA standard for determining your Indian reserve
water rights?
Answer. We set forth the facts related to the creation of the Fort
Belknap Reservation from our historical documents, e.g., treaties and
Congressional Acts, the U.S. Supreme Court's holding in Winters v.
United States, which specifically addressed the adjudication of a
portion of the Indian reserved water rights for our Gros Ventre and
Assiniboine Tribes, and review the key holdings of Arizona v.
California, ruling on the quantification of reservation lands
established, at least in part, for the development of an agricultural
economy as a means for creating a permanent, self-sufficient, and
livable homeland. We, then, address the holding and conclusions of the
Arizona Supreme Court's decision in the general stream adjudication
involving five Arizona tribes in Gila V. We conclude that although
these two recognized methods for quantification are viable and legally
supported, the PIA standard is appropriate for quantifying our
Reservation Indian reserved water rights for future use from the Milk
River, which forms the northern border of our Reservation.
Creation of the Fort Belknap Reservation. The first tract of land
set aside by the United States with the major purpose of creating a
self-supporting, agrarian homeland was for the Blackfoot Nation in
1855. Treaty of October 17, 1855, 11 Stat. 657. At that time, our Gros
Ventre Tribe was part of the Blackfoot Nation. The federal government's
policy included the expectation that the tribes would be confined to
and settle permanently within their territorial boundaries where they
would abide in permanent houses and obtain their sustenance by
agricultural pursuits and stock raising.
In 1888, Congress established the final, permanent homeland, the
Fort Belknap Reservation, for the Gros Ventre and Assiniboine Tribes
(``Tribes''). Agreement of May 1, 1888, 25 Stat. 8. This Agreement
required the relinquishment of most of the tribes' territory and
resulted in a significant reduction in the lands that the Tribes could
occupy and use. The federal purpose of the 1888 Agreement continued the
policy of establishing an agricultural economy for the Tribes. The
Agreement expressly stated that the Tribes would ``obtain the means to
enable them to become self-supporting, as a pastoral and agricultural
people[,]''--creating an agricultural Reservation economy. Funds were
provided for the purchase of cows, bulls, and other stock, and
agricultural implements, among other purchases, and for ``undertak[ing]
the cultivation of the soil.'' Agreement at Articles III, V.
By 1898, the Tribal members were irrigating about 30,000 acres on
the Milk River for grain, grass, and vegetables. Congress authorized
the construction of irrigation systems on the Reservation, now known as
the Fort Belknap Indian Irrigation Project. And, based on the promises
of the federal government in the 1855 Treaty and 1888 Agreements, the
United States initiated a lawsuit for the Tribes to restrain settlers
upstream on the Milk River from preventing water from flowing to
irrigate the Indian lands on the Reservation due to these non-Indian
diversions and depletions. The Fort Belknap Reservation is the
birthplace of ``Indian reserved water rights.''
The Winters Doctrine. The United States Supreme Court first
recognized federal, Indian reserved water rights in Winters v. United
States, 207 U.S. 564 (1908). This case directly involved the Gros
Ventre and Assiniboine Tribes on the Fort Belknap Reservation. It was
our Tribes who fought for the right to use the water on our Reservation
and established the federal law that is the seminal legal authority for
all Indian reserved water rights in the United States. The Court
analyzed the 1888 Agreement creating the Fort Belknap Reservation and
concluded that certain elements of the agreement were ``prominent and
significant.'' Id. at 575-76. In particular, the Court found that the
purpose and intent of this smaller reservation of land was to ``enable
[the Tribes] to become self-supporting, as a pastoral and agricultural
people.'' The high Court reasoned that ``[i]f they should become such,
. . . a smaller tract [of land] would be inadequate without a change of
conditions. The lands were arid and, without irrigation, were
practically valueless.'' Id. at 576. The Court specifically rejected
the argument that the Indians deliberately gave up the means of
irrigation.
The Court explained that ``[t]he Indians had command of the lands
and the waters command of all their beneficial use, whether kept for. .
. grazing. . . or turned to agriculture and the arts of
civilization.''Id. (The Montana Supreme Court, subsequently, concluded
that ``acts of civilization'' likely include the consumptive uses for
industrial purposes.) \1\ The Winters Court applied ``a rule of
interpretation of agreements and treaties with the Indians, ambiguities
occurring will be resolved from the standpoint of the Indians.'' Id
Therefore, under the Winters doctrine, the Court held that the
establishment of the Reservation impliedly reserved the amount of water
necessary to irrigate its lands and to provide water for other
purposes. Id. at 576-77. \2\ Finally, the Court also held that these
reserved water rights are exempted from appropriation under state law.
