Text: S.Hrg. 115-343 — S. 2154, S. 3060, AND S. 3168
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[Senate Hearing 115-343]
[From the U.S. Government Publishing Office]
S. Hrg. 115-343
S. 2154, S. 3060, AND S. 3168
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
JULY 18, 2018
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COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
JOHN McCAIN, Arizona JON TESTER, Montana,
LISA MURKOWSKI, Alaska BRIAN SCHATZ, Hawaii
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
STEVE DAINES, Montana CATHERINE CORTEZ MASTO, Nevada
MIKE CRAPO, Idaho TINA SMITH, Minnesota
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
Hearing held on July 18, 2018.................................... 1
Statement of Senator Cantwell.................................... 12
Statement of Senator Daines...................................... 38
Statement of Senator Hoeven...................................... 1
Statement of Senator Moran....................................... 3
Statement of Senator Tester...................................... 3
Statement of Senator Udall....................................... 2
Mikkelsen, Alan, Senior Advisor to the Secretary, Water and
Western Resource Issues; Chair, Working Group on Indian Water
Settlements, U.S. Department of the Interior................... 4
Prepared statement........................................... 6
Pickernell, Hon. Harry, Chairman, Confederated Tribes of the
Chehalis Reservation........................................... 12
Prepared statement........................................... 14
Randall, Hon. Lester, Chairman, Kickapoo Tribe................... 15
Prepared statement........................................... 17
Tubbs, John, Director, Montana Department of Natural Resources
and Conservation............................................... 28
Prepared statement........................................... 29
Griggs, Burke W., Special Assistant Attorney General, State of
Kansas, prepared statement..................................... 43
National Congress of American Indians (NCAI), prepared statement. 50
S. 2154, S. 3060, AND S. 3168
WEDNESDAY, JULY 18, 2018
Committee on Indian Affairs,
The Committee met, pursuant to notice, at 3:08 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. Good afternoon. We will call the hearing to
I apologize for the late start. We had votes, but I
appreciate everyone's patience.
Today, the Committee will receive testimony on three bills:
S. 2154, the Kickapoo Tribe in Kansas Water Rights Settlement
Agreement Act; S. 3060, a bill to repeal Section 2141 of the
revised statues to remove the prohibition of certain alcohol
manufacturing on Indian lands; and S. 3172, the Indian Water
Rights Settlement Extension Act.
The Kickapoo Tribe in Kansas Water Rights Settlement
Agreement Act, S. 2154, was introduced by Senator Moran on
November 16, 2017. This bill would approve the tribe's water
claims in the State of Kansas and authorize the tribe's water
rights settlement agreement between the tribe and the State.
Most notably, the legislation would confirm the tribe's
water right of 4,705 acre-feet of water per year; direct the
tribe to pass a tribal water code within three years after the
bill's enactment; and direct the Secretary of Agriculture, in
consultation with the Secretary of the Interior, to commence a
study and make recommendations to Congress for the Upper
Delaware and Tributaries Watershed project.
Regarding S. 3060, Senator Cantwell introduced the
legislation on June 13, 2018. This bill would repeal an 1834
Federal law that prohibited the creation, or continuation, of
ardent spirit distilleries in Indian Country.
A House companion bill, H.R. 5317, was introduced by
Representative Jamie Herrera Beutler. The House Natural
Resources Committee held a hearing on H.R. 5317 on April 26,
2018, at which the Department of the Interior provided
testimony in support of the bill. On May 24, 2018, H.R. 5317
was reported favorably by the House Natural Resources
Finally, the Indian Water Rights Settlement Extension Act,
S. 3168, was introduced by Vice Chairman Udall on June 28,
2018. This bill would extend in perpetuity the Indian Water
Rights Settlement Fund, which was established in the Omnibus
Public Land Management Act of 2009. This settlement fund pays
for certain water supply infrastructure projects, as described
in Congressionally-approved Indian water rights settlement
With that, I will turn to Vice Chairman Udall for any
opening statement he may have.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you, Chairman Hoeven, for calling
today's legislative hearing.
The three bills before us today cover two issues of great
importance to Indian Country, economic development and tribal
water rights settlements.
Senator Cantwell's bill, S. 3060, repeals an antiquated law
pasted over 180 years ago that prevents tribes from being able
to set and operate distilleries on their own lands. The repeal
of this law, which does not apply to State lands, would remove
needless barriers to economic development in Indian Country and
provide parity for tribes.
Moving on to my bill, S. 3168 would permanently extend the
Reclamation Water Settlements Fund in order to meet our trust
responsibility to Indian Country and our obligation to fully
pay for Indian water rights settlements. These settlement
funds, which come on line in 2020, will go a long way towards
paying for the $1.6 billion backlog to complete just five of
the currently authorized Indian water rights settlements.
The importance of these settlements to providing certainty
to both Indian and non-Indian communities cannot be overstated,
particularly when climate change and drought threaten water
supplies throughout the West. Each water settlement this bill
will fund in the future is a carefully crafted agreement
between multiple water users and is paramount to the economic
vitality of the community.
Lastly, Senator Moran's bill, S. 2154, takes important
steps towards recognizing, quantifying and defining the
Kickapoo Tribe's reserved water rights. Ultimately, the bill
would secure the tribe's current and future access to water,
the life blood of the community.
These three bills give Congress a chance to do the right
thing by those tribal communities to whom we owe legal,
financial and moral obligations.
Thank you again, Mr. Chairman, for calling this hearing.
The Chairman. Are there other opening statements?
I will call on certain individuals for introductions in
just a moment but are there opening statements prior to that?
[No audible response.]
The Chairman. The witnesses today are: Mr. Alan Mikkelsen,
Deputy Commissioner, Bureau of Reclamation, Department of the
Interior; The Honorable Harry Pickernell, Chairman,
Confederated Tribes of the Chehalis Reservation, Oakville,
Washington; The Honorable Lester Randall, Chairman, Kickapoo
Tribe, Horton, Kansas; and Mr. John Tubbs, Director, Montana
Department of Natural Resources, Helena, Montana.
Thank you very much to all of you for being here.
Senator Moran, did you want to make an introduction?
STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. I would be happy to, Mr. Chairman. Thank you
very much for the opportunity. I thank you and Vice Chairman
Udall for holding this hearing.
I was just visiting with my staff and in the nearly four
years I have been a member of this Committee, this is the first
time we have legislation that directly impacts a Kansas tribe.
I appreciate the cooperation I have received from all of you in
regard to addressing a water rights issue important to this
tribe and our State, something the State of Kansas is anxious
to have resolved, as is the tribe.
I would use this moment you gave me to make a bit of an
opening statement and that is this is important and is an issue
that we will have elections in Kansas and there will be another
set of public officials dealing with an issue that has been
unresolved for decades.
Congresswoman Jenkins, who has led the effort in the House,
is retiring from the House. Again, this would be useful for us
to resolve now. I look forward to working with her and all of
you to see we get this resolved before the end of the
Mostly, I would take this opportunity to thank Chairman
Randall for making the trip from Kansas to discuss this
legislation and its impact on the tribe. I welcome him to the
Indian Affairs Committee and look forward to continuing to work
with him and his tribe as we try to find good solutions that
benefit tribal members and the State of Kansas.
Thank you, Mr. Chairman.
The Chairman. Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman.
I want to also echo some of Senator Moran's comments
thanking you for this hearing. I think this is an important
hearing on many different fronts.
Before I get to my introduction, I just want to thank Alan
Mikkelsen for being here. We appreciate your work at the Bureau
of Reclamation. I look forward to your opening statement.
As far as the bill that deals with alcohol prohibition in
Indian Country, I would just say, at least in Montana, there
has been a real opportunity to create employment in a very
positive way, I might add, with micro distilleries. I think now
is the time this bill deserves some solid debate and hopefully
we can move it on.
I also want to thank Senator Moran for his leadership on
water compacts. I am giving you compliments, Jerry, on your
water compact. The truth of the matter, is water compacts are
not easy. We appreciate Senator Moran's leadership on this
issue and moving it forward.
I just want to introduce a friend of mine who has come to
testify on Senator Udall's bill on the reclamation water
When I was a rookie legislator in the State legislature,
one of the first people we had a chance to meet was a guy by
the name of John Tubbs who, at that point in time, came out of
a Republican administration and helped everyone. It did not
matter about party, but giving us information when we had to
He is someone who now is Director of the Montana Department
of Natural Resource and Conservation, someone who understands
water, understands the importance of water, and understands the
importance of the water rights process. I just cannot thank him
enough for being here today to give us his wisdom when it comes
to water rights settlements. He may not look that old but he is
Thank you, Mr. Chairman.
The Chairman. I knew he was going to tease you a little
bit. Senator Tester, I think those were really good remarks all
around. Senator Moran, thank you as well.
We will begin with Mr. Mikkelsen. Again, try to keep your
testimony to about five minutes, if you would.
STATEMENT OF ALAN MIKKELSEN, SENIOR ADVISOR TO THE SECRETARY,
WATER AND WESTERN RESOURCE ISSUES; CHAIR, WORKING GROUP ON
INDIAN WATER SETTLEMENTS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Mikkelsen. Thank you, Mr. Chairman.
Good afternoon, Chairman Hoeven, Vice Chairman Udall and
members of the Committee.
My name is Alan Mikkelsen. I am now the Senior Advisor to
the Secretary on Water and Western Resource Issues and Chair of
the Department's Working Group on Indian Water Settlements.
I am here to testify on behalf of the Department on two
bills, S. 3168, a bill to permanently extend the Reclamation
Water Settlement Fund and S. 2154, a bill to authorize the
Kickapoo Tribe Water Rights Settlement.
On behalf of the Department, I have also submitted a
statement for the record on S. 3060, a bill to remove the
prohibition on certain alcohol manufacturing on Indian lands.
The Administration continues to support the policy that
negotiated Indian water rights settlements are preferable to
protracted and divisive litigation. Negotiated settlements
allow tribes, States and local water users to achieve finality
on difficult issues of title to water and free surrounding
communities to make critical management development decisions.
Settlements allow the parties to develop creative solutions
to difficult water resource issues. One of the key factors in
making settlements meaningful to the health and welfare of
tribes and to creating water certainty and economic development
opportunities in the West has been funding.
Funding is needed to secure new water supplies, build or
rehabilitate infrastructure required to deliver water, and
protect resources such as treaty fishing rights that are of
critical importance to tribes.
Settlements provide opportunities for local solutions and
because they have Federal and local cost share requirements,
the settling parties share the burdens as well as the benefits
that can arise from investments in infrastructure.
S. 3168 aims to address the need for funding by permanently
extending the Reclamation Water Settlement Fund which currently
authorizes the Secretary of the Interior to expend from the
Settlement Fund up to $120 million a year of the amounts
deposited through fiscal year 2029, plus accrued interest in
each of the years from fiscal year 2020 to fiscal year 2034.
The Administration remains committed to implementing and
adequately funding the enacted settlements and has ensured
adequate funding to implement all authorized settlements
through the annual budget process. The department looks forward
to working with the Committee to determine the best approach
for authorizing future settlements.
S. 2154 would authorize and ratify the September 2016
revised settlement agreement between the Kickapoo Tribe and the
State of Kansas, quantify the tribe's water rights, and direct
the Secretary of the Interior to enter into the 2016
settlement. The bill also directs the Secretary of Agriculture
to complete a study and make recommendations within two years
related to a surface water project for the tribe.
The Department has significant concerns with S. 2154. S.
2154 does not meet the critical goal of all Indian water rights
settlements, finality. S. 2154 leaves unresolved the ultimate
cost of the settlement, how those costs are shared amongst the
parties, and how the water right of the tribe will be realized.
Moreover, S. 2154 retains the tribe's claims against the
United States, a key component of Indian water rights
settlements that is meant to be resolved. S. 2154 also does not
resolve the issues related to the Plum Creek project and
infrastructure to meet the tribe's water right.
While the Department does not dispute the amount of water
quantified in the 2016 agreement, we have concerns that
directing the USDA to commence a study and make recommendations
on potential alterations to this project leaves many
uncertainties in relation to the amount of water or projects
that will be needed to address the tribe's water needs. This
creates unknown costs and potential liability that neither the
United States nor anyone else should be exposed to.
In conclusion, I want to emphasize that the department is
committed to working with the tribe and the State to reach a
final and fair settlement of the tribe's water right claims
that adheres to the principles of the department's criteria and
procedures and that we can fully support. As proposed, however,
the department cannot support S. 2154.
This concludes my statement on S. 3168 and S. 2154. I would
be happy to answer any questions on those bills at the
[The prepared statement of Mr. Mikkelsen follows:]
Prepared Statement of Alan Mikkelsen, Senior Advisor to the Secretary,
Water and Western Resource Issues; Chair, Working Group on Indian Water
Settlements, U.S. Department of the Interior
s. 2154, the kickapoo tribe in kansas water rights settlement agreement
Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of
the Committee. My name is Alan Mikkelsen, and I am the Senior Advisor
to Secretary Zinke for Water and Western Resource Issues and Chair of
the Working Group on Indian Water Settlements at the Department of the
Interior (Department). I am pleased to appear before you today to
discuss Indian water rights settlements.
Thank you for the opportunity to provide the Department's views on
S. 2154, the Kickapoo Tribe in Kansas Water Rights Settlement Agreement
Act, which would approve and provide authorizations related to a
settlement agreement involving the water rights of the Kickapoo Tribe
in Kansas (Tribe). The Tribe and the State of Kansas (State) executed
this settlement agreement in September 2016. The Department has
significant concerns about the scope of the settlement agreement
between the Tribe and the State. As executed, the settlement agreement
only partially resolves the Tribe's water rights and leaves unresolved
critical aspects necessary to achieve a final settlement, such as
anticipated federal funding, cost-sharing by the State or local
parties, and waivers of claims against the United States.
For these and other reasons, the Department cannot support S. 2154
as introduced. That being said, the Department remains eager to work
with all interested parties to develop and support a settlement that
adheres to the principles outlined in the Department's 1990 Criteria
and Procedures regarding the negotiation and resolution of Indian water
Before I begin discussing the Kickapoo settlement, I want to note
that the Department continues to support the policy that negotiated
Indian water rights settlements are preferable to protracted and
divisive litigation. Indian water rights settlements can resolve long-
standing claims to water, provide certainty to water users, foster
cooperation among water users within a watershed, allow for the
development of water infrastructure, promote tribal sovereignty and
self-sufficiency, and improve environmental and health conditions on
reservations. Congress also plays an important role through reviewing
and approving Indian water rights settlements as they typically involve
federal spending, the ultimate resolution of the Tribe's reserved water
rights, and the waiver of the United States' sovereign immunity. We
stand ready to work with this Committee and Members of Congress to
advance Indian water rights settlements that adhere to the principles
outlined in the Department's 1990 Criteria and Procedures regarding the
negotiation and resolution of Indian water rights claims.
The policy framework the Department follows to guide the
negotiation of Indian water rights settlements--and to support
legislation authorizing these settlements--includes four general
principles set forth in the Criteria and Procedures published in the
Federal Register in 1990:
(1) the Department participates in water settlements consistent
with the federal government's responsibilities as trustee;
(2) Indian tribes receive equivalent benefits in exchange for
the rights they, and the United States as trustee, release as
part of a settlement;
(3) Indian tribes obtain the ability to realize value from
confirmed water rights resulting from settlement, which ensures
they do not receive legal rights to water supplies that never
materialize in the delivery of water;
(4) settlements contain an appropriate cost-share by all
parties benefiting from the settlement.
The Criteria and Procedures also contain guidelines that the
Department follows in determining whether to support a proposed
settlement. One important guideline is the concept of finality
contained in Criteria 3 discussed below.
Disputes over Indian water rights can be expensive and divisive. In
many instances, these disputes last for decades, represent a tangible
barrier to progress for tribes, and significantly hinder the rational
and beneficial management of water resources. Indian water rights
settlements can break down these barriers and help create conditions
that improve water resources management by providing finality and
certainty for all affected water users. When settlements can be
reached, they often provide opportunities for economic development,
improve relationships, and encourage collaboration among neighboring
communities. Successful settlements are also consistent with the
Federal trust responsibility to American Indians and with Federal
policy promoting Indian self-determination and economic self-
sufficiency. These ultimate outcomes and opportunities have been the
basis for which the United States has pursued a policy of resolving
Indian water rights disputes through negotiated settlements rather than
litigation whenever possible.
A. The Kickapoo Reservation and the Kickapoo Tribe
The Kickapoo Tribe originated in the Great Lakes region, but moved
southwest over time. In 1832, the Tribe and United States entered into
the Treaty of Castor Hill, which established the original Kickapoo
Reservation in present-day northeast Kansas.
The current Reservation, reduced in size after subsequent treaties,
encompasses about 30 square miles and has its headquarters in Horton,
Kansas, roughly an hour north of the State capital in Topeka. Of the
lands within the boundaries of the Reservation, nearly 8,000 of the
approximately 19,000 acres within the Reservation are currently owned
either by the Tribe or individual Indians in trust or fee status, and
the vast majority of these lands are used for agricultural purposes.
The remaining 11,000 acres are owned by non-Indians, often interspersed
in a ``checker-boarded'' pattern with lands held by the Tribe or
Total tribal membership, including members living off-Reservation,
exceeds 1,600. According to the Tribe, roughly one-third of its members
reside on-Reservation. The Tribe's Golden Eagle Casino, its
governmental operations, and farming activities provide the primary
sources of employment for Tribal members. The Tribe lists economic
development as its top priority.
B. Water Resources of the Kickapoo Reservation
The Reservation lies within the Upper Delaware River watershed, a
basin that covers portions of Nemaha and Brown Counties in northeast
Kansas. The basin's waters flow into Perry Lake, a U.S. Army Corps of
Engineers facility, which then flow into the Kansas (or Kaw) River
between Topeka and Lawrence (which then flow into the Missouri River at
Kansas City). Precipitation averages between 35 to 37 inches per year,
the vast majority of which falls as rain between April and October.
No reservoir or other storage facility currently exists on the
Reservation. A low-head weir (dam) and associated water treatment
facilities on the Delaware River built in the 1970s provide the primary
water supply for the Reservation, diverting on average just over
100,000 gallons per day.
Drought conditions have occasionally led to crisis conditions on
the Reservation. For example, the Department--through the Bureau of
Indian Affairs and Bureau of Reclamation--provided nearly $300,000 in
2003 to the Tribe to haul over 7 million gallons of water to the
Reservation for domestic and fire prevention needs because the Delaware
River and its tributaries were without flow for over sixty (60) days
that year due to severe weather conditions.
C. 1994 Agreement and Subsequent Litigation
Between the 1970s and the 1990s, the Tribe worked with the State of
Kansas and a local watershed district to develop a plan under the
auspices of the Watershed Protection and Flood Prevention Act, Public
Law 83-566 (PL-566 program, codified at 16 U.S.C. 1001 et seq.), now
administered by USDA's Natural Resources Conservation Service (NRCS).
