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S. HRG. 114–401 

S. 2796, S. 2959, AND S. 3013 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

JUNE 29, 2016 

Printed for the use of the Committee on Indian Affairs 

( 

(II) 

COMMITTEE ON INDIAN AFFAIRS 

JOHN BARRASSO, Wyoming, Chairman 

JON TESTER, Montana, Vice Chairman 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

JAMES LANKFORD, Oklahoma 

STEVE DAINES, Montana 

MIKE CRAPO, Idaho 

JERRY MORAN, Kansas 

MARIA CANTWELL, Washington 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

T. MICHAEL ANDREWS, Majority Staff Director and Chief Counsel 

ANTHONY WALTERS, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

Page 

Hearing held on June 29, 2016 ............................................................................... 1 

Statement of Senator Barrasso ............................................................................... 1 

Statement of Senator Daines .................................................................................. 4 

Statement of Senator Heitkamp ............................................................................. 5 

Statement of Senator McCain ................................................................................. 6 

Statement of Senator Tester ................................................................................... 2 

Prepared statement .......................................................................................... 3 

WITNESSES

Belin, Alletta, Senior Counselor to the Deputy Secretary, U.S. Department 

of the Interior ....................................................................................................... 7 

Prepared statement .......................................................................................... 8 

Finley, Hon. Vernon, Chairman, Confederated Salish and Kootenai Tribes 

of the Flathead Reservation ................................................................................ 22 

Prepared statement .......................................................................................... 24 

Flute, Hon. David, Chairman, Sisseton-Wahpeton Oyate Sioux Tribe ............... 14 

Prepared statement .......................................................................................... 15 

Velasquez, Hon. Kasey, Vice Chairman, White Mountain Apache Tribe ........... 18 

Prepared statement of Hon. Ronnie Lupe ...................................................... 20 

APPENDIX

Farling, Bruce, Executive Director, Montana Council of Trout Unlimited, 

prepared statement .............................................................................................. 36 

Rounds, Hon. Mike, U.S. Senator from South Dakota, prepared statement ...... 35 

Willman, Elaine D., MPA, Flathead Indian Reservation, prepared statement .. 37 

Additional information submitted for the record................................................... 40–71 

(1) 

S. 2796, S. 2959, AND S. 3013 

WEDNESDAY, JUNE 29, 2016 

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:30 p.m. in room 

628, Dirksen Senate Office Building, Hon. John Barrasso, 

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM WYOMING 

The CHAIRMAN. Good afternoon. I call this legislative hearing to 

order. Today the Committee will examine three bills: S. 2796, a bill 

to repeal certain obsolete laws relating to Indians; S. 2959, a bill 

to amend the White Mountain Apache Tribe Water Rights Qualification Act of 2010 to clarify the use of amounts in the WMAT Settlement Fund; and S. 3013, the Salish and Kootenai Water Rights 

Settlement Act of 2016. 

The first bill was introduced by Senator Rounds on April 13th of 

this year. Senator Lankford is a co-sponsor. At this time there is 

no House companion bill. This bill will repeal obsolete laws relating 

to Indians. 

So I want to thank Senator Rounds for his work on this today. 

On May 19th of this year Senator McCain introduced S. 2959, a 

bill to amend the White Mountain Apache Tribe Water Rights 

Quantification Act of 2010. Senator Flake is the original co-sponsor. This bill would allow funding authorized for water-related economic development projects in Title III of the Claims Resettlement 

Act of 2010 to include the White Mountain Apache Tribe’s rural 

water system. This would allow the Secretary of Interior to use all 

or a portion of the appropriated $78 million of White Mountain 

Apache Tribe Settlement Fund for the completion, operation, and 

maintenance of the Miner Flat Dam along the North Fork of the 

White River. 

Then on May 26th Vice Chairman Tester introduced S. 3013, the 

Salish and Kootenai Water Rights Settlement Act of 2016. This bill 

would settle claims to water rights in the State of Montana. The 

bill also ratifies a compact passed by the Montana State Legislature that took a decade of negotiations to resolve the Tribe’s claims 

to reserve water rights within the State. The bill authorizes over 

$2.3 billion of irrigation, water, and education purposes. The bill 

also provides an allocation of 90,000 acre feet per year from the 

Hungry Horse Reservoir. 

