**April 5th Water Conference**

**Participant List**

**[Question 3: Indian and Federal Reserved Water Rights]{.underline}**

Number range CHAPTERWhat effort should be made by the federal government
to encourage the adjudication or settlement of Indian water rights
claims? Should a similar effort be made to quantify other federal
reserved rights? Are adjudications an appropriate means to quantify
those rights?

**Participants:**

-   Western States Water Council

-   New Mexico State Engineer

-   Nordhaus Law Firm on Behalf of the Pueblos of Laguna, Santa

> Ana, Santo Domingo, and Taos

-   Native American Rights Fund

**Senate Energy and Natural Resources Committee**

**Water** **Conference**

**Western States Water Council**

**Proposals**:

1\. Provide adequate funding for Interior negotiating teams for both
achieving and implementing settlements in order to facilitate increased
tribal participation and significantly advance the goal of achieving
water rights settlements.

2\. Enact legislation to establish a funding mechanism to ensure that
any land or water settlement, once authorized by the Congress and
approved by the President, will be funded without a corresponding offset
to some other tribe or essential Interior Department program.

3\. Enact legislation to require that the federal government pay filing
fees for its claims in state general adjudications to the same extent as
private water users.

**What effort should be made by the federal government to encourage the
adjudication or settlement of Indian water right claims?**

The Western State Water Council has for years actively supported the
negotiated settlement of the water claims of Native Americans. The
Council believes that the settlement of Native American water 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. The Council adopted a policy advocating the settlement of water
claims in 1986 and has maintained this policy consistently since that
date.

The Congress is to be commended for its support of negotiated Indian
water right settlements. Over the past 25 years, more than nineteen
settlements of Indian land and water rights have been reached in the
western states and approved by the Congress. These settlements have
helped save untold millions of dollars of public and private monies
through avoidance of prolonged and costly litigation. A key component of
this success has been the Administration's efforts to establish and
maintain negotiation teams for both achieving and implementing
settlements. Unfortunately, the level of funding for these negotiation
teams is currently inadequate to meet the needs. Moreover, a significant
cut in funding is being proposed for the FY06 federal budget. Consistent
with the trust responsibility of the United States to the tribes, we
urge Congress to provide the necessary funding to facilitate increased
tribal participation which could significantly advance our mutual goal
of achieving water rights settlements.

In addition, an appropriate funding mechanism must be found for water
settlements, or the Administration's settlement policy may become a
nullity.

The current practice is to treat the funding of water settlements as
discretionary, with the result that a settlement can only be funded with
a corresponding reduction in some other discretionary component of the
Interior Department's budget. The practical effect of this budgetary
policy is to significantly hinder the funding of water settlements. It
is very difficult for the Administration, the States or the Tribes to
negotiate settlements knowing that they will only be funded at the
expense of some other Tribe or essential Interior Department program.

Funding of water settlements should be a mandatory obligation of the
United States government. The obligation is analogous to, and no less
serious than the obligation of the United States to pay judgments which
are rendered against it. We urge that steps be taken to change current
policy to ensure that any water settlement, once authorized by the
Congress and approved by the President, will be funded. If such a change
is not made, all of these claims will be relegated to litigation, an
outcome which ought not to be acceptable to the Administration, the
Congress, the Tribes or the States.

The following is draft legislative language which, if enacted, would
make mandatory the funding of any water settlement authorized by
Congress and approved by the President. It would appropriately treat the
funding of the settlement of Indian water right claims as a judgment
against the United States. It is proposed as language to amend an
Interior appropriations act or a supplemental appropriations act:

"Such sums as may be necessary, not to exceed \$250,000,000 in any
fiscal year, shall hereafter be available for payment of amounts
authorized in Indian land and water claims settlement Acts, subject to
the same protections and limitations as funds appropriated in
satisfaction of a judgment of the Indian Claims Commission or the United
States Claims Court in favor of any Indian tribe, band, group, pueblo,
or Indian community."

Historically, judgments upholding Indian claims rendered by the Court of
Claims or the Indian Claims Commission have been treated and paid as
were other judgments by the Court of Claims, and have not been included
as part of Interior's budget. As recently as 1992, the Indian Claims
Commission ruled that compensation should be paid to the tribe which it
would have received related to lands taken for construction of the Grand
Coulee Dam. The compensation was paid from the "judgment fund."