\3\
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\1\ Greely v. Confederated Salish & Kootenai Tribes, 219 Mont. 76;
712 P.2 754 (1985) (explaining the Winters Court holding related to the
Fort Belknap Reservation).
\2\ The Winters Court adjudicated a portion of the Fort Belknap
Indians' reserved water rights and issued a decree recognizing an
annual diversion from the Milk River for the Fort Belknap Indian
Irrigation Project. The FBIC is now seeking a final Congressional
settlement of all of its reserved water rights for the Reservation.
\3\ The Court relied, in part, on prior cases establishing the
Government's power to reserve the waters and exempt them from
appropriation under the state laws, citing United States v. Rio Grande
Ditch & Irrigation Col, 74 U.S. 690, 702-03 (1899); and United States v
Winans, 198 U.S. 371 (1905).
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The Winters Doctrine has stood the test of time and for over a
century has been applied to recognize tribal, Indian reserved water
rights. In summary, the Winters Court created federal, Indian reserved
water rights law with the following characteristics: (1) a reservation
of water is to be implied when it is required to accomplish the
purposes of a Treaty, Congressional Act, or Agreement between the
United States and tribes establishing a tribe's reservation oflands
with the expressed right to exclusive tribal possession of the land, Id
at 575-76; (2) the amount of water must be sufficient for all their
beneficial use when the purpose is to allow the Indians to become a
``pastoral and civilized people,'' including the development of an
agriculture economy; and (3) Indian reserved water rights are exempted
from appropriation under state law. \4\
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\4\ See also United States v. Rio Grande Dam & Irrigation Dist.,
174 U.S. 690, 703 (1899) (holding that the states' power to create
water rights is subject to two limitations: (1) a state cannot
``destroy the right of the United States, as the owner oflands
bordering on a stream, to the continued flow of the waters''; and (2) a
state is limited by the federal navigation servitude.''
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Agricultural Reservations & PIA. In Arizona v. California, 373 U.S.
546 (1963), the United States Supreme Court adjudicated, in part, the
water rights of five reservation tribes on the Colorado River
mainstream in the Lower Basin to determine the quantity of each tribes'
reserved water rights. The Court affirmed the validity of federally
reserved Indian water rights under the Winters decision when
reservations are created, explaining that such rights also include
those reservations established by an Act of Congress or by Executive
Order. The Court held that when the reserved water rights are necessary
to fulfill the purposes for which it was created, with a new water use
that did not exist prior to creation of the Indian reservation, the
priority date is the date of establishment of the reservation. \5\ Id.
at 595-601.
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\5\ See also Greely v. Confederated Salish & Kootenai Tribes, 219
Mont. 76, 92; 712 P.2 754 (1985); Cf United States v. Adair, 723 F.2d
1394, 1412-15 (9th Cir. 1983) (when water is reserved for a tribe to
continue aboriginal uses, such water may have a time immemorial
priority date).
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The Court concluded that Indians are entitled to sufficient water
to develop, preserve, produce, or sustain food and other resources of
the reservation in order to make it livable. Id. at 599-600. The Court
found that when the United States created the five reservations
included in this adjudication, ``it reserved not only land but also the
use of enough water from the Colorado to irrigate the irrigable
portions of the reserved lands.'' Id. at 596. This is now referred to
as ``practicably irrigable acreage'' or PIA--the standard by which
Indian water rights are quantified where the purpose of the reservation
includes agricultural pursuits. Under this standard, if land within a
reservation can be cultivated through irrigation and if such irrigation
is practicable when applying relevant economic measures, then the tribe
is entitled to the amount of water necessary for such irrigation. The
Court reasoned that ``[m]ost of the land in these reservations is and
always has been arid, if the water necessary to sustain life is to be
had, it must come from the Colorado River.'' Id. 598. The United States
was aware that most of the lands were of the desert kind--hot,
scorching sands--and that water from the river would be essential to
the life of the Indian people and to the animals they hunted and the
crops they raised.'' Id. 598-99.