In 1994, the parties completed an environmental impact statement and
signed a Watershed Plan (1994 Agreement), which envisioned twenty (20)
floodwater retarding dams off-Reservation and one multi-purpose dam
(Plum Creek Reservoir) that would provide 5,700 acre-feet of water
supply and recreation use for the Tribe's present and future needs.
Congress authorized funding to implement portions of the 1994 Agreement
in both 1996 and 1998, and the off-reservation dams have since been
Plum Creek Reservoir was not constructed, however, as it would have
required the acquisition of more than 1,000 acres of non-Indian lands
checker-boarded with Tribal lands. Most affected non-Indian landowners
refused purchase offers, and the local district refused to use its
eminent domain authority.
In June 2006, the Tribe filed a complaint in federal district court
against the Bureau of Indian Affairs, U.S. Department of Agriculture's
Natural Resource Conservation Service (NRCS), the Kansas Department of
Agriculture's State Conservation Commission, and the local watershed
district. The complaint alleged that the Federal and State defendants
had affirmative trust obligations to protect and preserve the Tribe's
Federal Indian reserved water rights (Winters rights) and failed to do
so. The complaint also alleged that the local watershed district
breached its obligations under the 1994 Agreement. The complaint
sought, among other things, a declaration of the existence and priority
of the Tribe's Winters rights; an injunction preventing all defendants
from violating the Tribe's Winters rights; and specific performance of
the 1994 Agreement.
After the United States and other defendants filed motions to
dismiss, the parties agreed to stay the litigation and to seek a
negotiated settlement. The parties made significant progress toward
resolving both the water and land acquisitions issues, but the local
watershed district ultimately voted to reject the key land acquisition
piece in 2011. The parties then agreed to restructure the litigation
and focus on the district's obligations under the 1994 Agreement. In
2013, the federal district court ruled against the Tribe and found that
the 1994 Agreement did not obligate the district to exercise its
eminent domain authority to secure the land for Plum Creek Reservoir.
III. Proposed Kickapoo Legislation
As noted above, the Tribe's 2006 complaint asserted various claims
related to its Winters rights in the Delaware River basin. Although the
district court dismissed other claims related to the 1994 Agreement and
the need to secure land for Plum Creek Reservoir, the Tribe, the State,
and the United States (through the Department of Justice (DOJ) and the
Department's Solicitor's Office (SOL)) continued working to resolve the
underlying water rights issues and negotiated a potential water rights
settlement. As directed by the court, the parties shared a draft
settlement with the magistrate judge in December 2015. In September
2016, the Tribe and State--after making some critical revisions not
shared with the United States--executed a revised settlement that forms
the basis of S. 2154 and the subject of this hearing.
As introduced, S. 2154 would authorize and ratify the revised
settlement executed by the Tribe and the State in September 2016;
quantify the Tribe's water rights as outlined in the 2016 settlement;
direct the Secretary of the Interior to enter into the 2016 settlement
and take related actions consistent with the legislation; and direct
the Secretary of Agriculture, through NRCS, to complete a study and
make recommendations within two (2) years related to Plum Creek
Project. S. 2154 would waive the Tribe's and United States' claims to
water rights within the Delaware River Basin upon enactment, yet would
retain the Tribe's claims against the United States related to its
water rights. S. 2154 includes no federal appropriations at this time.
IV. Department of the Interior Positions on S. 2154
While the Department strongly supports Indian water rights
settlements generally, the Department has significant concerns about S.
2154 and cannot support the bill as introduced.
As noted above, representatives from DOI and DOJ negotiated the
basic structure of a proposed settlement in December 2015, one that the
three sovereign parties submitted to the magistrate judge overseeing
the litigation that began in 2006. The federal representatives
cautioned the other parties and the magistrate judge, however, that any
settlement would need to be submitted to and approved by the Working
Group on Indian Water Rights and the Administration as a whole and that
outstanding issues remained to be resolved, such as federal funding and
associated cost-sharing as envisioned by the 1990 Criteria and
Procedures. Rather than pursuing this course, the Tribe embarked on a
separate process with the State, revising the December 2015 agreement--
without the involvement or approval of the United States--and executing
this revised settlement agreement in September 2016.
The Administration has significant concerns about the 2016
agreement and S. 2154. Criteria 3 of the 1990 Criteria and Procedures
provides that ``Settlements should be completed in such a way that all
outstanding water claims are resolved and finality is achieved.'' A
critical goal for all Indian water rights settlements is achieving
finality: resolving an Indian tribe's water and related claims once and
for all and providing certainty both to the Indian tribe and to
affected State and non-Indian parties with respect to water allocations
within a basin and related costs to achieve the settlement. Although S.
2154 and the underlying agreement take steps in this direction, they
leave unresolved the ultimate cost of the settlement, how those costs
should be shared, and how the water right will be realized for the
Tribe. Moreover, S. 2154 explicitly retains the Tribe's claims against
the United States related to the issues this settlement is meant to
resolve, the exact opposite of what an Indian water rights settlement
is meant to achieve.
A critical piece of this puzzle, one that S. 2154 recognizes as
unresolved, relates to the Plum Creek Project or similar infrastructure
to meet the Tribe's water right. The 2016 agreement defines the Tribal
Water Right as the right to divert or redivert 4,705 acre feet year and
gives the Tribe a right to store at least 18,520 acre feet in one or
more yet to be constructed reservoirs. As introduced, S. 2154 would
direct the Secretary of Agriculture and NRCS to commence a study and,
within two (2) years, make recommendations on potential alterations to
the Plan that authorized Plum Creek Project. It is unknown if such
alterations will increase or reduce the amount of water that could be
delivered to meet the Tribe's water right, thus leaving uncertainty as
to whether this project or other projects will be needed to address the
Tribe's water needs based on a reasonably foreseeable planning horizon.
Although we generally support the amount of water quantified for the
Tribe in the 2016 settlement executed between the Tribe and the State,
the infrastructure needed to deliver reasonably foreseeable necessary
water is unknown, and neither the United States nor anyone else should
be exposed to unknown costs or potential liability as S. 2154 would
In addition to the matters noted above, S. 2154 and the underlying
agreement would alter other considerations developed as part of the
original agreement--such as the timing of court proceedings and
settlement enforceability--that had been structured based on previously
enacted Indian water settlements.
After the Tribe and the State executed the revised agreement in
September 2016, the Department and DOJ communicated concerns to the
Tribe regarding these revisions, recommended that the Tribe follow the
Indian water rights settlement process set forth in the Criteria and
Procedures (including formation of a negotiation team), and urged the
Tribe to dismiss the litigation. The Tribe agreed to dismiss the
pending lawsuit, and the remaining parties to the litigation filed a
joint stipulation requesting dismissal without prejudice, which the
court approved in February 2017. The Department stands ready to work
with the Tribe and the State through a Federal Negotiation Team and our
The Department recognizes that the Tribe and the State of Kansas
want to achieve a Kickapoo water settlement and have devoted
substantial efforts to reach that goal. The Department shares this goal
and is committed to working with the Tribe and the State to reach a
final and fair settlement of the Tribe's water rights claims that
adheres to the principles of the Criteria and Procedures and that we
can fully support. As proposed, however, the Department cannot support
s. 3060, a bill to repeal section 2141 of the revised statutes to
remove the prohibition on certain alcohol manufacturing on indian lands
Chairman Hoeven, Vice Chairman Udall, and Members of the Committee,
thank you for the opportunity to present the Department of the
Interior's (Department) views on S. 3060, a bill to repeal section 2141
of the Revised Statutes to remove the prohibition on certain alcohol
manufacturing on Indian lands.
The Department is aware that the Confederated Tribes of the
Chehalis Reservation seek to venture into a new economic development
project that will be 100 percent owned by the Tribe on its Tribal
lands. This economic development project consists of the construction
and operation of a distillery. The Tribe approached the Bureau of
Indian Affairs (BIA) Northwest Regional Office regarding this economic
development venture and the BIA identified a potential obstacle to the
project: one section of the Trade and Intercourse Act of 1834
prohibited distilleries in Indian country. The ban as amended remains a
part of Federal law. Current 25 U.S.C. 251 reads: ``Every person who
shall, within the Indian Country, set up or continue any distillery for
manufacturing ardent spirits, shall be liable to a penalty of one
thousand dollars; and the superintendent of Indian Affairs, Indian
Agent, or sub-agent within the limits of whose agency any distillery of
ardent spirits is set up or continued, shall forthwith destroy and
break up the same.''
Other sections of the 1834 law banned the sale and possession of
liquor in Indian country, and those provisions also remain in the US
Code at 18 U.S.C. Sections 1154, 1155, and 1156. In 1953, Congress
enacted what is now codified at 18 U.S.C. Section 1161, waiving the
application of those sections where a Tribe has enacted a liquor
ordinance compliant with the terms of that section. The legislative
history of Section 1161 makes it clear that Congress considered, and
rejected, adding the distillery ban to the list of sections that would
not apply where a Tribe had a liquor ordinance. The Department agrees
that a legislative solution is the best avenue to remedy this situation
and supports S. 3060.
S. 3060 would repeal Section 2141 of the Revised Statutes (25
U.S.C. 251). That section of the Code states that ``Every person who
shall, within the Indian Country, set up or continue any distillery for
manufacturing ardent spirits, shall be liable to a penalty of one
thousand dollars; and the superintendent of Indian Affairs, Indian
Agent, or sub-agent within the limits of whose agency any distillery of
ardent spirits is set up or continued, shall forthwith destroy and
break up the same.''
Thank you for the opportunity to appear before you today. I am
happy to answer any questions the Subcommittee may have.
s. 3168, to amend the omnibus public land management act of 2009 to
make reclamation water settlements fund permanent
Chairman Hoeven, Vice Chairman Udall, and Members of the Committee,
I am Alan Mikkelsen, and I am the Senior Advisor to Secretary Zinke and
Chair of the Working Group on Indian Water Settlements at the U.S.
Department of the Interior (Department). Thank you for the opportunity
to discuss S. 3168, a bill to amend the Omnibus Public Land Management
Act of 2009 (Title X, Part II of Public Law 111-11) to make the
Reclamation Water Settlements Fund permanent. The Administration
remains committed to implementing and adequately funding enacted
settlements, and has ensured adequate funding to implement all
authorized settlements through the annual Budget process.
The Department continues to strongly support Indian water rights
settlements that adhere to the principles outlined in the Department's
1990 Criteria and Procedures that are grounded in the policy that
negotiated Indian water rights settlements are preferable to protracted
and divisive litigation as a means of resolving water rights disputes.
Negotiated settlements allow tribes, states, and local water users to
achieve finality on difficult issues of title to water, freeing up
surrounding communities to make critical management and development
decisions. Settlements allow the parties to develop creative solutions
to overarching water resources issues. One of the key factors in making
settlements meaningful to the health and welfare of tribes and non-
Indian communities, and to creating water certainty and economic-
development opportunities in the West, has been funding. Funding is
needed to secure new water supplies, build or rehabilitate
infrastructure required to deliver water, and protect resources such as
treaty fishing rights that are of critical importance to tribes.
Settlements provide opportunities for local solutions, and because they
have federal and local cost-share requirements, the settling parties
share in the burdens, as well as the benefits, that can arise from
investments in infrastructure. The FY 2019 Budget requests $173 million
for the implementation of Indian water rights settlements.
To date, Congress has enacted 32 Indian water settlements,
addressing the need for reliable water supplies in Indian country.
There are over 280 federally recognized tribes in the West alone
(excluding Alaska), and the Department continues to see an increase in
requests from tribes and states to enter into water rights settlement
negotiations. Many of these tribes need: clean, reliable drinking
water; repairs to dilapidated irrigation projects; and the development
of other water infrastructure to bring economic development to
reservations. States increasingly seek settlement of Indian water
rights to provide certainty for holders of State-based water rights,
clarify authority to manage water resources, and plan for the future.
Indian water rights settlements can however be costly, and costs
have increased over the years. Within the last ten years, the Omnibus
Public Lands Management Act of 2009 (P.L. 111-11), the Claims
Resolution Act of 2010 (P.L. 111-291) and the Water Infrastructure
Improvements for the Nation (WIIN) Act (P.L. 114-322) authorized seven
new settlements that call for total Federal expenditures totally
approximately $2.5 billion. Although some mandatory funding was
provided with the Claims Resolution Act, substantial discretionary
funding is needed to meet the statutory settlement obligations. Each of
these settlements contain deadlines by which funding must be completed
or the settlement fails and long standing, expensive, and disruptive
litigation resumes. In addition to the statutory requirements to fund
these settlements within prescribed timeframes, the availability of
funding has implications for economic development in Indian and non-
Indian communities and raises other human considerations and equity
concerns. For example, the availability of potable water can affect
economic development, tribal health and welfare. Stalled funding would
also delay the receipt of the economic benefits that are associated
with settlements, which is why the Budget provides sufficient resources
to implement enacted settlements. These benefits will not fully accrue
until the physical infrastructure associated with settlements is
complete and operational. Construction funding also provides short-term
economic stimulus to localities or regions which is important given the
high unemployment levels in Indian country.
The Department currently has 21 Federal negotiation teams working
with tribes to achieve additional settlements, and 23 teams working on
implementing enacted settlements. Two of the settlements included as
priorities for the Settlement fund, Navajo Lower Colorado Basin and
Fort Belknap, have not been enacted, and the Federal contributions to
these settlements may approach a billion dollars based on similar
enacted settlements. While allocation of funding among the priority
settlements identified in the Settlements Fund is complicated by
construction schedules and other matters and cannot be fully predicted,
at this time it appears there will be little, if any, funding in the
Settlement Fund for settlements not specifically listed as priorities.
The Department has always given priority to funding settlements in the
Reclamation Water Settlements Fund
In 2009, Congress created the Reclamation Water Settlements Fund,
which authorizes the deposit of funds that would otherwise be deposited
into the Reclamation Fund, into a separate account within the U.S.
Treasury. Currently, the Secretary of the Interior is authorized to
expend from the Reclamation Water Settlements Fund, without further
appropriation, up to $120 million a year of the amounts deposited
through FY 2029, plus accrued interest, in each of the years from FY
2020 to FY 2034. The Secretary may use money in the Reclamation Water
Settlements Fund to implement congressionally approved water rights
settlements, if the settlement requires the Bureau of Reclamation to
provide financial assistance, or to plan, design or construct water
supply infrastructure. In addition, the currently authorized
Reclamation Water Settlements Fund establishes certain funding
priorities for settlements in the states of New Mexico, Montana, and
Finally, the law includes a reversion clause providing that if any
settlement identified in the above funding priority is not approved by
an act of Congress by December 31, 2019, the Secretary has the
discretion to use the reserved funds for any authorized use.
S. 3168 would make the Reclamation Water Settlements Fund permanent
and would not prioritize settlements other than those currently
prioritized. While the current Reclamation Water Settlement Fund will
become available for expenditures in 2020, much of it is already
committed to existing, enacted settlements. The Department looks
forward to working with the Committee to determine the best approach
for authorizing future settlements.
The Department takes into consideration the effects of growing
populations and related water demands, widespread drought in the West,
and the need for new infrastructure and water storage in many
locations. These factors are certain to drive an increase in the demand
for water settlements.
I want to underscore the importance of these settlements, and
recognize the aim of the bill sponsor and this Committee in considering
S. 3168. Disputes over Indian water rights can be expensive and
divisive. In many instances, these disputes last for decades, represent
a tangible barrier to progress for tribes, and significantly hinder the
rational and beneficial management of water resources. Indian water
rights settlements can break down these barriers and help create
conditions that improve water resources management by providing
finality and certainty for all affected water users. When settlements
can be reached, they provide opportunities for economic development,
produce critical benefits for tribes and non-Indian parties, and bring
together communities to improve water management practices in some of
the most stressed water basins in the country. Successful settlements
are also consistent with the Federal trust responsibility to American
Indians and with Federal policy promoting Indian self-determination and
As noted above, the Department supports Indian water rights
settlements grounded in the policy that negotiated Indian water rights
settlements are preferable to protracted and divisive litigation as a
means of resolving water rights disputes. The Department looks forward
to working with the Committee and discussing the best means of
achieving future settlements.
This concludes my written statement. I am pleased to answer
questions at the appropriate time.
The Chairman. Thank you, Mr. Mikkelsen.
I will turn to Senator Cantwell for the purpose of an
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. Thank you for
the hearing today.
I want to welcome the Chairman of the Confederated Tribes
of the Chehalis Reservation, Henry Pickernell, Sr. I am so glad
to see him here.
The Chairman was nominated by the Chehalis Tribal Business
Council over a year ago to lead the tribe. He is a long-time
water quality specialist in the tribe's Natural Resource
Department and a recent graduate of Evergreen State College. He
also previously served as Vice Chairman of the tribe working on
the restoration of fisheries in the Chehalis Basin and
expanding economic opportunities for the Chehalis Tribe.
I cannot thank him enough for being here today to talk
about a bill that provides greater economic opportunities for
the Chehalis Tribe and Indian Country. That legislation, S.
3060, introduced by myself and Senators Moran and Murray, would
repeal an outdated, discriminatory law that prohibits tribes
from operating distilleries on tribal lands.
With that, Mr. Chairman, again, thank you for having this
hearing. Thank you, Chairman Pickernell for being here in
The Chairman. Thank you, Senator Cantwell.
Chairman Pickernell, you may proceed with your testimony.
STATEMENT OF HON. HARRY PICKERNELL, CHAIRMAN, CONFEDERATED
TRIBES OF THE CHEHALIS RESERVATION
Mr. Pickernell. Good afternoon, Chairman Hoeven, Vice
Chairman Udall, and members of the Committee. My name is Harry
Pickernell. I am the chairman of the Confederated Tribes of the
Chehalis Reservation, a federally-recognized Indian tribe
located in southwest Washington State.
I am pleased to be here today to testify in support of S.
3060, a bill that would repeal an antiquated 19th Century law
that has become an obstacle to the Tribe's economic
The Chehalis Reservation was created by Executive Order in
1864 and is located between the confluence of the Chehalis
River and the Black River. Much of the Tribe's 4,800 acre land
base is in a flood plain and the tribe has very little land
suitable for economic development.
Southwest Washington has long been an economically-
depressed area lacking in businesses and jobs for tribal
members and non-Indians alike. The tribe operates a casino but
is always looking for ways to diversify its economic base to
continue to support its education, health, housing, safety and
other programs for its members. Approximately 40 percent of
tribal members are under the age of 21 and will need jobs in
With the assistance of the Department of the Interior, the
tribe, in partnership with the Great Wolf Company, also
developed a Great Wolf Lodge on the tribe's reservation land in
Grand Mound, Washington. This is the only indoor waterpark in
Washington State and the only Great Wolf Lodge on an Indian
Currently, the tribe is planning to develop a stand-alone
brewery and a stand-alone distillery, both of which will be on-
reservation and 100 percent-owned and operated by the tribe.
Each of these enterprises is intended to both provide new
skills and training to tribal members and non-Indians, but also
provide skilled jobs on the reservation.