We acknowledge that there may be other approaches to achieving the
desired result than the above language. In 1996, Congress established a
trust fund to rectify the failure to perform restoration work that was
supposed to have ameliorated the negative effects to the Crow Creek
Sioux Tribe from the Pick-Sloan Project. The trust was funded by placing
into an account at the Department of Treasury 25% of receipts from the
power revenues generated by the Pick-Sloan Missouri River Basin Program
every fiscal year until the total of \$27.5 million is achieved.
Interest on the corpus of the trust is to provide for the construction,
operation and maintenance of a water system on the reservation. We look
forward to exploring various approaches in resolving this vital issue.

**Should a similar effort be made to quantify other federal reserved
rights?**

A policy favoring settlement of non-Indian reserved right claims is also
important, although these claims are not associated with the federal
government's trust responsibility for Indian tribes. Such settlements
offer advantages which include: (1) the ability to be flexible and to
tailor solutions to the unique circumstances of each situation; (2) the
ability to promote conservation and sound water management practices;
and (3) the ability to establish the basis for cooperative partnerships.
While funding for the settlement of these claims is also vital, the
dynamics are somewhat different and one important aspect arises chiefly
in the context of state general stream adjudications discussed below.

**Are adjudications an appropriate means to quantify those rights?**

States in the West have developed comprehensive judicial and
administrative proceedings (general stream adjudications) to quantify
and document relative water rights within basins, including the rights
to waters claimed by the United States under either state or federal
law. These adjudications are typically complicated, expensive civil
court and/or administrative actions that involve hundreds or even tens
of thousands of claimants. Such adjudications give certainty to water
rights, provide the basis for water right administration, reduce
conflict over water allocation and water usage, and incidentally
facilitate important market transactions for water rights in the West.
Congress recognized the benefits of state general adjudication systems
and by adoption of the McCarran Amendment (43 U.S.C. 666), required the
federal government to submit to state court jurisdiction for the
adjudication of its water right claims.

Although water right claims by federal agencies are often the largest
and/or most complex claims in state general adjudications, the United
States Supreme Court, in the case of United States v. Idaho, 508 U.S. 1
(1992), determined that the McCarran Amendment does not require the
United States to pay filing fees, which pay for a portion of the costs
associated with conducting adjudications. This holding means that the
cost of adjudicating some of the most difficult claims in a state
general adjudication has shifted entirely to private water users and
state taxpayers. This drain on the resources of states and lack of
federal government financial support significantly inhibit the ability
of both state and federal agencies to protect private and public
property interests.

This is nowhere more evident than in the Klamath Basin where
approximately 400 of the 700 claims being adjudicated are federal
claims. The complexity of these federal claims, coupled with a series of
lawsuits filed in federal court by federal agencies, has significantly
delayed the state adjudication. Further, because they are not subject to
fees and costs like other water users in the adjudication, federal
agencies have filed questionable claims that may have been otherwise
tempered. In Idaho, for example, the Forest Service initially filed
3,700 last‑minute claims in the Snake River Basin adjudication just
prior to the initial court action on the adjudication fee issue. After
the Forest Service used these last‑minute claims to quantify the fiscal
impact of paying fees and after the State of Idaho incurred considerable
expense investigating these claims, the Forest Service withdrew all but
61 of the claims, and the state adjudication court has since dismissed
all but 9 of the claims.

With this background, the western states have attempted to address this
problem in the Congress. Bills have been introduced in Congress that
would require all federal agencies filing water right claims in state
adjudications to pay fees and costs to the same extent as a private
party to the same proceeding. New Mexico proposed alternative
legislation to provide federal funding support to each of the states
pursuing general stream adjudications, based on a formula assessing the
relative need for such support. These proposals have not advanced within
Congress. We urge you to address this inequity. Payment of filing fees
by federal agencies was in fact a common practice prior to the
unfortunate U.S. Supreme Court ruling on the Forest Service claims in
Idaho.

