[Senate Hearing 118-120]
[From the U.S. Government Publishing Office]
S. Hrg. 118-120
S. 616, S. 1898 AND S. 1987
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
JULY 12, 2023
__________
Printed for the use of the Committee on Indian Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
53-617 PDF WASHINGTON : 2023
COMMITTEE ON INDIAN AFFAIRS
BRIAN SCHATZ, Hawaii, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
MARIA CANTWELL, Washington JOHN HOEVEN, North Dakota
JON TESTER, Montana STEVE DAINES, Montana
CATHERINE CORTEZ MASTO, Nevada MARKWAYNE MULLIN, Oklahoma
TINA SMITH, Minnesota MIKE ROUNDS, South Dakota
BEN RAY LUJAN, New Mexico
Jennifer Romero, Majority Staff Director and Chief Counsel
Amber Ebarb, Minority Staff Director
C O N T E N T S
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Page
Hearing held on July 12, 2023.................................... 1
Statement of Senator Daines...................................... 43
Statement of Senator Lujan....................................... 4
Statement of Senator Murkowski................................... 1
Statement of Senator Schatz...................................... 1
Statement of Senator Smith....................................... 4
Statement of Senator Tester...................................... 2
Witnesses
Crockett, John, Associate Deputy Chief for State, Private, and
Tribal Forestry, U.S. Department of Agriculture................ 14
Prepared statement........................................... 15
Fineday, Hon. Leonard, Secretary-Treasurer, Leech Lake Band of
Ojibwe Indians................................................. 16
Prepared statement........................................... 18
Juras, Hon. Kristen, Lieutenant Governor, State of Montana....... 38
Prepared statement........................................... 40
Newland, Hon. Bryan, Assistant Secretary, Indian Affairs, U.S.
Department of the Interior..................................... 6
Prepared statement........................................... 8
Nygren, Hon. Buu, President, Navajo Nation....................... 22
Prepared statement........................................... 24
Stiffarm, Hon. Jeffrey, President, Fort Belknap Indian Community. 26
Prepared statement........................................... 27
Appendix
Letters submitted for the record
Response to written questions submitted by Hon. Tina Smith to:
John Crockett................................................ 61
Hon. Leonard Fineday......................................... 62
Hon. Bryan Newland........................................... 63
S. 616, S. 1898 AND S. 1987
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WEDNESDAY, JULY 12, 2023
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:41 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 three bills: S. 616, the Leech Lake
Reservation Restoration Technical Corrections Act of 2023; S.
1898, the Navajo-Gallup Water Supply Project Amendments Act of
2023; and S. 1987, Fort Belknap Indian Community Water Rights
Settlement Act of 2023.
S. 616 would make express the Secretary of Agriculture's
authority to transfer suitable Forest Service land located in
the Chippewa National Forest in Cass County, Minnesota, to the
Secretary of the Interior for the benefit of the tribe in
fulfillment of the purposes of the Leech Lake Reservation
Restoration Act.
S. 1898, introduced by Senators Lujan and Heinrich, would
amend the Navajo-San Juan River Water Rights Settlement to
provide the additional time and resources needed to complete
the Navajo-Gallup Water Supply Project authorized in 2009.
Lastly, Senators Tester and Daines introduced S. 1987. This
bill will authorize and ratify the water rights compact entered
into by the Fort Belknap Indian Community, the United States,
and the State of Montana in 2001. It would also provide
critical water infrastructure and funding for the tribe's water
development, provide mitigation measures for non-Indian water
users, and transfer certain lands into trust for the benefit of
the tribe.
Before I turn to the Vice Chair for her opening statement,
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.
Vice Chair Murkowski?
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman, for holding
this hearing. You have mentioned the three bills before us. I
am going to keep my comments brief, because you have already
outlined the specifics. These bills are important, as they
address the complex tribal water and land issues.
Just a couple of words here about the Fort Belknap Indian
Community Water Rights Settlement Act. We were in this
Committee almost two years ago, back in October of 2021,
talking about the need to get all the parties together to make
a real push to reach agreement. So I am pleased that we are
here with a settlement with broad support including from the
Governor of Montana. That demonstrates great work, so
congratulations on that.
I think we recognized that the Fort Belknap Indian
Community is tied to one of the most consequential opinions
issued by the Supreme Court on tribal water rights. This is the
Winters v. United States case, back in 1908, but it is the
basis for the Federal Government's trust responsibility to
safeguard water rights for our tribes. Winters is the reason
why Indian water settlements approved by Congress often fund
infrastructure for agriculture, for drinking water, and
sanitation systems on tribal lands.
Those on this Committee know that I have talked long and
often about the issue of lack of access to water in Alaskan
villages. We have more than 3,000 households and about 30
Native villages that suffer from a total lack of indoor
plumbing: that is running water, that is sanitation. It impacts
everything from the ability to bathe to disease issues as you
try to move human waste in crude buckets.
We have so much more to do here. We have made some great
gains, $3.5 billion in the Bipartisan Infrastructure Law to
clear the existing backlog of IHS sanitation projects, $2.5
billion to implement existing tribal water settlements. So we
recognize that is big, that is a significant step.
But it doesn't eliminate the need for the Federal
Government to continue investing in tribal water projects. I
think we are just seeing this need grow. Tribes are facing
ballooning costs with operating and maintaining this influx of
new water projects, especially when these systems come of age.
Mr. Chairman, I had a conversation with the Comptroller of
the GAO, Gene Dodaro, about this. He agreed to my request,
which is to launch a GAO study to examine the growing financial
costs that tribes may incur for these operating systems. I am
looking forward to reviewing the results when we get that back.
I think we know we have a lot more to do to provide water
to Native communities, and I am glad that today's hearing
includes legislation to address this significant unmet need.
The Chairman. Thank you, Vice Chair Murkowski.
I will now recognize Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. I want to thank
you, Chairman Schatz and Ranking Member Murkowski, for having
this hearing, particularly as it applies to the Fort Belknap
Indian Community Water Settlement.
I would ask unanimous consent to place into the record the
following letters of support: Rocky Mountain Tribal Leaders
Council, The Wilderness Society, State Representative Paul
Tuss, Bear Paw Development Corporation, St. Mary's
Rehabilitation Working Group, Milk River Joint Board of
Control, and Blaine County Conservation District.
The Chairman. Without objection, so ordered.
Senator Tester. And I think Senator Daines will have some
more letters to be put in when he arrives.
Once again, we are here to talk about the Fort Belknap
Indian Community Water Settlement, amongst one of the three
bills up. I want to welcome our witnesses, President Jeffrey
Stiffarm of Fort Belknap Indian Reservation. Thank you for
being here, obviously for good reason. Lieutenant Governor
Kristen Juras, thank you for being here, thank you for making
the trek.
I think the fact that you are here, Lieutenant Governor,
speaks to the fact that this Administration thinks this is an
important piece of legislation for us to take up. I just want
to thank you for being here in person today. It would have been
a lot easier to stay in Montana. It is a pretty good hike to
get here.
And it is an honor to have you both testify in front of
this Committee, and what this means to not only the folks in
Fort Belknap, but the entire State of Montana.
The Fort Belknap Indian Community Water Settlement has been
a long time in the making. I first introduced this bill in
2012. But to be honest with you, for me it even started before
that. During my State legislature days, I voted to get this
bill out in the Montana legislature.
I have been working with folks on the ground like President
Stiffarm for over a decade. So to say that I am pleased that we
have a version that takes into account the perspectives of
multiple stakeholders coming before this Committee with
widespread bipartisan support is an understatement. This is a
historic day for the Fort Belknap Indian Community and for
folks across north central Montana.
I have said it before, and I will say it again, because my
Native American friends taught me this: water is life. Water is
necessary for crops, for businesses, for our homes, for life.
The bipartisan settlement we are looking at today is the result
of years of negotiations between the tribe, local elected
officials, irrigators, State legislators, Federal agencies, and
other stakeholders to hammer out a fair compromise that honors
our trust and treaty responsibilities, while guaranteeing water
certainty to all water users in north central Montana through
the rehabilitation of the Milk River project.
This is the last water settlement to be finalized for our
great State of Montana. We have to get this done, because in
Montana we make good on our promises and we work together to
get things done and find that common ground. That is exactly
what has happened with this settlement.
For years, we have talked about moving this settlement
forward. This Congress, we have a real shot. I want to thank
the Chairman and Ranking Member, because you guys are helping
give us that shot.
Thanks again to everybody who is here today, the folks who
are testifying, even if you are not testifying for the Fort
Belknap Water Settlement. And I do know that the BIA will be
testifying for it, correct, Mr. Newland?
At any rate, this is so, so important to the people of
Montana, to the Fort Belknap Indian Community. I look forward
to the testimony and I look forward to the opportunity to ask
questions.
Thank you both.
The Chairman. Thank you very much, Senator Tester.
We will now turn to Senator Smith.
STATEMENT OF HON. TINA SMITH,
U.S. SENATOR FROM MINNESOTA
Senator Smith. Thank you so much, Chair Schatz and Vice
Chair Murkowski, for holding this hearing today and including
my bill, the Leech Lake Reservation Restoration Technical
Corrections Act of 2023.
Welcome to all of our panelists. I want to particularly
welcome Leech Lake Secretary-Treasurer Lenny Fineday to the
Committee today, who is here to testify on the importance of
this bill to Leech Lake. I want everyone to know that
Secretary-Treasurer Fineday is a tremendous advocate for Leech
Lake and has a distinguished background in tribal and Indian
law. I am very grateful for your advocacy on this issue and so
many others facing Leech Lake and all the indigenous
communities in Minnesota.
In the 1940s, thousands of acres were taken illegally from
Leech Lake Band's reservation in secretarial transfers. Three
years ago, with support from this Committee, we passed a law to
make that right. That bill, the Leech Lake Reservation
Restoration Act, directed the Department of Interior to
transfer the wrongly seized land from the Chippewa National
Forest in Cass County, Minnesota, to be held in trust for the
Leech Lake Band.
Today we are considering a technical amendment to that land
transfer to make two changes. The first is to allow for ongoing
implementation of the law and the second is to include in the
law an additional approximately 4,400 acres. This land was also
wrongly taken from the Band, which we discovered during a
review of historic records undertaken as we were implementing
the 2020 law.
These changes, though technical, are crucial for
implementing the existing law and to fulfill our goal and our
trust and treaty responsibilities of restoring illegally taken
lands to Leech Lake.
I want to thank the Department of Agriculture and the
Department of Interior for being here today to support the
bill. I appreciate your assistance in drafting this technical
correction. Also, thank you to the Forest Service for your work
to implement the Leech Lake Reservation Restoration Act.
Colleagues, I ask for your support for this technical
correction, which will have a direct and real impact on the
lives of Leech Lane Band members.
Thank you, Mr. Chair.
The Chairman. Thank you very much, Senator Smith.
We will now turn to Senator Lujan.
STATEMENT OF HON. BEN RAY LUJAN,
U.S. SENATOR FROM NEW MEXICO
Senator Lujan. Thank you, Mr. Chairman.
Chairman, thank you, and to our Vice Chair for holding this
hearing in part to consider my bill amending the Navajo-San
Juan Water Rights Settlement. Today I am honored to introduce a
friend, a great leader, and that is President of the Navajo
Nation, Dr. Buu Nygren, who has traveled here to testify on
behalf of this important water rights legislation for the
Navajo Nation. Mr. President, thank you for being with us
today.
He was elected in 2022, Mr. Chairman, as the youngest
Navajo Nation president in history at the age of 35. Dr. Nygren
is a proud graduate of Red Mesa High School near the Four
Corners of the Navajo Nation. He earned his Bachelor of Science
and Master's at Arizona State University, and his Ph.D. from
the University of Southern California.
Dr. Nygren is married to Jasmine Blackwater Nygren, who is
a former representative from the State of Arizona. Together
they have a young daughter. Both proudly reside in Red Mesa,
Arizona, where the president grew up. Mr. President, we welcome
you here today, we welcome all of our guests here today,
friends, leaders from across America.
Thank you, Mr. Chairman. I yield back.
The Chairman. Thank you very much, Senators.
We will now turn to further witness introductions. First,
we have the Honorable Bryan Newland, Assistant Secretary of
Indian Affairs for the Department of Interior. We are also
pleased to have Mr. John Crockett, the Associate Deputy Chief
for State, Private and Tribal Forestry at the U.S. Department
of Agriculture. Finally, we have the Honorable Kristen Juras,
Lieutenant Governor of the State of Montana.
I want to remind our witnesses that we have your full
written testimony that will be made a part of the official
hearing record. If you could please keep your statements to no
more than five minutes.
Senator Lujan has some opening remarks on the legislation.
Senator Lujan, I apologize.
Senator Lujan. Thank you, Mr. Chairman. This is the benefit
of being new here. I should have followed the wisdom of my more
senior colleagues and included my opening statement with my
introduction of the president. I apologize to everyone and ask
for their indulgence.
Mr. Chairman, the Navajo-Gallup Water Supply Project
Amendments of 2023 are vital to ensuring that Congress uphold
its promise to the Navajo Nation, the City of Gallup and the
Jicarilla Apache Nation in New Mexico. In 2009, Congress passed
the Navajo-San Juan River Water Rights Settlement Act. As a
member of the U.S. House of Representatives, I was proud to
carry that legislation in the House. Senator Jeff Bingaman
carried that legislation here in this body.
This project authorize the Navajo-Gallup Water Supply
Project to pipe water to communities in New Mexico and eastern
Arizona. Without action by Congress, authorization and funding
for the project will expire on December 31st, 2024, depriving
roughly a quarter of a million people in northwestern New
Mexico and Arizona the water promised by this settlement in
2009.
In 2023, between 30 and 40 percent of households on the
Navajo Nation still live without running water. Once completed,
the project will help close this water gap and provide a more
sustainable supply that will improve public health and economic
opportunities for the region. This legislation must be signed
into law this Congress to ensure work on the Navajo-Gallup
Water Supply Project that began in 2009 does not grind to a
halt.
I appreciate the chance to be with you all today. I hope we
earn the support of everyone.
Before I yield back, Mr. Chairman, I would like to ask for
unanimous consent to enter letters of support from the
settlement parties and the participants into the record.
The Chairman. Without objection, so ordered.
Senator Lujan. With that, Mr. Chairman, I thank you again,
and I urge my colleagues to support these amendments. I
appreciate all my colleagues for the legislation they have been
working on as well, in hopes that we can get this done
together.
With that, Mr. Chairman, I yield back.
The Chairman. Thank you very much, Senator Lujan.
This is the part where I ask you to keep your remarks to no
more than five minutes. Now that all of the testifiers have
been introduced, we will start with Secretary Newland. Please
begin with your testimony.
STATEMENT OF HON. BRYAN NEWLAND, ASSISTANT
SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE
INTERIOR
Mr. Newland. Thank you, Mr. Chairman. Aanii, boozhoo, mino
ghizhep. Good afternoon, Chairman Schatz, Vice Chair Murkowski
and members of the Committee.
My name is Bryan Newland. I have the privilege of serving
as the Assistant Secretary for Indian Affairs at the Department
of the Interior. I appreciate the opportunity to testify on
three bills today.
The United States acts as a trustee for the land and water
rights of tribes, American Indians and Alaska Natives. In its
role as trustee, the Federal Government has an obligation to
advance the interests of the beneficiaries with the highest
degree of diligence and skill.
The Administration strongly supports the resolution of
Indian water rights claims through negotiated settlements.
These settlements help ensure that citizens of tribal nations
have reliable and safe water for drinking, for cooking, and for
sanitation.
Access to clean water improves the public health and
environment on reservations. It enables economic growth. It
promotes tribal self-sufficiency and it helps fulfill the
United States' trust responsibility to tribes. The Department
stands ready to work with Congress to advance Indian water
rights settlements and uphold our sacred trust
responsibilities.
S. 1987 would approve and provide authorization to carry
out the settlement of the Fort Belknap Indian Community's water
rights in the State of Montana. The Department supports S.
1987, and does suggest some technical changes to aid in its
implementation. This bill would resolve the tribe's water
rights claims in Montana by recognizing the water rights
established in the Montana-Fort Belknap Water Rights Compact.
S. 1987 authorizes $1.1 billion in Federal appropriations
for the design and construction of water projects that would
benefit the tribes and non-Native users in Montana. The bill
also authorizes appropriations for the rehabilitation and
expansion of the Fort Belknap Indian Irrigation Project and the
Milk River Project. The Department does suggest a feasibility
study for both projects to avoid cost gaps and guarantee
completion.
S. 1987 also identifies the Bureau of Indian Affairs as the
lead agency for the project, although previous water
settlements typically authorized the Bureau of Reclamation for
that work. The Department suggests utilizing the Bureau of
Reclamation as the lead agency for improvements to that
project.
We believe that this legislation would bring meaning to the
legal victory that the tribes and the United States secured
more than a century ago in the historic Winters case. We
support S. 1987 with the technical changes just mentioned.
The Navajo-Gallup Water Supply Project was first authorized
in 2009 and settled the Navajo Nation's water rights in the San
Juan Basin of New Mexico. When completed, the project will
provide a reliable and sustainable domestic municipal and
industrial water supply from the San Juan River to 43 chapters
of the Navajo Nation, including its capital in Window Rock,
Arizona, as well as the City of Gallup, and the southwest
portion of the Jicarilla Apache Reservation.
S. 1898 provides an additional authorization of $725
million to complete the project; $689 million will be used to
address a cost gap; $30 million would be used to support Navajo
community connections to the water transmission line; and $6
million would be used for renewable energy features that would
save energy costs on the overall project.
This bill also extends the date by which the project must
be completed to December 31st, 2029, and eliminates double
taxation of goods and services.
The Department appreciates the willingness of the Navajo
Nation, the Jicarilla Apache Nation, the City of Gallup and the
State of New Mexico to reach consensus on these issues. We
support S. 1898.
S. 616 is a technical amendment to Public Law 116-255 to
authorize the transfer of additional lands in the Chippewa
National Forest in Minnesota that met the same criteria listed
in the original Act. This amendment is necessary to allow for
the ongoing implementation and to allow for the inclusion of
additional lands that the Department may identify in the
future.
In addition to flexibility for ongoing implementation, S.
616 would also authorize an acre-for-acre substitution of land
with the Chippewa National Forest if the Band identifies
certain parcels that are unsuitable for future use. The
Department supports S. 616 as well.
Chairman Schatz and Vice Chair Murkowski, members of the
Committee, I want to thank you again for this opportunity to
testify. As always, I look forward to answering your questions.
[The prepared statement of Mr. Newland follows:]
Prepared Statement of Hon. Bryan Newland, Assistant Secretary, Indian
Affairs, U.S. Department of the Interior
Aanii (Hello)! Good afternoon Chairman Schatz, Vice Chairman
Murkowski, and members of the Committee. My name is Bryan Newland, and
I am the Assistant Secretary for Indian Affairs at the Department of
the Interior (Department).
S. 616
Thank you for the opportunity to present testimony regarding S.
616, the Leech Lake Reservation Restoration Technical Corrections Act
of 2023.
In December 2020, Congress enacted the Leech Lake Band of Ojibwe
Reservation Restoration Act, Public Law 116-255 (Act). The Act directed
the Secretary of Agriculture to transfer approximately 11,760 acres in
the Chippewa National Forest to the Secretary of the Interior to be
held in trust for the Leech Lake Band of Ojibwe in Minnesota (Band).
The 11,760 acres were restored to the Band after being identified as
wrongfully transferred from the Band and its members.
Since the enactment of Public Law 116-255, the Department
identified an additional 4,362.21 acres of land that met the same
criteria as in Public Law 116-255. S .616 amends Public Law 116-255 to
authorize the transfer of any additional lands in the Chippewa National
Forest in Cass County, Minnesota that are identified as having been
sold without the consent of a majority of rightful landowners. This
approach will allow for on-going implementation of Public Law 116-255
to continue and allow for the inclusion of any additional lands that
the Department may identify as having been wrongfully transferred. S.
616 would also authorize an acre-for-acre substitution of lands within
the Chippewa National Forest in Cass County, Minnesota if the Band
identifies certain parcels as unsuitable for future use.
The Department supports S. 616 as it allows flexibility in the
implementation of Public Law 116-255 while allowing for additional
lands to be identified and restored to the Band.
S. 1898
Thank you for the opportunity to present testimony regarding S.
1898, the Navajo-Gallup Water Supply Project Amendments Act of 2023,
which would amend the Northwestern New Mexico Rural Water Project Act,
P.L. 111-11, Title X, Subtitle B, Part III, amended by P.L. 114-57
(together the 2009 Act). The Department supports S. 1898.
Introduction
The United States acts as a trustee for the land and water rights
of Tribes, American Indians, and Alaska Natives. The United States has
a trust responsibility to Indian Tribes and Indian people and
consistent with that has charged itself with moral obligations of the
highest responsibility and trust. These obligations are at their
greatest when it comes to protecting the ability of Tribes, and their
citizens, to maintain their existence on lands the United States holds
in trust for their benefit.
The Biden Administration recognizes that water is essential for
people to lead healthy, safe, and fulfilling lives on Tribal lands.
Water is the among the most sacred and valuable resources for Tribal
nations.
The Administration further recognizes that long-standing water
crises continue to undermine public health and economic development in
Indian Country. The Administration strongly supports the resolution of
Indian reserved water rights claims through negotiated settlements.
Indian water settlements protect the senior water rights reserved by
Tribal Nations and help ensure that the citizens of these Nations have
reliable and safe water for drinking, cooking, and sanitation; improve
the public health and environment 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 conflict and contention among Tribal Nations and
neighboring communities and promote cooperation in the management of
water resources.
Congress plays an important role by enacting legislation to ratify
Indian water rights settlements. We stand ready to work with this
Committee and Members of Congress to advance Indian water rights
settlements and uphold our sacred trust obligations to Indian country.
We have a clear charge from the President and Secretary Haaland to
protect Tribal reserved water rights and improve water access and water
quality on Tribal lands. 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 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.
S. 1898, a bill to amend the Northwestern New Mexico Rural Water
Project Act to make improvements to the Act, and for other
purposes
Background
The 2009 Act, which was part of the Omnibus Public Land Management
Act of 2009, approved settlement of the Navajo Nation's water rights
claims in the San Juan River Basin in New Mexico and, as the
cornerstone of the settlement, directed the Secretary (acting through
the Bureau of Reclamation (Reclamation)) to design, construct, operate,
and maintain the Navajo Gallup Water Project (Project). When completed,
the Project will provide a reliable and sustainable domestic,
municipal, and industrial water supply from the San Juan River to 43
Chapters of the Navajo Nation, including the Nation's capital of Window
Rock, Arizona; the city of Gallup, New Mexico; and the southwest
portion of the Jicarilla Apache Reservation. All of these entities are
currently relying on a shrinking supply of groundwater that is of poor
quality and is inadequate to meet present domestic water needs, let
alone projected needs.