Finally, the Court rejected Arizona's urging that the amount of
water be measured by ``the reasonably foreseeable needs of the Indians
living on the reservation rather than by the number of irrigable
acres.'' Id. at 596. The Court reasoned that the quantity of ``water
was intended to satisfy the future as well as the present needs of the
Indian reservations and'' [ agreed with the Special Master who] ``ruled
that enough water was reserved to irrigate all the practicably
irrigable acreage on the reservations.'' Id. at 600. Rejecting the
position urged by the State of Arizona, the Court explained that if the
quantity of water reserved ``is measured by the Indians' `reasonably
foreseeable needs,''' it really means that quantification would be
based on the number of Indians--and the number of Indians that there
will be in the future ``can only be guessed.'' Id. at 600-01. The Court
also rejected the application of the equitable apportionment doctrine,
explaining that it is ``a method of resolving water disputes between
States.'' Id. 596-97.
In summary, the Arizona Court further defined the characteristics
of Indian reserved water rights as follows: (1) water rights are
reserved for the Indians effective as of the time the Indian
Reservations were created; (2) these Indian reserved water rights are
present perfected rights; (3) when a purpose of the reservation
includes agricultural use, the method of quantification is the volume
of water needed for the practicably irrigable lands, \6\ in addition to
water needed to support life and create a livable homeland; (4) Indian
reserved water rights include future (i.e., uses that would necessarily
be needed and continued ``through the years,'') as well as present
water needs, the quantity of which is not determined by the size of the
Indian population, \7\ or only on current use; (5) once the reserved
water rights are quantified, they may be used for any lawful purposes;
\8\ and (6) reserved water rights are federal water rights and are not
dependent on state law water regimes, and cannot be lost because of
non-use under state-law concepts such as abandonment and forfeiture.
---------------------------------------------------------------------------
\6\ See also Robert T. Anderson, Indian Water Rights and the
Federal Trust Responsibility, Natural Resources Journal, 46:399-400,
429 (Spring 2006). The now-Solicitor of the Department of Interior, Mr.
Anderson stated that ``most important is the fact that in the era of
negotiated Indian water settlements, PIA is the one component that can
be objectively evaluated and thus serves as a cornerstone for the
settlement framework.''
\7\ See also United States of America v. Walker River Irrigation
District, Case No. 3:73-cv-00127-MMD-WGC at 8 (Sept. 21, 2021) (
explaining that the Arizona I Court determined that the relevant
tribes' water rights would be measured by practicably irrigable acres,
instead of some other measure such as the tribes' population or their
'reasonably foreseeable needs.')
\8\ Arizona v. California, 439 U.S. 419,422 (1979) (Arizona II).
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Gila V. In 2001, the State Supreme Court of Arizona adjudicated the
reserved water rights of five tribes in Arizona in the general stream
adjudication of the Gila River. In re General Adjudication of All
Rights to Use Water in Gila River System and Source, 201 Ariz, 307
(2001) (Gila V). In Gila V, the State court specifically addressed the
following issue: ``What is the appropriate standard to be applied in
determining the amount of water reserved for federal lands?'' Id. at
310. This case is recognized as establishing what is known as the
``homeland'' standard for quantifying federal Indian reserved water
rights. The homeland standard is another method for quantifying tribal
reserved water rights.
With regard to this particular State water rights adjudication, the
court applied certain rules adopted by prior U.S. Supreme Court
decisions related to the characteristics of Indian reserved water
rights (e.g., quantification includes a tribe's present and future use,
\9\ and state laws of prior appropriation do not apply), and further
articulated the ``homeland'' standard. In Gila V, the court's method of
quantification for determining the amount of water reserved with the
creation of an Indian reservation did not include ``analysis of each of
the [five] tribes' treaties and enabling documentation to determine the
reservation's individual purpose.'' Id. at 313. The court reasoned that
because many Indian reservations were pieced together over time, such
at the Gila River Indian Community, such an analysis of''an arbitrary
patchwork of water rights would be unworkable and inconsistent with the
concept of a permanent, unified homeland.''Id.
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\9\ The court distinguished the scope and nature of the Winters '
Indian reserved water rights from the reserved water rights of non-
Indian federal reservations, which, the court explained, are more
narrow and strictly construed, Id. at 313; see also Cappaert v. U.S.,
426 U.S. 128 (1976), and U.S. v. New Mexico, 438 U.S.zz 10 The FBIC
will be the last Indian reservation out of seven in Montana to settle
its Indian reserved water rights, through the negotiation process
established by the Montana Reserved Water Rights Compact Commission
with the participation of a Federal Negotiating Team.