In addition, while not within this Committee's jurisdiction, it should
also be noted that varying Tribal water quality standards (as well as
the lack thereof) and checkerboarded reservations, raise serious state
concerns over administration -- on and off the reservations -- which
have yet to be resolved. In order to prevent voids in regulation, state
water quality standards should be effective on Indian lands until
replacement standards have been adopted by tribal governments which are
treated as states, or promulgated by EPA. Congress should provide
direction that will aid in cooperative resolution of water quality
issues. All efforts should be made to develop consistent tribal/state
water quality standards at adjoining jurisdictional boundaries.

**Senate Energy and Natural Resources Committee**

**Water** **Conference**

**New Mexico State Engineer**

**Topic 3: [Indian and Federal Reserved Water Rights]{.underline}**

The determination and quantification of Indian and federal reserved
water rights is a matter of critical importance to all citizens, Indian
and non-Indian alike, of the western states. This is an area where
Congressional action can achieve direct and substantial benefits.

Completion of water rights adjudications is a priority for New Mexico.
Toward that end, New Mexico supports settlement of Indian water rights
claims and federal reserved water rights claims. New Mexico has recently
completed the negotiation with the Navajo Nation of a settlement of the
Nation's claims for water rights in the San Juan River Basin in New
Mexico, and is in the process of negotiating other Indian water rights
settlements. Based on experience, New Mexico understands the
difficulties of negotiating a settlement that must take into account
competing demands for a finite resource. New Mexico also understands the
need to balance the uncertainties of litigation against the challenges
of meeting the needs of opposing interests. Cooperation from the federal
government is essential to bringing closure to New Mexico's ongoing
settlement negotiations and to resolving the many outstanding Indian and
federal reserved water rights claims that exist in our state.

**1. Determination of Indian Water Rights Claims and Federal Reserved
Water Rights Claims**

A.  The direct benefits of completing the adjudication of Indian water
    rights claims and federal reserved water rights claims are
    significant. They include the removal of a barrier to economic
    development for both Indians and non-Indians, and the savings to all
    parties of the high costs of protracted litigation. These benefits
    would accrue to the nation as a whole.

B.  In New Mexico, the need for the adjudication of Indian and federal
    water rights claims is acute. The lands of 22 Indian Tribes,
    Nations, and Pueblos lie within the borders of New Mexico. Of these,
    only the water rights of the Jicarilla Apaches have been fully
    adjudicated. The remaining Indian claims are typically to water
    rights of such senior priority and large quantity that, if
    recognized and fully exercised, they could displace significant
    numbers of non-Indian water rights developed under state law. In one
    instance, the claims of the Navajo Nation are potentially so large
    that they could exceed New Mexico's apportionment under the Upper
    Colorado River Basin Compact.

Based on an understanding of the importance of Indian water rights
settlements, the New Mexico legislature is now considering legislation
to establish an Indian Water Rights Settlement Fund. This fund would
provide a mechanism for the state to comply with its funding obligations
under potential Indian water rights settlements. This legislation
recognizes the need for New Mexico to plan ahead to make the Indian
water rights settlements successful, but New Mexico's efforts will not
succeed without a corollary effort on the part of the federal
government. Notwithstanding the current federal budget difficulties, the
federal government needs to prioritize settlement and funding relating
to Indian water rights.

C.  Federal action and inaction have contributed significantly to the
    considerable uncertainty surrounding Indian and federal water rights
    claims. This uncertainty accentuates the present urgent need for
    those claims to be adjudicated.

In New Mexico, it is easy to see how actions and inaction of the federal
government have contributed to the present uncertainty over the water
rights claims of Pueblo Indians. It is well known, for example, that the
early U.S. Supreme Court case of *U.S. v. Joseph*, 94 U.S. 614 (1876)
(in which the Pueblo Indians were determined not to be "Indians" for
purpose of the Non-Intercourse Act, with the consequence that they could
own and alienate their lands, which they did), followed by the Court's
1913 decision in *U.S. v. Sandoval*, 231 U.S. 28 (which reversed
*Joseph*, finding that the Pueblos were, and always had been, subject to
and benefited by the Non-Intercourse Act), threw into doubt the validity
of some forty years of real estate transactions involving lands within
Pueblo grants. In addition, the attempts by Congress to address the
problem, by the Pueblo Lands Act of 1924 and the 1933 Act, were wholly
inadequate.