The 2009 Act authorized an appropriation of $870 million (2007
price level), adjusted annually using engineering cost indices, to
plan, design, and construct the Project, which includes construction of
two water transmission laterals--the Cutter and San Juan Laterals. The
Department, through Reclamation, has been implementing the 2009 Act
with significant success. In October 2021, Reclamation declared
substantial completion of the Cutter Lateral, the smaller of the two
laterals, and it transferred operation, maintenance, and replacement
responsibilities for the Cutter Lateral to the Navajo Nation in June
2022. As of May 2021, the completed segments of the Project have
facilitated delivery of drinking water to 6,000 people (1,500
households) in eight Navajo chapters. Reclamation has also made
significant progress on the San Juan Lateral and has completed over 50
percent of the features on the lateral. Reclamation and their partners
have completed or are currently constructing 285 of the 300 miles of
Project water transmission pipelines. Recently, Reclamation acquired
the San Juan Generating Station water system facilities that will
provide both construction and operation and maintenance savings,
increased operational flexibility, and reduced risks to operations for
the Project.
S. 1898 Provisions and Positions of the Department of the Interior
S. 1898 would amend the Act in several ways:
Increase the authorized Project cost ceiling. S. 1898 provides
an additional authorization of $725.7 million to complete the
Project. This is comprised of $689.45 million to address a
cost/funding cost gap, $30 million for Navajo community
connections to the Project water transmission line, and $6.25
million for renewable energy features.
The 2009 Act's appropriation ceiling was based on a
preliminary, 2007 appraisal-level design estimate rather than a
feasibility level design estimate, which is the level of
estimation that Reclamation recommends for reliability. As
final design and construction of the Project progressed, the
difference between the 2009 Act's appropriation ceiling and the
costs estimated to complete the Project (Working Cost Estimate)
became apparent. The most recent indexed authorized
appropriation ceiling is $1,413.7 million (October 2022 price
level) but the Project Working Cost Estimate is $2,138.4
million (October 2022 price level). After accounting for non-
Federal funding contributions from the Project beneficiaries
received through the Contributed Funds Act, Reclamation
estimates the cost/funding gap is $689.45 million. The cost
increases are based on more reliable cost estimate updates,
primarily associated with the two water treatment plants and
the San Juan Lateral intake. Moreover, the latest Working Cost
Estimate reflects the significant inflation and market
volatility, at levels not seen in 40 years, which have far
outpaced projected indexing used in updating the appropriation
ceiling.
The Department supports the additional authorization contained
in S. 1898. The additional authorization will enable
Reclamation to complete the Project in accordance with
requirements of the 2009 Act and is reflective of Project
participant's needs and the reality of construction costs in
this remote area of New Mexico. The additional authorization of
$6.25 million for renewable energy development will enable
Reclamation to construct lower cost and alternative power
generation for areas on the project (notably the Cutter
Lateral) where Colorado River Storage Project (CRSP) power is
not available. This provision also provides up to $1.25 million
of the $6.25 million to develop small hydropower generation for
Project facilities to help offset a portion of the Project's
pumping costs. The additional authorization of $30 million for
community connections is critical to the Project's success and
will ensure that water deliveries are made to all Navajo
communities within the original Project service area. The
Navajo Nation has agreed to provide an additional $60 million,
approximately, of its own funding to cover the full costs of
connecting all existing Navajo communities to the San Juan
Lateral.
Operation, Maintenance, and Replacement (OM&R) Waiver. S. 1898
provides for a $250 million OM&R trust fund for the Navajo
Nation and up to a $10 million OM&R trust fund for the
Jicarilla Apache Nation, the latter conditioned on an ability
to pay analysis. The 2009 Act includes a provision allowing the
Secretary to waive, for a period of not more than 10 years, the
OM&R costs allocable to the Navajo Nation when the Secretary
determines those costs exceed the Nation's ability to pay.
Reclamation conducted an ability to pay analysis in 2020,
following Reclamation practice for evaluating the enduser's
ability to pay for municipal and industrial water systems, that
concluded the Navajo Nation did not have the ability to pay.
The Department supports establishing a $250 million OM&R trust
fund for the Navajo Nation because it will assist the Nation in
paying OM&R during the time needed to increase the customer
base and economic development necessary to support full OM&R
payments. While the 2009 Act did not provide OM&R assistance to
the Jicarilla Apache Nation, the Department supports up to a
$10 million OM&R trust fund if the allocable OM&R costs are in
excess of the Jicarilla Apache Nation's ability-to-pay.
Expand the Project service area. S. 1898 would also expand the
Project to serve the Navajo Nation's four chapters in the Rio
San Jose Basin (RSJB) in New Mexico and the Lupton community in
Arizona to help the Navajo Nation increase the customer base
and potentially lower OM&R costs. The proposed amendments do
not include funding that would be needed to increase the
capacity of the Crownpoint Lateral, nor additional improvements
necessary to supply the RSJB.
The Department supports the expansion of the Project service
area.
Cap the City of Gallup's Repayment Obligation. S. 1898 would
cap the City of Gallup's (City) repayment obligation at 25
percent of its allocated construction costs, not to exceed $76
million. Under the 2009 Act, the City is responsible for paying
between 25 percent to 35 percent of its allocable costs, based
on its ability to pay. Reclamation estimates that this
provision would reduce the City's repayment obligation by
approximately $33 million.
The Department does not oppose the cap on the City's repayment
obligation.
Project Lands Transfer. S. 1898 would transfer Navajo fee lands
and Bureau of Land Management lands, upon which easements have
been acquired for Project purposes, to the Navajo Nation in
trust with the condition that Reclamation would retain
easements for Project construction, operation, and maintenance.
S. 1898 also transfers ownership of land underlying the
recently acquired San Juan Generating Station water conveyance
and storage facilities to the Navajo Nation in trust. S. 1898
provides for an easement for Reclamation to continue to carry
out construction, operation, and maintenance necessary to
incorporate those facilities into the Project until title
transfer under section 10602(f) of the 2009 Act.
The Department supports the land transfer provisions of S.1898,
which would take land into trust, exclusive of Project
facilities. We would like to make technical changes to the Bill
to clarify that Reclamation would retain ownership of Project
facilities and infrastructure on the land until transferred to
the Navajo Nation under section 10602(f) of the 2009 Act.
Deferred Construction. S. 1898 would authorize establishment of
a Deferred Construction Fund and execution of a deferred
construction agreement under which the Navajo Nation would
acknowledge that full capacity of several Project features will
not be needed until future demands materialize. The Navajo
Nation would be able to use the Deferred Construction Fund to
construct or expand facilities as higher demand requires over
time.
The Department supports establishing a Deferred Construction
Fund because it will allow Reclamation to first construct those
water treatment and storage facilities needed to satisfy
anticipated demand over the next 20-plus years, rather than
immediately beginning work on the larger facilities that will
not be needed until demand increases substantially. This
provision is fiscally conscious and minimizes OM&R costs that
would otherwise be spent on un-used Project facilities in the
first years of water deliveries while providing for the later
development of facilities to meet the Project's full build-out
demand.
Extend Completion Deadline to December 31, 2029. S. 1898
extends the date by which the Project must be completed to
December 31, 2029.
The Department supports extending the Project completion
deadline. Necessary design changes, including incorporating San
Juan Generating Station water system facilities into the
Project, have created delays in construction and a deadline
extension is necessary to allow remaining Project features to
be completed.
Eliminate Double Taxation. S. 1898 would allow taxation by
either the Navajo Nation or the State of New Mexico depending
on the ownership of land underlying Project facilities.
Currently, both the State of New Mexico and the Navajo Nation
have been taxing Federal contractors on construction activities
on Navajo Tribal lands.
The Department supports eliminating the double taxation that is
an additional and unnecessary cost to the Project. Reclamation
estimates that this provision will save approximately $50
million.
Conclusion
The Department appreciates the dedication of all parties, including
the Navajo Nation, the Jicarilla Apache Nation, the City of Gallup, and
the State of New Mexico in developing S. 1898 and the willingness of
all the parties to reach consensus on contentious issues. The
Department supports S. 1898, as it will allow the Department to fulfill
the commitments made in the 2009 Act to deliver clean drinking water to
the Navajo Nation and other Project beneficiaries.
S. 1987
Thank you for the opportunity to present testimony regarding S.
1987, Fort Belknap Indian Community Water Rights Settlement Act of
2023. The Department supports S. 1987 and suggests some technical
changes to aid in its implementation.
Introduction
The United States acts as a trustee for the land and water rights
of Tribes, American Indians, and Alaska Natives. The United States has
a trust responsibility to Indian Tribes and Indian people and
consistent with that has charged itself with moral obligations of the
highest responsibility and trust. These obligations are at their
greatest when it comes to protecting the ability of Tribes, and their
citizens, to maintain their existence on lands the United States holds
in trust for their benefit.
The Biden Administration recognizes that water is essential for
people to lead healthy, safe, and fulfilling lives on Tribal lands.
Water is the among the most sacred and valuable resources for Tribal
nations.
The Administration further recognizes that long-standing water
crises continue to undermine public health and economic development in
Indian Country. The Administration strongly supports the resolution of
Indian reserved water rights claims through negotiated settlements.
Indian water settlements protect the senior water rights reserved by
Tribal Nations and help ensure that the citizens of these Nations have
reliable and safe water for drinking, cooking, and sanitation; improve
the public health and environment 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 conflict and contention among Tribal Nations and
neighboring communities and promote cooperation in the management of
water resources.
Congress plays an important role by enacting legislation to ratify
Indian water rights settlements. We stand ready to work with this
Committee and Members of Congress to advance Indian water rights
settlements and uphold our sacred trust obligations to Indian country.
We have a clear charge from the President and Secretary Haaland to
protect Tribal reserved water rights and improve water access and water
quality on Tribal lands. 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 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. 1987
S. 1987, Fort Belknap Indian Community Water Rights Settlement Act
of 2023 would approve and provide authorizations to carry out the
settlement of the Tribes' water rights in the State of Montana (State).
The Department supports resolving the Tribes' water rights claims
through a comprehensive settlement.
a. Reservation and Historical Background
Congress established the Fort Belknap Indian Reservation
(Reservation) in 1888 to secure a homeland for what are now the
Assiniboine (Nakoda) and Gros Ventre (Aaniih) Tribes (the Tribes). This
homeland in Montana is just a small portion of the Tribes' ancestral
homelands.
Not long after the Reservation was established, the Federal
Government filed a lawsuit to protect the Tribes' right to water on its
homelands. That lawsuit eventually reached the Supreme Court in 1908.
The Supreme Court determined that the establishment of the Reservation
included the senior right to water on the Reservation. Winters v.
United States, 207 U.S. 564. In its opinion, the Court explained that
the Reservation would be inadequate to fulfill the needs of the Tribes
and the policy goals of the United States ``without a change of
conditions.'' The Court also noted, [t]he lands were arid and, without
irrigation, were practically valueless.''
The Winters case has had far-reaching and long-lasting consequences
for all of Indian country. It stands for the principle that the
establishment of a reservation for a Tribe includes the reservation of
waters necessary to make the reservation a livable homeland. The
Winters doctrine protects Tribal rights and homelands, safeguarding the
rights and interests of Tribes across the United States. Despite their
legal victory in the Winters case, Tribes of the Fort Belknap Indian
Reservation have not been able to fully put their reserved water rights
to use.
Today, the Reservation is comprised of approximately 605,338 acres,
including lands held in Trust for the Tribes and allotments held in
trust for individual Indians, 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 low rainfall 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, 92 percent of which are held in trust by
the United States for the benefit of the Tribes or allottees.
Groundwater wells on the Reservation are primarily used for domestic
and municipal purposes and, to a lesser extent, stock watering.
According to Bureau of Indian Affairs (BIA) and Tribal data, 3,351
Tribal members currently live on the Reservation. The total Tribal
membership in August 2021, including members living off the
Reservation, was 8,609. Most 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 main industry is agriculture,
consisting of cattle ranches, raising alfalfa hay for feed, and larger
dryland farms. The unemployment rate on the Reservation is nearly 50
percent, according to a 2019 Montana State University study.
b. Proposed Fort Belknap Indian Community Settlement Legislation
In its role as Trustee, the United States filed water rights claims
for Reservation lands 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' and allotees' water rights within the State. In
2001, the Montana legislature approved the Montana-Fort Belknap Indian
Community Water Rights Compact (Compact). Congressional approval is
necessary before the United States may join in the Compact.
S. 1987 would authorize, ratify, and confirm the Compact to the
extent it is consistent with S. 1987. This would resolve the Tribes'
water rights claims in Montana by recognizing the Tribal Water Right,
which is defined by and 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. Consistent with Federal law, S. 1987
protects the rights of allottees to use a portion of the Tribal Water
Right for agricultural, domestic, and related uses on their allotments.
In addition to the Tribal Water Rights provided by the Compact, S. 1987
includes a 20,000 afy allocation of storage from Lake Elwell, a Bureau
of Reclamation (Reclamation) facility on the Marias River, also known
as Tiber Reservoir. S. 1987 would also authorize funds to implement the
provisions of the Compact and S. 1987.
S. 1987 authorizes $1.17 billion in Federal appropriations for
three general purposes: rehabilitation of the Fort Belknap Indian
Irrigation Project; administration and development of the Tribes' water
rights; and mitigation for the impacts on water users outside the
Reservation. S. 1987 is a mixed project- and fund-based settlement.
S. 1987 includes two specific projects that the Department is
charged with planning, designing, and constructing: (1) the
rehabilitation, modernization, and expansion of the existing FBIIP; and
(2) the rehabilitation and expansion of certain Milk River Project
facilities to satisfy the Compact required mitigation negotiated by the
Tribes and the State.
S. 1987 authorizes the appropriation of up to $415.8 million for
the rehabilitation, modernization, and expansion of the FBIIP. The
Department supports rehabilitating and expanding the FBIIP to serve
additional lands susceptible of sustained and economically viable
irrigation. Without a feasibility level study, however, the costs of
such a project cannot be reliably determined. The Tribes believe that
the requested authorization will cover the costs. S. 1987 contains a
provision providing that the Secretary's obligations to rehabilitate,
modernize, and expand the FBIIP will be deemed satisfied if despite
diligent efforts, the project cannot be completed as contemplated due
solely to the authorized appropriation being insufficient. S. 1987
identifies the Bureau of Indian Affairs (BIA) as the lead agency for
the rehabilitation, modernization, and expansion of FBIIP, while
providing the Tribes the opportunity to perform these activities
through self-determination contracts. The identification of BIA as the
lead agency for the rehabilitation, modernization, and expansion of
FBIIP is unusual.
Previously enacted Indian water rights settlements that have
required the Secretary to plan, design, and construct major
infrastructure have identified Reclamation as the lead agency for such
purposes. Reclamation has the staffing and expertise and a demonstrated
history of success in planning, designing, and constructing
infrastructure. For these reasons and to ensure successful
implementation of S. 1987, the Department suggests that Reclamation is
better suited to lead the rehabilitation, modernization, and expansion
of the FBIIP as well as the Milk River Project rehabilitation and
expansion discussed below.
S. 1987 authorizes the appropriation of up to $300 million to
rehabilitate and expand certain Milk River Project facilities to
implement the mitigation measures required by the Compact. S. 1987
identifies Reclamation as the lead agency to implement these mitigation
projects. The Department testified in the 117th Congress about
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. However, since the time of that testimony, Reclamation completed
modeling that identifies viable alternatives to satisfy the Compact's
mitigation requirement. Based on Reclamation's modeling, the Department
determined that rehabilitation of the St. Mary Canal and the expansion
of the Dodson South Canal will provide the 35,000 afy of mitigation
required by the Compact. Again, without a feasibility level study,
reliable costs of such a project cannot be determined. In an effort to
avoid cost gap issues, S. 1987 provides that the Secretary's
obligations to complete Milk River Project mitigation projects will be
deemed satisfied if despite diligent efforts, the projects cannot be
completed as contemplated due solely to the authorized appropriations
being insufficient.
Because the St. Mary Canal is located on the Blackfeet Reservation,
S. 1987 requires Reclamation to complete the canal's rehabilitation in
coordination with the Blackfeet Tribe.
In addition to the project-based components described above, S.
1987 establishes a $454 million trust fund for the Tribes to be used
for various purposes. Some of these purposes, such as the development
of domestic water infrastructure and establishment of a Tribal water
resources department to administer the Tribal Water Right, are
commonplace in Indian water rights settlements. S. 1987 specifically
would authorize the Tribes to use their trust fund to plan, design, and
construct a pipeline to transport Lake Elwell water from an off-
Reservation point of diversion on the Missouri River to the southern
portion of the Reservation. The Department understands that the Tribes
would be required to comply with all applicable Federal and State laws
when implementing this and all other provisions in the settlement.
Finally, S. 1987 transfers 10,322.58 acres of federal land and
3,519.3 acres of land currently owned by the Tribes into trust for the
Tribes as part of the Reservation. In addition, S. 1987 directs the
Secretary of the Interior and the Secretary of Agriculture to negotiate
with the State to exchange certain State lands within the boundaries of
the Reservation for federal lands elsewhere in the State.
c. Conclusion
The Department recognizes that the Tribes and State of Montana have
worked hard to negotiate this settlement. The Department believes that
this legislation is consistent with the Administration's priorities of
protecting Tribal homelands and meeting our trust responsibility. It
would also bring meaning to the legal victory the Tribes and the United
States secured more than a century ago in the Winters case. We support
S. 1987, but note that the Department still needs to conduct additional
analysis of this settlement agreement. We also note that we recommend
some technical changes to aid in its implementation.
Thank you again for the opportunity to appear before this Committee
to provide the Department's views on S. 1987. We look forward to
continuing working with the Committee in support of Indian water rights
settlements.
Chairman Schatz, Vice Chairman Murkowski, and Members of the
Committee, thank you for the opportunity to provide the Department's
views. I look forward to answering any questions.
The Chairman. Thank you very much.
Mr. Crockett, please proceed with your testimony.
STATEMENT OF JOHN CROCKETT, ASSOCIATE DEPUTY CHIEF FOR STATE,
PRIVATE, AND TRIBAL FORESTRY, U.S.
DEPARTMENT OF AGRICULTURE
Mr. Crockett. Good afternoon, Chairman Schatz, Vice Chair
Murkowski, and members of the Committee. Thank you for the
opportunity to testify today and provide the perspective of the
USDA Forest Service on two tribal bills under consideration for
today.
As Associate Deputy Chief for State, Private, and Tribal
Forestry, I am responsible for the administrative oversight of
the Office of Tribal Relations, including coordination and
collaboration with all deputy areas across the agency to
fulfill our trust responsibility to tribal nations.
The Forest Service is responsible for managing millions of
acres of lands and waters which are the ancestral homes of
American Indians and Native American tribal nations. Many of
those lands and waters lie within areas where tribes have
reserved rights to hunt, fish, and pray by ratified treaties
and agreements with the United States.
As part of fulfilling that trust responsibility, we fully
share the Administration's commitment to strengthen the nation-
to-nation responsibility. This includes a focus on co-
stewardship, respectful application of indigenous knowledge,
and the protection of sacred sites.
The Department of Agriculture is committed to continually
improving our relationship with tribes. I appreciate the
opportunity to share the Forest Service's perspective on these
two bills today.
S. 616, the Leech Lake Reservation Restoration Technical
Corrections Act of 2023, would amend the Leech Lake Band of
Ojibwe Reservation Restoration Act to address the illegal
transfer of lands from the Department of Interior to the USDA
for inclusion as part of the Chippewa National Forest. This
bill would direct the USDA to transfer specified lands within
the Chippewa National Forest to the Leech Lake Band of Ojibwe,
specifically those lands that were sold without the consent of
the majority of the rightful landowners, according to the
records of the BIA.
Additionally, this bill would allow the USDA to transfer
lands to tribes on a rolling basis as land is identified and
surveys are completed. The technical amendments to S. 616 would
address the newly identified acreage not included in the
original legislation. USDA appreciates and supports the intent
of this Act.
S. 1987 modifies and ratifies a specified water rights
compact amongst the State of Montana and the tribes of the Fort
Belknap Indian Reservation. Among other things, it requires the
tribes' water rights to be held in trust for the benefit of the
community and their allottees as directed by the Department of
Interior and the Department of Agriculture to negotiate with
the State of Montana the exchange of those specified parcels on
reservation as well as off-reservation.
The USDA and other agencies within USDA support the broad
goals of this legislation and stand ready to work with the
bill's sponsors, the Committee, and the implementing agencies
to provide additional technical assistance on this legislation.
This concludes my testimony. Thank you for the opportunity
to testify. I will be happy to answer any questions when the
time is ready.
[The prepared statement of Mr. Crockett follows:]
Prepared Statement of John Crockett, Associate Deputy Chief for State,
Private, and Tribal Forestry, U.S. Department of Agriculture
Chairman Schatz, Vice-Chair Murkowski, and Members of the
Committee, thank you for the opportunity to appear before you today to
discuss the views of the U.S. Department of Agriculture on bills that
include provisions related to the USDA Forest Service.
S. 616, Leech Lake Reservation Restoration Technical Corrections Act of
2023
Following the passage of the Leech Lake Band of Ojibwe Reservation
Restoration Act, the U.S. Department of Agriculture (USDA) Forest
Service has been working closely with the Leech Lake Band of Ojibwe. In
the early stages of implementation of the Act, the Forest Service and
the U.S. Department of the Interior (DOI) identified additional lands
that had been wrongfully transferred from the Band and its members to
the Chippewa National Forest. S. 616, the Leech Lake Reservation
Restoration Technical Corrections Act of 2023, would amend the Leech
Lake Band of Ojibwe Reservation Restoration Act to address the wrongful
transfer of lands from the DOI to the USDA for inclusion as a part of
the Chippewa National Forest.
The bill would direct the USDA to transfer specified land in the
Chippewa National Forest to the Leech Lake Band of Ojibwe-specifically
land that was sold without the consent of a majority of the rightful
landowners, according to records maintained by the Bureau of Indian
Affairs. Upon agreement between the USDA and the tribe, the Department
would substitute alternative National Forest System land located in
Cass County, Minnesota, on an acre-for-acre basis, for those parcels of
federal land to be transferred that are found to be unsuitable for the
future uses of the tribe. The bill would further allow the USDA to
transfer land to the tribe on a rolling basis as that land is
identified and surveys are completed. Any such agreement, and any
transfer of land made pursuant to such agreement, would be considered a
final agency action.
The technical amendments in S. 616 would address the newly
identified acreage not included in the original legislation. The USDA
appreciates and supports the intent of the Leech Lake Reservation
Restoration Technical Corrections Act of 2023.