---------------------------------------------------------------------------
The court also reasoned that when the Indian reserved water rights
are implied from the purposes of the historical documents establishing
the reservation, and the purpose is not clear but focuses ``only on the
motives of Congress,'' it does not accurately represent the true
reasons for which Indian reservations were created, and an ``imputed
intent for the purpose of quantifying an extremely valuable right to a
scarce resource'' is problematic. Id. 314. The court concluded that
``[i]t is doubtful that any tribe would have agreed to surrender its
freedom and be confined on a reservation without some assurance that
sufficient water would be provided for its well-being,'' id.,
establishing the ``homeland standard'' for quantification.
Conclusion
In 1908, the United States Supreme Court affirmed the lower court's
decision to award the Gros Ventre and Assiniboine Tribes a portion of
our Indian reserved water rights on the Milk River in Montana.
Subsequently, the Fort Belknap Indian Community negotiated and reached
an agreement with the State of Montana and the Federal Government in
2001 that settles our Indian reserved water rights. The Gros Ventre and
Assiniboine Water Rights Settlement Bill before Congress, S.1911, will
ratify our 2001 Water Compact, where the quantification of our rights
is based, in part, on the principals of ``practicably irrigable
acreage,'' and the holdings of the U.S. Supreme Court in the Winters
and Arizona decisions. \10\
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\10\ The court distinguished the scope and nature of the Winters '
Indian reserved water rights from the reserved water rights of non-
Indian federal reservations, which, the court explained, are more
narrow and strictly construed, Id. at 313; see also Cappaert v. U.S.,
426 U.S. 128 (1976), and U.S. v. New Mexico, 438 U.S.zz 10 The FBIC
will be the last Indian reservation out of seven in Montana to settle
its Indian reserved water rights, through the negotiation process
established by the Montana Reserved Water Rights Compact Commission
with the participation of a Federal Negotiating Team.
---------------------------------------------------------------------------
The purpose of the establishment of our Tribes' final and permanent
homeland, the Fort Belknap Reservation, was clear and expressly stated:
to create a livable homeland that includes sufficient water for all our
present and future beneficial uses and well-being, and to establish an
agricultural economy, requiring sufficient water for our present and
future irrigated lands. The PIA standard was used to determine the
quantification of our future reserved water rights in the Milk River, a
major source of our water supply. Agriculture remains the sole economic
industry on our Reservation and is significant for our ability to be
self-sufficient. However, the FBIC's Indian reserved water rights
claims and quantification under the negotiated Water Compact can be
considered a hybrid of both the PIA and non-PIA methods of determining
our Indian reserve water rights because of negotiations and compromises
made between the parties that resulted in our 2001 Water Compact.
Our settlement includes consideration of sufficient water for the
creation of a permanent homeland, which is also a part of the Winters
doctrine. We acknowledge, however, that the ``homeland'' standard as
articulated in Gila Vis a method of quantifying Indian reserved water
rights and supports the application of a general reservation purpose
that ``provide[ s] a home for the Indians, [as] a broad one, that must
be liberally construed.'' \11\
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\11\ Gila Vat 315, quoting Colville Confederated Tribes v. Walton,
647 F.2d 42, 47 (9th Cir. 1981).
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______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Andrew Werk
(1) According to Assistant Secretary Newland's testimony, the
Department of Interior uses the 19990 ``Criteria and Procedures for the
Participation of the Federal Government in Negotiations for Settlement
of Indian Water Rights Claims'' \1\ (``Criteria and Procedures'') as a
framework for negotiating Indian water rights settlements. One feature
of the Criteria and Procedures is to evaluate the costs for settling or
not settling claims.
\1\ 55 Fed. Reg. 9223-9225 (March 12, 1990).
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a) In your testimony you stated that the monetary value of the
proposed settlement is less than the Tribes' claims for damages if you
were to litigate. You also stated that in 2001 the Tribe subordinated
its water rights on the Upper Peoples Creek as part of the negotiation
process. Can you elaborate on your testimony, specifically on the issue
of Criteria and Procedures metric on costs of settling versus not
settling your Tribes' claims?
(2) Please describe the ways in which the Tribe has worked and
continues to work with the state of Montana and the federal government
to develop a final settlement agreement equitable to all parties. In
particular, are there terms being offered to the state that, to your
knowledge, other Tribes have not offered to their respective state
counterparts?