In 1953, Congress enacted 18 U.S.C. Section 1161 which
excludes application of various Federal liquor prohibitions in
Indian Country, provided the activities conform to State law
and are conducted by tribes under liquor ordinances approved by
the Bureau of Indian Affairs. When Congress established this
regulatory regime, however, it missed one virtually
unremembered law that prohibits distilleries in Indian Country.
That law, which is now codified at 25 U.S.C. Section 251,
was enacted on June 30, 1834, and reads: ``Every person who
shall, within the Indian Country, set up or continue any
distillery for manufacturing ardent spirits, shall be liable to
a penalty of $1,000; and the Superintendent of Indian Affairs,
Indian agent, or subagent, within the limits of whose agency
any distillery of ardent spirits is set up or continued, shall
forthwith destroy and break up the same.''
The apparent intent of Section 251 was to prevent non-
Indian traders from avoiding taxation by setting up
distilleries in Indian Country and also to prevent non-Indian
traders from selling liquor to Indians who were the wards of
the United States. As far as the tribe has been able to
ascertain, Section 251 has never been enforced and has only
been mentioned in passing once since its enactment 184 years
ago. The one time Section 251 has even been mentioned in a
Federal court decision was in a footnote in a Ninth Circuit
Court of Appeals opinion in 1983.
That court identified Section 251 as one of the outdated
statutes that were resolved by Section 1161. In reversing the
decision, the U.S. Supreme Court identified Section 1161 as
``abolishing Federal prohibition, and as legalizing Indian
liquor transactions, as long as those transactions conformed
both to tribal ordinance and State law,'' but the Court failed
to identify Section 251 in its decision.
By allowing the tribe's project to move forward, repealing
Section 251 will create jobs both for tribal members and the
surrounding communities and provide an economic return to the
tribe for use to support its tribal programs. These will
include jobs constructing the distillery, learning the
distillery production trade, and addressing the marketing and
distribution of the tribe's products. By repealing Section 251,
S. 3060 will not disturb or otherwise affect the requirements
established by Section 1161 that the tribe, and other tribes,
must one, comply with State liquor laws and regulations and
two, have a BIA-approved liquor ordinance for on-reservation
This bill will similarly not affect the ability of the
State of Washington or other States to collect liquor taxes
under that same authority. Rather, S. 3060 will simply remove
an antiquated and nearly forgotten Federal prohibition on the
construction and operation of distilleries in Indian Country.
The United States' current policy is to support tribal
self-determination and self-sufficiency. The Chehalis Tribe and
other tribes must provide for their members and support
surrounding communities through economic development. Although
the tribe has no reason to believe that the Department of
Interior is inclined to enforce Section 251, the law presents a
risk that the BIA could ``destroy and break Up'' the tribe's
distillery after the tribe begins construction.
Time is of the essence for this legislation. The tribe has
its building permits in hand, has completed the full design of
the project, purchased some of the equipment, and needs to
continue to expend additional funds for development of this
project. The tribe will also require additional financing to
complete the project and this 1834 statute serves as a barrier
to obtaining that financing.
The tribe urges swift consideration and passage of S. 3060.
I would be happy to answer any questions the Committee may have
at this time. Thank you.
[The prepared statement of Mr. Pickernell follows:]
Prepared Statement of Hon. Harry Pickernell, Chairman, Confederated
Tribes of the Chehalis Reservation
Good afternoon Chairman Hoeven, Vice Chairman Udall, and members of
the Committee. My name is Harry Pickernell and I am the Chairman of the
Confederated Tribes of the Chehalis Reservation (the ``Tribe''), a
federally recognized Indian tribe located in southwest Washington
State. I am pleased to be here today to testify in support of S. 3060,
a bill that would repeal an antiquated nineteenth century law that has
become an obstacle to the Tribe's economic development.
The Chehalis Reservation was created by Executive Order in 1864 and
is located between the confluence of the Chehalis River and the Black
River. Much of the Tribe's 4,800 acre land base is in a flood plain and
the Tribe has very little land suitable for economic development.
Southwest Washington has long been an economically depressed area
lacking in businesses and jobs for Tribal members and non-Indians
alike. The Tribe operates a casino but is always looking for ways to
diversify its economic base to continue to support its education,
health, housing, safety and other programs for its members.
Approximately 40 percent of Tribal members are under the age of 21 and
will need jobs in the future.
With the assistance of the Department of the Interior, the Tribe,
in partnership with the Great Wolf Company, also developed a Great Wolf
Lodge on the Tribe's reservation land in Grand Mound, Washington. This
is the only indoor waterpark in Washington State and the only Great
Wolf Lodge on an Indian reservation.
Currently, the Tribe is planning to develop a stand-alone brewery
and a stand-alone distillery, both of which will be on-reservation and
100 percent owned and operated by the Tribe. Each of these enterprises
is intended to both provide new skills and training to Tribal members
and non-Indians, but also provide skilled jobs on the Reservation.
In 1953, Congress enacted 18 U.S.C. section 1161 (Section 1161),
which excludes application of various federal liquor prohibitions in
Indian country provided the activities conform to state law and are
conducted by tribes under liquor ordinances approved by the Bureau of
Indian Affairs (BIA). When Congress established this regulatory regime,
however, it missed one virtually unremembered law that prohibits
distilleries in Indian country.
That law, which is now codified at 25 U.S.C. section 251 (Section
251), was enacted on June 30, 1834, and reads:
Every person who shall, within the Indian country, set up or
continue any distillery for manufacturing ardent spirits, shall
be liable to a penalty of $1,000; and the superintendent of
Indian affairs, Indian agent, or subagent, within the limits of
whose agency any distillery of ardent spirits is set up or
continued, shall forthwith destroy and break up the same.
The apparent intent of Section 251 was to prevent non-Indian
traders from avoiding taxation by setting up distilleries in Indian
country and also to prevent non-Indian traders from selling liquor to
Indians who were the wards of the United States.
As far as the Tribe has been able to ascertain, Section 251 has
never been enforced and has only been mentioned in passing once since
its enactment 184 years ago. The one time Section 251 has even been
mentioned in a federal court decision was in a footnote in a Ninth
Circuit Court of Appeals opinion in 1983. That court identified Section
251 as one of the outdated statutes that were resolved by Section 1161.
In reversing the decision, the U.S. Supreme Court identified Section
1161 as ``abolishing federal prohibition, and as legalizing Indian
liquor transactions as long as those transactions conformed both to
tribal ordinance and state law,'' but the Court failed to identify
Section 251 in its decision. \1\
\1\ The Ninth Circuit's footnote is in Rehner v. Rice, 678 F.2d
1340, 1333 n.6 (9th Cir. 1982), and the U.S. Supreme Court's subsequent
decision is Rice v. Rehner, 463 U.S. 713 (1983).
By allowing the Tribe's project to move forward, repealing Section
251 will create jobs both for Tribal members and the surrounding
communities and provide an economic return to the Tribe for use to
support its tribal programs. These will include jobs constructing the
distillery, learning the distillery production trade, and addressing
the marketing and distribution of the Tribe's products.
By repealing Section 251, S. 3060 will not disturb or otherwise
affect the requirements established by Section 1161 that the Tribe (and
other tribes) must (1) comply with state liquor laws and regulations
and (2) have a BIA-approved liquor ordinance for on-reservation liquor
sales. This bill will similarly not affect the ability of the State of
Washington or other states to collect liquor taxes under that same
authority. Rather, S. 3060 will simply remove an antiquated and nearly
forgotten federal prohibition on the construction and operation of
distilleries in Indian country.
The United States' current policy is to support tribal self-
determination and self-sufficiency. The Chehalis Tribe and other tribes
must provide for their members and support surrounding communities
through economic development. Although the Tribe has no reason to
believe that the Department is inclined to enforce Section 251, the law
presents a risk that the BIA could ``destroy and break up'' the Tribe's
distillery after the Tribe begins construction.
Time is of the essence for this legislation. The Tribe has its
building permits in hand, has completed the full design of the project,
purchased some of the equipment, and needs to continue to expend
additional funds for development of this project. The Tribe will also
require additional financing to complete the project and Section 251
serves as a barrier to obtaining that financing.
The Tribe urges swift consideration and passage of S. 3060. I would
be happy to answer any questions the Committee may have at this time.
The Chairman. Thank you, Chairman Pickernell.
Now we will turn to Chairman Randall.
STATEMENT OF HON. LESTER RANDALL, CHAIRMAN, KICKAPOO TRIBE
Mr. Randall. Good afternoon, Chairman Hoeven, Senator
Moran, and other members of the Committee. [Greeting in native
I am Lester Randall, Chairman of the Kickapoo Tribe in
Kansas. I am here today to testify on behalf of the Kickapoo
Tribal Council and tribal members in support of S. 2154, a bill
to approve our Water Settlement Agreement, enacted in September
2016 with the State of Kansas.
That agreement accomplishes a number of critical steps in
the decades-long effort to achieve water security. I will
provide an overview of those steps for you in a moment.
First, I wanted to express the tribe's appreciation to the
State of Kansas and its political leadership and technical
staff. A meaningful, respectful partnership has been created
between the tribe and State on water management in the Delaware
River basin. We believe this relationship has a long lasting
value to both sovereigns.
I also want to express the tribe's appreciation to Senator
Moran, Congresswoman Jenkins and their staffs for their
commitment and leadership on this vital matter to the tribe.
Lastly, I want to thank the attorneys from the Departments of
the Interior, Justice, and Agriculture who assisted with
negotiation of this agreement.
Every Indian water settlement comes to Congress and is
borne of its own unique circumstances. The Kickapoo Water
Settlement is no different. What makes our legislation unique
is that we are asking Congress to approve a water agreement
that is a direct outgrowth of a water storage project Congress
blessed 20 years ago in 1998 through the Department of
Agriculture's Small Watershed Program. We have not yet built
the storage project but it is more critical today than it was
20 years ago.
The Kickapoo Tribe in Kansas has lived in northeast Kansas
since it entered into the 1832 Treaty of Castor Hill with the
United States. By virtue of the 1832 treaty, the tribe holds
senior water rights under the Winters doctrine from the
Delaware River and its tributaries.
Water is sacred to our people. It is an essential
cornerstone to building our homeland. Economic development is a
top priority with the tribe to the meet growing needs of our
community and to maximize our economic resources for the
benefit of our tribal members. A dependable water supply is
essential for us to meet future housing and economic
development, fire protection and farming needs.
Drought is no stranger to the reservation in northeast
Kansas. Governor Colyer issued a statewide drought declaration
in March of this year. It is still in effect. Kansas has
notified the water users in the Delaware River Basin of
cutbacks due to the drought.
Because the Kickapoo Reservation sits on a rock formation
blocking access to groundwater, our only water supply is the
Delaware River and a few of its tributaries that flow through
the reservation. We have relied on a small dam and water
treatment plant on the river, one built with a small grant from
the United States back in the 1970s. Over the years, the dam
and treatment plant have required multiple repairs but both
structures are old and inadequate for our current needs.
After construction of the small dam and the water treatment
system, the tribe wanted to embark on a larger water
development project. We sought assistance through the Bureau of
Indian Affairs in the early 1980s who sent us to the Soil
Conservation Office, now NRCS.
Under the SCS Small Watershed Program, also known as the
P.L. 83-566 Program, the tribe, in conjunction with the local
watershed district, began in a decade-long effort in 1983 to
design a plan for a water storage project known as the Upper
Delaware and Tributaries Project. The centerpiece of the
project was a water storage dam to be built on the reservation
on the Plum Creek. Plum Creek is a tributary to the Upper
Delaware River. A Federal watershed agreement was executed by
all the parties in 1994.
Following a full NEPA EIS review and issuance of a final
record of decision in 1994 by NRCS, congressional authorization
for the Plum Creek Project was secured in 1996 by the Senate
and in 1998 by the House. We have been told by NRCS legal
counsel that the USDA considers the congressional authorization
of the project to still be valid. As a project sponsor, it is
the tribe's responsibility under the P.L. 83-566 Program to
secure land and water rights for the project.
As for the land rights, the tribe has purchased 250 acres
of the Plum Creek drainage all with our own money. Depending on
the final size of the project, we already own over half of the
As for the water rights, in September 2016, the tribe and
State entered into an agreement to quantify the tribe's water
rights. An important next step is to have Congress approve the
agreement. By enacting S. 2154, approving the settlement
agreement, it approves the water rights to meet the tribe's
future and present needs, establishes the storage, seepage and
evaporation components of the tribal water right, monitoring
and reporting requirements, protects the senior water right for
the Delaware River Basin, directs the tribe to enact a water
code to protect and regulate use of water by the tribal
members, directs the Interior Department to sign an agreement
and carry out its terms, directs NRCS to consult with the
Department of the Interior, the tribe and the State to make
recommendations for the alteration of the Plum Creek Project to
effectuate the tribe's water right.
The tribe would like to emphasize that no other land or
water interests for any other tribes are adversely impacted by
In closing, thank you again for convening this hearing on
S. 2154. I am happy to answer any questions you might have for
me. Thank you.
[The prepared statement of Mr. Randall follows:]
Prepared Statement of Hon. Lester Randall, Chairman, Kickapoo Tribe
Good afternoon, Chairman Hoeven, Senator Moran, and other members
of the Committee. I'm Lester Randall, Chairman of the Kickapoo Tribe in
Kansas. I'm here today to testify on behalf of my Tribal Council and
Tribal members, in support of S. 2154, a bill to approve our Water
Settlement Agreement, enacted in September 2016 with the State of
Kansas. That Agreement accomplishes a number of critical steps in the
Tribe's decade's long effort to achieve water security. I'll provide an
overview of those steps for you in a moment.
First, I wanted to express the Tribe's appreciation to the State of
Kansas and the leadership and technical staff in its Department of
Agriculture and Division of Water Resources. A meaningful, respectful
partnership was created between the Tribe and the State on water
management in the Delaware River basin that we believe will have
lasting value to both sovereigns. Thanks also to former Governor Sam
Brownback and current Governor Jeff Colyer, and also to Attorney
General Derek Schmidt.
I also want to express the Tribe's appreciation to Senator Moran
and his staff, for their commitment and leadership on this vital matter
to the Tribe. And also, on the House side, to Congresswoman Jenkins and
her staff for all of their support and assistance.
Exhibit 1 are copies of Federal and State of Kansas letters
relevant to S. 2154.
Exhibit 2 are examples of copies of key local supporters of S.
Every Indian water settlement that comes to Congress is born of its
own unique circumstances. The Kickapoo Water Settlement bill is no
different. What makes this legislation, and the underlying Agreement
between the Tribe and the State, unique is that we are asking the
Congress to approve a water agreement evolving from a project the
Congress blessed 20 years ago through the Department of Agriculture's
Small Watershed Program.
The Kickapoo Tribe in Kansas has lived in northeast Kansas since it
entered into the 1832 Treaty of Castor Hill with the United States. In
a later treaty in 1854 the Tribe ceded over 600,000 acres of land to
the United States, retaining approximately 150,000 acres for our
Reservation. An additional cession of land took place in 1862, which
the Tribe opposed, opening our Reservation to allotment and
The Kickapoo Tribe was the first of three other Indian tribes in
northeast Kansas to compact with the state for their gaming operations
called the ``Golden Eagle Casino'', the largest employer in Brown
County. Economic development is the top priority for the Kickapoo
Tribe, to meet the growing needs of its community and to maximize its
economic resources for the benefit of tribal members. The Kickapoo
Tribe has a diverse workforce made up of over 130 professionals and
technical staff members. The day-to-day operations include issues with
environmental, health, road maintenance, compliance, financial, legal,
gaming, and planning community growth.
Drought is no stranger to our Reservation in northeast Kansas,
which is east of the 100th Meridian, often thought of as a dividing
line between the drier western United States and the wetter Midwest.
Governor Colyer issued a state-wide drought declaration in March of
this year, which is still in effect. And the Division of Water
Resources has notified water users in the Delaware River basin, where
our Reservation sits, of impending cutbacks.
Water, while being sacred to the Kickapoo, is an essential
cornerstone to a vibrant homeland. A dependable water supply is
essential for us to meet our present and future housing, economic
development, fire protection, and agricultural pursuits at the Tribal
farming enterprise. By virtue of its 1832 Treaty with the United
States, the Tribe possesses senior water rights under the Winters
doctrine, which implicitly reserved sufficient water from the Delaware
River and its tributaries to make the Reservation a viable, permanent
homeland for the Kickapoo people. \1\
\1\ The Winters doctrine is aptly named after the seminal reserved
water case Winters v. United States, 207 U.S. 564 (1908), reaffirmed in
subsequent Supreme Court decisions and followed by numerous lower
federal and state courts over the past century. See, generally, Cohen,
Felix, HANDBOOK OF FEDERAL INDIAN LAW (2012 Ed.), 19.03 at 1210-1227.
The Tribal community's drinking water needs are critical. The
Reservation sits on a rock formation blocking access to groundwater.
The only current water supply is the Delaware River, a modest sized
river and its tributaries that flow through the Reservation. We've
relied on a small dam and water treatment plant on the river, one that
we built with a small grant from the United States government in the
1970s. Over the years the dam and treatment plant have been repeatedly
repaired, but both structures are old and inadequate for the current
After construction of the small dam, pump house and treatment
system, in the mid-1970s, the Tribe wanted to embark on a larger scale
water development project. The Tribe sought the assistance of the
Bureau of Indian Affairs in the early 1980s, who sent us to the Soil
Conservation Service (SCS), which is now the Natural Resources
Conservation Service (NRCS). Under the SCS Small Watershed Program,
also known as the PL 83-566 Program, the Tribe in conjunction with a
local watershed district, four local conservation districts, the State
of Kansas, and SCS/NRCS, began in 1983 a decade long effort to design,
plan and seek congressional approval of a water storage project known
as the Upper Delaware and Tributaries Project. The centerpiece of the
Project was a multi-purpose storage project to be built on Plum Creek.
Plum Creek is a tributary to the Upper Delaware River. A federal
Watershed Agreement was executed by all the parties in 1994, following
a full NEPA Environmental Impact Statement review, and a final Record
of Decision issued by NRCS. Congressional authorization was secured for
the Plum Creek Project in 1996 by the Senate, and in 1998 by the House.
We have been told by NRCS' legal counsel that the USDA considers the
congressional authorization of the Project to still be valid. See
As a project sponsor, it is the Tribe's responsibility under the
PL-566 Program to secure two things--first, the land rights for the
Project, and, second, the water rights.
As for the land rights, the Tribe over the past decade has
purchased about 250 acres of land in the Plum Creek drainage--with its
own money--where the Project would be located. It will continue those
efforts, offering fair market value or land exchanges where possible.
Depending on the final size of the Project, the Tribe already owns over
half of the needed land.
As for the water rights, in September of 2016, after several years
of technical negotiations, the Tribe and the State of Kansas'
Department of Agriculture and Attorney General entered into the
Agreement that quantifies the Tribe's water right, and how that water
right is to be administered by the State on the Delaware River and its
tributaries. The U.S. Departments of Interior, Justice and Agriculture
were involved in the negotiation of the Settlement Agreement.