S. 1987, A bill to provide for the settlement of the water rights
claims of the Fort Belknap Indian Community, and for other
purposes
S. 1987, a bill to provide for the settlement of the water rights
claims of the Fort Belknap Indian Community, and for other purposes,
modifies and ratifies a water rights compact among the State of
Montana, and the Fort Belknap Indian Community, which consists of the
Gros Ventre and Assiniboine Tribes (Tribes) of the Fort Belknap
Reservation of Montana. Among other things, it requires the Tribe's
water rights to be held in trust for the benefit of the Tribes and
their allottees, and it directs DOI and USDA to negotiate with the
State of Montana for the exchange of specified parcels of state land
located on and off the Reservation as well as for DOI to hold received
land in trust for the benefit of the Tribes.
USDA, and other agencies within USDA, support the broad goals of
this legislation and stand ready to work with the bill sponsors, the
Committee, and implementing agencies to provide additional technical
assistance on the legislation to ensure no unintended consequences
related to all USDA equities prior to further consideration before the
committee and the full Senate.
That concludes my testimony. Thank you for the opportunity to
testify. I am happy to answer any questions the Committee may have for
me.
The Chairman. Thank you very much.
Secretary-Treasurer Fineday, please proceed with your
testimony.
STATEMENT OF HON. LEONARD FINEDAY, SECRETARY-TREASURER, LEECH
LAKE BAND OF OJIBWE INDIANS
Mr. Fineday. Thank you. Aanii and mino ghizhep, Chairman
Schatz, Vice Chair, and Committee members. My name is Lenny
Fineday, and I am honored to serve as Secretary-Treasurer of
the Leech Lake Band of Ojibwe.
I am here today to speak to the need for S. 616 and to
briefly share the appalling history of illegal takings and loss
of land from our reservation.
I first want to thank Senator Smith and this Committee for
the work that you have done to enact the Restoration Act back
in 2020, which directs the Secretary of Agriculture to return
``approximately 11,760 acres'' of lands under the control of
the Chippewa National Forest to the Secretary of Interior to be
held in trust for the Leech Lake Band of Ojibwe.
For more than a century, the Leech Lake people have worked
diligently to restore the lands our ancestors reserved for us.
The Restoration Act is a culmination of generations of work to
restore a very small portion of our reservation that was
illegally transferred more than half a century ago.
The Restoration Act and the technical correction will
enable Leech Lake to address the severe housing needs of our
citizens, improve access to wild rice beds and culturally
significant areas of our reservation, and restore a measure of
justice to our people.
The Leech Lake Reservation was established through a series
of treaties and executive orders in the mid-1800s. As this
Committee knows, the United States did not give us our lands or
reservation. Instead, through these treaties, we ceded millions
of acres of our homelands to help establish what is now the
State of Minnesota. In return, the United States promised that
the Leech Lake Reservation would serve as our permanent home.
However, shortly after the last executive order was signed
to finalize the boundaries of our reservation, Congress enacted
a series of laws designed to take our lands, disseminate our
government, and destroy our way of life. My written testimony
provides a detailed history of these takings, which started
with the Nelson Act of 1889, the establishment of the Chippewa
National Forest at the turn of the century, and the series of
administrative takings known as secretarial transfers that
occurred in the 1940s and 1950s.
Today, because of these laws and administrative actions,
less than 5 percent of our treaty-guaranteed homelands are in
protected trust status. The Restoration Act focused on
restoring the illegal secretarially transferred lands to our
reservation. The need for the technical correction arose during
implementation of the Restoration Act.
As the agencies worked to identify documents associated
with parcels for restoration, the Bureau of Land Management's
Indian Land surveyor completed a record search and review of
all BIA land transfers during the 1940s and 1950s. The surveyor
found that more than 16,000 acres of land currently held by the
Forest Service were acquired through the illegal secretary
transfer process, far more than the approximately 11,760 acres
estimated in the Act.
The injustice that took place more than half a century ago
was clearly underestimated. That is why we are back before the
Committee today. I truly want to thank the BLM for its
transparency, the Forest Service for its partnership throughout
this process, and Senators Smith and Klobuchar for introducing
the technical correction.
The technical correction simply amends the Restoration Act
to meet the original intent of the Act, which is to restore all
the lands that were wrongly taken from our reservation. The
impact of Congress taking action to restore lands wrongfully
taken from Leech Lake people cannot be overstated.
Dispossession of Indian Lands of the Leech Lake Reservation
have impacted generations of people on the Leech Lake
Reservation by perpetuating historical trauma, fostering
resentment toward Federal agencies and their staff charged with
the care of these lands, limiting access to spiritually and
culturally significant lands and resources as well as
exacerbating social issues related to homelessness and
overcrowded housing.
Stories of Leech Lake people showing up at their family
lands only to find a U.S. Forest Service gate and learning of a
transfer of their land to the Forest Service years after the
action are unfortunately all too common on Leech Lake. These
stories will change only through passage of the bill today.
I know that the passage of the Restoration Act in 2020 was
a day many people will not forget. It marks a big step toward
recognizing and correcting the social inequity and injustice
that have been a lived experience for our people and our
families.
I again want to thank this Committee for its work on
returning these illegally transferred lands which will
guarantee a governing land base for future generations. I ask
this Committee to advance the bill so that we can fully
accomplish the original intent of the Restoration Act.
Thank you for the opportunity to testify today. Miigwech. I
am prepared to answer any questions.
[The prepared statement of Mr. Fineday follows:]
Prepared Statement of Hon. Leonard Fineday, Secretary-Treasurer, Leech
Lake Band of Ojibwe Indians
Good afternoon Chairman Schatz, Vice Chair Murkowski and Members of
the Committee. My name is Lenny Fineday, and I am honored to serve as
Secretary-Treasurer of the Leech Lake Band of Ojibwe (``Leech Lake'' or
``Tribe'').
The Leech Lake Band of Ojibwe is a Federally recognized Indian
tribe with approximately 10,000 Tribal citizens and a Reservation
located almost wholly within the Chippewa National Forest.
I'm here today to speak to the need for the Leech Lake Reservation
Restoration Act Technical Correction and to briefly share the appalling
history of illegal takings and loss of land from the Leech Lake
Reservation.
I first want to thank Senator Smith and this Committee for your
efforts to enact the Leech Lake Reservation Restoration Act (``LLRRA''
or ``Restoration Act''), which directs Secretary of Agriculture to
return ``approximately 11,760 acres'' of lands under control of the
Chippewa National Forest (CNF) and located within Cass County,
Minnesota to the Interior Secretary to be held in trust for the benefit
of the Leech Lake Band of Ojibwe.
The Restoration Act is the culmination of generations of work by
hundreds of people to restore a small portion of our homelands.
Restoring our homelands has been Leech Lake's focus for more than a
century.
The Restoration Act and the Technical Correction will enable Leech
Lake to address the severe housing needs of our citizens, improve
access to wild rice beds and culturally significant areas of our
Reservation, and restore a sense of justice to our people. The Leech
Lake Reservation was established through a series of treaties and
executive orders dating from 1855 to 1874. As this Committee knows
well, the United States did not give us our lands or Reservation.
Instead, through these treaties we ceded millions of acres of our
homelands to help establish what is now the State of Minnesota. In
return, the United States promised that the Leech Lake Reservation,
which included more than 550,000 acres of surface lands and more than
300,000 acres of lakes, would serve as our permanent home.
However, shortly after the last executive order was signed to
finalize the boundaries of the Leech Lake Reservation, Congress enacted
a series of laws designed to take our lands, dismantle our government,
and destroy our way of life.
Below is a more detailed discussion of the history of these
takings, which started with the Nelson Act of 1889, the establishment
of the Minnesota Forest Reserve and later the Chippewa National
Forest--which were carved out of our Reservation, the Weeks Act of
1911, and a series of administrative takings termed ``Secretarial
Transfers'' that occurred in the 1940s and 50s.
As a result of these takings, only 29,000 of the original 550,000
acres remain in trust. This is less than five percent of the
Reservation that treaties promised would be our permanent home. \1\
Many Leech Lake trust/allotted lands are swamplands and not suitable
for housing, infrastructure, or economic development. The U.S. Forest
Service and the state of Minnesota now hold most of the usable lands
within the boundaries of the Leech Lake Indian Reservation.
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\1\ A current day map of the Reservation and the overlapping
boundaries of the Forest is retained in the Committee files.
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The Restoration Act focused restoration on the Secretarial Transfer
lands that Interior illegally transferred without consent of the Indian
landowners to the Chippewa National Forest through a series of
transfers in the 1940s and 50s. The Interior Solicitor found that the
transfers violated the Indian Reorganization Act, and the illegal
transfers stopped in the late 1950s.
The Tribe and individual tribal members sought to restore the lands
through various efforts, including litigation, but a federal court
found that the claims were time barred \2\--and only Congress could
accomplish the restoration.
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\2\ See United States v. Mottaz, 476 U.S. 834, 851 (1986).
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The need for this Technical Correction arose during implementation
of the Restoration Act. As the agencies worked to identify parcels for
restoration, the BLM Indian Land Surveyor completed an audit of all
Chippewa National Forest land holdings within Cass County. He
discovered that the illegal Secretarial Transfers were more widespread
than initially estimated.
Instead of the ``approximately 11,760 acres'' listed in the
Restoration Act, the surveyor found 16,122 acres were acquired by the
Forest Service through Secretarial Transfers. The injustice that took
place more than a half century ago was clearly underestimated. And
that's why we are back before this Committee today.
I truly want to thank BLM for its transparency, the Forest Service
for its partnership throughout this process, and Senators Smith and
Klobuchar for introducing the Technical Correction. The Technical
Correction simply amends the Restoration Act to meet the original
intent of the Act, which is to restore all the lands that were wrongly
taken by the United States from our Reservation.
The additional lands that would be impacted by the Technical
Correction are located within Cass County. The County passed a
resolution in 2017 that it did not oppose the Restoration Act and it
stands by that position for purposes of the Technical Correction.
In addition, Leech Lake entered into an ``Agreement Regarding
Existing Electric Utility Easements on Lands Subject to the Leech Lake
Band of Ojibwe Reservation Restoration Act'' with Beltrami Electric
Cooperative, Inc., Crow Wing Cooperative Power and Light Company, and
Lake Country Power on September 17, 2020.
The Agreement clarifies the rights of the three Rural Utilities to
continue to provide services to Leech Lake citizens on all lands
``administratively transferred from the National Forest Service to the
Secretary of the Interior and held in trust for the benefit of the Band
pursuant to the Act.'' These rights include their ability to access and
service existing utility easements and related infrastructure to ensure
that the electric transmission and distribution systems of the Rural
Utilities continue to provide safe, reliable, and affordable electrical
services to all residences and businesses located on the Reservation.
As noted above, the Agreement applies to all lands that will be
transferred pursuant to the Restoration Act, including any amendments
made to the Act. We appreciate the strong relationship we have with the
rural utilities and the critical services they provide throughout our
Reservation.
Our lands--our Reservation--are the very foundation of the Leech
Lake Tribal Government's sovereignty. After a century of targeted
takings, the Restoration Act and the Technical Correction represent the
most significant pieces of land restoration in our history. The lands
that would be restored to the Leech Lake Reservation will help the
Tribe address the severe housing needs of our citizens, address needs
for community and economic development, and provide access to places of
cultural importance to better enable our citizens to exercise treaty
rights, conduct ceremony, and maintain our way of life.
In closing, I want to thank the Committee for its focus on righting
a portion of the historic injustices that have been inflicted on the
Leech Lake Band of Ojibwe, and for helping the Tribe restore our
homelands for future generations.
I ask the Committee to advance the Technical Correction so that we
can fully accomplish these goals. Thank you for the opportunity to
testify today.
History of Land Tenure of the Leech Lake Reservation
Before contact with European Nations, Indian tribes were
independent self-governing entities vested with full authority and
control over their lands, citizens, and visitors to Indian lands. The
Nations of England, France, and Spain all acknowledged tribes as
sovereigns and entered into treaties to establish commerce and trade
agreements, form alliances, and preserve the peace.
Upon its formation, the United States also acknowledged the
sovereign authority of Indian tribes and entered into hundreds of
treaties. Through these treaties, Tribes ceded hundreds of millions of
acres of their homelands to help build this great Nation. In return,
the United States promised that the reserved lands would be the Tribe's
permanent home. Treaties also promised to provide for the education,
health, public safety, and general welfare of Indian people. The U.S.
Constitution specifically acknowledges these treaties and the sovereign
authority of Indian tribes as separate governments. \3\ Tribal
government land bases are the very foundation of tribal sovereignty and
strong economies. However, federal policies implemented throughout the
1800s and revisited in the mid-1900s resulted in the takings and
significant loss of Tribal government lands. The legacy and impacts of
these taking continues to impact Tribal governments today. Many tribes
have an insufficient land base upon which to address the housing needs
of their citizens, develop their economies to generate revenue to
provide essential Tribal governmental services, or to access places of
cultural importance to maintain their way of life.
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\3\ The Commerce Clause provides that ``Congress shall have power
to. . .regulate commerce with foreign nations, and among the several
states, and with the Indian tribes.'' Tribal citizens are referred to
in the Apportionment Clause (``Indians not taxed'') and excluded from
enumeration for congressional representation. The 14th Amendment
repeats the original reference to ``Indians not taxed'' and
acknowledges that tribal citizens were not subject to the jurisdiction
of the United States. By its very text, the Constitution establishes
the framework for the federal government-to-government relationship
with Indian tribes. The Constitution finally acknowledges that Indian
treaties, and the promises made, are the supreme law of the land.
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Every federally recognized Indian tribe suffers from this tragic
legacy. The loss of land from the Leech Lake Reservation was massive,
intentional, targeted, and--like other Tribes--continues to blunt the
progress of our people to this day.
The Leech Lake Indian Reservation was established through a series
of treaties and executive orders from 1855 to 1874. \4\ These treaties
and executive order established the Leech Lake Reservation, provided
that the Reservation consisted of 588,684 acres of land and nearly
300,000 acres of our sacred lakes. \5\ Article 2 of the 1855 Treaty
promises that ``There shall be, and hereby is, reserved and set apart,
a sufficient quantity of land for the permanent homes of the said
Indians.'' \6\
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\4\ See Treaty with the Chippewa of February 22, 1855 (10 Stat.
1165); Treaty with the Chippewa, Mississippi, Pillager, and Lake
Winnibigoshish Bands of 1863 (12 Stat. 1249); Treaty with the Chippewa,
Mississippi, Pillager, and Lake Winnibigoshish Bands of 1864 (13 Stat.
693); Treaty with the Chippewa of the Mississippi of March 19, 1867 (16
Stat. 719); and Executive Orders Oct. 29, 1873, Nov. 4, 1873, and May
26, 1874.
\5\ See https://www.leechlakenews.com/wp-content/uploads/2018/02/
1855-Treaty.pdf; Leech Lake Band of Chippewa Indians v. Herbst, 334 F.
Supp. 1001, 1002 n.1 (D. Minn. 1971)(providing a detailed description
of the boundaries of the initial Leech Lake Indian Reservation, and
upholding the Tribe's continued right to exercise treaty hunting and
fishing rights on lands throughout the Reservation).
\6\ Annual reports of the Commissioner of Indian Affairs from the
mid- to late-1800s referred to the bands that occupied the territory at
the headwaters of the Mississippi around Cass Lake, Lake
Winnibigoshish, and Leech Lake as the Chippewa of the Mississippi, the
Pillager Chippewas, the Lake Winnibigoshish Band, the Cass Lake Band,
the Leech Lake Band, the White Oak Point Band, and the Mississippi
Band. These bands are now known as the ``Leech Lake Band of Ojibwe''.
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However, as noted above, shortly after the last executive order
regarding the Leech Lake Reservation was signed, Congress enacted a
series of laws designed to weaken our governments, take our lands--and
more directly, our resources, and destroy our way of life.
Nelson Act of 1889
The first, and possibly the most damaging Act of Congress to
adversely impact the Leech Lake Reservation was the Nelson Act of 1889.
The timber industry has a long history in Minnesota. Many lakes and
rivers were dammed in order to facilitate the transportation of timber.
By the late 1800s the logging industry had reached the borders of the
Leech Lake Indian Reservation but could not access the large expanses
of virgin white and red pine forests that it contained as the entire
Leech Lake Reservation was protected by Treaty as our permanent home.
Minnesota's timber industry saw the General Allotment Act (Dawes
Act) of 1887 as a blueprint to access Ojibwe Reservation lands. They
successfully lobbied Congress, and in the 50th Congress, Minnesota
Congressman Knute Nelson sponsored a bill formally titled, ``An Act for
the relief and civilization of the Chippewa Indians of Minnesota.''
Congress passed the bill and President Cleveland signed ``the Nelson
Act'' into law on January 14, 1889. The Nelson Act was specific to
Ojibwe Reservations in Minnesota, affecting the Grand Portage, Mille
Lacs, Leech Lake, Boise Forte, Fond du Lac and White Earth Bands.
The Act opened the door to the Leech Lake Reservation and began the
shift in ownership from communally held Tribal Government-owned land to
the mixed ownership of Tribal, public, and private lands that we have
today.
The United States--through the Nelson Act--sought to destroy the
governing structures of the Minnesota bands, parcel out tribal
governmental lands to individual Indians, and open ``surplus''
reservation lands to settlers and private companies in clear violation
of existing treaties. A primary goal of the Nelson Act was to open the
northern white pine forests to timber companies for logging.
Under the Nelson Act, the Allotment process on the Leech Lake
Reservation spanned twenty-one years from approximately 1896 to 1917.
By the end of the process, Leech Lake tribal citizens were allotted
approximately 90,000 acres, while more than 500,000 acres were
``deemed'' surplus lands that were opened for settlement. \7\
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\7\ See Leah J. Carpenter, Tracking the Land: Ojibwe Land Tenure
and Acquisition at Grand Portage and Leech Lake, pages 172-76 (2008).
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The Burke Act of 1906 authorized the Interior Secretary to issue
fee patents to Tribal Allottees if they were deemed by the government
to be ``competent and capable.'' Because of the Burke Act, allotted
Indian lands were often taken out of trust without the knowledge of the
individual Indian, and were subjected to forced fee patents, and thus,
state taxation. These lands were seized by the state due to an
individual's inability or failure to pay taxes. As a result, ``[b]y
1937, only 45,684 acres of allotted Leech Lake remained in trust
status.'' \8\
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\8\ Id. at 177, citing Consolidated Chippewa Agency Annual
Statistical Reports on Leech Lake Reservation, White Oak Point
Reservation, Cass and Winnibigoshish Reservation (1936). NARA,
Washington, D.C., RG75, Records of the Bureau of Indian Affairs,
Records of the Statistics Division, Reports and other Records, 1933-
1948, Box 15, PI-163, Entry 963.
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Establishment of the Minnesota Forest Reserve and the Chippewa National
Forest
Problems were rampant with implementation of the Nelson Act, which
led to a push to preserve the forest lands on the Leech Lake
Reservation. The primary groups involved in this debate were the timber
industry, which wanted greater access to Reservation lands for logging,
and the Minnesota Federation of Women's Club, who sought to preserve
the forest. Of course, the voice of the key stakeholder in this debate,
the Leech Lake Band of Ojibwe, was largely ignored. At the time, Native
Americans were not United States citizens and had no right to vote in
federal or state elections.
These efforts led to enactment of the Morris Act of 1902. The Act
amended the Nelson Act by setting aside approximately 200,000 acres of
``surplus lands'' within the Leech Lake Reservation for use as the
``Minnesota Forest Reserve''. This was the first national forest
reserve created by congressional act. The Morris Act also reserved ten
sections of land within the Leech Lake Reservation for the Tribe, while
at the same time opening 25,000 acres of ``agricultural land'' to
settlement. However, the timber industry also benefited from the Act,
which authorized the sale of pine lands and timber within the forest
reserve.
The continued push to preserve the forest led to the official
establishment of the Minnesota National Forest in 1908 (eventually
renamed the Chippewa National Forest). These lands were carved out of
the Leech Lake Reservation for that purpose and the boundaries of the
forest were essentially superimposed upon the boundaries of the Leech
Lake Reservation. While the size of the Chippewa National Forest has
increased over the past century, to this day, the Leech Lake Indian
Reservation makes up 75 percent of the Forest.
Secretarial Transfers/Non-Consents: the ``Termination Era''
The loss of Leech Lake Reservation lands slowed during the era of
``Indian Reorganization.'' Congress enacted the Indian Reorganization
Act (IRA) in 1934 to halt the federal policy of allotment and
assimilation and to secure for all Indian tribes a land base on which
to engage in economic development and self-determination. The IRA
expressly authorized the Interior Secretary to extend indefinitely the
trust status of Indian lands ``and any restriction on alienation
thereof'' (See 25 U.S.C. 5102); restore to tribal ownership the
remaining surplus lands of any Indian reservation ``heretofore opened''
(See 25 U.S.C. 5103); and to take additional lands into trust for the
benefit of tribal governments (See 25 U.S.C. 5108). Under the BIA's
brief ``tribal land restoration project'', approximately 5,600 acres
were restored to the Leech Lake Reservation. \9\
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\9\ See Leah Carpenter, Tracking the Land at 214-15.
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However, this brief period of positive federal policy towards
Tribal Governments was short-lived. Congress formally changed federal
Indian policy in 1953 through enactment of House Concurrent Resolution
No. 108. The stated purpose of the Resolution was to terminate, via
legislation, the federal-tribal relationship, eliminate tribal land
holdings, and relocate Native Americans from Indian lands to urban
areas.
Under ``Termination Era'' policies, Congress ended the federal-
tribal government-to-government relationship with 109 tribes and sold
off the lands of these tribes. In addition, in 1952, the Bureau of
Indian Affairs implemented what it called the ``Voluntary Relocation
Program'', which encouraged Native Americans to move to urban areas
throughout the United States by providing a one-way bus ticket and
moving expenses. Congress formalized this policy through enactment of
the Indian Relocation Act of 1956.
While Leech Lake was not a direct target for termination
legislation in Congress, the Termination Era served as another means of
dispossessing the Tribe of its Treaty-promised Reservation lands.
In the run-up to the Termination policy, Interior Department
officials sought opportunities to reduce its ``burden'' of
administering Indian trust land. To reach this goal, beginning in the
late 1940s, the BIA began a process that prioritized ``supervised
sales'' of allotted Indian lands.
However, allotted lands were highly fractionated--ownership in the
original allotments had passed on to numerous heirs over the
generations. Heirs of an original allottee own undivided interests in
the allotment. Some allotments have hundreds and even thousands of
individual owners. In addition, the Indian Reorganization Act made it
more difficult for the BIA to implement its new priority. The IRA
requires the government to obtain the consent of all Indian landowners
prior to approving a sale.