The federal government also has contributed to the uncertainty
surrounding the water rights claims of Indian Nations and Tribes other
than the Pueblos, and of the federal government. Federal actions or
policies that have contributed to this include the creation and
dissolution of Indian reservations, periodic recurrence of radical
shifts in federal Indian policy, and other federal actions which may
"impliedly" reserve water without an actual appropriation.

D.  It is therefore appropriate for the United States to provide
    substantial support to promote the completion of adjudication of
    Indian and federal reserved water rights claims, by both settlement
    and litigation.

E.  Congress helps enormously, of course, by legislative approval and
    funding of successful Indian water rights settlements, and this
    expectation of United States support is usually critical to
    achieving a settlement.

New Mexico is proud of its accomplishments in negotiating a Settlement
Agreement with the Navajo Nation. The Settlement was completed in
December 2004 after years of negotiations and resolves the claims of the
Navajo Nation to the use of waters of the San Juan River Basin in New
Mexico in a manner that would inure to the benefit of the Navajo Nation
and the State of New Mexico. The negotiating parties made great efforts
to provide information to the public and third parties regarding the
Settlement and to take comments into account in finalizing the
Agreement.

The Settlement provides water rights and associated water development
projects for the benefit of the Navajo Nation in exchange for a release
of claims to water that potentially might otherwise displace existing
non-Navajo water uses in the San Juan River Basin in New Mexico. Along
with the Settlement Agreement, the parties have negotiated: 1) a
proposed court decree for entry in the San Juan River Adjudication
setting forth the rights of the Navajo Nation to use and administer
waters of the San Juan River Basin in New Mexico; 2) a proposed
Settlement Act for Congress to authorize the Bureau of Reclamation to
construct and operate the Navajo-Gallup Water Supply Project, to fund
the Bureau of Reclamation to complete and rehabilitate Navajo water
projects in the San Juan River Basin in New Mexico, and to approve the
Settlement Agreement and other authorizations to secure to the Navajo
Nation a water supply to meet the needs of the Nation and its members;
and 3) a Settlement Contract to provide for deliveries to the Navajo
Nation under Bureau of Reclamation water projects, namely the Navajo
Indian Irrigation Project, the Navajo-Gallup Water Supply Project, and
the Animas-La Plata Project. Continued cooperation from the federal
government will be critical to ensure the benefits of this settlement
can be achieved.

In addition, under the Settlement, the federal government is responsible
for providing approximately \$620 million of the funding necessary to
implement the settlement. The state is responsible for funding an
additional \$35 million and local parties and the Jicarilla Apache
Nation are responsible for yet another \$131 million. This level of
funding represents a reduction from the amounts originally proposed, and
New Mexico expects that the federal government will cooperate in
enabling the Settlement to progress.

F.  Unfortunately, participation by the Departments of Justice and
    Interior in recent negotiations to resolve Indian water rights
    claims in New Mexico has been perfunctory and non-substantive.

In addition to the Navajo settlement, New Mexico is in the process of
negotiating settlements in the *Aamodt* adjudication, in the
Nambe-Pojoaque-Tesuque area, and the *Abeyta* adjudication, in Taos,
both of which are long-standing water rights adjudication suits. In the
*Aamodt* case, which has the distinction of being the oldest active case
in federal court, settlement negotiations have been proceeding for over
four years, and while the federal government participated in the
negotiations through the Justice Department, recent public
pronouncements that the federal government is unwilling to contribute
more than a fraction of the total proposed settlement costs have caused
extreme disruption to the negotiation process. It is unreasonable for
the federal government to attend settlement discussions without
meaningful participation, and to withhold substantive comments until a
settlement is finalized and legislation is introduced before Congress.
New Mexico is encouraged by the recent appointment of Jennifer Gimbel
within the Department of the Interior to oversee Indian water rights
settlements, and looks forward to working closely with her within the
next few years to finalize the settlements under negotiation and obtain
the necessary congressional support. New Mexico is also supportive of
the comments made on this issue by the New Mexico delegation during the
Senate Energy and Natural Resources Committee hearing on the Fiscal Year
2006 Interior Department budget.

G.  In most of the west, and certainly in New Mexico, it is crucial that
    [all]{.underline} Indian and federal water right claims be
    adjudicated. The surface waters of New Mexico's streams were fully
    appropriated years ago, and the competing demands on the state's
    available water supplies do not allow the luxury of putting off
    quantification questions. The adjudication of reserved water right
    claims asserted by the federal government should be made a priority
    along with the adjudication of Indian water rights claims.