An important next step is to have Congress approve the Tribal-State
Settlement Agreement. By enacting S. 2154, and approving the Settlement
Agreement, the Congress:
Approves the water right of 4,705 acre feet per year as a
federal reserved water right;
Directs the federal Interior Department to execute the
Settlement Agreement and to carry out the terms of the
Agreement consistent with this Act;
Establishes the storage, seepage and evaporation components
of the Tribal water right;
Establishes the administration of the right by the State as
the senior water right in the river basin;
Establishes the Tribe's monitoring and reporting
requirements for water consumption on the Reservation;
Directs the Tribe to enact a water code that recognizes and
protects the interests of Kickapoo Tribal members who own
interests in allotted land on the Reservation, and who have an
interest in the water right;
Directs NRCS, in consultation with the Interior Department,
to commence a study of and make recommendations for alterations
to the Plum Creek Project to effectuate, in part, the Tribe's
Splits the waiver of claims by the Tribe against the United
States, consistent with the fact that S. 2154 does not
authorize the appropriations of funding to construct water
storage at the Plum Creek Project or anywhere else on the
Reservation, and consistent with a settlement agreement between
the Tribe and the United States in a tribal trust lawsuit
resolved in April of 2012;
As set out in more detail below, the Settlement Agreement
and S. 2154 are in compliance with the Interior Department's
1990 Criteria and Procedures, to the extent relevant, given the
unique nature of the Settlement Agreement;
S. 2154 does not authorize the appropriation of, or
appropriate funds, for a water storage project for the Tribe at
the Plum Creek Project site or elsewhere. Once reviewed by
NRCS, the Tribe contemplates the parties will come back to
Congress with recommendations for water storage and the costs
Though not relevant on the Senate side, the Tribe has been
cognizant of the ``Bishop'' process on the House side, and has
worked with Congresswoman Jenkins' office to engage the House
Natural Resources Committee staff on the unique, phased nature
of this settlement.
The Tribe, Its Membership and Its Reservation, and the Consequences to
the Tribal Community from a Lack of Access to a Dependable
The Tribe has an enrolled membership of 1,600, about 400 of whom
live on or near its 30 square mile Reservation in northeast Kansas. The
Tribe is organized under the Indian Reorganization Act of 1934, and its
government operates under a constitution approved by the Secretary of
the Interior in 1937. The Tribe was moved in the 19th century several
times by the United States government--from the Fox River Valley in
Wisconsin to multiple locations in Illinois, Missouri and Kansas--
pursuant to nine treaties spanning a fifty-year period between 1809 and
1862. \2\ See Exhibit 4. The Tribe has lived in its present territory
in Kansas since 1832, twenty-nine years prior to Kansas Statehood in
1861. See Exhibit 5.
\2\ See 7 Stat. 117 (1809); 7 Stat. 130 (1815); 7 Stat. 145 (1816);
7 Stat 200 (1819); 7 Stat. 202 (1819); 7 Stat. 208 (1820); 7 Stat. 391
(1832); 10 Stat. 1078 (1854); 12 Stat. 1249 (1862).
The Tribe presently holds equitable title to 4,859 acres, and fee
title to another 2,189 acres, of land within its Reservation boundaries
located within Brown County, Kansas. Tribal members own equitable title
to another 2,861 acres of allotted land. See Exhibit 6. Under Federal
law the underlying legal title to this land is held in trust for the
Tribe and its members by the United States.
The Tribe created the Kickapoo Housing Authority in 1966-67. The
federal Housing and Urban Development HUD awarded the Tribe and its
Housing Authority a grant to construct tribal homes in 1967-68. Prior
to that, our homes on the Reservation--about 20 in number--were served
through individual shallow wells at each home. These homes were
scattered throughout the Reservation on individual allotment lands.
The first housing project was developed on tribal lands, homes were
closer together and required a larger water supply. That first housing
project involved the construction of 40 homes. Second and third housing
projects followed in the next few years. Because the Tribe did not have
its own water source, it had to create a means to hook up to the City
of Horton's water supply, a distance of 5 miles from the housing
projects. This was a very expensive alternative, and was only viewed as
a stop-gap measure. It was the only viable alternative, since HUD would
not provide funding for housing without an assurance of water
The current Kickapoo Water Treatment Plant currently supplies water
to both Indian members and non-Indians--about 60 persons--who live
within Reservation boundaries. The Tribe operates its own Tribal
School--grades K through 12--and would like to supply water to this
facility, but is unable to supply the school with water from its own
The Tribe also provides basic fire protection to all Reservation
residents, both Kickapoo tribal members and non-Indians alike, under
mutual aid agreements executed with neighboring jurisdictions. The
Tribe's ability to do so, however, is limited by an unreliable water
supply. Reservation residents and numerous Tribal structures are in
constant danger. In March of 2005, an arsonist set a large fire on
Kickapoo lands, destroying 1,500 acres. Without the aid of neighboring
communities, a larger land area, including homes and other structures,
would likely have been destroyed due to the shortage of water.
Several housing and economic development opportunities for the
Kickapoo people have been lost over time because the Kickapoo Tribe
could not ensure that the Tribe's water works could meet their water
needs. Several years ago the Kickapoo Tribe was granted, but had to
reject, a 25-unit housing project awarded by the State of Kansas
Housing Resources Corporation due to the lack of a stable water source.
And a constrained water supply restricts economic development
opportunities on the Reservation, which in turn restricts the
prosperity of the Tribe and the Kickapoo people.
The Hydrology of the Kickapoo Reservation, and the Crippling Effects of
Drought and Drought Sensitivity
East of the 100th Meridian, the Delaware River in northeast Kansas
traverses the Kickapoo Reservation and benefits from more than 35
inches of precipitation annually, with a total average runoff for the
entire river of about 200,000 acre feet, about 60,000 acre feet of
which is annually available to the Reservation, about 8,750 acre feet
from the Plum Creek drainage alone. Unfortunately, despite its
location, drought and water shortage are not an unknown or unexpected
part of living in northeast Kansas. The Reservation faces off-again-on-
again drought conditions resulting in a continual challenge in
obtaining an adequate and reliable water source to meet the basic
health and sanitary needs of its residents. Indeed, northeast Kansas
including our Reservation has been identified by the Kansas Water
Office as a ``drought sensitive'' area of the State.
In 2003, for instance, the Delaware River and its tributaries were
completely without flow for over 60 days due to the severe drought
conditions in the Midwest. The Tribe was forced to severely ration
water and truck over 7,000,000 gallons of drinking water to the
Reservation. The Bureau of Indian Affairs provided the Tribe $186,000
for water-hauling assistance. The Tribe's commercial operations, as
well families and non-Indian residents, were forced to cut water
consumption by almost 60 percent. Droughts since 2003 continue to beset
the Tribe and its members.
In times of natural drought, such as that experienced in the summer
of 2003, the combined effect of the drought and the man-made
impoundments and other land treatment actions in the watershed have
caused the Upper Delaware River to run dry for long periods of time. A
generation ago and earlier the watershed was far more reliable for
meeting the Tribe's needs. Now the water shortages come with increasing
frequency, and are not just connected to drought events. Developments
upriver have altered the hydrology.
On a year-in and year-out basis, the Tribal Council has to issue
periodic notices to the customers served by its water company that the
system is in a shortage situation, and voluntary restrictions go into
effect. In the most challenging conditions the cutbacks are mandatory.
Indeed, in March of this year the Kansas Water Office announced that
the water rights above the Muscotah gage on the Delaware River were put
under State administration due to drought conditions in the watershed.
rpt_09_midjune2018_drought-- 061218_dk.pdf?sfvrsn=0 Governor Colyer
also issued a statewide drought declaration at the same time, which is
still in effect. See https://kwo.ks.gov/docs/default-source/drought/
The Kickapoo Tribe's Forty-Five Year Effort to Develop a Water Supply
under Federal Law
Water security is an essential element of tribal sovereignty, and
for more than 45 years the Tribe has been on a quest to achieve water
security and stability. Despite best efforts, the Tribe's long-term
goal of water security for itself and all Reservation residents has to
date fallen short.
In the mid-1970s the Tribe constructed its own rudimentary water
diversion, treatment and supply system with financial assistance from
the Federal government. In 1976-1977, the Tribe was awarded a grant
from what was then called the Economic Development Administration, or
EDA, of the U.S. Department of Commerce. The grant, in the amount of
$1.3 million, was for the construction of a low water impoundment dam
on the Delaware River, an intake and raw water pump station, water
treatment plant, distribution system, and sewage treatment plant. It
supplies water to both Indians and non-Indians alike who live within
the Reservation boundaries and within the reach of the delivery system.
See Exhibit 7.
The low water impoundment dam was developed as a temporary supply
measure to serve the Tribe until a larger, permanent reservoir could be
developed on the Reservation. A 1970s 25-year comprehensive plan for
Reservation growth and development, funded by a grant from the
Administration for Native Americans (ANA), of the U.S. Department of
Health and Human Services, revealed that the small project funded by
EDA would only be the first of several steps taken by the Tribe to
secure water for long-term needs. It also found that without
impoundment the surface water from the Delaware River system would not
meet long term water needs, and that the groundwater sources within our
Reservation boundaries were insufficient. \3\
\3\ The Indian Health Service and the BIA funded exploratory
investigations for groundwater at about that same time, which found
that there were no reliable sources of groundwater within the
Reservation boundaries. A similar study was conducted by the Kansas
Geological Survey in subsequent years, producing the same results.
Consequently, the Tribe has to rely exclusively on surface water for
tribal domestic and commercial needs.
Construction began on the EDA-funded dam and water treatment
facility in 1977, with completion in 1978. Then-Kansas Governor Bob
Bennett attended the ribbon-cutting ceremony. Given our Winters rights
to water, the Tribe appreciated that the State of Kansas never
challenged our diversion of water from the Delaware River into our
fledgling treatment plant and water delivery system.
At the same time, in 1978, the local watershed district--the Nemaha
Brown Joint Watershed District #7--submitted to the SCS a General Plan
for the development of the Upper Delaware River and Tributaries
Watershed for the development of various water storage, flood control,
soil erosion and land treatment activities. Kansas law required Nemaha
Brown to prepare their General Plan, in order to be eligible to secure
funding for water and soil conservation programs from the Kansas State
Conservation Commission. SCS also required the watershed district to
have an approved General Plan. See Exhibit 8.
The General Plan expressly mentioned the Tribe's fervent intent to
develop a municipal, commercial, industrial and fire protection water
supply for its Reservation. The Plan identified 5 possible sites within
the reservation for the development of a reservoir storage project. One
of those sites was on Plum Creek, a tributary to the Delaware; the
other four were on other Delaware tributaries. Id.
In the early 1980s the Tribe first learned of the federal PL-566
Small Watershed Program, funded and administered by SCS. The PL-566
Program law was amended by Congress in 1981 to enable Indian tribes for
the first time to become local sponsors of watershed development plans,
and to be eligible for funding from SCS for those purposes. Early on
the Tribe wrote SCS and inquired whether it could become a local
project sponsor under the PL-566 program. The Tribe was told it could
not be an exclusive sponsor, because it did not have jurisdiction over
the entire Delaware River watershed. Under Kansas law Nemaha Brown
shared responsibility for the watershed with the Tribe. Neither the
Tribe nor Nemaha Brown would have exclusive authority to operate
federal flood and soil erosion control programs in the Delaware River
watershed. Officials from the Tribe and Nemaha Brown then traveled to
Washington, D.C. together in February of 1983 to work out more of the
details of a joint sponsorship with SCS officials.
This led to the Tribe and Nemaha Brown formally creating a Joint
Watershed Board in 1983. Exhibit 9. The Agreement states that ``[i]t is
the understanding of the District and the Tribe that the goal of the
two local agencies is the ultimate construction of all needed
structures within the watershed.'' The Plum Creek project was one of
the key water storage projects contemplated by the parties to the Joint
Agreement. Both the SCS and the Kansas State Conservation Commission
officially endorsed the joint co-sponsorship agreement, as did then
Senator Nancy Landon Kassenbaum.
The Tribe was then able to secure $156,000 from the Bureau of
Indian Affairs to retain a Topeka engineering firm to conduct the
preliminary engineering analysis to initiate the PL 566 application
process. This was a highly unusual step for the BIA, to expend Indian
trust funds for the technical services of an engineering firm to be
used not only to benefit Indian reservation lands but also off-
Reservation, non-Indian interests. Ultimately, it enabled the Kickapoo-
Namaha Brown PL-566 application to receive priority ranking in the
1990s by SCS.
Between 1983 and 1994, the Tribe, the Namaha Brown and SCS analyzed
and selected viable sites for flood retention dams and related land
treatment activities to be part of the final Watershed Plan. Public
meetings sponsored jointly by the Kickapoo Tribe and Nemaha Brown were
held in 1990 and 1991 to explain the nature and scope of the project to
interested individuals and communities in Brown County. Those meetings
kicked off the formal EIS process under the National Environmental
Policy Act (NEPA).
In June of 1994, the Kickapoo Tribe entered into the Watershed
Agreement with the watershed district, four local conservation
districts, the State of Kansas Department of Agriculture, and the SCS
to jointly develop the Watershed Plan. The Agreement allowed cost-
sharing of flood control and water supply projects under the PL-566
Program. It set forth an express plan to control erosion, provide
drinking water and reduce flooding for the entire watershed, through
the construction of 20 small flood retention dams and one large, multi-
purpose water storage project, the Plum Creek dam and reservoir,
designed to provide a reliable long-term water supply for the Kickapoo
reservation. The Plum Creek Project was designed to be a 400 acre water
surface area and 1200 acre land area, multi-use reservoir that will
provide for sufficient water to meet the present and future needs of
the Kickapoo Reservation and its Indian and non-Indian residents. See
A notice of publication of the final EIS was published in the
Federal Register on May 13, 1994. See Exhibit 11. NRCS issued a Record
of Decision in 1994, approving the project's compliance with NEPA, and
recommending authorization by the Office of Management and Budget and
the Congress. See Exhibit 12. On June 30, 1994, the United States Army
Corps of Engineers (ACE) issued a 404 Clean Water Act permit--Permit
# DA-199401028--for the Plum Creek project to Nemaha Brown. Revised
special conditions for the permit to Nemaha Brown were issued by the
Corps of Engineers on October 16, 2002.
In 1998, the parties to the 1994 Watershed Agreement obtained final
Congressional authorization for the development of the Project,
including Plum Creek, under the Federal PL-566 program. See Exhibits 13
The Plum Creek storage project is the largest storage site on the
Reservation. It was designed in 1994 by NRCS to hold about 10,500 acre
feet of storage capacity, about 3,500 acre feet of which is for flood
control, and about 7,000 feet of which is for storage of water for
consumptive uses. The Plum Creek sub-drainage provides sufficient water
to fill a project of that capacity. On average, over the past 35-year
period of record, about 8,570 acre feet of water per year flows out of
Plum Creek into the Delaware River. In most years this will provide the
Tribe with a reliable source of water. Extended drought cycles may make
complete annual refill impossible year in and year out, and so the
project's storage will have to be managed with that in mind. There are
smaller storage project sites on the Reservation, and those also will
be kept in mind in future water planning efforts. But the Tribe does
not own as much of the land area at those smaller alternative sites.
Overview of the September 2016 Kickapoo Tribe Water Rights Settlement
The Water Right Settlement Agreement establishes the nature, extent
and characteristics of the Tribal Water Right and the respective
rights, duties and obligations of other parties to the agreement. Under
the Agreement, the Tribe may divert or redivert, as available, up to
4,705 acre-feet of water per year with a priority date of October 24,
1832 for any direct use for the Tribe. Domestic use by members and
allottees does not count against the Tribal Water Right. Kansas
domestic water rights are exempt from administration to protect the
Tribal Water Right. The Tribe may store in one or more reservoirs, for
the purpose of subsequent direct use, up to a combined volume of 18,520
acre-feet. The combined volume may be increased if seepage
characteristics of the reservoir or reservoirs requires. Direct use and
storage allowances of the agreement were determined based on municipal
build-out concept, using methods consistent with the Kansas law for
Kansas water users. See Exhibit 15.
The Settlement Agreement includes a Memorandum of Agreement which
establishes clear and transparent procedures for communication,
monitoring and protection of the Tribal Water Right. The MOA provides
for a process of annual reviews by the State and Tribe to insure it
remains current, especially as the Tribe develops storage.
Under the Settlement Agreement, the Kansas Department of
Agriculture--Division of Water Resources and the Chief Engineer have
the following responsibilities:
Agree to recognize the Tribal Water Right with a priority
date of October 24, 1832.
Review applications of Kansas water rights to ensure
prevention of injury to the Tribal Water Right and to provide
notice of applications to the Tribe.
Monitor the basin as prescribed in the Memorandum of
Respond to notices of impairment through evaluation and
administration, as needed.
Review annually, with the Tribe, the Memorandum of Agreement
to insure it remains appropriate as the Tribe develops its
demand and constructs storage.
Under the Settlement Agreement, the Kickapoo Tribe of Kansas has
the following responsibilities:
Construct and maintain dams and other water structures.
Provide the Chief Engineer copies of inspection reports and
notice of signification changes in construction and operation,
any structural problems of dams or reservoirs and proposed
remedies, and any serious problems such as dam failure.
Enact a Tribal Water Code.
Meter all diversion and annually report water use.
Provide additional data required by the Chief Engineer to
administer water rights to protect the Tribal Water Right.
Review annually, with KDA-DWR, the Memorandum of Agreement.
It is generally believed that the Delaware River Basin has
sufficient water supplies to satisfy the rights of the Kickapoo Tribe
without reducing the established water rights of Kansas water right
Key Provisions of S. 2154, Kickapoo Water Rights Settlement Legislation
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
SECTION 2. PURPOSES.--to approve and authorize the Kickapoo Tribe
Water Rights Settlement Agreement between the Tribe and the State.
Direct Interior and Agriculture Departments to execute the provisions
of the Agreement and the Act.
SECTION 3. DEFINITIONS.
SECTION 4.--authorizes, ratifies and confirms the Settlement
Agreement. Secretary of the Department of the Interior directed to
execute the Agreement. Key provisions of the Agreement affecting the
Department and the U.S. include:
approval of tribal water code [Article 6],
monitor State administration of state water law in the
Delaware River Basin [Article 7],
publish findings in the Federal Register when all conditions
necessary for completion of the Agreement have been fulfilled
waivers and release of claims [Article 12],
Compliance with all federal laws, no exceptions of waivers.
SECTION 5. KICKAPOO TRIBE WATER RIGHTS.--tribal water rights
confirmed and held in trust, allottee due process protections, tribal
water code to allocate and administer tribal water rights to allottees
and members, Secretarial approval of tribal water code.