President Jeffrey Stiffarm, FBIC Council President, \2\
respectfully responds as follows.
\2\ On November 2 and December 14, 2021, the Fort Belknap Indian
Community (FBIC) held elections for membership on the FBIC Council. Mr.
Jeffrey Stiffarm is the current President of the FBIC Council.
---------------------------------------------------------------------------
Introduction. Congressional passage of Senate Bill, S. 1911, the
Gros Ventre and Assiniboine Tribes Indian Water Rights Settlement, will
be a historic moment--both as the culmination of our Tribes' century-
long battle to secure, protect, and develop our Indian reserved water
rights and as the end of the trail for our Tribes' journey to complete
the recognition of our water rights since the United States Supreme
Court issued its decision in Winters v. United States. \3\ Our Fort
Belknap Reservation is the birthplace of the Winters Doctrine that
established federal, Indian reserved water rights for all Indian
reservations that are created for the purpose of providing permanent
homelands for Indian people. The FBIC will be the last Indian
reservation out of the seven reservations in Montana to settle its
Indian reserved water rights through the negotiations process
established by the Montana Reserved Water Rights Compact Commission,
which included the participation of our assigned Federal Negotiating
Team.
---------------------------------------------------------------------------
\3\ 207 U.S. 564 (1908).
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The Criteria and Procedures developed by the U.S. Department of
Interior (``Department'') provide guidelines for the Federal
Government's participation in the negotiations and settlement of Indian
reserved water rights, consistent with the policy of the United States
to favor settlement over litigation of such rights. \4\ Within the
published guidelines, the Department's assigned Federal Negotiating
Teams apply the criteria as ``a framework for negotiating settlements
so that (1) The United States will be able to participate in water
settlements consistent with the Federal Government's responsibilities
as trustee to Indians; (2) Indians receive equivalent benefits for
rights which they, and the United States as trustee, may release as
part of a settlement; (3) Indians obtain the ability as part of each
settlement to realize value from confirmed water rights resulting from
settlement; and (4) The settlement contains appropriate cost-sharing by
all parties benefiting from the settlement.'' \5\
---------------------------------------------------------------------------
\4\ 55 Fed. Reg. 9223-9225 (March 12, 1990).
\5\ Id. at 9223.
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The criteria articulated in the 1990 Criteria and Procedures
regulations include, in part, that the non-Federal cost-sharing be
proportionate to the benefits received by the non-Federal parties (#6);
that the operating capabilities and various resources of the Federal
and non-Federal parties to the claims' negotiations be considered in
structuring a settlement (e.g., operating criteria and water
conservation in Federal and non-federal projects) (#8); and that
federal participation in Indian water rights negotiations should be
conducive to long-term harmony and cooperation among all interested
parties through respect for the sovereignty of the States and tribes in
their respective jurisdictions (#10).
In response to SCIA Chairman Brian Schatz's questions, we set forth
the following:
Question 1. What are the costs of settling versus not settling the
FBIC reserved water rights claims?
Answer. Settling our water rights through legislation passed by
Congress is the most cost-effective strategy for resolving more than
100 years of claims against the United States for its failure to
protect FBIC reserved water rights. The costs of failing to settle our
water rights are both monetary and non-monetary. In deciding to settle
our FBIC claims, we analyzed previous tribal reserved water rights
litigation efforts and the negotiations/settlement process established
by the Federal Government and the State of Montana, weighing the
advantages and disadvantages of our options. We identified significant
costs and other disadvantages in not settling our claims.
First, our water rights claims are pending before the Montana Water
Court and would be immediately litigated if we do not settle our
claims. \6\ As trustee of our Indian reserved water rights, the United
States is required to represent our interests before the State Water
Court under state and federal laws. \7\ Adjudication of our Indian
reserved water rights in the State Water Court would be very lengthy,
time-consuming, and expensive. For example, the Big Horn litigation of
the reserved water rights of the Eastern Shoshone and Northern Arapaho
Tribes on the Wind River Reservation in the Wyoming state court began
in the 1980s and took 37 years, with 20,000 claimants, at an estimated
cost of $60 million. \8\
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\6\ In 2013, the Montana Legislature announced that it was
suspending negotiations under the Reserved Water Rights Commission for
tribes who did not have a Congressionally-approved water rights
settlement, requiring such tribes to file their reserved water rights
claims with the State Water Court by June 30, 2015. The United States,
as trustee, filed our Indian reserved water rights claims, which are
currently pending before the Water Court.