The BIA targeted Leech Lake allottees for the supervised land
sales, in part because of their lands' ties to the Chippewa National
Forest. The Bureau ``began to advocate that the United States
Department of Agriculture should be considered the primary purchaser of
the fractionated allotted lands.'' \10\ The administrative process of
transferring ownership of allotted Indian lands from the Interior
Department to another federal agency became known as ``Secretarial
Transfers''.
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\10\ Id. at 245.
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While these administrative policies impacted reservations
nationwide, the impact was particularly severe at Leech Lake, again,
because of its connection to the Chippewa National Forest. More than
25,000 acres of allotted Leech Lake land were sold by the Secretary of
the Interior, without the full consent of the Indian owners, the bulk
of which was transferred to the United States Forest Service, for
inclusion in the Chippewa National Forest. \11\
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\11\ Id. at 250.
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In 1979, the Interior Solicitor, in a Memorandum interpreting the
Act of May 14, 1948, determined that all Secretarial Transfers required
the ``unanimous consent [of all heirs] before all interests in those
IRA reservation allotments can be conveyed.'' \12\ The Department
acknowledged that many of the Secretarial Transfers of allotted Indian
lands were sold without the consent of all the rightful, legal heirs.
---------------------------------------------------------------------------
\12\ Id. at 248 citing Memorandum from the Solicitor, Leo M.
Krulitz, to All Regional Solicitors (August 20, 1979). The Memorandum
is regarding ``28 U.S.C. 2415 claims: conveyances of inherited
allotments pursuant to the Act of May 14, 1948, 25 U.S.C. 483 (August
20, 1979).
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The history of the Secretarial Transfers was a focus of the
Minnesota Chippewa Tribe's (MCT) Section 2415 Land Claims Project. The
Project's research revealed that the BIA's notification process
violated federal law. The Bureau made a policy assumption to the
detriment of the Indian owners/heir. If the Bureau did not receive a
written response from an individual heir after an official notice to
transfer the land had been sent to the heir, then it was assumed by the
Bureau that it had obtained the consent. Often, however, the Bureau's
notice was never received by the heir, which left that heir without a
legal opportunity to respond or disapprove the proposed land sale. \13\
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\13\ Id. at 249-50.
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Just days after the Interior Solicitor's 1979 Memorandum admitted
that many of the Secretarial Transfers were illegal, a Minneapolis
Field Solicitor notified the Minneapolis Area Director that they would
not litigate the Secretarial Transfers on behalf of the allottees,
promising instead to advance legislative proposals that never came.
\14\ This resulted in the decades long effort of Leech Lake, working
with our congressional delegation, to develop and pass the Leech Lake
Reservation Restoration Act and now the Technical Correction to the
Act.
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\14\ Id. at 251, citing Letter from Elmer T. Nitzschke, Field
Solicitor, to Edwin L. Demery, Minneapolis Area Director, August 24,
1979, accompanied by Solicitor's Memorandum of August 20, 1979
regarding 2415 land claims (August 24, 1979).
The Chairman. Thank you very much.
President Nygren, please proceed with your testimony.
STATEMENT OF HON. BUU NYGREN, PRESIDENT, NAVAJO NATION
Mr. Nygren. Ya'at'eeh, Chairman Schatz, Vice Chairman
Murkowski, Senator Lujan, and members of the Committee. My name
is Buu Nygren and I am the President of the Navajo Nation
representing the voices and aspirations of the Navajo people.
Thank you for the opportunity and for hearing my testimony
today on the Navajo-Gallup Water Supply Project Amendments Act
of 2023, S. 1898.
Thank you also again to Senator Lujan and Senator Heinrich
for this critical legislation, which will ensure that thousands
of Navajo people have a safe, reliable drinking water supply.
The Navajo Nation provides governmental services to more
than 400,000 members. Our on-reservation population accounts
for over one-third of all Natives living in Indian Country. Our
reservation encompasses more than 17.5 million acres, spans
portions of 11 counties across the States of Arizona, New
Mexico and Utah.
Unfortunately, ensuring adequate drinking water for our
members continues to be a struggle. About 30 percent of Navajo
households continue to lack running water. They rely on hauling
water to meet their daily needs.
To address this dire situation, in 2005 the nation entered
into the San Juan Settlement with the State of New Mexico. In
exchange for water development projects, including the Navajo-
Gallup Water Supply Project, the nation agreed to quantify its
water rights and release claims to the water in the San Juan
River Basin.
In 2009, Congress approved the San Juan Settlement and
authorized the Bureau of Reclamation to construct the Navajo-
Gallup Water Supply. The Navajo-Gallup Water Supply Project is
an essential initiative to address the critical needs of the
Navajo Nation and surrounding communities in western New
Mexico. This region has long suffered from limited access to
clean and reliable water, resulting in immense hardship for our
people.
The Navajo-Gallup Water Supply Project represents a beacon
of hope, promising a brighter future for our communities. The
project is designed to serve a quarter million people. The
areas to be served by the project currently rely on depleting
groundwater supply that is poor quality and the existing supply
is inadequate to meet the demands of more than 43 Navajo local
governments, the City of Gallup, the Teepee Junction at the
Jicarilla Apache Nation.
The 2009 Act requires the project's features to be
completed no later than December 2024 unless the parties agree
to extend the completion date. The project construction cost
estimate of $870 million as provided in 2009 was based on an
appraisal level, designs and cost estimate. A number of
elements have increased the project's cost beyond what the 2009
Act anticipated. Among the factors are greater expenses than
expected for water treatment plans to meet Safe Drinking Water
Act requirements, engineering challenges in diverting water
from the San Juan River, and a 40-year high inflation rate.
Since 2009, Reclamation has developed a project working
cost estimate based on final detailed design and engineering.
The current working estimate shows that the revised
construction ceiling of $2.175 billion will adequately support
the completion of this critical project.
This legislation amends the 2009 Act in a number of
important ways to ensure the Act can be fully implemented. Let
me highlight some of the most important amendments to this
legislation.
First, this bill increase project funding by increasing the
appropriation ceiling to allow for completion of the project.
Second, the bill extends the completion deadline for the
project from 2024 to 2029. Third, the bill allows for deferral
of construction facilities to save operation and maintenance
costs associated with the facility. Finally, the bill creates
operation and maintenance trust funds for the Navajo Nation and
the Jicarilla Apache.
The completion of the Navajo-Gallup Water Supply Project
will bring transformative changes in the lives of our people.
If S. 1898 is not enacted, the San Juan Settlement and the
completion of the project will be threatened. Failure here
would further increase the costs of the project, worsen the
drinking water crisis, bring uncertainty to all the water users
in the San Juan River Basin in Mexico.
Therefore, I respectfully urge this esteemed Committee to
support S. 1898 and provide additional funding needed to
complete this critical initiative. Let us come together to
create a future in which our people thrive, our culture
flourishes, and our land is sustained for generations to come.
[Speaking in Native tongue.]
[The prepared statement of Mr. Nygren follows:]
Prepared Statement of Hon. Buu Nygren, President, Navajo Nation
Ya'at'eeh, Chairman Schatz, Vice Chairwoman Murkowski and members
of the Committee. My name is Buu Nygren and I am the President of the
Navajo Nation (``Nation''). Thank you for the opportunity to testify in
support of the Navajo-Gallup Water Supply Project Amendments Act of
2023, S. 1898. Thank you also to Senators Lujan and Heinrich for
sponsoring this legislation, which is critical to ensuring
implementation of the Navajo Nation San Juan River Basin Water Rights
Settlement in New Mexico (the ``San Juan Settlement'') and the
completion of the Navajo-Gallup Water Supply Project (the ``Project'').
Their leadership will help secure a reliable water supply for the
Navajo Nation and other water users in the State of New Mexico.
The Navajo Nation and the San Juan Settlement
The Nation is the largest Native American tribe in the country. We
provide critical governmental services to more than 400,000 members,
almost half of whom reside on the Navajo Nation, which encompasses more
than 27,000 square miles and spans portions of 11 counties across the
states of Arizona, New Mexico, and Utah. Unfortunately, ensuring
adequate drinking water for our members continues to be a struggle with
approximately 30 percent of Navajo households lacking running water and
relying on hauling water to meet their daily needs.
To address this dire need, in 2005, the Nation entered into the San
Juan Settlement with the State of New Mexico. Specifically, in exchange
for water development projects, including the Project, the Nation
agreed, among other things, to quantify its water rights and release
claims to water in the San Juan River Basin in New Mexico. Ultimately,
the parties recognized that in the absence of a settlement, final
resolution of the proceedings in the San Juan River Adjudication would
take many years, entail great expense, and prolong uncertainty
concerning the availability of water supplies in the San Juan River
Basin in New Mexico.
In 2009, Congress approved and ratified the San Juan Settlement and
authorized the Bureau of Reclamation to construct, operate and maintain
the Project in substantial accordance with the preferred alternative
outlined in the Draft Environmental Impact Statement, which Reclamation
completed in July 2009. See, Omnibus Public Land Management Act of
2009, Title X, Part III (Public Law 111-11) (the ``2009 Act'').
Consistent with the San Juan Settlement and the 2009 Act, the Nation
agreed to execute waivers and releases of claims against the United
States relating to water in the San Juan River Basin in exchange for
the benefits of the San Juan Settlement and legislation. The waivers
can be nullified if the Project is not completed under the timeline set
forth in the legislation.
On December 17, 2010, the United States, the Nation, and the State
of New Mexico executed the San Juan Settlement. On November 1, 2013,
the San Juan River adjudication court entered two Partial Final
Judgments and Decrees (``decrees'') adjudicating the water rights of
the Navajo Nation.
The Project
The Project, once fully constructed, will convey a reliable
municipal and industrial water supply from the San Juan River to the
eastern section of the Nation, the southwestern portion of the
Jicarilla Apache Nation, and the City of Gallup, New Mexico through two
pipelines approximately totaling 300 miles, nineteen pumping plants,
and two water treatment plants. The areas currently rely on a rapidly
depleting groundwater supply that is of poor quality and inadequate to
meet the current and future demands of more than 43 Navajo chapters,
the City of Gallup, and the Teepee Junction area of the Jicarilla
Apache Nation. Of specific concern is that the City of Gallup's
groundwater levels have dropped over 200 feet over the past decade and,
as noted, nearly 30 percent of the Nation's households rely on hauling
water.
The Project is designed to serve a 2040 population of approximately
250,000 through the annual delivery of 37,764 acre-feet of water from
the San Juan Basin. The 2009 Act requires that all project features be
completed no later than December 31, 2024, unless the Nation, the State
of New Mexico, and the Department of the Interior agree to extend the
completion date.
The Project's Construction Cost Estimate of $870 million as
provided in the 2009 Act was based on Appraisal-Level designs and cost
estimates. Appraisal Level studies are typically only conducted at a
level to determine if there is a Reclamation interest in a proposed
project and if a viable project alternative may be recommended by
Reclamation for feasibility level of study. Appraisal Level studies are
based primarily on existing data and information, and they only include
designs and cost estimates for major features that can be used to
compare potential project alternatives.
A number of elements have created conditions that have increased
the Project's cost beyond what was anticipated in the 2009 Act. Among
the factors are greater expenses than expected for compliant water
treatment plants to meet Safe Drinking Water Act requirements,
engineering challenges in diverting water from the San Juan River, and
market volatility that the indexing provided for under the 2009 Act did
not completely reflect (including a 40-year high in the inflation
rate). Since 2009, Reclamation has developed a Project Working Cost
Estimate based on actual contract awards, required Project revisions,
and final detailed design and engineering. The greatly improved quality
and accuracy of the design and cost data that has gone into the current
Working Cost Estimate supports the revised construction ceiling of
$2,175,000,000 (with indexing), which will adequately support the
completion of this critical Project.
In 2012, construction on the Project began and is anticipated to be
completed in 2029. Reclamation and its partners have made significant
progress, completing certain portions of the Project. In October 2020,
the Cutter Lateral, one of the two pipelines, was completed and the
Navajo Tribal Utility Authority begin making initial water deliveries
to Nation communities. By May 2021, Project water was being delivered
to approximately 6,000 people in eight Navajo Chapters. Much work,
however, is left to be done to serve the remaining population who need
a reliable water supply. Although progress has been made on the
Project, Reclamation does not anticipate that construction will be
completed until 2029. This timeline is problematic because the 2009 Act
requires the completion of all Project features by no later than
December 31, 2024.
Amendments to the 2009 Act
To address the appropriations shortfall and ensure full
implementation of the 2009 Act, S. 1898 makes the following amendments
to the 2009 Act:
increases project funding by increasing the appropriations
ceiling to $2,175,000,000 for the Project. It would also update
provisions on adjustments to the appropriations ceiling to
reflect changes in construction cost and applicable regulatory
standards and to accommodate unforeseen market volatility,
including repricing for the types of construction and current
industry standards involved.
increases appropriations for conjunctive use wells in the
San Juan River Basin to $37,500,000 from $30,000,0000 and
allows appropriations for conjunctive use wells in the Little
Colorado River and Rio Grande Basins, as well as the San Juan
River Basin, to be available through fiscal year 2032.
extends the completion deadline for the Project from 2024 to
2029.
allows for deferral of construction of facilities to save
operation and maintenance costs associated with such
facilities. The bill would create a Deferred Construction Fund
to provide funding for facilities that have been deferred and
allow for alternate project facilities if the relevant parties
agree. The fund would consist of amounts that correspond to
portions of the Project that have been deferred.
creates operations and maintenance trust funds for the
Navajo Nation and the Jicarilla Apache Nation to use for the
Project's operations, maintenance, and replacement costs. These
trust funds are created as a substitute for language in the
2009 Act allowing the Secretary to waive operation,
maintenance, and replacement costs for the Nation for up to 10
years after they would otherwise be required under the Nation's
contract. Trust funds would be used to lower customers'
operations and maintenance charges and will help develop
adequate customer bases for the water projects in their early
stages.
authorizes the expansion of the service area beyond the San
Juan River Basin to deliver water supply from the Project to
communities within the Rio San Jose Basin in New Mexico. The
Nation would also be authorized to expand the service area in
Arizona beyond Fort Defiance and Window Rock to deliver water
supply from the Project to the Nation community of Lupton,
Arizona, within the Little Colorado River Basin, but would
still be subject to section 10603(c)(1) of P.L. 111-11 limiting
the delivery of water to Arizona until certain conditions are
met.
clarifies which construction activities are subject to state
taxation and which ones are subject to tribal taxation,
preventing double taxation.
caps the repayment obligation of the City of Gallup for the
Project at $76,000,000.
takes into trust land on which project facilities are
located.
authorizes the Secretary to expend funds for the development
of renewable energy, including hydropower, to provide
affordable energy for the Project.
The passage of S. 1898 is critical to the health and well-being of
the Navajo Nation and the other communities to be served by the Project
that are struggling with inadequate groundwater supplies. If S. 1898 is
not enacted, the San Juan Settlement and the completion of the Project
will be threatened, which would increase the cost of the Project,
exacerbate the drinking water crisis on the Navajo Reservation, and
bring uncertainty to all of the water users in the San Juan River Basin
in New Mexico. I therefore respectfully urge the Committee to support
the swift passage of S. 1898.
The Chairman. Thank you, President Nygren.
President Stiffarm, please proceed with your testimony.
STATEMENT OF HON. JEFFREY STIFFARM, PRESIDENT, FORT BELKNAP
INDIAN COMMUNITY
Mr. Stiffarm. Good afternoon, everyone. I would like to
thank Chairman Schatz, Vice Chairman Murkowski. Also thank you
to Senator Tester and Senator Daines for working really hard
with Fort Belknap.
The Winters doctrine, as said here, Fort Belknap in 1908
won the settlement before the Supreme Court that says we can't
have the land without the water. It set the way for Indian
nations across this Country to get their fair share of water.
And here we are today, a century later, Fort Belknap is
going to be able to settle their water. We wish the tribes that
got us help for all Indian Country across this great Country of
ours to get their water.
We are here to testify on behalf of my people back home,
the chiefs that were before me, that worked hard on this bill
to get this done. Former President Andrew Werk worked very hard
on this, my predecessor. I want to thank him for all his hard
work and you all for helping him get this to where it is today.
And it landed in my lap to provide testimony on our water that
we worked hard.
It is not only going to provide clean drinking water for
the people of Fort Belknap, the A'aniiih and Nakoda people, but
up and down the line, from Blackfeet Country all the way down
to Fort Peck Reservoir. This can provide cleaner and higher
quality drinking water all the way down to Milk River.
We have worked hard with the Governor Gianforte and we are
very proud and honored to have the Lieutenant Governor here to
sit beside me and testify on behalf of our bill here today to
get it moving forward for a future where our children and our
grandchildren, that is what we are all here for, not ourselves.
The bill is about $1.3 billion, and it is all for
infrastructure and the St. Mary's project. And it is well-
deserved for our community members back home that have had to
live in poverty. You have all heard our stories, how we lived
and we walked, of our ancestors, the lands that we sacrificed,
the lives that were sacrificed to put us to where we are here
today, and the hard work that we did. My team sitting behind
me, my wife and my chiefs came here to support me.
It has been a long road, very difficult decisions that we
had to make back home to put us to where we are today. We ceded
a lot of land that we wanted, which was rightfully ours, that
was taken from us. Gold was discovered in our [indiscernible]
mountains.
But put that aside, we thought water was more important.
And that is what we decided. That is how we brought the bill up
to where it is today. We want to thank the Committee members
back home that gave us the patience and understanding to come
over here and travel quite a bit to talk to our Senators. I
respect Senator Daines and the work he did for us, and Senator
Tester. We did a lot of work.
We had to do a lot to get our bill here on the table. A lot
of things that we wanted in this bill are not in here, but we
are willing to do that to provide this water for our community
members, our elders, our children. We have a high rate of
suicides back home. My son was one of them, and it is because
we don't have the general necessities that you all have here
today in the city of Washington, D.C. We don't have clean
drinking water; we don't have homes.
But what this bill is going to provide for our people is
hope, something to fight for, something to stand for. I am glad
that you are here to give me a little bit of your time to tell
you about the things that we gave up to put us to where we are
today, the hard work that we provided to get a settlement done.
I look forward to working with you in the future to get
this completed. I am here to answer any questions. Again, I
want to thank you, Mr. Chair, for being here today. [Phrase in
Native tongue.]
[The prepared statement of Mr. Stiffarm follows:]
Prepared Statement of Hon. Jeffrey Stiffarm, President, Fort Belknap
Indian Community
Chairman Schatz, Vice Chairman Murkowski, and Members of the Senate
Committee on Indian Affairs, my name is Jeffrey Stiffarm. I serve as
President of the Fort Belknap Indian Community Council. Thank you for
the opportunity to testify in support of S. 1987, the ``Fort Belknap
Indian Community Water Rights Settlement Act of 2023.'' We also want to
thank our Senators from Montana, Jon Tester and Steve Daines, for
introducing this bipartisan bill in the Senate, as well as our Montana
Congressional Representatives, Matt Rosendale and Ryan Zinke, for their
support. Our bill also enjoys the support of Montana Governor Greg
Gianforte. We respectfully request that the Committee work to pass S.
1987 to finally secure our Indian reserved water rights.
The Fort Belknap Indian Community (FBIC) consists of the Gros
Ventre and Assiniboine Tribes (Tribes) who fought in 1908 for the right
to use the water on our Ft. Belknap Reservation (Reservation),
establishing the ``longstanding reserved water rights doctrine,'' known
as the Winters doctrine, in which ``the Federal Government's
reservation of land for an Indian tribe also implicitly reserves the
right to use water. . .to accomplish the purpose of the reservation.''
Arizona v. Navajo Nation case (U.S. Supreme Court, June 22, 2023). \1\
Now, more than a century later, it is time for Congress to ratify our
historic Indian water rights, ratified by the state of Montana in our
2001 Water Compact, and approve our Water Rights Settlement, which will
provide us the ability to develop and use our Indian water rights for
our agricultural lands and to provide clean and safe drinking water for
our people.
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\1\ Arizona v. Navajo Nation, Case No. 21-1484, 2023 WL 4110231, at
*3 (S.Ct. June 22, 2023) (internal citation omitted).
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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. \2\
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\2\ Robert T. Anderson, Indian Water Rights and the Federal Trust
Responsibility, 46 Natural Resources Journal, 399-400 (Spring 2006)
(internal citations omitted) [hereinafter ``2006 Anderson Paper''].
Increasing the availability of water on our Reservation through
funding for critical infrastructure that will support the FBIC's
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, restore, 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.
Our Indian Water Rights Settlement is structured to promote
economic efficiency on our Reservation and our Tribal self-sufficiency.
\3\ It is an agricultural infrastructure development plan and includes
infrastructure to develop and ensure clean and safe drinking water to
end water insecurity on our Reservation; it provides for the FBIC to
develop, administer, use, manage, and enforce our reserved water rights
and improve the poor economic condition of our members on the
Reservation. This is an Indian water settlement--where 97 percent of
our Reservation lands are trust lands, held by the United States for
the benefit of the FBIC and our allottees. \4\ Our Fort Belknap Indian
Irrigation Project and other Reservation irrigated lands serves
primarily the trust lands of Indian people.
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\3\ See 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''].
\4\ Montana Budget & Policy Center, Policy Basics: Taxes in Indian
Country Part 2: Tribal Governments (November 2017), (citing Tribal
Nations in Montana: A Handbook for Legislators, 2016).
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Brief History of the Gros Ventre and Assiniboine Tribes and the
Reservation
Our Gros Ventre and Assiniboine Tribal members are resilient
people. But certain stark facts about our lives when compared to our
non-Indian neighbors support the conclusion that the United States has
failed as our trustee to establish our permanent homeland as a self-
sufficient, economically vibrant, and sustainable Reservation with
healthy and thriving people.
We have 8,150 enrolled members and a large land base of 625,000
acres (nearly the size of Rhode Island), with half of the population
living on the Reservation. \5\ 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. \6\ The FBIC
Council is responsible for providing services to these members the same
as to any other member. \7\ 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. \8\ Our very high unemployment rate can be compared to
the much lower unemployment rate in the State of Montana (2.3 percent).
\9\
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\5\ 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''].
\6\ Werk 2021 Letter to Yellen.
\7\ Id.
\8\ Werk 2021 Letter to Yellen, (citing the Bureau of Business and
Economic Research, University of Montana, Oct. 2019, and Center for
Indian Country Development, Federal Reserve Bank of Minneapolis).
\9\ U.S. Bureau of Labor Statistics, https://data.bls.gov/
timeseries/LASST300000000000003 (last visited June 28, 2023).
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Agriculture remains the mainstay of our Reservation economy and
virtually our sole industry. Farms located on the Reservation are
largely operated by Tribal members. \10\ However, the low level of
agricultural productivity, due largely to inadequate infrastructure, is
reflected in the low family incomes and standard of living currently
experienced by our members.