SECTION 6. EFFECT OF KICKAPOO TRIBE WATER RIGHTS SETTLEMENT
AGREEMENT AND ACT.--does not affect the State's administration of state
water rights, does not affect the ability of the U.S. to enforce
federal law, does not affect ability of U.S. to fulfill obligations as
trustee to other tribes or allottees, does not confer jurisdiction on
state courts, enforceability date.
SECTION 7. WATER FACILITIES.--NRCS PL-566 Small Watershed Program
and Upper Delaware River Watershed Plan. Congressional approval in 1996
and 1998, authorizing a water storage project for the Tribe. Study and
make recommendations to Congress to possibly alter plan to effectuate,
in part, the Tribal water rights.
SECTION 8. WAIVER AND RELEASE OF CLAIMS; RETENTION OF CLAIMS.--
Tribe and the U.S. waive claims to water rights, Tribe waives claims
against U.S. for failure to establish water rights, but not damages
resulting from failure to establish, quantify, acquire, develop,
enforce or protect such water rights. See Exhibit 16.
SECTION 9. JUDICIAL PROCEEDINGS.--on enactment of Act, proceedings
to bind all water rights in the Delaware River Basin to the Agreement
and the Tribe's water rights, so that Kickapoo water rights become
SECTION 10.--MISCELLANEOUS PROVISIONS.--limited waiver of immunity,
other tribes not affected, limitation on claims for reimbursement,
nothing affects current law, no use of condemnation or eminent domain.
Compliance with the Federal Criteria and Procedures for the
Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Rights Claims
The Kickapoo Settlement is consistent with the United States'
responsibility as trustee to Indians, and will secure to the Tribe the
right to use and obtain benefits from Reservation water resources, thus
ensuring that the Tribe will receive equivalent benefits for claims it
will waive as part of the settlement. The settlement resolves all
outstanding Kickapoo water right claims, quantifies a tribal right to
4,705 acre-feet for all present and future needs on the reservation,
and does so while creating a mechanism for administering the tribal
water right vis-a-vis the established water rights of Kansas water
right holders, thereby creating a framework that will encourage long-
term cooperation among local water interests, the State, the Tribe and
the United States. The settlement includes a process that will specify
who may use the tribal water right, where, and under what conditions.
Finally, this settlement is a crucial and long-awaited step towards
achieving a permanent tribal homeland promised to the Kickapoo Tribe in
the treaties and agreements ratified by Congress in in the 19th century
that serve as the foundation of the relationship between the Tribe and
the United States.
The Tribe doesn't disagree that as a general proposition the
Federal Criteria and Procedures for the Participation of the Federal
Government in Negotiations for the Settlement of Indian Water Rights
Claims, 55 FR 9223-01 (C&Ps) provide important guidance to the
Department in settling Indian reserved water rights, which involve
claims by the Tribe and third parties, and necessarily involve the
Department as trustee. And the Tribe doesn't disagree that the C&Ps
have a role to play in the implementation of S.2154, once enacted. But,
as in all things, context matters. Behind S. 2154, and the Settlement
Agreement it approves, is an extraordinarily long history of struggle
by the Tribe to attain water security and equity in the Delaware River
watershed, with the knowledge of the Interior Department and the Bureau
of Indian Affairs, but without the trustee's involvement, until very
recent years. This struggle included the resolution of legal claims in
an expensive federal court lawsuit brought by the Tribe to which the
United States was a party. Key representatives of the Interior,
Agriculture and Justice Departments, as well as water engineering
consultants, played an integral role in the resolution of the
litigation and the negotiation of the Settlement Agreement.
By letter dated April 6, 2018, the Interior Secretary's Indian
Water Rights Settlement Office notified the Tribe of its appointment of
a federal negotiation team under the C&Ps. See Exhibit 17. The team's
formal appointment (though the members of the team have not all been
identified as of the date of the writing of this testimony) at this
point in the settlement process represents another unique aspect of
this Settlement. S. 2154 is a settlement of the Tribe's water right and
the myriad details concerning administration of the right in the
Delaware River watershed. It was negotiated and signed by the Tribe and
the State in September of 2016. The Tribe does not see the utility of a
federal negotiation team in relation to the Settlement Agreement that
S. 2154 approves, with one exception. As noted below in relation to
criteria #4, however, Section 7 of S. 2154 contains a key direction to
the Natural Resources Conservation Service to study and make
recommendations to Congress for changes and improvements to the
previous watershed plan authorized by Congress in 1998 that included a
multi-purpose storage project on Plum Creek, a tributary to the
Delaware River. The federal negotiation team will most certainly play
an instrumental role in that process, and it should include as a team
member an official from the Kansas office of the NRCS.
Notably, the settlement does not include a Federal financial
contribution. Instead, it is focused on the Federal government's
programmatic responsibilities, including assistance by the Bureau of
Indian Affairs (BIA) to work with the SCS/NRCS to fulfill storage needs
promised in the early 1990s. The Settlement and this Act resolve some
but not all of the Tribe's damages claims against the Federal
government, as explained earlier. Importantly, the Settlement provides
resolution to a primary tribal claim against the federal government,
that of the failure to secure and protect the federal reserved water
rights of the tribe in a basin that has seen considerable federal
investment on private lands (but not on the Tribe's trust lands).
An important component of the settlement involves progress towards
development of storage. The SCS now NRCS completed a study in the mid-
1990s of a proposed storage project on Plum Creek that was found to be
economically feasible and consistent with federal guidelines at the
time. S. 2154 directs NRCS, the Tribe and the Interior Department to
revisit the 1994 Plan and make recommendations to Congress for further
The following is a description of how the process employed to
settle the Tribe's water rights complies with the Criteria and
1. The Criteria and Procedures are applicable to all negotiations
involving Indian water rights claims settlements.
The Criteria and Procedures are applicable as the Tribe and the
United States government seek to quantify reserved Indian water rights
through a negotiated framework.
2. The Department of the Interior will support legislation
authorizing those agreements to which it is a signatory party.
The Department of Interior is not yet a signatory party to the
Kickapoo Global Settlement Agreement (``Agreement''). However, it has
participated actively through the negotiations that have been an
outgrowth of the Tribe's lawsuit. The Department cannot become a party
to the settlement agreement until authorized to do so by Congress via
3. Settlements should be completed in such a way that all
outstanding water claims are resolved and finality is achieved.
The Agreement will resolve all the outstanding Kickapoo water
claims on the Delaware River and its tributaries that flow through the
Kickapoo Reservation. The Settlement Agreement secures the water rights
of all the water users in the Delaware River Basin vis-a-vis the
Kickapoo rights, and creates a mechanism for administration of all
federal and state water rights.
The Agreement outlines the Tribe's allocation, use, timing and
potential locations of use.
Finality respecting the Tribal Water Right is achieved through the
Agreement. In doing so each party thereby agrees to abide by its terms.
The Tribe has agreed to waive all claims against state law based water
users and the United States Government relating to the water rights the
Agreement recognizes, in exchange for federal legislation approving the
Agreement and directing the Secretaries of Interior and Agriculture to
effectuate the terms of the Agreement.
4. The total cost of the settlement to all parties should not
exceed the value of the existing claims as calculated by the Federal
The Settlement Agreement does not authorize appropriations and
therefore this C&P element is not relevant at this stage. As explained
earlier in this testimony, Congress in 1996 and 1998 authorized the
Delaware River Project, subject to the availability of appropriations,
under the authority of the PL-566 Small Watershed Program. Following
receipt of recommendations from the Natural Resources Conservation
Service per Section 7 of S. 2154, the Tribe will ask Congress to take
up the funding authority and mechanism at that time. It is possible
that the appropriations process may proceed through the agriculture
committees of the House and Senate, as would occur under the PL-566
5. Federal contributions to a settlement should not exceed the sum
of the following two elements, (1) United States liability if the
claims were litigated and if the case is lost; federal and non-federal
exposure in present value based on the size of the claims, value of the
water, timing of the award, and likelihood of loss and (2) additional
costs related to federal trust or programmatic responsibilities
(justification for why such contributions cannot be funded through the
normal budget process)
See #4, above. This criteria is not relevant to S. 2154 and the
6. Settlements should include non-Federal cost-sharing
proportionate to the benefits received by the non-federal parties.
See #4, above. This criteria is not relevant to S. 2154 and the
7.Settlements should be structured to promote economic efficiency
on reservationsand tribal self-sufficiency.
The Tribe, the State of Kansas and the United States have
negotiated a unique settlement that works to promote efficient use of
the water resources of the Delaware River in northeast Kansas, and
thereby promoting economic development on the Kickapoo Reservation,
tribal self-sufficiency, and the economy of northeast Kansas.
For over 40 years the Tribe has been working to secure an adequate
and clean water supply. During this time the Tribe has conducted
various studies regarding economic development projects, housing
developments, public safety requirements and community development
projects. The studies consistently demonstrate a need for a reliable
water supply to be successful.
Currently, the Tribe has a need for increased housing on the
Reservation. However, the Tribe has been limited in its ability to
build homes, in part because it does not have an adequate water supply
necessary for housing developments. The Agreement will provide for
sufficient water for the Tribe to build homes for members. The same
holds true for economic develop enterprises on the Reservation.
In addition, the water supply will increase public safety on the
Reservation. The Reservation has been subjected to fires, which have
threatened Tribal member's homes and the Reservation's natural
resources. An adequate water supply will assist the Tribe in achieving
its fire safety goals.
8.Operating capabilities and various resources of the Federal and
non-Federalparties to the claim negotiations should be considered in
structuring a settlement.
Throughout the multi-year process of negotiations the parties--
Tribal, State and Federal--have built strong relationships with one
another that have fostered a willingness to achieve a positive
settlement. Each party has contributed its unique resources to the
Agreement. During the negotiation process the parties' strengths and
weakness were considered and each party contributed to the Agreement in
a complimentary manner. The final Agreement is a manifestation of each
party's contribution to the Agreement.
9.The U.S. shall not bear any obligations or liability regarding
the investment,management or use of such funds.
See #4, above. This criteria is not relevant to S. 2154 and the
10.Federal participation in Indian water rights negotiations should
be conducive tolong-term harmony and cooperation among all interested
parties through respect for the sovereignty of the of the States and
tribes in their respective jurisdictions.
The Tribe appreciates the relationships it established with the
other negotiating parties through this process. In particular, the
Tribe appreciates the closer ties it's developed with the State
Department of Agriculture, Attorney General, and Congressional
delegation on water related matters. These closer ties build stronger
channels of communication on other substantive topics.
Moreover, the terms of the Agreement facilitate long-term harmony
among all the signatories through providing stability by securing the
parties water rights. The Agreement also provides detailed processes
for implementing the provisions of the Agreement. Through the process
of agreeing to the rules, all the parties carefully considered their
obligations in the Agreement. As a result, all the parties are aware of
their obligations and have willingly accepted such obligations. This
provides for long term harmony and stability among the water users on
the Delaware River.
11.Settlements should not include a list of provisions,
See #4, above. These criteria are not relevant to S. 2154 and the
12-14. Specific cost/financial considerations.
See #4, above. These criteria are not relevant to S. 2154 and the
15.Settlement agreements should include the following standard
language: FederalFinancial contributions to a settlement will normally
be budgeted for, subject to the availability of funds, by October 1 of
the year following the year of enactment of the authorizing
See #4, above. This criteria is not relevant to S. 2154 and the
16.Settlements requiring the payment of a substantial Federal
contribution shouldinclude standard language providing for the costs to
be spread-out over more than one year.
See #4, above. This criteria is not relevant to S. 2154 and the
The Settlement and proposed legislation do not include financial
authorizations for claims already settled by Congress. The claims that
will be settled have a legal basis, have not been previously resolved
by Congress, and were not settled in prior cases against the United
States. The Settlement carries over damages claims not waived in an
earlier, 2012 Settlement Agreement between the Tribe and the United
States. See Exhibit 16. The Settlement does not resolve additional
claims against the United States brought by the Tribe; the legal
assessment, and potential financial contribution of the United States
to their resolution, are forthcoming and not included as part of this
Thank you again for convening this hearing on S. 2154. It is a
unique piece of legislation driven by unique circumstances. It is
important that Congress act now to approve the Kickapoo Water Right
Settlement Agreement through the enactment of this Act, to enable these
sovereign entities, with assistance from the United States, to continue
to build on the momentum gained in the Agreement and the Act. Indian
water settlements typically are built in increments, and this is no
different in that respect.
INDEX OF EXHIBITS*
Exhibit No. Description
1 Federal and State of Kansas letters
relevant to S. 2154
2 Examples of key local supporters of S. 2154
3 April 8, 2016 Letter from Deputy Regional
Attorney of USDA to Steven Moore Regarding
authorization of the Watershed Plan
4 Map of Former and Present Kickapoo Lands
5 1832Treaty with the Kickapoos
6 Current Map of Tribal and Allotted Land
7 Small Tribal Dam, Delaware River and Water
Treatment Facility Photos
8 General Plan, Upper Delaware and
Tributaries, Nemaha -Brown Watershed Joint
District, July 1978
9 Nemaha- Brown-Kickapoo Joint Watershed
10 Jan. 1994 Watershed Plan and Environmental
Impact Statement (EIS) for Upper Delaware
and Tributaries Watershed (Atchison,
Brown, Jackson, and Nemaha Counties,
11 Notice of Publication of Final EIS in
Federal Register, May 13, 1994
12 1994 Record of Decision: Upper Delaware and
Tributaries Watershed (Atchison, Brown,
Jackson, and Nemaha Counties, Kansas)
13 1996 Final Senate approval for the
development of the Project, including Plum
Creek, under the Federal PL-566
14 1998 Final House approval for the
development of the Project, including Plum
Creek, under the Federal PL-566
15 Sept. 2016 Final Settlement Agreement
between Kickapoo Tribe and State
16 Joint Stipulation of Settlement between
Defendants (Salazar, Secretary of the US
Interior) and Kickapoo Tribe of Kansas
(Apr. 11, 2012)
17 April 6, 2018 Letter from Interior
Secretary to Kickapoo Tribe notifying
Tribe of its appointment of a federal
negotiation team under the C&Ps
**The Exhibits have been retained in the Committee files and are
available at https://www.narf.org/nill/documents/
The Chairman. Thank you, Chairman.
STATEMENT OF JOHN TUBBS, DIRECTOR, MONTANA DEPARTMENT OF
NATURAL RESOURCES AND CONSERVATION
Mr. Tubbs. Chairman Hoeven, Vice Chairman Udall, and
distinguished members of this Committee, thank you for the
opportunity to appear in front of you today in support of S.
I am John Tubbs, Director of the Department of Natural
Resources and Conservation for the State of Montana. Governor
Bullock sends his greetings. Today, I appear on behalf of the
State of Montana and the Western States Water Council.
My Department is made up of four divisions: Forestry; Trust
Lands; Conservation and Resource Development; and, most
relevant to this hearing, Montana's Water Resource Division.
This topic today, water settlements, is very near and dear
to my heart. I have worked on settlements for 30 years. Under
President Obama, I was proud to serve as Deputy Assistant
Secretary for Water and Science with the U.S. Department of the
In 1979, the Montana Legislature established the Montana
Reserved Water Rights Compact Commission as part of the
comprehensive State-wide adjudication process to negotiate
settlements with Montana's tribal Nations and Federal agencies
claiming reserved water rights within the State of Montana.
Montana has eighteen compacts settling reserved water
rights within our borders, including our seven reservations.
These negotiations were massive undertakings, and Montana is
very proud that it was able to secure positive results, as well
as avoid protracted and costly litigation.
Just last month, Governor Bullock, Secretary Zinke and
Blackfeet Tribal Chairman Barnes executed the Blackfeet Water
Rights Settlement that will enable clean drinking water and
irrigation projects to go forward. As you know, the
Confederated and Salish and Kootenai Tribes have a water
settlement bill that is on deck. Thank you, leaders of this
Committee, for giving these matters the time and attention they
The State of Montana and Western States Water Council
supports any effort to provide a stable and appropriate funding
source for water rights settlements. Of course you are aware
that previously the Western States Water Council asked the
Administration and the Congress to fully appropriate the
receipts and collections accruing to the Reclamation Fund
subsequent to the Reclamation Act and other acts for their
intended purpose of continuing conservation, development and
wise use of resources to meet western water-related needs.
In regard to S. 3168, Montana and the Western States Water
Council support this effort to make the Reclamation Water
Settlement Fund permanent. Congress, and this Committee in
particular, has made impressive efforts to move water rights
settlement bills, and it makes good sense for future water
settlement dollars to be assured.
Montana and the Western States are committed to continuing
to work cooperatively with the Department of the Interior and
the Bureau of Reclamation to meet our present water needs in
the West, and those of future generations, within the framework
of State water law, as envisioned by President Roosevelt and
the Congress in 1902.
I am happy to be here in support of S. 3168 and stand ready
to answer any questions you may have related to this testimony.
[The prepared statement of Mr. Tubbs follows:]
Prepared Statement of John Tubbs, Director, Montana Department of
Natural Resources and Conservation
Chairman Hoeven, Vice Chairman Udall, and distinguished members of
this Committee, thank you for the opportunity to appear in front of you
today in support of S. 3168.
I am John Tubbs, Director of the Department of Natural Resources
and Conservation for the State of Montana. Governor Bullock sends his
greetings. Today I appear on behalf of the State of Montana and the
Western States Water Council.
My Department is made up of four divisions: Forestry; Trust Lands;
Conservation and Resource Development; and, most relevant to this
hearing, Montana's Water Resource Division. This topic today--water
settlements--is very near and dear to my heart. Under President Obama,
I was proud to serve as Deputy Assistant Secretary for Water and
Science with the U.S. Department of the Interior.
The 1979 Montana Legislature established the Reserved Water Rights
Compact Commission as part of the comprehensive state-wide adjudication
process to negotiate settlements with Montana's tribal nations and
federal agencies claiming reserved water rights within the State of
Montana. Montana has eighteen compacts settling reserved water rights
within our borders--including our seven reservations. These
negotiations were massive undertakings, and Montana is very proud that
it was able to secure positive results, as well as avoid protracted and
costly litigation. Just last month, Secretary Zinke and Blackfeet
Tribal Chairman Barnes executed the Blackfeet Water Settlement that
will enable clean drinking water and irrigation projects to go forward.
As you know, the Confederated and Salish and Kootenai Tribes have a
water settlement bill that is on deck. Thank you, leaders of this
Committee, for giving these matters the time and attention they
The State of Montana and Western States supports any effort to
provide a stable and appropriate funding source for water settlements.
Of course you are aware that previously Western States asked the
Administration and the Congress to fully appropriate the receipts and
collections accruing to the Reclamation Fund subsequent to the
Reclamation Act and other acts for their intended purpose of continuing
conservation, development and wise use of resources to meet western
In regard to S. 3168, Montana and Western States support this
effort to make the Reclamation Water Settlement Fund permanent.
Congress, and this Committee in particular, has made impressive efforts
to move water settlement bills, and it makes good sense for future
water settlement dollars to be assured.