\7\ 43 U.S.C. 666 (1952) (waiving the sovereign immunity of the
United States to involuntary joinder as a party in state court general
water rights adjudications).
\8\ Charles Wilkinson, Introduction to Big Hom General Stream
Adjudication Symposium, 15 WYO. L. REV. 233, 234 (2015); Lyophile, 37-
year lawsuit over water, tribal rights on Wind-Big Hom examined in UW
event (September 1, 2014); https://wyofile.com/2014/09/01/ (last
visited January 3, 2022); Jason A. Robison, Wyoming's Big Hom General
Stream Adjudication, 15 WYO. L. REV. 243,309 FN443 (2015), quoting
Geoffrey O'Gara, What You See in Clear Water: Indians, Whites, and a
Battle over Water in the American West at 174 (2000).
---------------------------------------------------------------------------
Furthermore, under the clear precedent of the Winters doctrine, we
would claim the natural flow of the Milk River with senior priority
rights to use the water based on the date of the establishment of our
Reservation. \9\ This would negatively impact more than 100,000 acres
of non-Indian agricultural lands in northcentral Montana-where the
Federal Government is responsible for the construction and management
of the Milk River Project along the Milk River Basin. This would result
in enormous costs to non-Indian irrigators and the agricultural
industry in northcentral Montana and beyond.
---------------------------------------------------------------------------
\9\ See also Greely v. Confederated Salish & Kootenai Tribes et
al., 712 P.2d 754 (1985).
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If the FBIC reserved water rights claims are litigated, individual
water users will also be forced to object and litigate these claims in
an effort to defend their own rights in the State court. \10\ This will
result in additional litigation costs. We have been told by non-Indian
irrigators on the Milk River that they prefer settlement and do not
want to have to litigate against our claims in the State Water Court.
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\10\ See Montana Department of Natural Resources and Conservation,
Proposed Water Rights Compact between the State of Montana and The
Confederated Salish and Kootenai Tribes of the Flathead Reservation,
explaining the result of failing to approve a tribal Water Compact and
relying on the State Water Court to adjudicate it; http://dnrc.mt.gov/
divisions/water/water-compact-implementation-program/docs/cskt/
watercompactreport.pdf (last visited January 3, 2022).
---------------------------------------------------------------------------
Second, because the State Court cannot resolve our damage claims
against the United States, we would also need to initiate litigation
against the United States to secure finality of our damages claims. We
have identified six specific claims against the United States that
include both Constitutional takings claims and breach of trust claims.
These claims total more than $730 million and have been documented by a
well-respected agricultural economist.
If we are able to settle our water rights through legislation, we
are willing to seek only a portion of these damage claims to support
the costs of the development of our water through water infrastructure
projects. In addition, settling our water rights through federal
legislation allows us to satisfy a portion of our claims through the
return of ancestral lands and reservation lands currently held by the
Federal government. \11\
---------------------------------------------------------------------------
\11\ Through negotiations, part of our damages claim will be
satisfied through ancestral land transfers back to the FBIC.
---------------------------------------------------------------------------
Third, another positive outcome from choosing the settlement of our
reserved water rights and claims against the United States is the
infusion of hundreds of millions of dollars into the local and regional
economy that will create thousands of jobs over 20-30 years resulting
from the rehabilitation and betterment of our federal Fort Belknap
Indian Irrigation Project and the construction of our other water
infrastructure projects. \12\ We rely on non-Indian businesses and
contractors in our region and State to assist us with our Reservation
construction projects.
---------------------------------------------------------------------------
\12\ Using a simple rule of $92,000 of government spending creates
one job-year ( or one job for one year), our proposed Water Rights
Settlement will create an approximate total of 6,557 job-years, over
300 jobs per year. See The Council of Economic Advisers report titled
``Estimates of Job Creation from the American Recovery and Reinvestment
Act of 2009.''
---------------------------------------------------------------------------
Finally, because litigation does not provide for compromises,
including those that protect the non-Indian water users who rely on the
same water sources, by selecting to settle our claims, we will achieve
peace and harmony with our neighbors in northcentral Montana and a
significantly less costly resolution than litigation can offer.