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\10\ FORT BELKNAP RESERVATION: DEMOGRAPHIC AND ECONOMIC INFORMATION
(Oct. 2013); see also https://www.montana.edu/extension/aboutus/
documents/2018programhighlights/Fort%20Belknap%202018%20AR-ADA.pdf.
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The first tract of land set aside by the United States with the
major purpose of creating a self-supporting, agrarian homeland was
under the Treaty of the Blackfoot Nation in 1855. \11\ 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.
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\11\ Treaty of October 17, 1855, 11 Stat. 657.
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Through a series of treaties and agreements with the United States,
Congress established our current, permanent homeland in 1888, the Fort
Belknap Reservation for the Gros Ventre and Assiniboine Tribes. \12\
The 1888 Agreement required the relinquishment of most of our Tribes'
ancestral 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.'' \13\
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\12\ Agreement of May 1, 1888, 25 Stat. 113 [hereinafter ``1888
Agreement''].
\13\ 1888 Agreement at Articles III, V.
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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. Irrigation began on our Reservation
in 1889. By 1898, the Tribal members were irrigating about 30,000 acres
on the Milk River, which forms the northern boundary of our
Reservation, for grain, grass, and vegetables. Congress authorized the
construction of irrigation systems on the Reservation, now known as 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 our
right to water for our Reservation. 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, \14\ and established the ``Winters Doctrine.'' The
Indian reserved water rights began with our Reservation, and we are the
``Winters Tribes.''
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\14\ Winters v. United States, 207 U.S. 564, 576 (1908).
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Over the next 100 plus years, the United States failed to fulfill
many of its promises and commitments, including protecting and
preserving our waters, and we now have the highest poverty rate of any
tribal reservation in Montana. \15\ Because of a failure by the Federal
Government to maintain and complete construction of our federal Indian
Irrigation Project, we are currently irrigating only about 10,000 acres
of our irrigable lands.
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\15\ U.S. Census Bureau, My Tribal Area, https://www.census.gov/
tribal/?aianihh-1150 (last visited June 27, 2023).
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History of Settlement Negotiations
We spent many years negotiating with the United States through our
assigned Department of the Interior, Federal Negotiations Team and the
Secretary's Indian Water Rights Office (SIWRO). We came to the
bargaining table in good faith that our Federal Negotiations Team was
fully participating as the trustee over what is our most valuable
natural resource--water. 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. 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 adopted federal
regulations promoting Indian water settlements in 1990. \16\ 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.
---------------------------------------------------------------------------
\16\ 1990 Criteria; see also Tracy Goodluck, former Deputy Director
of the Secretary's Indian Water Rights Office, Presentation at the
April 11, 2019, Federal Bar Association Indian Law Conference,
Albuquerque, New Mexico. [Hereinafter ``Goodluck 2019 FBA
Presentation'']
---------------------------------------------------------------------------
We adopted the court-approved principles of practicably irrigable
acreage (PIA) to quantify the volume of our Indian reserved water
rights, \17\ and negotiated the administration of our water. Many hours
of negotiations, extensive studies, dozens of 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 on non-Indian state
water users as we development of our agreed-upon reserved water rights.
After more than 10 years of negotiations, we reached an agreement with
the State and Federal governments, and entered into the 2001 Fort
Belknap-Montana Compact (``Water Compact''). \18\ Our Water Compact
passed the Montana Legislature with a large, bipartisan majority vote.
---------------------------------------------------------------------------
\17\ 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., 2006 Anderson Paper at 429
(``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).
\18\ Mont. Code Ann. 85-20-1001 through 85-20-1008 (ratified on
April 16, 2001).
---------------------------------------------------------------------------
Our Water Rights Settlement is based on long-standing, historical
principles of federal policy 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.
A final settlement of our Indian reserved water rights with the
United States will allow us to protect this critical natural resource
and 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. \19\
---------------------------------------------------------------------------
\19\ 2006 Anderson Paper at 429.
Under Congressional leadership, and after 30 years of negotiations
with the federal government and the State, the Indian water rights and
claims of the Fort Belknap Indian Community can now be approved.
Passage of our Water Rights Settlement reflects the U.S. Supreme Court
reasoning that ``Congress and the President exercise the `sovereign
function' of organizing and managing `the Indian trust relationship.'''
\20\ It is long overdue.
---------------------------------------------------------------------------
\20\ Navajo Nation, 2023 WL 4110231, at *5.
---------------------------------------------------------------------------
Congress has a long history of honoring and recognizing its
responsibilities and obligations to Indian tribes. In 1956, Congress
enacted the Colorado River Storage Project Act and made an affirming
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. \21\
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\21\ 70 Stat. 109, 43 U.S.C. 620e (Apr. 11, 1956) (Cost
allocations, Indian lands; report to Congress) (emphasis added).
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.
\22\
---------------------------------------------------------------------------
\22\ See, e.g., 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
on S. 2969, Central Utah Completion Act Before the Senate Committee on
Energy and Natural Resources, 101st Cong. 161 (Sept. 18, 1990),
(Testimony of Dennis B. Underwood, Commissioner of the Bureau of
Reclamation): ``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.''
---------------------------------------------------------------------------
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, \23\ Congress passed the Indian Self-
Determination and Education Assistance Act of 1975. \24\ President
Nixon signed and introduced it as the ``dawn of the self-determination
age,'' and described the following:
---------------------------------------------------------------------------
\23\ 373 U.S. 546 (1963).
\24\ Pub. L. No. 93-638 (1975) (codified at 25 U.S.C. 5301 et
seq.).
``[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.'' \25\
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\25\ Secretary of the Interior, Order No. 3335, Reaffirmation of
the Federal Trust Responsibility to Federally Recognized Indian Tribes
and Individual Indian Beneficiaries (Aug. 20, 2014) (quoting Public
Papers of the President: Richard M. Nixon, Special Message on Indian
Affairs (July 8, 1970)).
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. \26\
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\26\ ``Federal Water Policy, Message to the Congress,'' Public
Papers of the Presidents: Jimmy Carter, 1044-47 (June 6, 1978).
---------------------------------------------------------------------------
Congressional frustration over the slow pace of Indian water
settlements by the Department of the 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?''
\27\
---------------------------------------------------------------------------
\27\ 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 220 (University of Arizona Press 1993).
---------------------------------------------------------------------------
We urge Congress to also consider this historic trend away from the
United States' trust responsibilities to tribes as it relates to Indian
water rights and development, in particular, through judicial decisions
that seem counter to the historical Congressional positions, and
provide the leadership to reverse such a trend in the federal
government's policies.
The decision by the U.S. Supreme Court, in McGirt v. Oklahoma, \28\
should inform 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. .
.[,]'' \29\ and the current Administration has declared a policy that
will reverse the slide away from the federal obligations promised to
tribes.
---------------------------------------------------------------------------
\28\ 140 S. Ct. 2452 (2020).
\29\ Memorandum on Tribal Consultation and Strengthening Nation-to-
Nation Relationships, 86 Fed. Reg. 7491 (Jan. 29, 2021), https://
www.federalregister.gov/documents/2021/01/29/2021-02075/tribal-
consultation-and-strengthening-nation-to--nation-relationships.
---------------------------------------------------------------------------
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 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.
The Winters Doctrine and the United States' Agricultural Promise
When the United States Supreme Court analyzed our 1888 Agreement
with the United States, creating the Fort Belknap Reservation, it
concluded that certain elements of the agreement were ``prominent and
significant.'' \30\ 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.''
\31\ The Court specifically rejected the argument that the Indians
deliberately gave up the means of irrigation.
---------------------------------------------------------------------------
\30\ Winters, 207 U.S. at 575-76.
\31\ Id. at 576.
---------------------------------------------------------------------------
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.''
\32\ 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.'' \33\ 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. \34\ Finally, the Court also
held that these reserved water rights are exempted from appropriation
under state law.
---------------------------------------------------------------------------
\32\ Id.
\33\ Id.
\34\ Id. at 576-77.
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The Winters Doctrine has stood the test of time and for over a
century has been applied to recognize tribal, Indian reserved water
rights. In summary, the Winters Court created federal, Indian reserved
water rights law with the following characteristics: (1) a reservation
of water is to be implied when it is required to accomplish the
purposes of a Treaty, Congressional Act, or Agreement between the
United States and tribes establishing a tribe's reservation of lands
with the expressed right to exclusive tribal possession of the land;
\35\ (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.
---------------------------------------------------------------------------
\35\ Id. at 575-76.
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In Arizona v. California, \36\ the United States Supreme Court
adjudicated, in part, the water rights of five reservation tribes on
the Colorado River mainstream in the Lower Colorado River 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. \37\
---------------------------------------------------------------------------
\36\ 373 U.S. 546 (1963).
\37\ Arizona v. California, 373 U.S. 546, 595-601 (1963).
---------------------------------------------------------------------------
The Court concluded that Indians are entitled to sufficient water
to develop, preserve, produce, or sustain food and other resources of
the reservation to make it livable. \38\ 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.'' \39\ 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.'' \40\ 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.'' \41\
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\38\ Id. at 599-600.
\39\ Id. at 596.
\40\ Id. at 598.
\41\ Id. at 598-99.
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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.'' \42\ 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.'' \43\ 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.'' \44\ The Court also rejected the
application of the equitable apportionment doctrine, explaining that it
is ``a method of resolving water disputes between States.'' \45\
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\42\ Id. at 596.
\43\ Id. at 600.
\44\ Id. at 600-01.
\45\ Id. at 596-97, affirmed in Navajo Nation, 2023 WL 4110231.
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FBIC Water Rights Settlement is an Infrastructure Bill
After ceding millions of acres of ancestral 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.'' \46\ Our Reservation lands have never been broken
apart and lost to non-Indians. Our Fort Belknap Indian Irrigation
Project and irrigable lands are and remain 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). \47\ During the negotiations of
our rights, we successfully demonstrated that we have an adequate water
supply with arable soils to support irrigation system infrastructure.
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\46\ Winters, 207 U.S. at 565.
\47\ 2006 Anderson Paper at 429 (2006).
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In 1942, the U.S. Supreme Court stated that the United States ``has
charged itself with moral obligations of the highest responsibility and
trust.'' \48\ We ask Congress to consider our historical circumstances,
the United States' moral obligation, and the responsibility of the
entire nation \49\ in providing the costs necessary to develop the
projects identified in our bill that are designed to allow us to put
our Indian water rights to use.
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\48\ Seminole Nation v. United States, 316 U.S. 286, 297 (1941).
\49\ 43 U.S.C. 620e.
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Aaniiih Nakoda Settlement Trust Fund
Funding in our Water Rights Settlement Bill will go toward
supporting and developing long overdue traditional infrastructure
investments, including the development of both agricultural and
domestic water supplies, 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. 1987, includes three accounts
and their uses, described below.
FBIC Tribal Irrigation and Other Water Resources Development Account #1
($119,524,134)
Restore the Southern Tributary Irrigation Project (STIP) and
Peoples Creek Irrigation Project, including construction of the
Upper Peoples Creek Dam and Reservoir, on the southern portion
of the Reservation.
Develop infrastructure for stock-watering across the
Reservation.
Provide on-farm development support.
Repair, restore, and develop wetlands across the
Reservation.
Conduct all environmental compliance activities.
Conduct planning, studies, and design work for all
activities.
The FBIC Tribal Irrigation and Other Water Resources Development
account will provide funding to restore the Southern Tributary
Irrigation Project, which was abandoned by the Bureau of Indian Affairs
in the 1960-70s in disrepair, preventing tribal members from an
irrigation resource, and the Peoples Creek Irrigation Project. This
funding includes construction of the Upper Peoples Creek Dam and
Reservoir on the southern portion of the Reservation, which will
provide mitigation for the FBIC due to its agreement to subordinate its
priority Indian water rights on the Upper Peoples Creek to upstream
state irrigators on family farms. Funding would also be provided to
develop infrastructure for stock-watering across the Reservation,
provide on-farm development support, and restore and develop wetlands
across the Reservation.
FBIC Water Resources and Water Rights Administration, Operations and
Maintenance Account #2 ($66,628,407)
Establish, operate, and provide capital expenditures to
establish a Tribal water resources and water rights department
for administration, management, and regulation of the Tribal
water rights, including development of a Tribal Water Code.
Create a Tribal trust fund to provide investment earnings
for the long-term support of the Tribal water resources and
water rights department to administer and manage the FBIC's
water rights.
Create a Tribal trust fund to provide investment earnings to
pay a portion of the annual operation and maintenance
assessment costs for Tribal irrigators to ensure long-term
repair and upkeep of the irrigation projects.
FBIC Water Resources and Water Rights Administration, Operations
and Maintenance account supports the traditional Indian water
settlement activities crucial to the establishment of a Tribal water
resources and water rights department. A Tribal trust fund will be
established that will allow the Tribal department to operate on the
annual interest earned on the Tribal 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 support
the cost of capital projects that will provide the necessary
infrastructure, equipment, and data to support the Tribal department
activities. Finally, this account 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 of
Tribal irrigators--proven to be important for sustaining the
agricultural economy on the Reservation.
FBIC Clean and Safe Domestic Water Supply and Wastewater Systems, and
Lake Elwell Project, Account #3
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.
Construct a Project to deliver clean and reliable water from
Lake Elwell for the southern portion of the Reservation.
Construct a Tribal wellness center to improve and ensure a
healthy workforce that will assume responsibilities related to
the Project activities funded under this bill.
The FBIC Clean and Safe Domestic Water Supply and Wastewater
Systems, and Lake Elwell Project account supports bringing and storing
clean drinking water for the Reservation. 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.
The Lake Elwell project will bring clean water to the southern
portion of the Reservation to ensure an adequate water supply to the
Tribal communities and members in this area of the Reservation, which
is in need of safe and reliable drinking water. Without the funding
provided in this account, the FBIC Tribal members will continue to
experience water insecurity on the Reservation.
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. \50\ On January 27, 2021, President Biden issued Executive
Order 14008, \51\ 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.
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\50\ National Congress of American Indians, Tribal Infrastructure:
Investing in Indian Country for a Stronger America at 6 (2017), https:/
/www.ncai.org/NCAI-InfrastructureReport-FINAL.pdf.
\51\ 86 Fed. Reg. 7619 (Feb. 1, 2021).
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The health and wellness of our Tribal members remain a significant
concern. The median age at death of American Indians residing in
Montana is 16 years lower than that of white people. \52\ Diabetes is
prevalent among our Tribal members. A Wellness Center is planned so
that the health and well-being of our Tribal work force can be
improved. Wellness Centers are highly effective in combating our
prevalent tribal health conditions currently resulting in adverse
health outcomes.
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\52\ Mont. Dep't of Public Health and Human Services, Montana Vital
Statistics 2020 at 23 (2020), https://dphhs.mt.gov/assets/publichealth/
Epidemiology/VSU/VSU2020AnnualReport.pdf.
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Fort Belknap Indian Irrigation Project System Implementation Non-trust
Federal Account ($415,832,153)
The Bill includes funding for the rehabilitation, modernization and
expansion of the Bureau of Indian Affairs' Fort Belknap Indian
Irrigation Project (FBIIP) on the Milk River within the Reservation.
The Bill includes an expansion of the BIA's Milk River unit that will
consist of an additional 16,465 acres of new irrigable lands, for a
total of 26,890 acres under irrigation in the FBIIP Milk River Unit.
The Tribe's Indian water rights from the Milk River is secured under
the Compact for the new future irrigated lands. This will also include
construction of a new off-stream water storage reservoir, the Fort
Belknap Reservoir, on Three Mile Creek with a capacity of about 60,000
acre-feet, and construction of levees for flood protection of the Milk
River Unit lands.
This project was originally authorized for construction in 1895,
but construction of the full project was never completed. There are 358
allottee users under the FBIIP and the Tribe's original Winters water
rights for 10,425 acres of historically irrigated lands will be used by
the project. This project was constructed over 100 years ago and is in
desperate need of rehabilitation and modernization. The construction of
the project is also long past due for being completed. The BIA will be
the Lead Agency for the FBIIP activities and the FBIC will be able to
enter into self-determination contracts to conduct all or a portion of
the activities identified for the FBIIP.
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 consistent with our negotiated FBIC-State-Federal Water
Compact will create harmony at a time when water wars between water
users are increasing. In fact, Montana has had a severe drought in
recent years. Mitigation activities will stabilize the water supply,
conserve water, and improve water use efficiency. Continued cooperation
among the interested parties through the mitigation activities will
also respect the sovereignty of the State and FBIC in our respective
jurisdictions. \53\
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\53\ 1990 Criteria.
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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. \54\
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 north central
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. \55\ 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.
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\54\ Hearing on Addressing the Needs of Native Communities through
Indian Water Rights Settlements Before the Senate Committee on Indian
Affairs (May 20, 2015) (Testimony of Jay Weiner, Assistant Attorney
General of Montana).
\55\ This information is taken from the Montana Water Rights
Commission archives, provided by the State.
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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 the 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 Project Mitigation ($300,000,000)
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, consistent with 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 water supply of the Milk River for 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. This is important because in the
Water 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.'' \56\
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\56\ Fort Belknap-Montana Compact, Mont. Code Ann. 85-20-1001,
Article VII.A.4.c.
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Extensive studies have been conducted to analyze the impact of
FBIC's water development and use on the Milk River. Projects were
identified that would provide the required mitigation for the Milk
River Project and tributary water users. The Commissioner is required
to restore the St. Mary Canal and associated facilities in cooperation
with the State and FBIC. The Commissioner is also required to
rehabilitate and enlarge the Dodson South Canal and associated
facilities in cooperation with the State and FBIC.
Upper Peoples Creek (included in Trust Fund, Account #1 funding)
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 on the
Reservation.
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.
State and Federal Land Transfers
The Bill authorizes the transfer of approximately 16,116 acres of
federal land from the Bureau of Land Management, Bureau of Indian
Affairs, including former allotments, and Bureau of Reclamation. The
Bill also authorizes the Secretary of Interior and Secretary of
Agriculture, Forest Service, to enter negotiations with the State to
exchange approximately 21,705 acres of State trust lands for Federal
lands to be transferred and held in trust for the FBIC. The total
acreage to be transferred to the Tribe is approximately 37,822 acres.
No private lands are included in the Federal land transfer and
customary access to private lands will be retained. The federal lands
to be transferred will be subject to valid existing rights and
requirements and be held in trust for the Tribe. The land transfers
provide for 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 Tribal
administration, 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.
Montana Water Court Adjudication
In the 1970s, the State started a general stream adjudication of
all water rights through the Montana Water Court. \57\ The Legislature
set up a process that would allow tribes to negotiate their water
rights with the State instead of litigating them through the State
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.
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\57\ The following historical information is taken from a Briefing
Paper (June 2000) in the Montana Reserved Water Rights Commission
archives (author unknown).
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However, the State Legislature ended 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 Congress
would be tragic for all Parties now--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.'' \58\ 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.
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\58\ 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 211(1993).
---------------------------------------------------------------------------
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 claims and allow for the development and use of our
Indian water rights. That is the promise of settlement over litigation.
Conclusion
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 by passing S.1987. Indian water rights are one ``of the four
critical elements necessary for tribal sovereignty.'' \59\ Our Water
Rights Settlement will provide 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
ratify our negotiated Indian water rights and provide much-needed
economic benefits for FBIC and surrounding communities.
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\59\ City of Albuquerque v. Browner, 97 F. 3d 415, 418 (10th Cir.
1996).
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``The federal trust responsibility is a legal obligation of the
United States dictating that the federal government must protect Indian
resources and assets and manage them in the Indians' best interest.''
\60\ The Settlement will provide funding for the rehabilitation,
modernization, expansion, and restoration of the irrigation systems
that will assist us in establishing a viable agricultural economy and
justifies desperately needed expenditures, including for the federal
Fort Belknap Indian Irrigation Project and other irrigation projects on
our Reservation.
---------------------------------------------------------------------------
\60\ Congressional Research Service, Indian Water Rights
Settlements R44148 at 4 (updated Mar. 28, 2023), https://
crsreports.congress.gov/product/pdf/R/R44148/28.
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Our Indian water settlement is structured to promote economic
efficiency on our Reservation and our Tribal self-sufficiency. It is an
agricultural infrastructure plan; includes the development of clean,
reliable, and safe drinking water; provides for the FBIC to administer,
manage, and enforce its reserved water rights, and will improve the
poor economic condition of our members on the Reservation. In the end,
perhaps, Charles F. Wilkinson, a renowned scholar on Indian water
rights, natural resources, and other issues, 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.'' \61\
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\61\ Charles Wilkinson, Indian Water in the New West 222 (1993).
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. We respectfully request that
Congress work to swiftly pass our Water Rights Settlement, S.1987. It
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is long overdue.
The Chairman. Thank you, President Stiffarm.
Lieutenant Governor Juras, welcome. Please proceed with
your testimony.
STATEMENT OF HON. KRISTEN JURAS, LIEUTENANT GOVERNOR, STATE OF
MONTANA
Mr. Juras. Good afternoon, Chair Schatz, Vice Chair
Murkowski and Committee members. My name is Kristen Juras, and
I am the Lieutenant Governor of the State of Montana.
It is truly a privilege to appear before you on behalf of
my beloved State and Governor Gianforte in support of Senate
Bill 1987.
Water is one of Montana's most valued resources. As Senator
Tester noted, water is life, not only for our communities, it
is the lifeblood of our number one industry, agriculture. Like
many western States, we don't have enough of it, giving rise to
the adage, whiskey is for drinking, water is for fighting.
But rather than fight, in the 1970s, Montana made the
commitment to resolve tribal and Federal enclave reserved water
rights through negotiation rather than litigation. Let me tell
you, as a water rights attorney, water rights litigation often
takes far longer than you expect. It is far more expensive than
you expect. And most unfortunately, it pits neighbors against
neighbors and even tribes against tribes.
Montana was the first and only State to form a standing
water compact commission. Over the past five decades, working
with our tribal and Federal partners, we have seen remarkable
success. The Fort Belknap Compact is the final settlement to
come before Congress for approval in a series of 18 compacts
that equitably apportion water resources between the State and
its people and the several Indian tribes and Federal enclaves.
The Fort Belknap Compact was overwhelmingly approved by the
Montana legislature in 2001 and signed by then-Governor Judy
Martz. As Vice Chair Murkowski noted, this is a particularly
historic settlement given that the Fort Belknap Reservation was
the site of the dispute that gave rise to the U.S. Supreme
Court's seminal Indian water rights ruling, Winters v. U.S.
Yes, President Stiffarm, it is, after a century, time to close
this circle and grant this tribe the water rights that were
intended for them.