*[Recommendations]{.underline}:*

1.  *Congress should make clear that the timely adjudication of Indian
    water rights and federal reserved water rights is an important
    priority of the United States deserving of special attention from
    the Departments of Justice and Interior.*

2.  *Congress should support the timely adjudication of Indian and
    federal reserved water rights at all levels of the process, by any
    available means, including:*

    -   *providing sufficient funding for, and the specific direction to
        use, federal technical expertise and assets (through the USBOR,
        USGS, etc.) to aid settlement negotiations; and*

    -   *requiring, as a condition of funding, annual reporting on the
        progress of achieving Congress' goal of timely adjudication of
        Indian and federal reserved water rights.*

3.  *Congress should fund settlements of Indian water rights claims
    without requiring corresponding reductions in Department of Interior
    programs.*

**2. Role of Water Rights Adjudications**

A.  General stream adjudications, legislatively prescribed and
    undertaken by the states, are the indispensable tool for the
    determination of all competing water rights claims in a stream
    system. The needs and the history of each state are different, and
    the general stream adjudication process has taken different forms in
    different states, from quasi-administrative to strictly judicial,
    but all should be supported as no other viable alternative exists
    for the determination of federal and Indian water rights claims
    alongside competing water rights claims developed under state law.
    In New Mexico, where unappropriated water on its major rivers ceased
    to exist long ago, no other mechanism exists to determine the water
    rights of all parties. The adjudication of water rights is a process
    that must succeed for the benefit of all. The more timely this
    process is completed, the better.

B.  It would not be helpful or advisable for Congress to attempt
    quantification of Indian and federal reserved water rights outside
    the existing general stream adjudication process. While that process
    has sometimes suffered from delays and lack of needed resources, it
    is the only process which can legitimately determine all water
    rights claims in a basin in a fair and principled manner, and it is
    the process which Congress has explicitly approved with the passage
    of the McCarran Amendment.

*[Recommendations]{.underline}:*

1.  *Congress should support the water rights adjudication process
    generally, including by:*

    -   *providing sufficient funding for the federal judiciary's
        special needs in water rights adjudications, such as Special
        Masters, and specialized clerk and support staff; and*

    -   *providing funding for the continuance of adjudication and
        administration efforts by the states, many of which are
        struggling to cope with the burdens of adjudicating and
        administering water rights.*

2.  *Attempts to quantify Indian water rights and federal reserved water
    rights outside the existing general stream adjudication process
    should be avoided.*

**Senate Energy and Natural Resources Committee**

**Water** **Conference**

**Nordhaus Law Firm on Behalf of the Pueblos of Laguna, Santa Ana, Santo
Domingo, and Taos**

These comments---which are submitted by the Nordhaus Law Firm on behalf
of the Pueblos of Laguna, Santa Ana, Santo Domingo, and Taos---address
two portions of the Committee's third question: (1) what effort should
be made by the federal government to encourage adjudication or
settlement of Indian water rights claims?; and (2) are adjudications an
appropriate means to quantify those rights?

> **1. Tribal Water Rights Claims Must Be Resolved.**

Resolution of outstanding tribal water rights claims is a critical
priority throughout the West, both for the affected tribes and the
states in which they are located. There is no dispute that Indian tribes
possess the most senior water rights in the West. *See, e.g., New Mexico
v. Aamodt*, 537 F.2d 1102 (10th Cir. 1976); *New Mexico, ex rel., State
Engineer v. Aamodt, et al.*, 618 F. Supp. 993 (D.N.M. 1985). Without a
lawful quantification of those rights, however, efforts to manage water
use in this arid region are profoundly hampered, and that has induced
the State of New Mexico to declare the resolution of tribal water rights
claims to be a critical state priority. *See generally* New Mexico State
Water Plan at 11, 64-65 (Dec. 23, 2003) (available at
\<\<[http://www.seo.state.nm.us/water-info/NMWaterPlanning/2003StateWaterPlan.pdf]{.underline}\>\>);
*cf. id.* at § E. Furthermore, regardless of planning and management
difficulties, the absence of finality with respect to the scope and
extent of tribal water rights unfairly undermines tribal efforts to
develop those resources and to pursue desperately needed collective
economic benefits, and the longer it takes to obtain finality, in fact,
the more pressure there is on scarce water supplies that could otherwise
satisfy tribal rights. The bottom line is that until outstanding claims
are resolved, both the Indian and non-Indian communities throughout the
West will be burdened by unnecessary conflict and uncertainty. *See
generally* Western Water Policy Review Comm'n, WATER IN THE WEST:
CHALLENGE FOR THE NEXT CENTURY (June 1998).