Question 2. Are there terms being offered to the state that, to
your knowledge, other Tribes have not offered to their respective state
counterparts?
Answer. Each water settlement is different. In our compact and
proposed water settlement legislation we went to extensive lengths to
provide for non-Indian water users in our region. We live in an
agricultural region. We all need to work together to ensure that water
resources are available to support our tribal economy as well as the
regional economy.
First and foremost, the FBIC made significant compromises with the
State and regional stakeholders that include protections for the non-
Indians' continued irrigation use of the Milk River and Upper Peoples
Creek, which are the two significant water sources for the FBIC,
bordering and on the Reservation. In particular, during the 1990s'
State-Tribe-Federal negotiations of the FBIC Water Compact, our elders
urged a solution for our Water Compact that mitigated the development
and use of the FBIC's negotiated quantified, reserved water rights on
northcentral Montana irrigators in order to maintain peace and harmony
with our neighbors. Articles III (Tribal Water Rights) and VI
(Contributions to Settlement) of the 2001 Water Compact, MCA 85-20-
1001 through 85-20-1008, articulate the negotiated agreements between
the State, FBIC, and Federal Government on the Milk River and Upper
Peoples Creek.
In particular, the Commission conducted almost 3 dozen public
meetings between 1997 and 2000 to inform stakeholders in northcentral
Montana and Tribal members about the Water Compact, solicit comments,
and consider local input on the terms and conditions of the FBIC Water
Compact. \13\ The Commission also disseminated copies of the Water
Compact to local libraries, Conservation District offices, County
Extension Offices, FBIC Water Resources Office, etc. The result of this
extensive public information effort was the overwhelming approval of
the State Legislature in 2001 in support of the FBIC Water Compact (95
percent approval).
---------------------------------------------------------------------------
\13\ Montana Reserved Water Rights Commission archive.
---------------------------------------------------------------------------
We have continued our outreach efforts in the region to a variety
of stakeholders, including our extensive efforts over the last 3 years
that have included environmental and conservation groups, and are
working closely with the Secretary's Indian Water Rights Office, the
State Administration, and, in particular, the Mille River Joint Board
of Control, which is comprised of representatives from the private
irrigation companies on the Mille River in northcentral Montana. The
parties are currently meeting to finalize the mitigation activities for
the non-Indian water users that will occur with the implementation of
our settlement and to determine the federal-state cost share
agreements, as described at Article VI.B. (Mitigation of Impacts on the
Mille River Project) and Article VI.C. (Upper Peoples Creek Dam and
Reservoir) of the Water Compact. The mitigation for (1) the Milk River
Project will protect the non-Indian irrigators in northcentral Montana
to allow them their continued use of the Mille River water supply; and
(2) the construction of the Upper Peoples Creek Dam and Reservoir on
the Fort Belknap Reservation is intended to improve the Upper Peoples
Creek water supply for the Tribes because of the FBIC's agreement to
subordinate our senior water rights in the Upper Peoples Creek,
upstream of the Reservation, in order to allow continued, historical
irrigation by nonIndian families on the Upper Peoples Creek. These
mutual agreements and compromises were a significant factor in the
approval of our Water Compact.
Second, the State has made, and will make, financial contributions
to the Water Compact and FBIC Water Rights Settlement, as it has done
for other Montana tribes. As part of its costshare for the Water
Compact and settlement, in 2005, 2009, and 2013 the State Legislature
authorized $13,670,000, including $4,170,000 in cash and $9,500,000 in
general obligation bond authority, and has spent $4,000,000 to date on
in-kind services for technical support related to the Water Compact
mitigation activities. The State has indicated a commitment of $5
million to the cost of design and construction of the Upper Peoples
Creek Dam and Reservoir on the Reservation. The non-Federal monetary
contribution to our Water Settlement is within the average range of
non-Federal monetary contributions reported by the Department. \14\
---------------------------------------------------------------------------
\14\ See, e.g., Presentation of Pam Williams, Director of the
Secretary's Indian Water Rights Office, Symposium on Settlement of
Indian Water Rights (August 25, 2021).
---------------------------------------------------------------------------
Finally, our Water Compact, Article IV, Implementation of Compact,
and Settlement provide an agreement on the administration of the Tribal
reserved water rights, including the creation of a Milk River
Coordinating Committee, which can improve the conditions of water
supply, water quality, and habitat in the Milk River basin.