Since State ratification of the compact in 2001, it has
taken a significant amount of time, resources and investments
from many parties in order to come before you today with a
negotiated agreement that has achieved broad-based non-partisan
support. President Stiffarm, thank you and the tribal council
for your leadership and commitment in reaching this milestone.
You are a man or courage.
I also want to thank the State's chief negotiator, Jay
Weiner, the members of the State and Federal negotiating teams,
and all of our staff behind each of these teams that provides
critical support, including behind me, our Director of the
Department of Natural Resources, Amanda Kaster, and our Natural
Resource Counsel to the Governor's Office, Rachel Meredith.
In water circles, we talk about paper water, the tribe's
water rights as described in the compact, versus wet water, the
tribe's ability to actually put the water to use on their
fields and in their homes. Without significant investment in
water system infrastructure, the tribe's water rights will
remain paper water rather than wet water.
That is why Senate Bill 1987 is so critical. Through
significant investments in water infrastructure and projects,
this legislation transforms paper water into wet water and
quite frankly, without it, significant portions of the tribe's
water rights will remain on paper.
The Montana legislature has also repeatedly appropriated
millions of dollars in State support for Indian water rights
compacts. The State has already fully funded the contemplated
State contribution in S. 1987, which is intended to support the
construction of a dam and reservoir on Peoples Creek. It has
also previously contributed to the repair of the St. Mary's
Canal and ongoing support to the St. Mary's working group.
Section 6 of the bill provides for the transfer of
approximately 22,000 acres of State trust land located within
and adjacent to the reservation for Federal lands of equal
value, allowing further consolidation of the tribe's land base
and reducing jurisdictional conflicts between the tribes and
the State.
Montana is proud to stand with its partners in advocating
the passage of this meaningful water rights settlement, which
brings an important chapter of Montana history to a close.
Thank you again for the opportunity to testify. I stand for any
questions. Thank you.
[The prepared statement of Lieutenant Governor Juras
follows:]
Prepared Statement of Hon. Kristen Juras, Lieutenant Governor, State of
Montana
Chair Schatz, Vice Chair Murkowski, and distinguished members of
the Senate Committee on Indian Affairs, I thank you for the opportunity
to provide written testimony today. My name is Kristen Juras, and I am
the Lieutenant Governor of the State of Montana. I am here to testify
on behalf of the State of Montana and Governor Greg Gianforte in
support of Senate Bill 1987, a bill to provide for the settlement of
the water rights of the Fort Belknap Indian Community, and to urge your
approval of this legislation.
The Fort Belknap Indian Community-State of Montana water rights
compact was approved by the Montana Legislature and signed by then-
Governor Judy Martz in 2001. Mont. Code Ann. 85-20-1001, et seq. It
is now the last reserved water rights compact in Montana requiring
congressional ratification, and it is a particularly historic
settlement given that the Fort Belknap Reservation was the site of the
dispute that gave rise to the U.S. Supreme Court's seminal Indian water
rights ruling, Winters v. U.S., 207 U.S. 564 (1908). Montana is very
pleased to provide its support for S. 1987 and greatly appreciates the
leadership and commitment demonstrated by the Fort Belknap Indian
Community, Community Council President Jeffrey Stiffarm, and all tribal
officials, staff, and members who have worked on this settlement over
the years. The State is also appreciative of support for the settlement
from essential stakeholders, such as Phillips County, Hill County,
Valley County, Blaine County Conservation District, St. Mary
Rehabilitation Working Group, Milk River Joint Board of Control, and
the Montana Stockgrowers Association, among others.
Montana has been remarkably successful in resolving both Indian and
federal reserved water rights claims through settlement negotiation. In
1979, the State created the Montana Reserved Water Rights Compact
Commission (``Commission'') specifically to negotiate, on behalf of the
Governor, compacts with Indian tribes and federal agencies claiming
reserved water rights in the state of Montana. The Commission was
established as an alternative to litigation, as part of Montana's
statewide water rights adjudication, and was charged with negotiating
compacts ``for the equitable division and apportionment of waters
between the state and its people and the several Indian tribes'' and
the federal government. Mont. Code Ann. 85-2-701 (2021).
Since the Commission's inception, Montana has successfully
concluded compacts with each tribe and federal enclave claiming
reserved water rights within state borders, for a total of 18 different
compacts that have been enacted into law. See, Mont. Code Ann. 85-
20 Parts 2-19. Between 1992 and 2020, Congress enacted legislation
ratifying water rights settlements between the State and the Northern
Cheyenne Tribe, the Chippewa Cree Tribe, the Crow Tribe, the Blackfeet
Tribe, and the Confederated Salish and Kootenai Tribes (CSKT). With the
exception of the CSKT compact, which is presently undergoing the
Montana Water Court decree process, \1\ each of those compacts, along
with the State's water rights compacts with the Fort Peck Tribes and
the various federal enclaves in Montana administered by the Bureau of
Land Management, the National Park Service, the U.S. Fish and Wildlife
Service, and the U.S. Forest Service, have been finally decreed by the
Montana Water Court and are being implemented.
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\1\ After passage by the Montana Legislature, ratification by
Congress, and ratification by the tribe or tribes associated with the
reservation, compacts proceed through the Montana Water Court
adjudication process as the same is established by the Montana Water
Use Act, Title 85, Chapter 1, Part 2.
---------------------------------------------------------------------------
Further, the Montana Legislature, in working alongside political
leadership and our tribal and federal negotiating partners, has
repeatedly appropriated millions of dollars in state support for Indian
water rights compacts. The State has already fully funded the State's
contributions contemplated by S. 1987, which are intended to support
the construction of a dam and reservoir on Peoples Creek. Construction
of this infrastructure effectuates one of the compromises struck in the
compact, recognizing the Fort Belknap Tribes' legal entitlement to
water while protecting existing off-reservation water uses that are
junior in priority. Montana's commitment to such contributions has
created immeasurable benefits to tribes as well as state water right
holders, including irrigators, municipalities, and others. Montana's
compacts frequently involve complicated and contested natural resource
allocation, and by investing in mutually negotiated outcomes, Montana
has resolved these disputes in a pragmatic fashion that reduces
conflict and expense and creates economic drivers for reservation and
regional economies.
The Fort Belknap compact is a paradigmatic example of these mutual
and diverse benefits, and S. 1987 is a critical component in securing
those benefits. The Tribes speak eloquently about the importance of
this compact to their ability to provide clean drinking water to their
members and to use the Fort Belknap Reservation's water resources for
their benefit. The Milk River is the largest of the four drainages
addressed in the compact. From its source on the Blackfeet Indian
Reservation, and as it runs several hundred miles along Montana's Hi-
Line, finally reaching its confluence with the Missouri River, the Milk
River is the lifeblood of one of the earliest irrigation projects
developed by the Bureau of Reclamation. The Milk River Project
(``Project'') irrigates over 120,000 acres and provides water to four
municipalities, two rural water systems, and two tribal communities. It
relies on aging infrastructure, particularly the components of the
trans-basin diversion from the St. Mary River to the Milk River system
located on the Blackfeet Indian Reservation. S. 1987 provides critical
funding to ensure the rehabilitation of that diversion and other
critical Project infrastructure, which is essential to the economic
vitality of northcentral Montana, including the Fort Belknap and
Blackfeet Indian Reservations.
Section 6 of S. 1987 also provides for the transfer of certain
federal lands to be held in trust for the benefit of the Fort Belknap
Indian Community and authorizes a federal-state land trade process to
further augment consolidation of the Tribes' on-reservation land base
and reduce jurisdictional conflicts between the Tribes and the State.
The State supports this effort while remaining mindful of its
constitutional mandate to maximize the value received from State trust
lands for the benefit of Montana's schools and other public
institutions. To fulfill its fiduciary obligations as trustee, it is
essential that Montana have the ability to work with both the U.S.
Bureau of Land Management and the U.S. Forest Service to identify
suitable federal lands to trade for State trust lands identified in
Section 6. S. 1987 provides that authority, which is an important
component of our full support for this legislation.
In closing, I want to reiterate my appreciation for the opportunity
to provide this testimony. Montana is unique in how it has approached
reserved water rights within its borders, choosing to negotiate and
collaborate with its tribal and federal partners, rather than pursue
protracted, divisive, and expensive litigation. It is through this
process that all parties can stand before you today, in support of this
truly historic settlement quantifying the reserved water rights of the
original Winters-case Tribes. This settlement implements the final
reserved water rights compact in Montana and reflects the culmination
of nearly a half-century of dedicated work. It provides essential
support for the needs of the Fort Belknap Indian Community and its
members. It ensures the continued vitality of the agricultural economy
of northcentral Montana. Montana is proud to stand with its partners in
advocating the passage of this meaningful water right settlement which
brings a chapter of Montana history to a close.
On behalf of the State of Montana, I am proud to support the
passage of S. 1987 and encourage you to do so.
The Chairman. Thank you to all the testifiers.
With the Vice Chair's concurrence, we are going to start
with the introducers of these various pieces of legislation.
Senator Tester, followed by Senator Daines.
Senator Tester. Thank you, Mr. Chairman. I appreciate your
courtesy. Senator Daines and I both know this has been a long
trail, and the fact that we are here, everybody on the same
page, whether it is Steve and I or the Governor's office or the
tribe or the folks around the tribe in north central Montana, I
just can't express my appreciation enough.
This question is for you, President Stiffarm. As you are
well aware, the goal of any water settlement is to provide
water infrastructure as needed, wet water, as the Lieutenant
Governor said, that takes into effect things like changing
climates, distance to water sources and a bunch of other
things.
The goal is to avoid costly litigation. Lieutenant
Governor, I did not know you are a water rights attorney. So
you come at this from a real-life perspective.
President Stiffarm, can you share your perspective, your
perspective as a representative of the people of Fort Belknap,
on why this settlement that we are discussing today is the best
way to resolve the water rights issue at Fort Belknap that was
established, as has been said, by the Winters case, and how
this settlement will secure water access for your tribe for the
next 100 years?
Mr. Stiffarm. Thank you for the question, Senator Tester.
As I stated earlier, it has been said throughout these
testimonies, water is life. Without that, we are nothing.
Without the work you all have done to help us secure this water
settlement, it is going to mean fresh drinking water for the
Fort Belknap Agency and for the communities in the south of our
reservation, Hays and Lodgepole.
We are going to be able to re-do our irrigation district in
the north end, which is 100 percent operated by Native American
tribal members and we can have an irrigation system in the
south end, for our farmers and ranchers out there. Fort
Belknap's primary income is farming and ranching. So this water
means a lot to us. This dam that we are going to build is going
to benefit the communities all the way from Blackfeet Country
down into the Fort Peck Reservoir, those farmers and ranchers
that are upriver from us and downriver.
So we are bringing life to the Hi-Line, is what we are
doing. I want to thank you for that.
Senator Tester. Thank you.
Mr. Juras. as I said before, it is a pleasure to have you
here today. Thank you for your work and the Administration's
work on this settlement.
As you have said, Montana has a strong record of
collaborating on water settlements. Your work has carried that
tradition on, thank you.
You wear many hats as Lieutenant Governor of the State of
Montana. You serve as co-chair of the St. Mary's Rehabilitation
Project, in that role, you know how important it is to
rehabilitating the St. Mary's Canal and how critical it is to
north central Montana.
As we learned with the DOI testimony, and Bryan, thank you
for your testimony, the rehabilitation of St. Mary's will
provide 35,000 acre-feet of water mitigation required in this
compact. Could you talk about the overall importance of fixing
St. Mary's? We have heard the president talk about the tribal
perspective. I want you to talk about fixing St. Mary's and its
potential to expand access to water across north central
Montana.
Mr. Juras. Yes, Senator Tester. The St. Mary's canal
system, and we call it the Milk River Project, is critical for
the Hi-Line communities and agriculture. It irrigates over
120,000 acres. It provides water for cities and towns and two
rural communities. Without it, literally people would have to
leave that area of the State. It would cause great economic
harm if we do not maintain the viability of the St. Mary's
system.
As you know, it was built in the early 1900s. We had the
collapse of some structures in 2000. Thankfully, this body,
Congress approved repairs. Montana also contributed to some of
those repairs.
But that was just one of many repairs that makes it
absolutely critical to the Montana economy, as well as the
communities that that canal serves.
Senator Tester. For the purview of the Committee, the St.
Mary's project is an engineering marvel. It was built over 100
years ago, and has probably been worn out for 40 years. And it
is just an amazing piece of infrastructure built several
generations ago.
I want to thank everybody who has worked on this bill. I
want to thank the witnesses for their testimony. I would like
to quickly note for the record that there are a handful of
drafting errors within this bill. I look forward to correcting
these errors in a substitute amendment. We will work with the
agencies here on technical assistance, trying to get this bill
out the door quickly.
Lastly, I want to thank President Stiffarm and all the
folks who have worked on this bill. Your predecessors, you
mentioned, Andy Werk. But the truth is, it is a long list,
because this has been going on a long time.
Today's hearing is a testament to hard work and
determination getting done if you fight and work for common
sense solutions. It hasn't been easy. Make no mistake about it,
we have much work left to do.
But I remain committed, as you do, as Senator Daines does,
to getting this done. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Tester.
Senator Daines?
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Chairman Schatz, thank you, as well as Vice
Chair Murkowski.
Mr. Juras. welcome. President Stiffarm, thank you. Both of
you are not only colleagues who work together on important
issues, I consider both of you friends. It is really good to
have you here.
The Lieutenant Governor not only is a water rights
attorney, she also was born in the same hometown as my grandpa.
So some of these relationships go back a long way.
Today is historic, it really is. I sometimes wondered if we
would ever get to this point, to have this kind of hearing.
When I was first elected to the House in 2012, over a decade
ago, this was one of the first issues I heard about. I heard
about it from the tribe, I heard about it from the county
commissioners, Phillips County, Blaine County. Both sides
wanted to set me straight on their strong opinions on this
compact.
Less than just a year ago, this settlement still had
opposition from numerous groups. The truth of the matter is it
was going nowhere. It was going nowhere. As President Stiffarm
so well articulated, I think we had to put aside the concerns
for only ourselves and think about the future generations. It
has been a century-long battle.
President Stiffarm, I commend you and your courage, your
leadership to saying, I want to solve this problem. For 10
years, the bill got introduced, it was press releases, but it
wasn't actually going to get an outcome. Through your
leadership and willingness to figure out a path forward, your
courage, we are here.
We buckled down the last six months. The Governor's team,
as well as the Department of Interior and President Stiffarm's
team held the first of many intense negotiations. It got
intense at times. I worked with our county commissioners. They
got intense at times. Working with Montana's farming and
ranching communities, as the Lieutenant Governor talked about
whiskey and water, that is really true in a place that has a
lot less water than whiskey.
We came to a compromise, and Senator Tester and I
introduced a bipartisan bill. I am proud to say today for the
first time ever we have the support of Montana's entire
congressional delegation. We have the support from Governor
Gianforte and his administration. We have the support of the
tribe. We have the support of every affected county commission.
We have the support of the agriculture groups and many more for
this critically important bill.
It is hard to ever get a group aligned on anything. Yet
here we are today, and again, President Stiffarm, I commend you
for your leadership and vision.
Mr. Chairman, I am going to ask unanimous consent to place
into the record the following letters of support: Blaine County
Commission, Phillips County Commission, Hill County Commission,
Valley County Commission, Governor Greg Gianforte, the Montana
Stock Board Association, Montana Farm Bureau, and letters from
elected officials.
The Chairman. Without objection, so ordered.
Senator Daines. Again, this bill is a result of a lot of
compromise, a century or more of work. It will be a major
benefit to Montana.
It fully settles costly water rights litigation. I am
grateful Lieutenant Governor Juras went to law school. I
didn't. I am not a lawyer. I went to engineering school, that
other school a couple hundred miles away from Missoula. It
fully funds the rehabilitation of the Milk River Project which
is the lifeblood for our farmers and ranchers both on and off
the reservation. All you have to do is, if you were to fly over
that part of the State, you can see where it is green and where
it is not. It is very, very clear in terms of water being the
lifeblood.
We invest in infrastructure to provide clean drinking water
and irrigation for tribal and non-tribal members. And it
protects existing easements and leases. The Fort Belknap Water
Rights Settlement Act is truly a win. It is a win, it is a win,
it is a win for Montana.
President Stiffarm, Lieutenant Governor Juras, welcome.
This bill is critical for both the State and the tribe.
Lieutenant Governor Juras, you spent considerable time working
toward a practical solution that benefits Montana. How does the
current bill protect private property rights, increase
investment in agriculture, and address the complex land
ownership issues that we face in Montana?
Mr. Juras. As I noted in my testimony, it avoids expensive
and lengthy and unpredictable litigation. In Montana, we follow
the prior appropriation doctrine, which grants seniority to
first in time, first in right. So it actually provides
predictability not only for the tribes, but also for the State
water rights holders, because the tribe's water rights date
back prior to almost all stakeholders, and all of those rights
are junior.
So until the tribe's water rights are confirmed and
finalized, junior water right holders cannot finalize that. And
of course, our water rights are a very important property
right.
It also provides for mitigation of the impact of off-
reservation water users through the rehabilitation of the St.
Mary's Canal and Fresno and other water structures. Without
Senate Bill 1987, the tribe's water rights will remain paper
water rights and will continue to have that uncertainty.
Senator Daines. It is a really important point, because as
anybody who has dealt with water out west knows, in terms of
the data, that right determines priority. The point you made
about the tribe's rights predating a lot of the other rights is
really important. If we don't settle that, we can never resolve
this issue. So it is a really important point and why we need
to get this done.
President Stiffarm, the tribe has made numerous concessions
in order to get to where we are today. Thank you for your work.
Your grandchildren and my grandchildren and our great-
grandchildren will thank you for your work.
The bill before us is a compromise for the State, the
tribe, the Federal Government, dozens of local areas and
groups. There is still work to do from this point forward, but
this is a really important, monumental step.
My question for you, President Stiffarm, how does the bill
enhance the tribe's water resources and ensure that your
members have access to clean drinking water and sustainable
irrigation?
Mr. Stiffarm. Thank you for the question, Senator Daines.
First, I want to thank you for those words that you shared. You
keep my humble and grounded. I appreciate this.
What this water settlement is going to mean for the people
of Fort Belknap and the surrounding communities is clean
drinking water, water for the future as we talked about, for
our children, grandchildren and great-grandchildren. That is
what we are all here for, it is why we are all surviving here
today, is for our children and grandchildren and for their
lives, for better lives.
In the south end, we will be pumping water out of the
Missouri River up into the Hays and Lodgepole communities,
which doesn't have clean drinking water because of the mining
devastation that we had from the Zortman and Landusky Mine,
runoff from the mountains there. So we are going to be able to
provide some clean drinking water in the south, in the
communities.
Also infrastructure, the homes that we plan on building.
Back home we have two or three generations living in one home.
With some of the money we are going to be able to dig some
wells and build homes for the communities. As I said, provide
better, clean drinking water and irrigation systems for our
farmers and ranchers up and down the Hi-Line. It is going to
provide hope where there was no hope before. I want to thank
you for your help.
Again, Lieutenant Governor, we are honored to be sitting
next to you and listening to your testimony. [Phrase in Native
tongue.]
Senator Daines. Thank you, Mr. President.
I know I am well over time. I have a question for Mr.
Newland, Chairman Schatz.
The Chairman. Go ahead.
Senator Daines. Thank you.
It is a century in the making here, but this will be quick.
I would appreciate a brief answer. The stars of the panel are
here right now, but you have a really important of this,
because we don't go anywhere without your assistance going
forward.
First of all, thank you for all your help on this. A lot of
the work now will go into working together, moving this
forward. The cooperation has been noted and appreciated.
How important is it to finalize this last remaining water
settlement in the State of Montana and have a bill that could
be implemented at the State, Federal, and local level?
Mr. Newland. Thank you, Senator, for that question. Your
comment hit the nail on the head: it is a century in the making
since the Winters case that the United States brought as
trustee. I think getting this done will, in large measure,
fulfill a big part of our trust obligation to the tribes and
the people who live in their communities back home on the
reservation, to get them actual wet water.
Senator Daines. Thanks for the brief answer, and thanks for
all your help.
Mr. Chairman, thanks.
The Chairman. Thank you.
Senator Smith?
Senator Smith. Thank you, Mr. Chair.
Secretary-Treasurer Fineday, miigwech, and thank you again
for being here with our Committee. I very much appreciated your
testimony, as you reviewed some of the history of the illegal
land transfers which is, of course, as you pointed out, part of
the long legacy of taking land from the Ojibwe people in this
place that is now known as Minnesota and across the Country.
Your testimony was excellent. I am wondering if there was
anything in your testimony regarding that history that you
would like an opportunity to highlight before I ask you one
other question?
Mr. Fineday. Thank you, Senator, for that question. Of
course, I could speak on the history here for a very long time
and I am sure bore the Committee to death. I won't do that
today, other than to point out very specifically these
transfers that are subject to the Restoration Act and to this
technical correction really arose from the termination era.
Even thought Leech Lake wasn't specifically targeted as a
termination tribe, it was still the mindset of the Federal
Government at that time in order to eliminate the burden of
administering the land on our reservation.
So Congress passed an amendment to the Indian
Reorganization Act on May 14th, 1948 that authorized the
Secretary of Interior to issue fee patents to Indian allotments
to prepare them for sale. Under the new law, the BIA also began
to administratively transfer ownership of allotments to other
governmental agencies, such as the United States Department of
Agriculture. These administrative transfers were known as
secretarial transfers.
The problem at Leech Lake and why this was specific to
Leech Lake is because we have the Chippewa National Forest that
is basically superimposed within the boundaries of our
reservation. So the fact that the forest and the reservation
are one and the same really made the administration of these
transfers especially enticing to BIA officials in the 1940s and
1950s.
However, it wasn't until 1979 that the Department of
Interior formally acknowledged that these transfers were
illegal. The Interior Solicitor interpreted the Act of May
14th, 1948 to require ``unanimous consent of all heirs before
the interests in those allotments could be conveyed.'' And that
didn't happen in this situation.
So while we can look at the overall consequences of the
Termination Act and the allotment period on Indian Country,
correcting this specific wrong for the illegal taking of land
at Leech Lake is a much more straightforward task, just return
the land.
Senator Smith. Thank you very much.
And for the unfortunate people who have never had a chance
to visit northern Minnesota and the home of Leech Lake Band,
can you explain what the land is like? Particularly I am
thinking about, I was just looking at a map of the tribal
nation land. We have big lakes, lots of water. Not meaning to
be disrespectful to our friends from Montana, or the Navajo
Nation.
[Laughter.]