**2. Exclusive Reliance on Litigation Efforts Is Inefficient.**

The Committee has asked whether adjudication is "an appropriate means"
for the quantification of water rights, and the general answer has to be
"yes." Under relevant state law, *see generally* NMSA 1978, § 72-4-15
(1907), and the McCarran Amendment, 43 U.S.C. § 666, the quantification
of any right to water located within New Mexico, including tribal
rights, must be decided by a court; indeed, absent an appropriate court
order, the protection of those property interests may be compromised.
*See, e.g., United States v. Bluewater-Toltec Irr. Dist.*, 580 F. Supp.
1434 (D.N.M. 1984), *aff'd*, 806 F.2d 986 (10th Cir. 1986). However, the
fact that adjudication may be considered "appropriate" does not end the
discussion.

For example, the adjudication of water rights by *exclusive* reliance on
litigation has, by no means, proven efficient. For example, the *Aamodt*
and *Abeyta* adjudications, which the state filed in federal court more
than 35 years ago, have so far failed to produce a quantification of the
water rights separately held by the Pueblos of Nambe, Pojoaque, San
Ildefenso, Taos, or Tesuque. Similarly, although litigation was
initiated more than 20 years ago to adjudicate all rights to the waters
of the Rio San José, the state court in the *Kerr-McGee* adjudication
has so far not entered a single interim order determining any non-Indian
water right, nor did it order an expedited *inter se* subproceeding on
the rights of the Pueblos of Acoma and Laguna until 2002. Procedural
issues in that subproceeding continue to consume the parties' and the
court's energies. In *Abousleman*, which will adjudicate the rights of
the Pueblos of Jemez, Santa Ana, and Zia, the federal court ruled only
last summer on cross-motions for summary judgment that were filed in
\[1989\]. It is troubling that all of these actions relate to the
adjudication of water rights on tributaries to the Rio Grande; at this
time, there is no publicly known plan to commence a general adjudication
of rights to the waters of the Rio Grande main stem, an action that
could affect almost all of the federally recognized Indian tribes in New
Mexico. One can only imagine how long such a comprehensive court action
would take to complete.

Adapting to these legal realities and consistent with the Interior
Department's 1990 guidelines, 55 FED. REG. 9223 (Mar. 12, 1990), tribes
have not relied exclusively on litigation. For example, the Jicarilla
Apache Nation successfully concluded negotiations on a final settlement
of its rights in the San Juan and Rio Chama basins in 1998 and 1999. The
eight Pueblos that are party to the *Aamodt*, *Abeyta*, and *Abousleman*
adjudications have likewise pursued a negotiated resolution of their
claims, and at present, the *Aamodt* and *Abeyta* Pueblos are nearing
closure on the local phase of those efforts. The Pueblos of Acoma and
Laguna, on the other hand, have been unable to obtain sufficient
attention from the United States for more than the most preliminary of
discussions with the current federal negotiation team assigned to the
*Kerr-McGee* adjudication. Largely due to a scarcity of resources, those
negotiation efforts have proceeded slowly, when they have proceeded at
all.

The inefficiencies of relevant state law adjudication processes or the
federal administrative negotiation guidelines do not necessarily
constrain options for how to proceed with the quantification of tribal
water rights. As the courts have stated, Congress has not abandoned
tribal water rights to state law control or otherwise compromised the
controlling authority of federal law with respect to those rights. *See,
e.g., Arizona v. San Carlos Apache Tribe*, 463 U.S. 800 (1976);
*Aamodt*, 537 F.2d 1102. Accordingly, as discussed in the next section,
Congress can---and should---act to improve the quantification process by
declaring a federal priority for the resolution of tribal water rights,
authorizing increased funding for the litigation and negotiation
processes, and requiring the formal promulgation of clearer and more
substantive guidance for intergovernmental water rights negotiations.
Such an act would be appropriate given Congress' plenary authority over
Indian affairs and, particularly, in light of the United States' trust
responsibility with respect to the protection of tribal water rights.