In summary, first, we believe that the advantages of achieving a
Congressional settlement of our reserved water rights claims far exceed
the disadvantages that come with choosing not to settle. Second, to our
knowledge, wc have not offered any terms to the State in our final
settlement agreement that have not been offered by other tribes to
their respective state counterparts.
______
Response to Written Questions Submitted by Hon. Brian Schatz to
Hon. Bryan Todd Newland
Question 1. How does the Department apply the 1990 ``Criteria and
Procedures for the Participation of the Federal Government in
Negotiations for the Settlement of Indian Water Rights Claims'' to all
settlements?
Answer. The Department applies the 1990 Criteria and Procedures on
an ongoing basis during the negotiation of Indian water rights
settlement. The Department takes into consideration the unique
circumstances of each settling Tribe in its evaluation of each
criteria.
Question 2. How does the Fort Belknap Water Settlement compare to
other Indian water settlements in terms off ederal and non-federal
contributions as well as applicable waivers.
Answer. As noted in the Department's written testimony, the
Department has concerns regarding the unknown federal cost of this
settlement. The non-federal contributions are also unknown and are to
be negotiated after the fact. With these costs unknown, it is difficult
to say with any certainty how the federal and non-federal contributions
to the Fort Belknap Water Settlement compares with other Indian water
rights settlement.
Regarding waivers, there are some substantive differences between
the waivers and retentions in S. 1911 and the waivers and retention of
claims included in previously enacted Indian water rights settlement.
The Department remains committed to working with the Tribes to make
sure that appropriate waivers are included in any legislation to
approve the Fort Belknap Water Settlement.
______
Response to Written Questions Submitted by Hon. Lisa Murkowski to
Hon. Bryan Todd Newland
Question 1. The Department of the Interior is generally guided in
settlement negotiations by the Criteria and Procedures for the
Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Rights Claims (55 FR 9223, March 12, 1990)
(Criteria and Procedures). Under these Criteria and Procedures, the
Administration carries out an analysis of the appropriateness of the
costs of an Indian water rights settlement.
In your answer to my question at the hearing you stated that the
Department has applied these Criteria and Procedures to the water
settlement for the Fort Belknap Indian Community as structured in S.
1911, but that you would have to get back to the Committee with the
Department's analysis and conclusions.
What did the Department conclude with respect to the costs of this
settlement?
Answer. As noted in the Department's written testimony, the
Department has concerns regarding the open-ended nature of the Federal
contribution required by S. 1911. We are continuing to work with the
Tribes to address that concern. Once addressed, the Department will be
able to continue its analysis of the costs and reach a more definitive
conclusion regarding the appropriateness of the Federal contribution.
Question 2. At the hearing I asked you how the settlement for the
Fort Belknap Indian Community in S. 1911, compares to other settlements
the Department has been involved in negotiating, recognizing of course
that these settlements require some level of tailoring, but also as a
matter of fairness and equity, some uniformity, too, in process. In
your response to my question, you stated you would have to get back to
the Committee with a more detailed answer. How does the Settlement for
the Fort Belknap Indian Community in S. 1911 compare to other
settlements the Department has been involved in negotiating?
Answer. Every settlement is unique. This settlement is similar to
others in that, among other benefits, it would: resolve the water
rights claims of the Fort Belknap Indian Community and of the United
States on behalf of the Fort Belknap Indian Community and Allottees;
provide funding to address water resources needs on the Reservation;
and promote cooperation between the Tribes and the non-Indian
community.
Question 2a. Specifically, how does this settlement compare to
those other settlements in terms of the federal contribution, the non-
federal contribution, and the waivers that are applied?
Answer. See the answer above to question 2 from Chairman Schatz.
Question 2b. This settlement includes a large transfer and exchange
that also involves the State of Montana. Are such land transfers and
exchanges commonplace in a water settlement? If a land transfer or
exchange is included in a water settlement, how do they impact the
overall cost of the settlement? (Does it lower the overall cost to the
federal government, for example?)
Answer. The inclusion of land transfers in Indian water rights
settlement, while not ``commonplace,'' are not unprecedented. For
example, the recent Confederated Salish and Kootenai Tribes Settlement
included the transfer of U.S. Fish and Wildlife Service land to the
Tribes. How the transfer of lands impacts the overall cost of the
settlement is something that the Department is still considering. It is
possible that the land transfer provisions will have a positive,
negative, or even neutral impact on the overall cost of settlement.
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