Montana and Western States are committed to continuing to work
cooperatively with the Department of Interior and the Bureau of
Reclamation to meet our present water needs in the West, and those of
future generations, within the framework of state water law, as
envisioned by President Roosevelt and the Congress in 1902.
I am happy to be here in support of S. 3168 and stand ready to
answer any questions you may have related to my testimony.
RESOLUTION of the WESTERN STATES WATER COUNCIL regarding the THE
RECLAMATION FUND--Rohnert Park, California--June 29, 2017
WHEREAS, in the West, water is indeed our ``life blood,'' a vital
and scarce resource the availability of which has and continues to
circumscribe growth, development and our economic well being and
environmental quality of life--the wise conservation and management of
which is critical to maintaining human life, health, welfare, property
and environmental and natural resources; and
WHEREAS, recognizing the critical importance of water in the
development of the West, the Congress passed the Reclamation Act on
June 17, 1902 and provided monies ``reserved, set aside, and
appropriated as a special fund in the Treasury to be known as the
`reclamation fund,' to be used in the examination and survey for and
the construction and maintenance of irrigation works for the storage,
diversion, and development of water for the reclamation of arid and
semiarid land. . .'' in seventeen western states, to be continually
invested and reinvested; and
WHEREAS, then President Theodore Roosevelt stated, ``The work of
the Reclamation Service in developing the larger opportunities of the
western half of our country for irrigation is more important than
almost any other movement. The constant purpose of the Government in
connection with the Reclamation Service has been to use the water
resources of the public lands for the ultimate greatest good of the
greatest number; in other words, to put upon the land permanent
homemakers, to use and develop it for themselves and for their children
and children's children. . .;'' \1\ and
\1\ State of the Union Address, 1907.
WHEREAS, the Secretary of the Interior was authorized and directed
to ``locate and construct'' water resource projects to help people
settle and prosper in this arid region, leading to the establishment of
the Reclamation Service--today's U.S. Bureau of Reclamation; and
WHEREAS, western states and the Bureau of Reclamation have worked
in collaboration to meet the water-related needs of the citizens of the
West, and protect the interests of all Americans, recognizing changing
public values and the need to put scarce water resources to beneficial
use for the ``ultimate greatest good of the greatest number;'' and
WHEREAS, the Bureau of Reclamation has facilities that include 338
reservoirs with the capacity to store 245 million acre-feet of water,
irrigating approximately 10 million acres of farmland that produce 60
percent of the nation's vegetables and 25 percent of its fruits and
nuts, as well as providing water to about 31 million people for
municipal and industrial uses, while generating more than 40 billion
kilowatt hours of energy each year from 53 hydroelectric power plants,
enough to serve 3.5 million households, while providing 289 recreation
areas with over 90 million visits annually, and further providing flood
control, and fish and wildlife benefits; and
WHEREAS, project sponsors have and continue to repay the cost of
these facilities, which also produce power receipts that annually
return some one billion in gross power revenues to the federal
government, prevent millions in damages due to floods each year, and
supports over $45 billion in economic returns and supporting over
344,000 jobs; and
WHEREAS, the water and power resources developed under and flood
control provided by the Reclamation Act over the last century supported
the development and continue to be critical to the maintenance of
numerous and diverse rural communities across the West and the major
metropolitan areas of Albuquerque, Amarillo, Boise, Denver, El Paso,
Las Vegas, Los Angeles, Lubbock, Phoenix, Portland, Reno, Sacramento,
Salt Lake City, Seattle, Tucson and numerous other smaller cities; and
WHEREAS, western States are committed to continuing to work
cooperatively with the Department of Interior and Bureau of Reclamation
to meet our present water needs in the West and those of future
generations, within the framework of state water law, as envisioned by
President Roosevelt and the Congress in 1902; and
WHEREAS, according to the Administration's FY 2018 request actual
and estimated receipts and collections accruing to the Reclamation Fund
are $ 1.969 billion for FY 2016, $1.475 billion for FY 2017, and $1.528
billion for FY 2018, compared to actual and estimated appropriations of
$996 million for FY 2016, $ 1 billion for FY 2017, and $878 million for
FY 2018 and as a result the unobligated balance at the end of each year
respectively is calculated to be $15.133 billion, $15.608 billion and
$16.308 billion; and
WHEREAS, this unobligated balance in the Reclamation Fund continues
to grow at an increasing rate from an actual balance of $5.67 billion
at the end of FY 2006, to the estimated $16.308 billion by the end of
FY 2018, over a 187 percent increase; and
WHEREAS, under the Reclamation Act of 1902, the Reclamation Fund
was envisioned as the principle means to finance federal western water
and power projects with revenues from western resources, and its
receipts are derived from water and power sales, project repayments,
certain receipts from public land sales, leases and rentals in the 17
western states, as well as certain oil and mineral-related royalties--
but these receipts are only available for expenditure pursuant to
annual appropriation acts; and
WHEREAS, with growing receipts in part due to high energy prices
and declining federal expenditures for Reclamation purposes, the
unobligated figure gets larger and larger, while the money is actually
spent elsewhere for other federal purposes contrary to the Congress'
NOW THEREFORE BE IT RESOLVED, that the Western States Water Council
asks the Administration and the Congress to fully appropriate the
receipts and collections accruing to the Reclamation Fund subsequent to
the Reclamation Act and other acts for their intended purpose in the
continuing conservation, development and wise use of western resources
to meet western water-related needs--recognizing and continuing to
defer to the primacy of western water laws in allocating water among
uses--and work with the States to meet the challenges of the future.
BE IT FURTHER RESOLVED, that such ``needs'' may include the
construction of Reclamation facilities incorporated as part of a
Congressionally approved Indian water right settlement.
BE IT FURTHER RESOLVED, that the Administration and the Congress
investigate the advantages of converting the Reclamation Fund from a
special account to a true revolving trust fund with annual receipts to
be appropriated for authorized purposes in the year following their
deposit (similar to some other federal authorities and trust accounts).
RESOLUTION of the WESTERN STATES WATER COUNCIL in support of INDIAN
WATER RIGHTS SETTLEMENTS--Albuquerque, New Mexico--
October 20, 2017
WHEREAS, the Western States Water Council, an instrumentality of
eighteen western states advising Western Governors on water policy, has
consistently supported negotiated settlement of disputed Indian water
rights claims; and
WHEREAS, the public interest and sound public policy require the
resolution of Indian water rights claims in a manner that is least
disruptive to existing uses of water; and
WHEREAS, negotiated quantification of Indian water rights claims is
a highly desirable process which can achieve quantifications fairly,
efficiently, and with the least cost; and
WHEREAS, the advantages of negotiated settlements include: (i) the
ability to be flexible and to tailor solutions to the unique
circumstances of each situation; (ii) the ability to promote
conservation and sound water management practices; and (iii) the
ability to establish the basis for cooperative partnerships between
Indian and non-Indian communities; and
WHEREAS, the successful resolution of certain claims may require
``physical solutions,'' such as development of federal water projects
and improved water delivery and application techniques; and
WHEREAS, the United States has developed many major water projects
that compete for use of waters claimed by Indians and non-Indians, and
has a responsibility to both to assist in resolving such conflicts; and
WHEREAS, the settlement of Native American water claims and land
claims is one of the most important aspects of the United States' trust
obligation to Native Americans and is of vital importance to the
country as a whole and not just individual tribes or States; and
WHEREAS, the obligation to fund resulting settlements is analogous
to, and no less serious than the obligation of the United States to pay
judgments rendered against it; and
WHEREAS, Indian water rights settlements involve a waiver of both
tribal water right claims and tribal breach of trust claims that
otherwise could result in court-ordered judgments against the United
States and increase costs for federal taxpayers; and
WHEREAS, current budgetary pressures and legislative policies make
it difficult for the Administration, the states and the tribes to
negotiate settlements knowing that they may not be funded because
either they are considered earmarks or because funding must be offset
by a corresponding reduction in some other expenditure, such as another
tribal or essential Interior Department program;
NOW, THEREFORE, BE IT RESOLVED, that the Western States Water
Council reiterates its support for the policy of encouraging negotiated
settlements of disputed Indian water rights claims as the best solution
to a critical problem that affects almost all of the Western States;
BE IT FURTHER RESOLVED, that the Western States Water Council urges
the Administration to support its stated policy in favor of Indian land
and water settlements with a strong fiscal commitment for meaningful
federal contributions to these settlements that recognizes the trust
obligations of the United States government; and
BE IT FURTHER RESOLVED, that Congress should expand opportunities
to provide funding for the Bureau of Reclamation to undertake project
construction related to settlements from revenues accruing to the
Reclamation Fund, recognizing the existence of other legitimate needs
that may be financed by these reserves; and
BE IT FURTHER RESOLVED, that Indian water rights settlements are
not and should not be defined as Congressional earmarks; and
BE IT FURTHER RESOLVED, that steps be taken to ensure that any
water settlement, once authorized by the Congress and approved by the
President, will be funded without a corresponding offset, including
cuts to some other tribal or essential Interior Department program.
The Chairman. Thank you, Director Tubbs.
Now we will start with five minute rounds of questioning.
My first question would be for Chairman Pickernell. It
sounds like an interesting project. You have this distillery
project. Can you talk a bit about the benefits it will provide
in terms of jobs, economic impact, what your product is, and
how you plan to sell it and so forth? Can you tell us a bit
more about that?
Mr. Pickernell. The plan for the distillery is to work in
junction with a restaurant, a fine dining restaurant. One half
will be a fine dining restaurant and the other half will be a
working distillery with a glass partition where people can
The first phase is the construction. That is going to bring
probably 100 jobs to the surrounding communities and tribal
members. After construction, we plan to have 30 to 40 full-time
positions as permanent positions to fill that business.
The Chairman. What will you distill, whiskey?
Mr. Pickernell. I believe it is bourbon.
The Chairman. Will that be provided at the restaurant?
Mr. Pickernell. No, it will be distributed as well.
The Chairman. Distributed as well.
Mr. Pickernell. Correct.
The Chairman. Mr. Mikkelsen, I have a question for you
regarding the Vice Chairman's bill, S. 3168. Can you tell us a
bit about how extending the Reclamation Water Settlement Fund
would benefit tribes and other stakeholders? Can you also talk
a bit about the cost as well?
Mr. Mikkelsen. Thank you, Mr. Chairman.
There is roughly $2.6 billion authorized by Congress in
recent years for Indian water rights settlements. That is not
an indexed number; that is the actual.
The Chairman. Two billion dollars billion for how long?
Mr. Mikkelsen. Two point six billion dollars that you have
authorized here in Congress for water rights settlements. That
number, obviously, does not include anything in the pipeline
right now. We believe, with some of the settlements mentioned
here, that there is probably roughly another $5 billion worth
of settlements currently in the pipeline.
I would also note that we have 22 settlements we are
negotiating across the Country right now in addition to the 32
that have been approved by Congress. Those 22 include some of
those approaching congressional authorization and congressional
action here. That is included in that $5 billion figure I am
I would also add that currently roughly 12 percent of
Reclamation's current budget goes toward Indian water rights
settlements. We are going to have to have a discussion with the
Committee and the Hill on where we are going in the future to
fund all of these settlements.
The Chairman. Right. That is why I am trying to understand
what we have authorized and what the outstanding total is
pending in water settlements. That is what I am trying to get
at. You were getting at it but I am not sure I got the totals.
How much is authorized versus how much is pending?
Mr. Mikkelsen. You have authorized, at this point, about
$2.66 billion. That is not an indexed number; that is the
actual number you authorized. You have appropriated roughly
about $1.6 billion out of what you have already authorized that
still has to be appropriated.
The Chairman. How much is outstanding in terms of what has
been approved for funding?
Mr. Mikkelsen. There is about $1.6 billion that is
outstanding of currently authorized projects.
The Chairman. So $1 billion is covered, $1.6 billion is
authorized, yet unfunded?
Mr. Mikkelsen. Yes, $2.6 is authorized and about $1.6
billion is still outstanding.
The Chairman. I am trying to understand, does that include
all of the water rights agreements that have been approved?
Mr. Mikkelsen. The number we are talking about here is just
authorized, currently authorized.
The Chairman. Already currently authorized?
Mr. Mikkelsen. Already currently authorized.
The Chairman. Not anything we are looking at authorizing?
Mr. Mikkelsen. That is correct.
The Chairman. Thank you.
Vice Chairman Udall.
Senator Udall. Thank you very much, Mr. Chairman.
How many Indian water rights settlements are Interior and
DOJ currently negotiating across the Country? I think you said
the number of teams across the Country is 22?
Mr. Mikkelsen. We are working on 22 settlements right now.
We actually have 21 Federal negotiation teams and one
assessment team out there right now, Senator.
Senator Udall. The Navajo Utah legislation will cost
upwards of $200 million. The Hualapai settlement will also end
up somewhere in that range. The CSKT settlement from the last
Congress will possibly cost more than $2 billion. That is just
three settlements, isn't that correct?
With that in mind, what is the total estimated cost of all
those settlements that are still in the middle of negotiations,
at least in the billions?
Mr. Mikkelsen. Roughly $5 billion.
Senator Udall. Your estimate does not even include costs,
overruns or inflation, correct?
Mr. Mikkelsen. That is correct.
Senator Udall. Could you estimate the percentage of Bureau
of Reclamation's budget that goes toward Indian water rights
Mr. Mikkelsen. It is currently roughly about 12 percent.
Senator Udall. Do you envision that percentage to grow as
more settlements are agreed upon?
Mr. Mikkelsen. The Reclamation budget has become a major
contributor to Indian water rights settlements so I would have
to say the answer to that is yes.
Senator Udall. Your testimony states ``The Reclamation
Settlement Fund is already spoken for through 2029.'' What
happens when the fund expires? How would Reclamation look to
cover the shortfall moving forward?
Mr. Mikkelsen. I would say we are looking forward to the
opportunity that this bill affords us to discuss how to address
the issue in the future. We do look forward to working with you
Senator Udall. Basically, the answer is yes to the
question. It is all spoken for and we do not have a good plan
for moving forward. Basically, I think that is what you are
saying. I am not asking for a response.
Mr. Mikkelsen, I would just like to say for the record that
I find it very difficult, knowing the current funding
constraints we face in Congress, to fund these Indian water
rights settlements solely through discretionary spending.
This Administration and Congress have said they are
committed to Indian water rights settlements versus costly
litigation. However, we need that commitment tied to a true
financial commitment. I look forward to working with you on
this Indian water rights funding mechanism.
The Chairman. You mentioned 12 percent of the BOR budget
goes to Indian water rights settlements. Do you know how much
Mr. Mikkelsen. Yes, sir. It is basically $120 million a
year right now out of $1 billion.
Senator Udall. That is the total. You deposit the money in
the Treasury and every year Treasury is not allowed to spend
any more than $120 million, is that correct?
Mr. Mikkelsen. That is correct.
The Chairman. In addition to any other appropriated funds
though, or is that total?
Mr. Mikkelsen. That is in a discrete fund. The Bureau of
Indian Affairs also contributes to these settlements.
The Chairman. That is in addition to what we appropriate
separately for these agreements, correct or not?
Mr. Mikkelsen. Some of it is mandatory and some of it is
The Chairman. That was my question.
Senator Udall. Mr. Tubbs, under my proposed legislation,
there are at least 11 States, predominantly in the West, who
would be eligible for the Bureau of Reclamation funding to
plan, design or construct a water project.
Please explain how implementing prompt, quality Indian
water rights settlements clarify water issues for surrounding
Mr. Tubbs. In four words: increased certainty, reduced
risks. It increases certainty for those communities and reduces
risk. Any water rights settlements are part of the statewide
water rights system. As a reserved right, they are not
quantified until negotiated. They remain a large uncertainty
for State-based water rights holders as well as the tribal
Only through negotiated settlements, because we do not
think litigation is a good idea, are we able to quantify those
water rights. When we do, it is permanent. We need a permanent
funding solution to go with the permanent settlement.
The tribes are being asked to sign, in our settlements, a
waiver that all litigation will be settled by the passage of
these Acts. A permanent fund to go with that level of
commitment by the United States is, I think, an appropriate
measure as well as the Reclamation Fund being the appropriate
Senator Udall. Mr. Tubbs, what is the benefit of supporting
a permanent fund to encourage Congress-approved Indian rights
settlements or agreements versus litigation? I think you
touched on a little bit of that. As you know, I think you have
been around a while, as Senator Tester said, some of these
pieces of litigation can go on for 40 years. We have had one in
New Mexico for more than 40 years.
You have the tribe and all the surrounding communities with
uncertainty. Is that correct?
Mr. Tubbs. That is correct. It is substantial. Right now,
we have two that have not seen Federal settlement, the CSKT and
the Ft. Belknap in our State.
Should those go into litigation, you are absolutely
correct. There would be decades of uncertainty where the
quantification of those water rights would be based on an
objection process by individual water right owners.
They would all have to hire their own attorneys. Each
municipality would have to represent their interests. The State
of Montana would have to be in the fight as well as well as the
sovereign tribe and the United States.
The settlement packages bring all of that together in one
large negotiation. It is cost effective. It also addresses the
future needs of not only the tribal communities, but often the
non-tribal interests around those tribal communities. Both
sides benefit greatly.
Bottom line, from a water rights perspective, we need
certainty. Through Federal settlement, we can get that. The
Reclamation Fund needs to be there to fund the investments
necessary to garner that certainty.
Senator Udall. There is very little certainty when you have
Mr. Tubbs. Right now, the Blackfeet was the most recent one
that was fully executed and signed off by the Secretary this
year. It needs to be funded by 2025. That is over $400 million
Congress needs to appropriate.
I think you and your colleagues would appreciate having a
safe harbor for meeting the settlement of a legal claim against
the United States as opposed to a discretionary allocation
within your tight budgets
Senator Udall. Thank you so much, Mr. Chairman.
The Chairman. Senator Moran.
Senator Moran. Mr. Chairman, again, thank you for hosting
this hearing. Thank you for scheduling it on a day when I could
Let me direct my questions to Chairman Randall. First of
all, Chairman, you heard the testimony of the Department of the
Interior. In your testimony, you complimented the cooperation
you had from the Department of the Interior and others in
reaching this settlement agreement that would be confirmed by
What role did Interior play in those negotiations? When you
thanked them for their involvement, what was that involvement?
Mr. Randall. We did thank them. There were several agencies
involved in this, the State, Ag, Justice and the Department of
the Interior. I think the involvement could probably be better
answered by Steve Moore, our lawyer. Mr. Chairman, do you mind
if Steve Moore comes and answers some of this question?
The Chairman. Mr. Moore.
Mr. Moore. Thank you, Mr. Chairman and Senator Moran.
As Mr. Tubbs alluded, settlement negotiations involving
Indian water rights span several years, involve technical and
legal analysis, complex technical and legal analysis.
The Chairman. Would you state your name and position for
the record, please?
Mr. Moore. Steven Moore, an attorney with the Native
American Rights Fund in Colorado. I represent the Kickapoo
Senator Moran. Mr. Moore, my question to the chairman,
which you can help answer, is we are appreciative of the
Department of the Interior participating in these discussions
that resulted in this split settlement. But today, they
testified they oppose the legislation that approves the
settlement they apparently participated in the negotiations of.