Mr. Fineday. Thank you for that question, Senator. Very
importantly, the Leech Lake Reservation is an extremely
resource-rich reservation. We are actually the first
reservation, federally recognized reservation that the
Mississippi River flows through, from its headwaters at Lake
Itasca. We have several large lakes, as you mentioned, we have
Lake Winnibigoshish, we have Leech Lake and we have Cass Lake
as well as many other lakes. For those of you who may know one
of the mottoes of Minnesota, it is that we are the land of
10,000 lakes. We have over 1,000 of those lakes within the
boundaries of the Leech Lake Reservation.
We have a lot of forest land, which is very specifically
unique to us as Ojibwe People as well, with our migration
story, starting out in the east coast, many, many, many
generations ago and receiving a prophecy to go west to the
place where food grows on water. A lot of the resources on our
reservation include that food that grows on water, what we call
manoomin, or the good berry, or what is also known as wild
rice. We protect that wild rice.
That is where this bill specifically, even though it deals
with land, the lands that we are working with the Forest
Service to identify will help us ensure that we are protecting
wild rice beds within the lakes and rivers of the reservation.
So it is a very resource-rich place. We are doing our part to
do all we can to protect and preserve it for generations to
come, not just for the Leech Lake people, but for everybody to
enjoy.
Senator Smith. Thank you very much. The home of manoomin,
and also the need because of so much surface water, the need
for buildable land for the reservation, so that you have a
place to address the severe housing shortage that you were
experiencing as well.
Thank you so much, Mr. Chair.
The Chairman. Thank you, Senator Smith.
Senator Lujan?
Senator Lujan. Thank you, Mr. Chairman.
Assistant Secretary Newland, I have a series of yes or no
questions. Yes or no, does the Navajo-Gallup Water Supply
Project Amendment Act of 2023 integrate all recommendations
from the Interior Working Group on Indian Water Settlements
provided last November?
Mr. Newland. Yes.
Senator Lujan. So this bill has the Interior's support?
Mr. Newland. Yes.
Senator Lujan. Much of the project is already complete with
water deliveries from the Cutter Lateral having begun in 2020
and 2021. More than 50 percent of the remaining pipeline, the
San Juan Lateral, is also complete. But the project needs more
time and resources to get the job done.
Assistant Secretary, absent Congress' authorization to
provide additional time and resources, what will happen after
December 31st, 2024?
Mr. Newland. The work would stop on the construction
programs and the funding would run out.
Senator Lujan. I appreciate that.
Groundwater levels for the City of Gallup have dropped
approximately 200 feet over the past 10 years. I also was proud
to work with colleagues and secure congressionally directed
spending in Fiscal Year 2022 for the City of Gallup to drill a
new well to help meet its needs until the project can deliver
water to the city. In the meantime, thousands on the Navajo
Nation rely on hauling water to meet their daily needs.
Mr. President, how many Navajo households currently do not
have running water?
Mr. Nygren. Thank you, Senator. The percentages that we
have been using for households across Navajo is about 30
percent. So I think in terms of New Mexico, if I were to
assume, it would be in the thousands, maybe anywhere between
10,000 to 15,000 on the New Mexico side.
I know across Navajo, it is probably 50,000 to 60,000. But
just on the New Mexico side, I know it is in the thousands. But
I can definitely get you a more accurate number.
Senator Lujan. I appreciate that, Mr. President. I look
forward to working with you and NTUA to get those numbers as
well for the Committee. I appreciate that.
Mr. President, how has inadequate water supply affected the
Navajo Nation?
Mr. Nygren. Thank you, Senator. Having grown up without
running water, hauling water myself, heating water on the stove
with a propane tank, and even to the point where in the winter,
being able to chip the waters, because the 55-gallon barrels
get frozen.
And in summers, using a hose to suck out the water out of
the gallons, or even at times when we didn't have a big enough
vehicle, we would haul water from the city, whether it was
Farmington or Gallup or Cortez in five-gallon buckets from
outside the gas stations. They usually had a spigot. Filling
those buckets up takes a lot of work and effort to bring it
home.
So I do truly understand the struggles of not growing up
with running water or electricity. I know that if those were
there, life would be a little easier. You would have a lot more
time to focus on school, you would have a lot more time to
focus on spending time with your family.
The quality of life and the quality of your health would go
up dramatically, because when you don't have enough water and
you are constantly thinking about, how can I conserve, how can
I use less, how can I make sure that we have enough to bathe,
how can I make sure we have enough to cook with, it is a tough
decision. Because Farmington, from my home community, was about
70 miles. I know a lot of my constituents still today on the
reservation travel long distances.
Then there are times when, as you mentioned earlier, the
groundwater levels and things like that are very low, and the
quality is poor. Still to this day we have Navajo people that
are, just like myself, even though I am only 36 years old,
hauled water, windmill water that is supposed to be for
livestock. I know a lot of our people are still doing that as
of today.
So I think that it has really made it tough for people to
stop worrying about the basic essentials of life. If we can
cover those basic necessities, we can start moving forward into
building ourselves up even stronger. Thank you, Senator.
Senator Lujan. It means a lot that you are here, Mr.
President. I think the power of your testimony and stories that
have been shared already, I think what is best is just to let
that sink in, to understand where so many across the Country
can turn on a spigot in the comfort of their home, and there is
water. We have to do better.
I yield back.
The Chairman. Thank you very much, Senator Lujan.
Vice Chair Murkowski?
Senator Murkowski. Thank you, Mr. Chairman. Thank you all
for the testimony today. As Senator Lujan has just mentioned,
when you are talking about something as basic as water, we know
that we have room to improve and hopefully the measures in
front of us will allow for that.
A couple of questions. I am going to start with you,
Secretary Newland, and Mr. Crockett. With regard to the Leech
Lake bill, the Interior Department, I think we are agreeing on
the facts here in terms of what happened. Interior illegally
sold off land that belonged to members of the Leech Lake Band.
It shouldn't have happened. The tribe needs to be made whole. I
think we are absolutely in agreement there.
You state that the bill, S. 616, would also authorize an
acre-for-acre substitution of lands within the Chippewa
National Forest if the Band identifies certain parcels as
unsuitable for future use.
So I am just trying to wrap my head around how this
actually works in terms of a process. Would the tribe have the
ability to turn back their entitlement lands that were
identified as wrongly transferred and then pick other National
Forest system land if they view that their entitlement parcels
are unsuitable for future use?
I guess what I am trying to figure out is, who determines
what is unsuitable? Is that the tribe? What does that mean
within DOI's view?
Then Mr. Crockett, I am going to ask you a similar
question.
Mr. Newland. Thank you, Madam Vice Chair. I don't want to
misspeak on that, as I think that would be a legal conclusion
about that term. If it is okay with you, I would like to
provide a written answer as a follow-up.
Senator Murkowski. That is good. What I am also trying to
understand is not only the definition, but who determines. Is
it DOI or is the tribe that determines if it is unsuitable?
Mr. Newland. Again, Madam Vice Chairman, I am not prepared
to answer that question. I would be happy to follow up.
Senator Murkowski. Let me ask you then, Associate Deputy
Chief for State, Private, and Tribal Forestry, you have a big,
long title there, but it is USDA, it is Forestry. I am trying
to understand whether or not Forest Service has specific views
on this new authority that we have within this legislation that
allows the Department to substitute alternative National Forest
system lands for the acres that the tribe is entitled to.
Again, if you have a better handle on how the process
works, I am eager to hear that as well.
Mr. Crockett. Sure, thank you for the question.
I will share my understanding of it. So my understanding is
the tribe and the Forest Service work together to
collaboratively determine the suitability for the acres that
are identified. I don't think they are going back and saying,
all right, we already had this acre, and want to exchange it
for a different acre. They are looking at the acres that were
identified under the original legislation, the 11,000 acres.
And as they are adding to the 4,000-plus acres under the
proposed legislation, they work hand in hand to determine
suitability.
As you heard Mr. Fineday talk about the cultural, economic
and residential needs, those are going to be some of the
driving factors that they are going to be looking at. Then the
Forest Service will look at those and make sure that they are
in alignment with the Forest Service plan for the Chippewa
National Forest. That process helps to determine the
suitability.
Senator Murkowski. So have there been discussions yet
between Forest Service and the tribe on which lands we might be
talking about, whether there are maps or surveys or appraisals
that would be transferred to Interior?
Mr. Crockett. There have been conversations. I also think
it is important to make sure that we are connecting the 11,000
acres in the legislation from a few years ago with the 4,000
acres that are being proposed under the technical amendments.
So for the 11,000 acres, yes, they have maps they have
identified, they are about 95 percent complete through that
process and ready to go public. So they have had a conversation
around that.
For the acres that are being proposed, no map exists for
it. They are in conversations around it. They haven't
identified the acre-for-acre opportunity there. So that part
would still have to happen.
Senator Murkowski. Just recognizing that things around here
don't necessarily move very quickly, it seems to me that if
there were identified areas or maps that we are talking about,
the process moves forward a little bit more quickly, rather
than, it seems a bit open-ended, I guess, as I am looking at
the process that has been laid out.
I am a little bit over time, but I wanted to ask the
Lieutenant Governor a question. This is something that I could
ask anyone on the panel here this afternoon. But I think we
have recognized that when we are talking about any of these
water projects, we have seen costs escalate considerably due to
inflation.
It is my understanding that the original cost, the original
amount authorized under the 2009 Act was $870 million. Congress
needs to provide another $750 million to build additional water
treatment plants. Inflation added on, I guess the question I
would ask you, as the Lieutenant Governor here, is we are
looking at a settlement that authorizes repair for the canals.
The bill says that the Secretary's obligation to complete the
project will be deemed fulfilled even if they can't complete
the project due to insufficient appropriations.
So the worry that I have in the back of my head is that
reclamation cost estimates or inflation could potentially force
the settlement parties to come back to Congress for more
funding to complete the project. Is this a concern? Is this a
worry? Can you give some assurance here today on whether or not
the estimates are going to hold and we are not going to be in a
situation where you are having to come back here after all of
this great work with a negotiated process?
Mr. Juras. Vice Chair Murkowski, in Section 14 under
Funding, there is also a clause that relates to fluctuations in
cost that provides that the amounts authorized to be
appropriated will be increased or decreased by the cost of
inflation. So that should help address some of those concerns.
With regard to the Fresno and the St. Mary's units of the
Milk River Project, the Bureau of Reclamation has done, this
has been in the works for several years, projecting those
costs. We feel good about the cost for those particular
projects. I am not as familiar with the Lake Elwell.
But I do know this is a somewhat unique approach in that
plans are going to be submitted to the Secretary of Interior as
these projects are proposed to go forward. There will be an
opportunity to address costs within the appropriations.
But of course, to the extent they exceed that and the cost
of inflation built in, the tribes will be required to come back
and request additional funding. Or else scale down the
projects, or perhaps not fill one of the projects.
Senator Murkowski. So you raise an issue that I would like
to finish off my question back to you, Secretary Newland. This
relates to the fact that it is kind of unusual that the tribe
is designated as lead agency for repairing and expanding the
BIA irrigation system that is going to serve the tribe. I guess
the question is, how unusual is this? Is this the first time we
have seen it? It is usually the Bureau of Rec that leads these
projects. Is this a good thing, bad thing?
Mr. Newland. Thank you, Madam Vice Chair.
The more recent settlements typically designate the Bureau
of Reclamation as the lead agency for that work. As we
highlighted in our submitted testimony, that remains our
suggestion to the Committee, is to designate Bureau of
Reclamation for that work.
Their expertise and experience of doing this work under
many of the recent settlements, their ability to bring them to
completion I think demonstrates that that will be a better
course.
Senator Murkowski. Good. I appreciate that. I thank you for
the willingness to again, we are trying to figure out how we
find resolution not to throw more roadblocks in. I appreciate
that.
Thank you, Mr. Chairman.
The Chairman. Senator Lujan?
Senator Lujan. Just to follow up on the Vice Chair's
comments, I very much appreciate that line of questioning. With
the water settlement I was proud to carry in the House back in
2009 for the Aamodt Water Settlement for Four Pueblos in the
community where I live, later on the Bureau of Reclamation came
back and said they were going to smart-size the project. I
thought, well, that sounds pretty good. Well, smart-sizing
means cutting. It is a horrible term.
But because of the authorities inherently given them, they
look at the scope of the project that was needed, as Congress
passed, and then they go in and they smart-size it, they chop
the project, there is not enough water, not enough lateral as
opposed to coming back and trying to find more funding.
So I very much appreciate what you were just asking there.
If there is a chance to pursue it, Mr. Chairman, to look into
that more, I would very much be interested in that.
The Chairman. Thank you very much, Senator Lujan.
I do not have any questions. I will submit a couple for the
record, but I really want to thank this esteemed panel,
especially our tribal leaders and our State leaders. I know it
is a long journey, and none of you seem intimidated, but it can
be an intimidating process.
So we really appreciate your coming before the Committee.
We are going to try to get these bills marked up and enacted as
expeditiously as possible.
If there are no more questions for our witnesses, members
may also submit follow-up written questions for the record. The
hearing record will remain open for two weeks.
I want to thank all the witnesses for their time and their
testimony. This hearing is adjourned.
[Whereupon, at 4:04 p.m., the hearing was adjourned.]
A P P E N D I X
BLAINE COUNTY COMMISSIONERS
June 28, 2023
RE: Gros Ventre and Assiniboine Tribes of the Fort Belknap
Indian Community Water Rights Settlement Act of 2023
(Settlement Act)
President Stiffarm and Council Members,
First, we would like to thank you for meeting with the
Commissioners numerous times over the past years to discuss the Fort
Belknap Water Settlement. We appreciate all the work you have put into
completing the project. Next, thank you for removing the private leases
from S. 1987. Also, clarification that the State Lands exchange will
come from Federal Lands throughout Montana eases our concern about the
financial impact on Blaine County related to PILT payments. Lastly, the
addition of funds to help with the St. Mary Rehabilitation Project is
invaluable to the hi-line communities and counties.
Your continued work to preserve the source of a water supply to
communities, and the irrigation and recreational rights of county
residents along the Milk River is appreciated, and we offer our support
on S. 1987--The Gros Ventre and Assiniboine Tribes of the Fort Belknap
Indian Community Water Rights Settlement Act.
Sincerely,
Shane Fox; Miles G. Hutton; Dolores Plumage
______
OFFICE OF THE GOVERNOR--STATE OF MONTANA
June 14, 2023
Hon. Steve Daines;
Hon. Jon Tester,
U.S. Senators,
Hart Senate Office Building,
Washington, DC.
Senators Daines and Tester:
I write today to offer my support for the Fort Belknap Indian
Community (FBIC) Water Rights Settlement Act as presently drafted. As
you both know, work to federally ratify the FBIC's water compact has
been in process for decades. The State of Montana firmly supports
bringing finality to this matter for the benefit of the FBIC as well as
Montana water users.
The product before you is the result of extensive coordination
between the federal government, the FBIC, and the State of Montana,
with valuable input from local leaders, farmers, ranchers, and other
water users. I urge for the passage of this version of the bill,
without further modification.
It is essential that the State of Montana continues to have a seat
at the table as this bill moves through the legislative process. I ask
that you advocate to the Chairman and Vice Chairman for a witness to
appear on behalf of the State of Montana once a hearing is scheduled
before the Senate Committee on Indian Affairs.
Thank you for your partnership to bring certainty to water users in
northcentral Montana.
Sincerely,
Greg Gianforte, Governor
______
COUNTY OF HILL--Hill County Courthouse
June 14, 2023
RE: Letter of Support: Ft. Belknap Indian Community Water
Rights Settlement Act
To Whom It May Concern,
The Board of Hill County Commissioners are writing this letter in
support of the Ft. Belknap Indian Community Water Rights Settlement
Act. We have been meeting with Kristal HawleyFox and her team for over
a year now discussing the importance of this critical infrastructure as
well as the economic resources this would provide to the Hi-Line.
We, as a Commission, are very much in full support of this project
for this will be vital to the growth of Hill County and our dear
neighbors in Ft. Belknap now and for future generations.
Please let us know if we can provide more infonnation. Thank you
for your consideration.
Sincerely,
Mark Peterson, Chair
Jake Strissel, Commissioner
Sheri Williams, Commissioner
______
MONTANA STATE SENATE
Dear Senator Daines, Senator Tester, Representative Rosendale, and
Representative Zinke:
I support the Montana federal delegation introduction of the Fort
Belknap Indian Community Water Rights Settlement Act of 2023 (S. 1987).
As a Montana legislator representing Senate District 17, which
partially encumbrances the St. Mary system in northern Montana, I
strongly indorse the legislation.
Finally, there is a solid plan to update the 100 year old system,
fulfill water compact authorities and bring consensus to provide many
resources, which are driven by the availability of water, to the water
users and the communities of northern Montana.
Gratefully,
Senator Mike Lang
______
MONTANA FARM BUREAU FEDERATION
July 10, 2023
Hon. Jon Tester,
U.S. Senate,
Hart Office Building,
Washington, DC.
Dear Senator Tester,
The Montana Farm Bureau Federation (MFBF) thanks and applauds you
for your leadership and persistence on developing the Fort Belknap
Indian Community (FBIC) Water Settlement Act of 2023 (S. 1987). After
more than twenty years of negotiating and bringing parties together to
work toward this critical settlement, achievement of this task should
be celebrated!
As previously mentioned, negotiating agreements on this scale is no
simple task, but finalizing this last Indian Water Rights Settlement in
Montana is of utmost importance to farmers and ranchers in the state as
we move toward final adjudication. Furthermore, passage of your
legislation will avoid costly litigation which would otherwise occur
between FBIC, the federal government, and water users such as
irrigators. As the state's largest general agriculture organization
representing farmers and ranchers from all over the state including the
hi-line, it is incredibly important to us that farmers have long term
certainty about one of their most important resources; water. This
legislation provides them with just that.
Additionally, this legislation will provide $300 million for Milk
River Project infrastructure repairs and to restore the St. Mary's
canal, which our members have been asking for since 2004. This project
provides irrigation to hundreds of individual farms and more than
100,000 acres of farmland. In recent years, it has become apparent that
repairs and maintenance are absolutely imperative but the funds
necessary to make them a reality have been difficult to secure.
Improving the project will not only benefit farmers and citizens living
in the area, but also the economy of the entire state.
Again, MFBF appreciates your efforts to settle this agreement.
Agriculture is still Montana's number one economic driver and as a
semi-arid state, access to irrigation water is critical for our
continued success. Thank you for sponsoring the Fort Belknap Indian
Community Water Settlement Act of 2023. We hope to see it cross the
finish line in Congress as soon as possible, so that we are one step
closer to a final decree and ultimate protection of all Montana water
rights.
Sincerely,
Cynthia Johnson, President
______
Montana Stockgrowers Association
June 23, 2023
Hon. Jon Tester,
U.S. Senate,
Hart Office Building,
Washington, DC.
Dear Senator Tester,
The Montana Stockgrowers Association (MSGA) would like to thank you
for your leadership and perseverance in negotiating a framework for the
Fort Belknap Indian Community (FBIC) Water Settlement Act of 2023 in
Congress. Fort Belknap Indian Community will be the last settlement in
Montana to ensure that historical water use by all water users on and
off the reservation are protected. The success of Montana's agriculture
industry is dependent upon water and water right certainty. It is
easily the single most important resource for people across Montana,
which is why MSGA supports this agreement.
The long-term economic impact and improved critical infrastructure
this water settlement will provide will make significant improvements
to irrigation systems, as well as provide certainty to tribal,
agricultural, residential and business water users. Specifically, the
$275 million to fully rehabilitate and restore the St. Mary Canal to
its full capacity will have a positive impact on ranchers across the
Hi-Line and will create a sustainable water supply for the Milk River.
Additionally, the Act affirms Montanans' Constitutional protection
that the water of the State of Montana belongs to all the people for
their common benefit (Article IX, Section 3), it will prevent years of
costly litigation for Montana water users, and provide much needed
certainty for all parties involved. MSGA applauds the bi-partisan
effort and we look forward to the passage and implementation of this
Act.
Sincerely,
Raylee A. Honeycutt, Executive Vice President
______
PHILLIPS COUNTY
April 10, 2023
President Stiffarm,
Thank you for inviting our Commission to meet with you on Tuesday,
March 21, 2023 in Fort Belknap to discuss the Fort Belknap Water
Compact. We appreciate the work you have done on this compact and want
to thank you for removing the Grinnell Land from your proposed
legislative draft. By removing the proposed acquisition of the Grinnell
Land and adding that the State Lands exchange would be from Federal
Lands throughout Montana not just in Phillips County, we may now
support the revised legislative draft of the Fort Belknap Water
Compact. We appreciate your continued work to preserve the irrigation
and recreational rights of Phillips and Blaine County residents.
Sincerely,
John F. Carnahan;
Bruce Christofferson;
Richard Dunbar, Commissioners
______
Valley County Commission
May 3, 2023
Hon. Jon Tester,
U.S. Senate,
Hart Office Building,
Washington, DC.
Dear Senator Tester,
We support the ``Gros Venture and Assiniboine Tribes of the Fort
Belknap Indian Community Water Rights Settlement Act of 2023''
(Settlement Act) that will provide very important infrastructure
funding that will benefit the Milk River Project and state water users
across the Hi-Line.
We understand that the FBIC leadership has made a difficult
decision to remove the transfer of the Grihnell Lands from the
Settlement Bill, which had created a barrier to the Settlement Act's
approval. Now, the Settlement Act includes significant funding that
supports the restoration of the St. Mary Canal infrastructure vital to
improving the water supply in the Milk River in support of Milk River
irrigators. This project will provide protection for our current Milk
River water users as the FBIC obtains funds under the Settlement Act
for its water infrastructure projects that will allow the development
and use of FBIC's Indian water rights secured by a decade of
negotiations resulting in the 2001 F. Belknap-Montana Water Compact.
The Settlement Act is a win-win for the State and water users along
the Hi-Line and for the FBIC. It will provide critical support for our
agricultural economy and have long-term economic benefits throughout
our region. It will at long last provide certainty to our irrigators
related to their water rights. We support the 2023 Water settlement
Bill and encourage your support in ensuring its passage in Congress.
Sincerely,
Mary Armstrong, Chair
______
Bear Paw Development Corporation
July 10, 2023
Members of Montana's Congressional Delegation:
On behalf of Bear Paw Development Corporation, I am pleased to
provide you with this letter of support for S. 1987, or the Fort
Belknap Indian Community Water Rights Settlement Act of 2023. This
legislation is the culmination of decades of work by many and provides
certainty for both tribal and non-tribal entities in the Milk River
Basin concerning water from the Milk River for purposes of irrigation,
municipal use, economic development and recreation.
Importantly, S. 1987 will provide $300 million of non-reimbursable
funds for critically important infrastructure repairs to the St. Mary/
Milk River Project to assure that water from this source continues to
flow along the Hi-Line, assuring the viability of these areas in
northern Montana for the foreseeable future. Knowing the Milk River
would run dry without water from the St. Mary System in seven of every
ten years, the absolute importance of this rehabilitation effort cannot
be overstated.