**3. Congress Should Declare the Resolution of Tribal Water Rights a
Critical Federal Priority and Require the Dedication of Adequate
Financial and Human Resources for the Fair Quantification of Tribal
Water Rights.**

Fifteen years ago, the United States declared its preference for the
negotiated resolution of tribal water rights. *See* 55 [Fed.
Reg.]{.smallcaps} 9223. Congress and the Administration must back that
preference with a commitment of the funding and human resources
necessary to bring these critical and complex efforts to fruition. The
simple truth is that these efforts are expensive, especially for tribal
governments that are too often hamstrung by insufficient financial
resources. In the *Abeyta* negotiations, for example, Taos Pueblo's
negotiation team, which includes paid tribal staff members as well as
legal and technical consultants, has had to attend almost 120
negotiation sessions during 2004. In January 2005, alone, the Pueblo
team met in *Abeyta* negotiation sessions 21 out of 31 days. This recent
pace, which was urged by the federal court and which was critical to the
dramatic progress that the parties made last year, has required a
tremendous dedication of resources. However, due to insufficient federal
funding, the Pueblo was forced to allocate funds to the settlement
effort at the expense of other essential Pueblo programs, and
substantial work performed in this effort remains unpaid due to a lack
of funds.

Throughout the West, tribes have had no alternative but to commit scarce
tribal funds on the quantification of their water rights, and the United
States has not matched that tribal commitment, either in terms of
funding or human resources. Recently, there has been much public
attention paid to the Justice and Interior Departments' refusal to offer
more than \$11 million for the *Aamodt* settlement, a figure that pales
in comparison to the settlement's estimated cost of more than \$200
million. Furthermore, the Justice Department has tasked only one
Denver-based attorney to represent fifteen of the Indian tribes in New
Mexico that are currently engaged in litigation and/or negotiation over
their water rights. No matter the skill of this able and committed
attorney, his task is daunting. These brief examples represent the
insufficiency of the federal commitment to the timely and fair
resolution of tribal water rights claims.

Finally, while financial and human resources are desperately needed for
the successful and fair quantification of tribal water rights, Congress
should also provide guidance and greater clarity as to *how* those
resources could be most effectively and efficiently deployed. Through
appropriate legislation, for example, it could:

> • declare that the resolution of outstanding tribal water rights
> claims is a federal priority;
>
> • declare that the policy of the United States is to seek resolution
> of tribal water rights claims through intergovernmental
> (federal-tribal-state) negotiation;
>
> • require that the Interior and Justice Departments develop and
> implement plans for the completion of litigation or negotiation of
> those claims;
>
> • require that the Interior Department actively commence its
> representation of the United States in any tribal water rights
> negotiation at the earliest possible stage;
>
> • establish a fund outside of the Interior Department annual budget
> and appropriate to it sufficient money to cover annual federal and
> tribal costs arising from ongoing quantification efforts; and
>
> • similar to what the New Mexico Legislature is presently considering,
> establish a tribal water rights settlement fund and appropriate to it
> sufficient money to cover the costs of implementing future
> settlements.

To provide greater clarity to the negotiation process, such legislation
should also direct the Interior Department to promulgate regulations
that:

> • establish how timely intergovernmental negotiations for the
> quantification of tribal water rights should be commenced and
> conducted;
>
> • standardize the "shape of the table" to preserve and facilitate the
> intergovernmental (federal-tribal-state) nature of these efforts;
>
> • establish a uniform threshold scope for these efforts to encourage
> an appropriate and realistic focus; and
>
> • establish standardized procedures for developing timely
> administrative policy on specific issues as they arise in
> negotiations.

The Pueblos do not propose a radical overhaul of the present
negotiations process; nonetheless, the current administrative guidelines
for the negotiated settlement of tribal water rights are too vague to
provide adequately uniform direction or to facilitate timely progress.
And perhaps more importantly, administrative guidelines do not carry the
full weight of the United States' endorsement or authority, and such
gravity would be appropriate in matters as critical as those affecting
tribal trust resources.