What is the disconnect here? What is missing?
Mr. Moore. I think from the tribe's standpoint, Senator,
the disconnect is a rigid application of the Interior
Department criteria and procedures to a water settlement that
has been negotiated as an outgrowth of the development of a
project under the USDA Small Watershed Program.
There are important elements of the criteria and procedures
that would benefit the remaining negotiation aspects between
the tribe, the State and NRCS. Section 7 of S. 2154 provides
that mechanism by directing NRCS to convene a consultation
process with Interior, the tribe and the State, bring us back
to the table, reevaluate and resize the project that was
authorized now 20 years ago by both the House and the Senate
after full NEPA review. That was a 20-year process the tribe
Now we are 20 years hence. We are going to need a
supplemental EIS. We need to resize the project in the
watershed and then do a cost analysis. The way the tribe would
like to proceed under congressional directive is that would be
Phase II under Section 7 of S. 2154.
However, right now let us approve the water right, lock it
in, provide certainty to the State and the water users in the
Delaware River Watershed, provide certainty to the tribe, and
not potentially risk losing all the gains we have made in
quantifying the water right.
We want Congress to confirm and then we would begin that
process in Federal court in Kansas of binding all the few water
users in the Delaware River Watershed to the water right. These
things are done incrementally by tribes and States in the
We have had great cooperation with the United States, but
we find ourselves, ironically, here today trying to lock in
that water right and then move on with NRCS and complete the
process under the Small Watershed Program.
We do find it is very ironic that the Interior Department
cannot come to the hearing today and support this process. We
feel as though Interior is bound by their obligation to their
own criteria and procedures. Their criteria and procedures do
not bind USDA and the Small Watershed Program process.
Senator Moran. If I can, Mr. Chairman, let me follow up.
You described, in a sense, that we are locking in the water
right and then we can proceed to determine how we are going to
best use that water right in storage and application. What
would be the consequence of waiting until all those other
issues were resolved before locking in the water right?
If this legislation does not become law and we fail to
accomplish that, then the tribe is sent back to do more I guess
to meet the criteria and procedures of the Department of the
Interior but in the period of time in which the tribe has to do
that, what are we losing in the absence of passage of this
legislation? What would be the detriment?
Mr. Moore. The absolute detriment to the tribe, to the
State of Kansas and its administrative scheme, is that we risk
the water right that has now been fully negotiated would be
second-guessed by later administrations, State, Federal,
tribal, and then the water right is lost.
If we lose all of the gains we have made to date on the
water right, we could end up having to start over completely.
The testimony of the State of Kansas makes abundantly clear
that the State is 100 percent behind S. 2154 and the
congressional approval of the water right. The State of Kansas
has been wonderful to work with, their legal and technical
There is tremendous risk, tremendous downside to not
approving the water right now. There is no downside to
Senator Moran. When the chairman outlined the long history
of this issue and this project, it almost makes you nauseous to
think of all the steps that have been necessary over such a
long period of time. To be so close now to getting at least a
significant portion of this issue behind us, it would be, in my
view, a terrible mistake to let that opportunity pass.
This issue has been around as long as I have been a public
official. It would be nice to see the opportunities that Kansas
and the tribe have created, with the support of Agriculture and
to some degree, Interior, completed while that opportunity now
It would be a terrible loss if we have to re-litigate these
issues one more time with a different set of State officials,
Federal officials or tribal officials.
Mr. Chairman, thank you very much.
The Chairman. Thank you.
STATEMENT OF HON. STEVE DAINES,
U.S. SENATOR FROM MONTANA
Senator Daines. Thank you, Chairman Hoeven and Vice
I want to welcome a couple of Montanans to the Committee.
John Tubbs from Helena serves as our State's Director of the
Department of Natural Resources and Conservation. Welcome,
I would also welcome Alan Mikkelsen, Senior Advisor to the
Secretary of Interior for Water and Western Resource Issues and
also Chair of the Working Group on Indian Water Settlements at
the Department who is from St. Ignatius but I believe is now
based in Colorado.
You are also a part-time fly fishing guide. I am sure you
would rather be out on a stream as the water has now cleared
up, versus being here. I am grateful you both are here. Thank
I also want to echo your sentiments, Mr. Tubbs, that water
rights settlements are preferable to resolving water rights
claims via litigation. I went to school at Montana State to get
an engineering degree. I did not go to the University of
Montana to get a law degree because you need some great lawyers
but it is also really expensive when it comes time to litigate.
It is certainly the less costly and preferred option. The
settlements also provide more certainty for tribes as well as
other water users across Montana.
I would like to focus today on Vice Chairman Udall's Indian
Water Rights Settlement Extension Act. I very much appreciate
the Vice Chairman's intention here. Indian water rights
settlements, like the Blackfeet settlement, need to be funded
in a very timely manner. Unfortunately, discretionary
appropriations are trickling in quite slowly.
I have continued to make the charge to the Department of
the Interior to request more funding for the Blackfeet water
rights settlement so that Congress can fund it by the 2025
enforceability date. As we all know, there has been a lot of
work to get it to this point.
I am conscious, however, of the Indian Water Rights
Settlement Extension Act's impact on the deficit as it would
authorize $120 million in new mandatory spending every year
from 2030 onward in perpetuity. Overall, I am interested to
learn more about this legislation.
Mr. Mikkelsen, if this legislation were enacted, how would
the department prioritize disbursal of the newly authorized
funds, meaning for fiscal years 2030 and beyond, after the
projects specified in the underlying law are complete?
Mr. Mikkelsen. Thank you, Senator Daines.
As you noted, the settlement fund is likely to be expended
funding priority settlements and the department has not yet
developed prioritization criteria given the time horizon in
which the Settlement Fund will be fully expended.
Senator Daines. I have a follow-up question, Mr. Mikkelsen.
As additional water rights settlements are ratified by Congress
would they then be able to be funded by the Reclamation Water
Settlements Fund if permanently extended as this bill proposes?
Mr. Mikkelsen. Yes. Any authorized Indian water rights
settlement would be eligible. The answer to your question is
Senator Daines. Thank you.
I want to switch now to Mr. Tubbs. Would you agree that
this proposed change to current law is unlikely to benefit the
Blackfeet water rights settlement since it has to be funded by
2025, four years before the current authorization for the
Reclamation Water Settlement Fund is set to expire?
Mr. Tubbs. I would agree that should Congress actually come
through and get the appropriations done, having watched
Congress over the decades, I do want to work with you and make
sure we do get to that by 2025 so that this fund is available.
If I may, I would mention one other point of clarification
I think would be useful to the Committee. While I believe the
Reclamation Fund is the appropriate source of funding for these
types of settlements, the burden is placed on Reclamation
because, as you know, Reclamation is separated from the
Department of the Interior in the appropriations process to its
own grouping, not allowing the full girth of the agency to come
Within your processes on the congressional side, you are
limiting the issue to the Reclamation side of the appropriating
committees. The Interior side of the committees is not dealing
with this under the budget cap issues you face. It really
places Reclamation, the agency, in harm's way that even though
this benefits all of the Interior agencies and often other
agencies like Agriculture and the Army Corps of Engineers, the
burden in the budget cap process is falling strictly on
I think that is a distinction worthy of this Committee's
Senator Daines. Thank you. I am out of time but you just
highlighted another reason why we are in desperate need of
reforming our budgeting and appropriating processes in terms of
authorizing committees, appropriations committees, the funds
and agencies and so forth. That is another topic for another
Thank you, Mr. Tubbs, for that comment.
The Chairman. Thank you, Senator Daines.
Vice Chairman Udall, did you have additional questions?
Senator Udall. I have one additional question.
Chairman Randall, in New Mexico we have had some years like
the one we are in where we have had very limited snow pack in
the mountains and thus very little water for downstream
communities. Then we had a good year or two and a long stretch
of persistent drought.
This, along with devastating wildfires, has especially
strained our watersheds and water resources but we have been
working on a number of water settlements that are critically
important for the tribes and surrounding communities.
It is important that they have water security in times of
drought. Negotiating the settlements is not always easy. As we
say in the West, whiskey is for drinking and water is for
fighting. It is a good start and I believe we must continue to
do our part as the Federal Government to pay our fair share.
Chairman Randall, the question I have is how will securing
permanent funding to implement Indian water settlements help
tribes like Kickapoo better adapt to a changing environment?
Mr. Randall. Even though at this time we are not asking for
the appropriations part, it is detrimental to every tribe. As
tribal leaders, we all talk about how important water is to our
As for our tribe, speaking for my tribe only, I have a
bunch of kids back home watching this because we have to work
on our future. Without the future, there is no tribe. Without
the funding, what Mr. Tubbs said they are trying to do for the
tribes is great.
Without the water, we always say, the Indian way, water is
life. That is what we believe. Water is sacred to us. Without
the funding for the water settlements, it would be detrimental
to all the tribes and even the surrounding communities.
In the surrounding communities like ours, we have just as
many non-members using our water as we do. It affects everyone
around us. I hope that answered your question a little bit.
Senator Udall. That was very good.
Mr. Chairman, after hearing all this testimony today, the
questioning and contributions by Senators, I would like to say
in our bill, 3168, we are trying to bring certainty, as Mr.
Tubbs said, to the process.
What ends up happening is when you have the authorization
ending in 2029, all of these people are out in the field
negotiating. We have water settlements that have gone on.
Giving certainty allows communities to move forward and
negotiate settlements and allows them to bring certainty for
tribes, non-Indian communities and surrounding or nearby
I think I want to make really clear and note for the record
that my bill is outside the ten-year scoring window. Therefore,
the bill will not score. What we are trying to do is help
Reclamation, help the tribes and everyone in this process
understand there is going to be dollars there. If you do a
settlement, there are going to be dollars there to take care of
Thank you very much.
Mr. Randall. I would definitely say we support John Tubbs'
Mr. Tubbs. Mr. Chairman, if I may. Mr. Mikkelsen suggested
there are 22 settlements being negotiated with a potential cost
of around $5 billion, one of the largest being the Confederated
Salish and Kootenai settlement that is fully engaged at
Interior and Mr. Mikkelsen.
At $120 million per year, one of the certainties that is
improved is the tribal governments are competing with each
other with a deadline of 2029 when the money runs out. You are
actually pitting tribes against tribes on who gets on first. If
it was possible to extend that so there was enough certainty
beyond 2029 and tribes could see their future within that
allocation, I think you would give certainty to tribal
Senator Udall. Thank you very much for that comment.
The Chairman. The hearing record will be open for two
I want to thank all the witnesses for their time and
Also, before we adjourn, I want to take a moment to
personally thank two our Committee staffers who will be
leaving, Ken Rooney, who served as counsel for Senator Udall's
staff, and Hanna Beyer, who served on my staff as our
Committee's press secretary.
Both have served the Committee with distinction and we wish
them well in their future endeavors. We thank them for all
their hard work.
With that, our hearing is adjourned. Again, thank you.
[Whereupon, at 4:13 p.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Burke W. Griggs, Special Assistant Attorney
General, State of Kansas
Good afternoon, Chairman Hoeven, Vice Chairman Udall, Senator
Moran, and the other members of the Committee. I am Burke Griggs,
Special Assistant Attorney General for the State of Kansas and
associate professor of law at Washburn University, where I teach
natural resources law. Between 2014 and 2016, I served as the State's
Counsel of Record in the settlement negotiations that produced the 2016
Kickapoo Tribe Water Rights Settlement Agreement (``Agreement''), the
first reserved water rights settlement in Kansas history. I am here
today on behalf of the State of Kansas (``State'') to testify in
support S. 2154, a bill to approve the Agreement. On behalf of former
Governor (and now Ambassador) Sam Brownback, Governor Jeff Colyer,
Attorney General Derek Schmidt, Jackie McClaskey, Secretary of the
Kansas Department of Agriculture, David W. Barfield, Chief Engineer of
the Kansas Division of Water Resources (DWR), and Tracy Streeter,
Director of the Kansas Water Office, I am pleased to write that the
State fully and enthusiastically supports S. 2154. By effecting the
Agreement in statute, S. 2154 will establish certainty for all water
rights owners in the Delaware River Basin of Kansas and clarify the
protection of those rights in times of water shortage.
The State expresses its gratitude and respect for the Kickapoo
Tribe (``Tribe''), Chairman Randall, and their counsel, who have all
worked tirelessly to achieve the Agreement. That work has produced a
relationship of mutual trust between the State and the Tribe. The State
would also like to express its gratitude to the Tribe's federal
representatives at the Departments of Justice and the Interior, who
have provided valuable expert assistance to both the Tribe and the
State as they worked through the technical and procedural requirements
of the Agreement. Finally, the State expresses its gratitude to Senator
Moran and his staff for their commitment and leadership on this matter,
and to Representative Jenkins and her staff for their assistance as
My testimony consists of five sections. Section I provides
background to the Tribe's reserved water right, the Tribe's ongoing
efforts to secure necessary water-supply infrastructure, and the
litigation and negotiation which together produced the Agreement.
Section II summarizes the Agreement and its effect upon Kansas water
rights upstream and downstream of the Reservation. Section III
summarizes S. 2154, which approves, authorizes, and ratifies the
Agreement. Section IV briefly explains how S. 2154 complies with the
1990 Criteria and Procedures for approving tribal reserved water rights
A. The Tribe's Reserved Water Right in the Delaware River Basin and
Kansas Water Law
The Tribe's ancestral homelands are in the Fox River Valley of
Wisconsin, but the United States removed the Tribe south and west
between 1809 and 1862, from Illinois to Missouri and finally to Kansas.
The Tribe's equitable title to land within the present boundaries of
Kansas dates to 1832, when the Tribe signed the Treaty of Castor Hill,
which established a reservation bestriding the Missouri River in
northeast Kansas and northwest Missouri. Subsequent treaties in 1854
(the same year as the Kansas-Nebraska Act) and 1862 (the same year as
the Homestead Act) dramatically reduced the size of the original
reservation. The present Kickapoo Reservation (``Reservation'')
encompasses thirty square miles in Brown County, Kansas. Of that, the
Tribe holds equitable title to 4,589 acres and fee title to 2,189
acres; tribal members own equitable title to another 2,681 acres of
allotted land. Non-Indian successors in title to Indian allottees own
the remainder of the acreage within the boundaries of the Reservation.
The Reservation is located within the uplands of the Delaware River
Basin (``Basin'') in northeast Kansas, a part of the state that is
generally lacking in substantial groundwater supplies. \1\ Unlike
nearby communities such as Topeka, which can access both surface and
groundwater, the Tribe is dependent upon the river alone. As set forth
more extensively in the testimony of Chairman Randall, the Tribe has
faced chronic and severe water shortages due principally to periods of
drought, diversions by holders of Kansas water rights upstream
(including watershed dams), and, paradoxically, conservation practices
such as field terracing. As Kansas irrigators and other water users
seek out localized supplies of surface water and groundwater in the
Basin, their diversions threaten to diminish surface flows even
further. Given the Tribe's water supply situation and present levels of
water rights development in northeast Kansas, establishing the Tribe's
water right has become an important matter for both sovereigns.
\1\ T. J. TROMBLEY et al., OVERVIEW OF WATER RESOURCES IN AND NEAR
INDIAN LANDS IN NORTHEASTERN KANSAS AND SOUTHEASTERN NEBRASKA, U.S.
GEOLOGICAL SURVEY WATER-RESOURCES INVESTIGATIONS REPORT 96-4070 (1996).
As this Committee well knows, Native American tribes are entitled
to substantial water rights under federal law. Under the Supreme
Court's decision in Winters v. United States, 207 U.S. 564 (1908) and
its progeny, the Court has repeatedly held that tribes possess implied
federal reserved water rights with attributes necessary to ensure that
the Reservation is a viable homeland for the Tribe in perpetuity.
Pursuant to what has become known as the ``Winters Doctrine,'' this
federal, implied, and reserved water right has two principal
attributes: a priority date of October 24, 1832--the date of the Treaty
of Castor Hill, which established the Tribe's homeland in Kansas--and
of sufficient quantity to satisfy all present and future water uses for
the Reservation's purposes, including the various irrigation, domestic,
municipal, industrial, and cultural uses of water. Due to their nature
as implied, reserved rights, Winters rights are presently perfected and
immune from abandonment.
But declaring that a right exists is a far piece from enjoying its
benefits; and the Winters Doctrine generally presents two formidable
burdens. The first burden is borne principally by a tribe--that of
transforming the bare legal rights afforded it under Winters into wet
water and water-supply infrastructure. The second burden is borne by
the tribe, the United States, and the relevant state together--that of
integrating a federal reserved water right into long-established state-
law based systems for water rights administration. Because most
reservations across the western United States exist in areas that are
severely over-appropriated--that is, there are far more state-law based
water rights than there are water supplies to satisfy both those rights
and federal reserved rights-most tribal reserved water rights
litigation in the West has taken the form of basin-wide water rights
adjudications in state court, which have generally proven to be
difficult, expensive, and contentious proceedings. \2\
\2\ For example, the Gila River Adjudication in Arizona has
produced the largest and longest judicial proceeding in the history of
Arizona, and among the most complex in American history. See Joseph M.
Feller, The Adjudication that Ate Arizona Water Law, 49 ARIZ. L. REV.
405 (2007). Recent major water rights adjudications, such as the Big
Horn Adjudication in Wyoming (1997-2014) and the Snake River Basin
Adjudication in Idaho (1987-2014), took decades to resolve nearly half
a million dispersed state and federal claims into approximately 150,000
decreed water rights. The Snake River decree alone runs 275,000 pages.
And these are the successful ones.
Fortunately, the Tribe and the State have managed to avoid many of
the hydrological and legal pitfalls of a typical reserved water rights
proceeding. Hydrologically, the Basin is located in the relatively wet
(albeit drought-prone) region of northeast Kansas; as a consequence,
the recognition and effectuation of the Tribe's Winters right should
not fundamentally disrupt statelaw based water rights. I can state this
with confidence, because under the Kansas Water Appropriation Act
(KWAA), K.S.A. 82a-701 et seq., Kansas enjoys a legal regime that is
well-suited to integrating the Tribe's federal reserved rights with
state-law water rights, generally according to the prior appropriation
doctrine. Under the KWAA, all non-domestic uses of water in the State
have been permitted and quantified since 1945 under a centralized
administrative system led by the Chief Engineer of DWR, with
jurisdiction over both surface and groundwater statewide. Since 1978,
the KWAA has required annual water-use reporting for all non-domestic
rights. These permitting and reporting requirements have provided
water-usage data enabling the State and the Tribe to work through the
contours of the Tribe's Winters right within a legally well-defined
waterscape of existing property rights--and to accommodate that right
while establishing certainty and security for all state water rights in
B. Efforts by the Tribe and State parties to secure land and water
infrastructure under The NRCS's Small Watershed Program
Like many tribes across the West, the Tribe began to seek support
for its water needs during the 1970's. However, it pursued these
efforts through a program that no other tribe has employed: the United
States Department of Agriculture-National Resources Conservation
Service's Small Watershed Program, also known as the P.L. 83-566
program. Starting in 1983, the Tribe and the Nemaha-Brown Counties
Watershed Board formed a Joint Watershed Board, which worked with four
local conservation districts, the State, and NRCS to develop a
Watershed Plan. The Watershed Plan envisioned an extensive system of
small flood-retention dams across the Basin and five larger, multi-
purpose reservoirs, four which could serve tribal lands. The largest of
those four was to be sited on Plum Creek, a tributary of the Delaware,
and was designed to provide a long-term water supply for the Tribe as
part of the Upper Delaware and Tributaries Project (``Project''). Over
the next ten years, the Project underwent full review under the
National Environmental Policy Act (NEPA), which produced an
Environmental Impact Statement (EIS) that was approved via a Record of
Decision by the NRCS in 1994. The United States Army Corps of Engineers
issued a Clean Water Act Section 404 permit that same year, amending it
in 2002. In 1997, the parties to the Joint Watershed Plan obtained
Congressional authorization enabling further review of the Project. \3\
\3\ Senate Report 105-13, April 22, 1997.
