[Senate Hearing 117-138]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 117-138

                           S. 648 AND S. 1911

=======================================================================

                                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
         
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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
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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

                              ----------                              
                                                                   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

                              ----------                              


                       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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.

                                  [all]