It is clear the benefits of this legislation are significant, both
for the Gros Ventre and Assiniboine people at Fort Belknap, but also
for the Hi-Line and the communities of northern Montana that are
reliant upon an intact, up-to-date water delivery system that will
benefit the economy of our region for generations.
Without hesitation or reservation, our organization strongly
supports S. 1987 and urges its passage.
Best regards,
Paul Tuss, Executive Director
______
Blaine County Conservation District
April 28, 2023
RE: Fort Belknap Community Water Rights Settlement Act 2023
Dear President Stiffarm:
By unanimous vote, the Blaine County Conservation District Board of
Supervisors wish to go on record in support of your language of the
``Gros Ventre and Assiniboine Tribes of the Fort Belknap Indian
Community Water Rights Settlement Act of 2023''. Congressional passage
of this Act, containing Federal ratification of the 2001 Water Compact
between the State of Montana and the Fort Belknap Indian Community,
will help assure the physical and legal availability of water for
agricultural, residential, and business users throughout the Milk River
watershed.
That assurance will better enable our District to work with the
Montana Department of Natural Resources and Conservation and the U.S.
Natural Resources and Conservation Service on projects that enhance
water conservation, quality, and infrastructure, both on and off the
reservation. We urge the Montana Congressional Delegation to speed
passage of this bill through the current session of Congress so that
the important work of implementing this act can begin soon.
Sincerely,
Bruce Anderson, Board Chair
______
Milk River Joint Board of Control
April 3, 2023
RE: Fort Belknap Community Water Rights Settlement Act 2023
Dear President Stiffarm:
On behalf of the Milk River Joint Board of Control (MRJBOC), I
write to fully support your 2023 language of the ``Gros Ventre and
Assiniboine Tribes of the Fort Belknap Indian Community Water Rights
Settlement Act of 2023''. This bill would provide certainty for
irrigators, support the development and rehabilitation of important
water infrastructure and result in long-term economic benefits
throughout our region on and off the reservation.
Without Congressional passage of this settlement, the Montana Water
Court may soon begin adjudicating water rights in the Milk River Basin.
This would undo the agreements and solutions that your team has been
working so hard on and we have supported since the 2001 Water Compact
between the State of Montana and the Fort Belknap Indian Community.
Litigation would not only be costly for the stakeholders, but it would
also waste resources and jeopardize existing water uses and businesses
in the basin.
We are long-standing neighbors of the Fort Belknap Indian Community
and commend your teams' efforts to work tirelessly to settle the water
rights. Settlement will spur economic development on the reservation
and allow the hi-line and surrounding areas to continue operations with
the full rehabilitation of the St. Mary canal. We praise your
negotiation efforts and support them fully. If we can help any further,
please do not hesitate to reach out to Jennifer Patrick or myself.
Sincerely,
Wade I. Jones, Board Chairman
______
Rocky Mountain Tribal Leaders Council
June 30, 2023
Hon. Steve Daines;
Hon. Jon Tester,
U.S. Senators,
Hart Senate Office Building,
Washington, DC.
Senators Daines and Tester:
We are writing to inform you that the Rocky Mountain Tribal Leaders
Council is giving its full-throated endorsement to the Fort Belknap
Indian Community Water Rights Settlement. This formal Letter of Support
affirms our sacred commitment to the Fort Belknap Community's
protection of the Milk River Watershed, as well as the settlement's
guarantees that our native brothers and sisters will have access with
certainty.
We urge the U.S. Senate to quickly ratify the Fort Belknap Indian
Community Water Rights Settlement Act of 2023 to allow investment in
and maintenance of this crucial water supply, assuring us that this
critical lifeline is maintained well into the future. The Fort Belknap
Indian Community Water Rights Settlement will create an ongoing
economic boom for the region once infrastructure projects funded by the
Act commence on waterways, irrigation and drinking water systems in the
Milk River Watershed.
The Ft. Belknap Indian Community Water Rights Settlement marks the
far too long-awaited achievement of ensuring every federally recognized
tribe in Montana is protected by a formal water rights agreement. It
stands as an example of what can be accomplished when hope and history
rhyme and the first people of this land finally have negotiating
partners, who informed by history, seek to heal the scars of this
nations and our state's soul.
Sincerely,
Gerald Gray, Chairman
______
St. Mary Rehabilitation Working Group
April 25, 2023
Dear Senator Tester, Senator Daines, Representative Rosendale, and
Representative Zinke:
St. Mary Rehabilitation Working Group strongly supports
Congressional passage of the Gros Ventre and Assiniboine Tribes of the
Fort Belknap Indian Community Water Rights Settlement Act of 2023. The
Ft. Belknap Indian Community (FBIC) will be the last tribe in Montana
to secure a Congressionally approved water rights settlement. This is a
significant achievement for the State of Montana and provides the
certainty we all need to manage our water supply into the future.
The Act will ratify the 2001 Ft. Belknap-Montana Water Compact,
which was approved by the Montana Legislature with an overwhelming
majority of 95 percent in support. The Act will also provide critical
water infrastructure funding that will support FBIC' s development of
their water supply and make significant improvements to their
irrigation and domestic water systems, and support important mitigation
activities that protect non-tribal, state-based water users across the
Hi-Line.
Specifically, the Act will provide $275 million for the Bureau of
Reclamation to fully rehabilitate and restore the St. Mary Canal to its
full capacity of 850 cubic feet/second, providing a sustainable water
supply for the Milk River. This crucial component of the Settlement Act
will address a major problem for water users across the Hi-Line. The
additional water supply will provide protection for Milk River Project
users and communities who may be impacted from the FBIC's Indian water
rights development and ensure the overdue restoration of the St. Mary
Canal.
Finally, the Act will generate significant long-term economic
benefits for both the Tribes and our local businesses as critical
project infrastructure funds are implemented. This will give an
economic boost to our communities across the region. We need your
leadership in the United States Congress and strong support for the
passage of this important Act.
Sincerely,
Dave Peterson, Coordinator
______
MONTANA HOUSE OF REPRESENTATIVES
July 10, 2023
Senators Tester and Daines:
I am pleased to add my support for the Fort Belknap Indian
Community Water Rights Settlement Act of 2023 (S. 1987) and thank you
for your work to champion its passage during this session of Congress.
S. 1987 not only affirms the senior water rights of the Fort
Belknap Indian Community for the Gros Ventre and Assiniboine people,
but it also significantly and importantly invests hundreds of millions
of dollars into updating and modernizing the infrastructure that is
needed along the Hi-Line to deliver water through the St. Mary/Milk
River System to communities that include Havre, Chinook, Harlem and
Fort Belknap. This water is critical for the drinking water supplies
for these communities and helps to irrigate more than 120,000 acres in
northern Montana.
The Milk River would run dry in seven out of every ten years were
it not for water from the St. Mary/Milk River System. Thus, it is of
paramount importance that the funds included in S. 1987 for the repair
and rehabilitation of this System be expeditiously appropriated for
this cause. To indicate that the economy of northern Montana would be
devastated without the proper functioning of this System is not
overstating the case.
Thank you for your strong advocacy for the passage of S. 1987.
Please add my equally strong support and let me know if there is
anything I can assist with to advance this important legislation.
Sincerely,
Rep. Paul Tuss, House District 28
______
Wild Montana
Hon. Brian Schatz, Chairman;
Hon. Lisa Murkowski, Vice Chairman,
Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.
Dear Chairman Schatz and Vice Chairman Murkoski,
On behalf of Wild Montana and our more than 3,400 members, thank
you for the opportunity to submit this written testimony in support of
S. 1987, the Fort Belknap Indian Community Water Rights Settlement Act
of 2023.
In 2019, Wild Montana was honored to visit the Fort Belknap
Reservation and discuss water rights settlement with members of the
Council and with other tribal leaders. With the help of the Fort
Belknap Indian Community, we gained a deeper understanding of the
importance of protecting the headwaters that are a key part of the
water rights settlement and essential to the communities within the
Fort Belknap Reservation.
The FBIC Water Settlement will ratify the FBIC Water Rights Compact
with the State of Montana as well as provide critical investment and
resources for water infrastructure development. Wild Montana
enthusiastically supports S. 1987, and it is our sincere hope that the
committee and its members will take the necessary steps to move the
bill through the Senate Committee on Indian Affairs to the floor for a
full Senate vote.
Wild Montana appreciates the time and consideration of the members
and staff of the Senate Committee on Indian Affairs and we welcome your
communication.
Sincerely,
John Todd, Executive Director
Sincerely,
John Todd, Executive Director
______
The Wilderness Society
July 10, 2023
Hon. Brian Schatz, Chairman;
Hon. Lisa Murkowski, Vice Chairman,
Senate Committee on Indian Affairs,
Hart Senate Office Building,
Washington, DC.
Dear Chairman Schatz and Vice Chairman Murkoski,
On behalf of our more than one million members and supporters, The
Wilderness Society (TWS) writes to express our support for the Fort
Belknap Indian Community Water Rights Settlement Act of 2023 as
sponsored by Senator Jon Tester on his and Senator Steve Daines behalf.
This bill is the result of close to 40 years of negotiations
between the Fort Belknap Indian Community (FBIC), the State of Montana,
local governments, non-Indian water users, and the federal government.
It settles the FBIC's water rights established in the 1908 Supreme
Court case Winters v. United States.
In 2001, FBIC entered a water rights compact approved by an
overwhelmingly bipartisan margin in the Montana State Legislature.
Recently, the FBIC negotiated updates to the settlement with the
federal government and local communities. The result of these
negotiations is the widely supported Gros Ventre and Assiniboine Tribes
of the Fort Belknap Indian Community Water Rights Settlement Act of
2023.
The bipartisan settlement proposed in this legislation is a great
example of the work we like to support, work that provides the tribes
and the communities with the certainty they need.
Sincerely,
Bill Hodge, Montana State Director
______
City of Gallup
June 5, 2023
Hon. Martin Heinrich;
Hon. Ben Ray Lujan,
U.S. Senate,
Hart Senate Office Building,
Washington, DC.
Dear Senators Heinrich and Lujan:
In March of 2009, Congress passed the Omnibus Public Land
Management Act of 2009 (PL. 111-11) authorizing construction and
operation and maintenance of the Navajo-Gallup Water Supply Project, as
part of a settlement to resolve the Navajo Nation's water rights claims
in the San Juan Basin in New Mexico. Currently, the City's 23,350
customers, consisting of roughly 50 percent Native American
(predominantly Navajo) rely completely on groundwater for water supply.
When Navajo Gallup Water Supply project is completed, it will replace
the groundwater with renewable surface water. Due to a significant
change needed in the scope of this project, and urgent needs brought to
light by the COVID-19 pandemic, additional time and resources are
needed to complete the Project.
The City of Gallup fully supports the Legislative Amendments to PL
111-11. If the amendments are not approved with an extension to 2029
and an increase in appropriations, then the City and its surrounding
communities will continue to rely on a diminishing groundwater supply.
This will require the city to further draw down the groundwater making
it more difficult and significantly more expensive to pump water from
very deep wells and with potential damage to underground aquifers. The
City looked forward to the original delivery of surface water on
December 31, 2024, to relieve its reliance on groundwater. Given
current circumstances, the new surface water delivery date of 2029 is
more important than ever.
The City has reviewed the draft of the Navajo Gallup Water Supply
Project Amendments Act of 2023, which will address the challenges we
describe in this letter, and we strongly support its introduction. The
City looks forward to working with you and the other Project
Participants in advancing this critical legislation.
Sincerely,
Louis Bonaguidi, Mayor
______
Jicarilla Apache Nation
May 26, 2023
Hon. Martin Heinrich;
Hon. Ben Ray Lujan,
U.S. Senate,
Hart Senate Office Building,
Washington, DC.
Dear Senators Heinrich and Lujan:
As part of the Navajo Nation's water settlement, Congress passed
the Omnibus Public Land Management Act of 2009 (Pub. L. 111-11)
authorizing construction, operation and maintenance of the Navajo
Gallup Water Supply Project (``Project''). When the Project is
complete, it will serve not only Navajo Nation communities, but also
the southern portion of the Jicarilla Apache Nation and the City of
Gallup. Due to circumstances that were not foreseen in 2009, additional
time and resources are needed to complete the Project as authorized by
Congress.
The participants in the Project are the Navajo Nation, the
Jicarilla Apache Nation, the City of Gallup, and the State of New
Mexico through the New Mexico Interstate Stream Commission. The
Jicarilla Apache Nation has reviewed the draft of the Navajo-Gallup
Water Supply Project Amendments Act of 2023 in substantially the same
form as the current bill and supports its introduction by the
delegation and advancing forward to enacting it into law.
The Jicarilla Apache Nation thanks you for your work and for your
support of projects important to the Nation and its people.
Sincerely,
Edward Velarde, President
______
THE NAVAJO NATION
May 31, 2023
Hon. Martin Heinrich;
Hon. Ben Ray Lujan,
U.S. Senate,
Hart Senate Office Building,
Washington, DC.
Dear Senators Heinrich and Lujan:
In March of 2009, Congress passed the Omnibus Public Land
Management Act of 2009 (PL. 111-11), which included an authorization to
construct the Navajo-Gallup Water Supply Project (``Project'') as part
of a settlement to resolve the Navajo Nation's water rights claims in
the San Juan Basin in New Mexico. Once constructed, the Project will
convey a desperately needed reliable municipal and industrial water
supply from the San Juan River to the eastern section of the Navajo
Nation, southwestern portion of the Jicarilla Apache Nation, and the
city of Gallup, New Mexico. These communities rely on a depleting
groundwater supply that is of poor quality and inadequate to meet the
current and future demands of more than 40 Navajo chapters, the city of
Gallup, and the Teepee Junction area of the Jicarilla Apache Nation.
The Project Participants are the Navajo Nation, the Jicarilla
Apache Nation, and the City of Gallup, New Mexico. The State of New
Mexico, through the New Mexico Interstate Stream Commission, is a
member of the Project Construction Committee with the other Project
Participants.
Due to unforeseen circumstances, additional time and resources are
needed to complete the Project.
The Navajo Nation has reviewed the draft of the Navajo-Gallup Water
Supply Project Amendments Act of 2023, which will address these
outstanding issues, and supports its introduction. The Navajo Nation
looks forward to working with you and the other Project Participants in
advancing this critical legislation.
Sincerely,
Dr. Buu Nygren, President
______
NEW MEXICO INTERSTATE STREAM COMMISSION
May 16, 2023
Hon. Martin Heinrich;
Hon. Ben Ray Lujan,
U.S. Senate,
Hart Senate Office Building,
Washington, DC.
Dear Senators Heinrich and Lujan:
In March 2009, Congress passed the Omnibus Public Land Management
Act of 2009 (Pub. L. 111-11). This Act included an authorization to
construct, operate and maintain the Navajo-Gallup Water Supply Project
(``Project''), as part of a settlement to resolve the Navajo Nation's
water rights claims in the San Juan River Basin in New Mexico.
Due to circumstances that were not foreseen in 2009, additional
time and resources are needed to complete the Project as authorized by
Congress.
The participants in the Projects are the Navajo Nation, the
Jicarilla Apache Nation, the City of Gallup, and the State of New
Mexico through the New Mexico Interstate Stream Commission (NMISC). The
State of New Mexico, through the NMISC, is a member of the Project
Construction Committee with the other Project Participants.
The NMISC has reviewed the draft of the Navajo-Gallup Water Supply
Project Amendments Act of 2023 in substantially the same form as the
current bill, and supports \1\ its introduction by the delegation and
advancing forward to enacting it into law.
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\1\ The State of New Mexico, through the NMISC, does not have the
authority to support section 10610 of the proposed amendments, but does
support all other provisions in the proposed Act.
Sincerely,
Mark Sanchez, Chair
______
Response to Written Questions Submitted by Hon. Tina Smith to
John Crockett
Question 1. Can you describe the Department of Agriculture's role
in the determination of which parcels of land to transfer to the Bureau
of Indian Affairs to be taken into trust for the Leech Lake Band
pursuant to the Leech Lake Band of Ojibwe Reservation Restoration Act,
P.L. 116-255?
Answer. Serving under the U.S. Department of Agriculture (USDA)
Forest Service, the Chippewa National Forest (Forest) is committed to
working in partnership with the Leech Lake Band of Ojibwe (Band) to
implement the Leech Lake Band of Ojibwe Reservation Restoration Act
(Act), P.L. 116-255. Engagement with the Band has included regularly
scheduled meetings of key Forest staff and Band staff; discussions
during monthly consultation and collaboration meetings; and numerous
additional online and in-person meetings. Further, the Forest worked
closely with key USDA Forest Service Eastern Regional Office and
Washington Office staff throughout the process of selecting proposed
parcels.
Together, the Forest and the Band explored and identified the
benefits of transferring larger contiguous parcels to consolidate
ownership, along with enabling the Band to invest in future generations
through economic and residential development. Fewer miles of
fragmentated ownership boundaries will be most beneficial to the Band,
the Forest Service, and private landowners. Collaboration related to
the proposed parcels for transfer took into consideration legislative
language that made provisions for honoring any existing private
property rights such as easements, permits, or other encumbrances.
______
Response to Written Questions Submitted by Hon. Tina Smith to
Hon. Leonard Fineday
Question 1. Can you describe the process under P.L. 116-255 between
the Departments of Agriculture and the Interior and the Leech Lake Band
to determine which parcels of land to transfer into trust for the Band?
Answer. The Leech Lake Reservation Restoration Act (``LLRRA'' or
``Act''), Public Law 116-255, was signed into law on December 20, 2020.
The purpose of the Act was to restore ``approximately 11,760 acres'' of
lands illegally transferred from the Interior Department to the U.S.
Department of Agriculture--Chippewa National Forest (``CNF'') in the
1940s and 1950s. The lands to be restored are limited to lands that
remain under control of CNF and are located within Cass County,
Minnesota.
The LLRRA did not include a map of the parcels that were illegally
transferred. Instead, under the Act, the Secretary of Agriculture was
directed to complete a plan of survey ``not later than 180 days after
the date of enactment.''
The Act further provides that ``as soon as practicable after the
date of enactment of this Act, [the Secretary will] submit a map and
legal description of the Federal land to the Committee on Natural
Resources of the House of Representatives; and the Committee on Indian
Affairs of the Senate.'' This provision contemplates that a map of
parcels to be restored to the Reservation would be developed in
partnership between the Leech Lake Band of Ojibwe (``Leech Lake'' or
``Band'') and the Chippewa National Forest.
Finally, the Act defines the term ``Federal land'' to mean ``the
approximately 11,760 acres of Federal land located in the Chippewa
National Forest in Cass County, Minnesota, the boundaries of which
shall be depicted on the map, and described in the legal description,
submitted'' to Congress. The Act used the term ``approximately'',
because the number of acres of illegal transfers that took place in the
1940s and 1950s was merely an estimate that would be confirmed through
implementation of the Act. This is further evidence of Congress' intent
that the final map would be developed by the federal land agencies in
coordination with the Band. These provisions also make clear that it
was not the intent of Congress to restore the exact parcels that were
illegally transferred in the mid-1900s.
In June of 2021, the Band and the Chippewa National Forest signed a
Plan of Survey that outlined next steps to implement the Act's
requirements, which include identifying eligible parcels for transfer,
researching parcel history, preparing legal descriptions, identifying
title encumbrances, and finalizing the map.
As noted in our testimony, the need for the Technical Correction
arose during implementation of the Restoration Act. As the agencies
worked to identify parcels for restoration pursuant to the Plan of
Survey, the BLM Indian Land Surveyor completed an audit of all Chippewa
National Forest land holdings within Cass County. He discovered that
the illegal Secretarial Transfers were more widespread than initially
estimated. Instead of the ``approximately 11,760 acres'' listed in the
Restoration Act, the surveyor found 16,122 acres were acquired by the
Forest Service through Secretarial Transfers. The injustice that took
place more than a half century ago was clearly underestimated.
Over the past two years since signing the Play of Survey, the Tribe
has worked with the relevant federal land management agencies to
jointly identify the proposed parcels to be transferred back to the
Interior Department to held in trust as part of the Leech Lake
Reservation. On August 11, 2023, the Chippewa National Forest released
the map of parcels for public review.
The parcels identified for restoration to the Reservation depicted
on the map reflect Congress' intent that the Band receive consolidated
parcels of land close to or adjacent to its existing trust lands.
Additionally, the parcels identified follow the general policy of the
Federal Land Policy Management Act and the U.S. Forest Service's policy
manual on landownership, which clearly states that the Forest Service
should ``give priority to consolidation of National Forest System lands
within existing National Forest units.'' U.S. Forest Service Manual
5400, Landownership: Zero Code, Section 5403.1, ``National Forest
System.''
The lands identified on the map will: enable the Band to address
the longstanding and severe housing shortage on the Reservation;
provide the Band and its citizens better access to places of cultural
importance and areas to exercise solemn treaty rights; and will permit
the Band to invest in future generations.
Question 2. Would this process change under S. 616?
Answer. No. The process for restoring the additional lands to the
Leech Lake Reservation under S. 616 would be the same. The text of the
LLRRA included the needed flexibility to enable the Band to work in
partnership with the federal land management agencies. The language
included in Section 2(b)(2) of S. 616 clarifies this same intent and
ensures that land identified for restoration under the Technical
Correction will follow the process that was conducted during
implementation of the initial Restoration Act.
______
Response to Written Questions Submitted by Hon. Tina Smith to
Hon. Bryan Newland
Question 1. Can you describe the Department of the Interior's work
to determine which parcels of land will be transferred into trust for
the Leech Lake Band pursuant to the Leech Lake Band of Ojibwe
Reservation Restoration Act, P.L. 116-255?
Answer. The Department's Midwest Regional Office and Minnesota
Agency are supportive of the United States Forest Service (USPS),
Bureau of Land Management (BLM), and the Leech Lake Band of Ojibwe's
efforts to ensure the implementation of the Leech Lake Reservation
Restoration Act is seamless and quick. The selection of the parcels
that will ultimately be transferred has been accomplished through a
collaborative process between the USPS and the Leech Lake Band of
Ojibwe. The Bureau of Indian Affairs has not been involved in the
selection process. The BLM has reviewed the legal descriptions of the
parcels and has led the partition and survey of the parcels pursuant to
the Plan of Survey outlined in P.L. 116-255.
Question 2. The Department of the Interior's Solicitor Memorandum,
dated August 20, 1979, states that the allotments sold through
Secretarial Transfers were sold illegally, without the ``unanimous
consent [of all heirs].'' S. 616 mistakenly refers to the ``majority of
rightful landowners.'' I intend to correct this drafting error in the
future. With this change, does the Department support the bill?
Answer. The Department supports the recommended change.