The State is hopeful that the Tribe can develop its necessary water
infrastructure through the P.L. 83-566 Program, but also recognizes
that the Tribe, as the sponsor of the project, bears responsibility for
seeing the project through.
C. Litigation, Negotiation, and Agreement, 2006-2017
Despite the cooperation and progress achieved by the Joint
Watershed Board between 1983 and 1998, disputes began to emerge
regarding the issue of land acquisition for Plum Creek Reservoir--
including the issue of whether the Tribe could force the State to
condemn land necessary for its construction. In 2006, the Tribe sued
the Bureau of Indian Affairs and the State, requesting that they
condemn such land and recognize the Tribe's Winters water right. \4\
For the next several years, the litigation proceeded along two
different paths: a contentious dispute over land acquisition between
the Tribe and the Brown-Nemaha Board, and a generally cooperative
effort concerning the recognition of the water right issue. (The State
has never challenged the existence of the Tribe's Winters right, and
has protected the Tribe's existing water-supply infrastructure since
1978.) The Federal District Court for the State of Kansas resolved the
land issue in 2014; as set forth more fully in Chairman Randall's
testimony, the Tribe has taken full responsibility for acquiring the
necessary land for its reservoir through voluntary purchases from
willing sellers, and has acquired 250 acres so far. In the wake of the
court's resolution of the land issue, the State and the Tribe agreed to
suspend active litigation and devote their full attention to
negotiating the details of the Tribal Water Right. After two years of
cooperative technical and legal negotiations, the Tribe and the State
signed the Agreement on September 8, 2016. Following the execution of
the Agreement, the parties filed a joint stipulation of dismissal
without prejudice, and the court dismissed the case without prejudice
in February, 2017.
\4\ Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas
vs. Bruce I. Knight et al., No. 06-CV-2248-CMTJJ (D. Kan., 2006-2017).
II. The 2016 Kickapoo Tribe Water Rights Settlement Agreement
A. The Principal Elements of the Agreement
The Agreement integrates the recognition and operation of the
Tribal Water Right in harmony with the established legal and
administrative structures of the KWAA, while preserving the Tribe's
autonomy over the ownership, use, and governance of the Tribal Water
Right. The Agreement establishes the nature, extent, and attributes of
the Tribal Water Right as well as the respective rights, duties, and
obligations of the Tribe and the State. Please allow me to summarize
the five most important components of the Agreement from the State's
First, there is the Tribal Water Right itself, as fully described
in Article 5 of the Agreement. The two most important attributes of the
Tribal Water Right are its priority and its authorized quantities of
annual diversion and overall storage. The Agreement recognizes the
priority date of the Tribal Water Right as October 24, 1832--the date
of the Treaty of Castor Hill, which makes this right by far the oldest
recognized water right in the State, predating Kansas statehood by
nearly thirty years. The Tribe may divert up to 4,705 acre-feet of
water annually, for any direct use by the Tribe. The Tribe is also
authorized to store up to a combined volume of 18,520 acre-feet in any
year, in one or more reservoirs, to support this direct use. This
combined volume may be increased if the seepage losses from reservoir
storage exceed current estimates memorialized in the Agreement. These
authorized quantities of the Tribal Water Right were determined based
on a municipal build-out concept, treating the Tribe's water needs as
essentially similar to that of a growing municipality in eastern
Kansas. Water resources engineers for both the State and the Tribe
agreed that, given the Tribe's planned water uses, this method is
superior to the default method of quantifying reserved water rights for
tribes according to the ``practically irrigable acreage'' method that
predominates in other reserved water rights proceedings. \5\ Because
Kansas is a prior appropriation state and the Tribe holds a federal
reserved right that is also the senior water right in the Basin, the
Agreement presents no takings issues under the United States or Kansas
\5\ See, e.g., Arizona v. California, 373 U.S. 546, 600-01 (1963).
Second, Article 5 sets forth other rights and duties of the Tribe.
Importantly, the Agreement recognizes the Tribe's right to market its
water to non-Indians for irrigation and any other beneficial uses
recognized under the KWAA, including off-reservation uses, provided
that the Tribe provides notice and an opportunity for hearing to the
Chief Engineer. The Tribe has full responsibility to construct and
maintain its water-supply infrastructure to federal standards; it must
provide the Chief Engineer with copies of inspection reports for and
significant changes to that infrastructure. In the event of any
structural problems or failures, the Tribe must provide prompt or
immediate notice to DWR, as the situation requires. The Tribe must
account to the State for all use of the Tribal Water Right; it must
also meter all of its diversions and report its annual water usage to
DWR, and provide any additional data necessary to administer Kansas
non-domestic water rights in times of shortage. The Agreement contains
standard forms to enable consistent and prompt communication of this
Third, Article 6 of the Agreement requires the Tribe to enact a
Tribal Water Code within three years after the date of enactment of
federal legislation approving the Agreement--ideally, S. 2154, in this
session of Congress. The Tribal Water Code must provide the following:
a governance and permitting system for all uses of the Tribal Water
Right, including storage; that allocations of water to allottees and
members of the Tribe shall be satisfied with water from the Tribal
Water Right; due process protections for allottees and members of the
Tribe regarding individual allocations for irrigation rights; and full
administrative procedures for subsequent changes to such allocations.
Notably, the Agreement does not limit the ability of allottees and
members to obtain additional state-law water rights under the KWAA,
provided, of course, that water is available and that they comply with
the statutory and administrative requirements of the KWAA. Such state-
law, individually-granted water rights are not to be counted against
the Tribal Water Right.
Fourth, Article 7 of the Agreement sets forth the procedures by
which the State, through the Chief Engineer, shall protect the Tribal
Water Right. The Chief Engineer shall review all subsequent
applications for any new Kansas water rights and for changes to
existing Kansas water rights to ensure that they do not impair the
Tribal Water Right. As part of that review, the Chief Engineer shall
provide notice to the Tribe and to the United States, and grant a
hearing if either the Tribe or the United States shows that the
approval of such an application could impair the Tribal Water Right.
Article 7 fully incorporates a subsidiary agreement, a Memorandum of
Agreement (MOA), to protect the Tribal Water Right by administering
non-domestic Kansas water rights during times of water shortage. The
MOA is a necessary part of the Agreement, because the Tribe's present
use of water under the Tribal Water Right is relatively small; but as
the Tribe builds out water-supply infrastructure to the full capacity
of that right, DWR's administration of Kansas water rights will evolve
accordingly. Thus, the MOA contains detailed procedures for monitoring
stream conditions and protecting the water supplies stored at the
Tribe's existing low-head dam, as well as for future storage at the
proposed Plum Creek Reservoir. Because of these evolving water-supply
dynamics, the State and the Tribe are required to review the MOA on an
annual basis, to ensure that it remains appropriate as the Tribe
develops new water demands and constructs additional storage. Notably,
the Agreement expressly forbids the administration of Kansas domestic
water rights, and it also recognizes the ``no injury rule,'' which
states that the Chief Engineer will not administer non-domestic Kansas
water rights when such administration would not reduce the impairment
of the Tribal Water Right.
Article 7 of the Agreement and the MOA fully integrate the senior
Tribal Water Right into a set of procedures for protecting all water
rights in Kansas in harmony with KWAA, while respecting the
jurisdictional boundaries between the State and Tribal sovereigns. Both
the Tribe and the State recognize that communication and cooperation
are essential to the protection of the Tribal Water Right.
Finally, Articles 10 through 12 set forth the terms by which the
Agreement will realign the parties to the 2006-2017 lawsuit. Article 10
requires the original complaint in the 2006-2017 lawsuit to be amended,
to add as new defendants all Kansas water rights holders in the Basin.
This provision will enable these holders to review, participate in, and
be bound by the terms of the Agreement. At the same time, Article 10
also requires the dismissal of Chief Engineer Barfield from the 2006-
2017 lawsuit (a dismissal that has since occurred). Article 11 realigns
the United States from defendant to plaintiff, so that it can claim
legal title for the Tribal Water Right and equitable title in the same
on behalf of the Tribe; it also requires the dismissal of the Director
of the Bureau of Indian Affairs from the lawsuit (a dismissal that has
also since occurred). Under Article 12, the Tribe, in return for the
State's recognition of the Tribal Water Right, waives any future claims
to federal reserved water rights other than the Tribal Water Right;
waives any claims for past damages for water shortages caused by a lack
of recognition of the Tribe's pre-Agreement, unquantified Winters
right; and waives all claims against the State relating to the 2006-
2017 lawsuit. None of these provisions are effective until the bill (or
a subsequent equivalent) is enacted into law. Once enacted, the Federal
District Court for the State of Kansas retains jurisdiction to enforce
the Agreement and its enabling legislation.
B. Kansas Water Rights affected by the Agreement
During times of shortage, when the Tribe is unable to meet its
direct demands or when storage is below target levels, the Tribe may
request the administration of non-domestic Kansas upstream water
rights. At this time, these non-domestic rights are few and relatively
small: they include 2 irrigation rights, 4 industrial rights, 2
recreational rights, and storage rights for 23 sediment-control small
watershed dams. These watershed dams will be required to bypass
inflows, but will not be required to release water that has already
been stored. And in any case, the no-injury rule applies: the Chief
Engineer will not administer these Kansas water rights if he determines
that administration would be futile--that is, if he determines that
curtailing them will not result in additional water being made
available for the Tribal Water Right.
As the Tribe builds out its own water infrastructure to fully
develop the Tribal Water Right, the Tribe will use and store water that
formerly flowed downstream. However, few water rights are immediately
downstream of the Reservation. Moreover, the maximum drainage area
anticipated to be controlled by the Tribe's reservoir storage is
anticipated to be less than 5 percent of the drainage area above Valley
Maps of the relevant upstream and downstream portions of the Basin
are attached to my testimony as Exhibits 1 and 2 respectively.
III. S. 2154 Effects the Tribe-State Consensus of the Agreement
S. 2154 gives the approval of the United States to the Agreement,
thus enabling it to become effective. The bill has five principal
components, which I will summarize briefly.
First, the bill authorizes, ratifies, and confirms the Agreement,
its recognition of the Tribal Water Right, and its procedures for
protecting that right. (These details are summarized above in Section
II of this testimony).
Second, Section 7 of the bill directs the NRCS and the Secretary of
Interior's Indian Water Rights Office to cooperate in a study of the
Upper Delaware and Tributaries Project, which commenced under the P.L.
83-566 program and was authorized by the Senate in 1997. (See Section
I.B of this testimony). The study, to be completed within two years of
the bill's enactment, will make recommendations for updating the
Watershed Plan as necessary to effectuate the Tribal Water Right. This
is a crucial part of the bill, for it directs the United States to
employ pre-existing legal and regulatory approvals in effectuating the
Tribal Water Right.
Third, the bill confirms and authorizes the realignment of the
parties to the 2006-2017 lawsuit (as set forth in Sections 10 and 11 of
the Agreement), and affirms the Agreement's waivers (as set forth in
Section 12 of the Agreement). These details are summarized above in
Section II.A. of this testimony.
Fourth, the bill expressly forbids the use of eminent domain in
acquiring land necessary for the development of the Tribal Water Right
and its infrastructure. This provision makes clear that the Tribe has
the responsibility for making all such acquisitions through voluntary
transactions with willing sellers.
Finally, the bill neither appropriates funds nor authorizes the
appropriation of funds for a water storage project at the Plum Creek
Project site or elsewhere. Once the NRCS reviews the project as
required in Section 4 of the bill, the Tribe will bear the burden of
obtaining the necessary appropriations.
IV. The Agreement and S. 2154 Comply With Congressional Requirements
Like all tribal reserved rights, the Tribal Water Right is subject
to the Federal Criteria and Procedures for Participation of the Federal
Government in Negotiations for the Settlement of Indian Water Rights
Claims (``Criteria and Procedures''). \6\ These are not regulations,
but are rather a set of sixteen guidelines that federal agencies are to
follow in determining whether and how to support a particular tribal
water rights settlement. Since their publication in 1990, successive
administrations have applied the Criteria and Procedures with various
interpretations. Based on the State's review, both the Agreement and S.
2154 fully comply with the Criteria and Procedures. The testimony of
Chairman Randall summarizes that compliance in greater detail, but the
State would like to emphasize three aspects of that compliance.
\6\ 55 Fed. Reg. 9223-9225 (March 12, 1990).
First, S. 2154 authorizes, ratifies, and confirms the Agreement,
thus resolving with finality all water-related and other legal claims
by the Tribe against the State. Second, the United States--represented
ably by counsel from the Departments of Justice and the Interior--has
been fully involved in the negotiation of the Agreement. Passage of S.
2154 will enable the Department of the Interior to become a party to
Finally--and perhaps most importantly--the bill neither
appropriates nor authorizes the appropriation of funds. As a
consequence, the fiscal requirements of the Criteria and Procedures are
not relevant to S. 2154. If the bill is enacted, those requirements
will engage after the NRCS and Interior issue their recommendations
pursuant to Section 7 of the bill; at that point, the burden will fall
upon the Tribe to obtain congressional authorization of the
appropriations necessary to effectuate those recommendations. Because
of the unique features of the P.L. 83- 566 program, it is possible that
the appropriations process may proceed through the agriculture
committees of the Senate and the House.
By way of conclusion, the State would like to emphasize two points
about S. 2154. First, it ratifies the Agreement, which is the
culmination of years of trusting and effective cooperation among the
Tribe, the State, and the United States. Second, the bill does not
request money; it is the initial step in an incremental legislative
process--a process that the State hopes can obtain assistance through
the P.L. 83-566 program. Because of these two points, the State fully
supports S. 2154 and requests the Committee to vote to advance the
bill. On behalf of the State, I thank the Committee for the opportunity
to provide this testimony.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of the National Congress of American Indians (NCAI)
On behalf of the National Congress of American Indians (NCAI), the
oldest and largest national organization advocating on behalf of
American Indians, Alaska Natives and Indian tribal governments, we
thank the members of the Senate Committee on Indian Affairs for the
opportunity to provide this testimony for the record. The following
testimony will focus on NCAI's support for S. 3168, a bill to amend the
Omnibus Public Land Management Act of 2009 to make the Reclamation
Water Settlements Fund permanent.
Indian Water Settlements
Tribes retain pivotal legal rights to available water resources
based upon aboriginal rights claims and federal reserved water rights
claims, yet Indian wet water resources are scarce. For this reason,
tribes consistently work together with the federal government to
resolve existing legal claims to water through coordinated Indian water
rights settlements. Such settlements can provide water to tribal
nations sufficient for homeland purposes, and also provide certainty
for local communities and states with respect to finite water
resources. Indian water rights settlements are critically important to
tribal nations and the American nation as a whole. While the Department
of the Interior's Bureau of Indian Affairs, Office of the Solicitor,
and Secretary's Indian Water Rights Office play major roles in settling
Indian water rights claims, the Bureau of Reclamation (Reclamation)
plays a critical role in all facets of such settlements, particularly
with respect to implementing water projects associated with Indian
water settlements. A vital component for Reclamation's work is water
S. 3168--Permanent Extension of Reclamation Water Settlements Fund
S. 3168 would extend the Reclamation Water Settlements Fund
(Reclamation Fund) permanently, ensuring that the time-tested Indian
water rights settlement process can continue into the future without
the threat of losing settlement funding by a date certain. The
Reclamation Fund, codified at 43 U.S.C. 407, is only authorized to
receive deposits beginning in FY 2020 and ending FY 2029, yet the Fund
is already deemed critical and will be heavily relied upon by currently
enacted and future Indian water rights settlements.
The Reclamation Fund is vital to funding infrastructure projects,
such as irrigation canals, dams and storage reservoirs, treatment
facilities, and distribution facilities, tied to Indian water rights
settlements. These infrastructure projects ensure that wet water
reaches Indian lands and peoples for domestic, commercial, municipal,
agricultural, industrial, and ceremonial uses. Importantly, future
Indian water rights settlements are currently authorized to tap into
the Reclamation Fund for infrastructure needs only until FY 2034, when
the Fund terminates and would revert back to the U.S. Treasury under
The process of preparing for water settlements, actually
negotiating settlement language, and implementing settlements takes
years and in many instances decades. Each water settlement is unique,
and takes into account a host of minute hydrological details; specific
population considerations; historical considerations; political, legal,
as well as scientific realities; consideration of the federal trust
responsibility; and present and future uses. Having a sunset date of
2034 for the Reclamation Fund unduly burdens the settlement process,
placing a timeclock on the water settlement process that only in some
instances may be finalized. In other instances, the sunsetting of the
Reclamation Fund could leave parties at the table during negotiations,
only to have critical funding resources removed from the process,
potentially unraveling any progress made and resulting in overall water
This is important to note since, as the Department of the Interior
recently testified, Congress has only enacted 32 Indian water
settlements. The Department also indicated that there are over 280
federally recognized tribes in the West (excluding the 229 tribes in
Alaska), and it has seen an increase in requests from both tribes and
states to enter into water settlement negotiations. These requests will
only increase as regions develop climate adaptation plans, in addition
to dealing with real world challenges such as drought and water
shortage due to other factors like industrial agricultural uses or
natural resource development.
For these reasons, NCAI fully supports S. 3168 to ensure funding
resources are available for all current and future enacted Indian water
rights settlements. This approach ensures a future of water security,
which is a paramount concern for regions combatting severe drought and
water shortages. As this Committee is aware, even though Indian water
settlements often take years to finalize and ratify through
Congressional action, they are by far the preferred vehicle for
determining water rights and achieving water certainty.
In conclusion, NCAI appreciates the opportunity to provide
testimony to the Senate Committee on Indian Affairs. Water resources
are vital to ensuring a healthy future for tribal nations and providing
certainty to local communities and states regarding available finite
water resources. For the aforementioned reasons, NCAI reiterates its
support for S. 3168.