**Senate Energy and Natural Resources Committee**

**Water** **Conference**

**Native American Rights Fund**

Number range CHAPTERTopic #3: **Indian and Federal Reserved Water
Rights**

Proposals:

a\. Enact legislation to establish a funding mechanism to ensure that
any Indian land or water settlement, once authorized by the Congress and
approved by the President, will be funded without a corresponding offset
to other tribal programs or essential Interior Department programs.

b\. Provide increased funding for Interior Department tribal programs
that support tribal participation in settlement negotiations in order to
facilitate increased tribal participation in negotiations and
significantly advance the goal of achieving water rights settlements.

Discussion:

What effort should be made by the federal government to encourage the
adjudication or settlement of Indian water rights claims?

The Native American Rights Fund, the National Congress of American
Indians and the Indian Representatives on the Joint Federal-Tribal
Indian Water Funding Task Force believe that the resolution of Indian
water 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. As sovereign governments, each tribe decides for
itself how its water rights claims will be resolved and the federal
government should honor that decision. We support those tribes who have
decided to resolve their water rights claims through negotiated
settlements, and those who are either pursuing litigation or have
decided to wait to address their water rights issues.

We commend the Congress and the Administration for recognizing that
settlement of Indian water rights claims is an obligation of the United
States government and for encouraging the settlement of those claims.
However, an appropriate funding mechanism must be found for Indian water
rights settlements or the settlement policy will become a nullity.

The current practice is to treat the funding of Indian water settlements
as discretionary, with the result that a settlement can only be funded
with a corresponding reduction in some other discretionary component of
the Interior Department\'s budget. The practical effect of this
budgetary policy is to significantly hinder the negotiation and funding
of new settlements. It is very difficult for the federal government, the
tribes, the states and private parties to negotiate settlements knowing
that they will only be funded at the expense of other tribes or
essential Interior Department programs.

We would note that Congress has given serious consideration to proposals
to take Indian water settlements off-budget. In the 107^th^ Congress,
Chairman Domenici introduced S. 1186, that provided a budgetary
mechanism to ensure that funds will be available to satisfy the Federal
Government\'s responsibilities with respect to negotiated settlements of
disputes related to Indian water rights claims and Indian land claims.
S. 1186 is important legislation that deserves additional consideration
by the Energy and Natural Resources Committee.

Funding of Indian water rights settlements should be a mandatory
obligation of the United States government. The obligation is analogous
to, and no less serious than, the obligation of the United States to pay
judgments which are rendered against it. We urge that steps be taken to
change the current policy to ensure that any Indian water rights
settlement, once authorized by the Congress and approved by the
President, will be funded. If such a change is not made, all Indian
water rights claims will have to be litigated or languish, an outcome
which ought not to be acceptable to the federal government, the tribes,
the states and private parties.

The following is draft legislative language which, if enacted, would
make mandatory the funding of any Indian water rights settlement
authorized by Congress and approved by the President. It would
appropriately treat the funding of the settlement of Indian water rights
claims as a judgment against the United States. It is proposed as
language to amend an Interior appropriations act or a supplemental
appropriations act:

\"Such sums as may be necessary, not to exceed \$250,000,000 in any
fiscal year, shall hereafter be available for payment of amounts
authorized in Indian land and water claims settlements Acts, subject to
the same protections and limitations as funds appropriated in
satisfaction of a judgement of the Indian Claims Commission or the
United States Claims Court in favor of any Indian tribe, band, group,
pueblo, or Indian community.\"

Historically, judgments upholding Indian claims rendered by the Court of
Claims or the Indian Claims Commission have been treated and paid as
were other judgments by the Court of Claims, and have not been included
as part of Interior\'s budget. We acknowledge that there may be other
approaches to achieving the desired result and suggest that such funding
mechanisms might be considered in joint oversight hearings with the
Senate Indian Affairs Committee.

We also urge increased funding for the Interior Department to facilitate
tribal participation in Indian water rights settlement negotiations.
Without tribal participation in negotiations, settlements can never be
reached. Too often the lack of funding slows the negotiation process or
prevents tribes from negotiating at all. The limited Interior Department
funding that does exist is prioritized for litigation and negotiations
suffer. We urge Congress to provide increased funding that will
facilitate increased tribal participation in water settlement
negotiations and significantly advance the goal of achieving water
rights settlements.