2 

I would like to now invite Vice Chairman Tester for any opening 

comments he might like to make. 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Well, thank you, Mr. Chairman, and thank you 

for holding this hearing today to discuss a few bills before the Committee. As you have already pointed out, one of these bills, the 

CSKT Water Rights Settlement Act, which I introduced last month, 

this bill would affirm the water rights compact between the Tribes 

and the State of Montana. This compact was passed by the Montana State Legislature last year. This bill would also settle the 

Tribe’s claims against the United States for failure to protect the 

Tribe’s water rights for over a century. 

The CSKT Pact is the seventh and last water rights compact 

passed by the Montana Legislature. As we all knows, once the 

Tribe and the State have finalized their agreement, it has to come 

here to be affirmed by Congress, a process which often takes too 

long. While the State of Montana has done a good job finalizing 

water compacts with the Tribes and the State, we in Washington 

need to do a better job. Congress still needs to pass three of these 

water rights settlements, this one for the CSKT, as well as settlements for Blackfeet and Fort Belknap communities. 

I understand from the testimony of the Department of Interior 

that the CSKT settlement still has a ways to go before it is ready 

for Congress to enact, but introducing this bill is a first step to getting the Tribes and the Federal Government to sit down and hammer out a final agreement. This is the process that most water 

rights settlements have taken, including the Blackfeet settlement. 

Three years ago, the Department testified on an early version of 

the Blackfeet bill and stated then that they could not support that 

bill as introduced. Since then, the parties have negotiated, made 

compromises, and just last week the Administration affirmed that 

the current version of the bill conforms with the Criteria and Procedures that apply to Indian water rights settlements. I expect to 

work with my colleagues here in the Senate, and I hope the House 

does what they said they were going to do and get this bill passed 

if the Administration supported it, which they do, and get this 

Blackfeet settlement across the finish line. 

For CSKT, this hearing is just the next step in the process and 

should spur the Tribes and the DOI to work out their issues so that 

we in Congress can do our job in seeing that these settlements get 

implemented. 

Everyone on this Committee knows that pursuing water rights 

settlements is the best policy. Settling tribal water rights provides 

certainty to all stakeholders in the watershed and saves everybody 

time and money by not forcing folks into the courtroom. So encouraging water settlements is just common sense and benefits Tribes 

and surrounding communities alike. 

I appreciate Senator Daines working with me on the Blackfeet 

bill. I am sure we will be working together on this bill as time 

moves forward, and I hope the same thing can happen with Representative Zinke. The State of Montana has been a model for the 

3 

Country in settling water rights throughout the State, and we need 

to do the same. 

Now, while I understand that the Department may not now support the CSKT settlement, I look forward to hearing from Ms. Belin 

on what the next steps are and how we can get this bill to the finish line. I know it is a lot of work, but I have seen it happen already this Congress on one settlement and I know we can make 

progress on other settlements as well. The Salish and Kootenai 

Tribes are certainly ready to move forward. 

I would like to welcome you, Chairman Finley, and thank you for 

joining us today. We appreciate your leadership. And also the leadership of your counsel. And speaking of counsel, we appreciate the 

counsel of Ryan Rusche, your lawyer. 

Back in Montana, you have worked diligently to get the people 

behind this settlement, and I appreciate your efforts in building 

that coalition. It certainly makes our job easier when we receive 

letters in support from so many stakeholders outside the Reservation. The letters have come from the Montana Farm Bureau, Stock 

Growers, Water Resource Association, Gillette AG Irrigators, AG 

Business Association, Farmers Union, and Trout Unlimited, a very 

broad-based constituency. They all recognize the importance of this 

settlement and now final passage will bring certainty to all stakeholders throughout the Flathead Valley of Western Montana. So I 

appreciate their support. 

And I would ask, Mr. Chairman, unanimous consent for these 

letters to be entered into the record. 

The CHAIRMAN. Without objection. 

[The prepared statement of Senator Tester follows:] 

PREPARED STATEMENT OF HON. JON TESTER, U.S. SENATOR FROM MONTANA

Thank you, Mr. Chairman, for holding this hearing today to discuss a few bills 

before the Committee. One of these bills is the C-S-K-T Water Rights Settlement 

Act, which I introduced last month. That bill would affirm the water rights compact 

between the Tribes and the State of Montana, which passed the State legislature 

last year with bipartisan support. The bill would also settle the Tribes’ claims 

against the United States for failure to protect the Tribes’ water rights for over a 

century. 

The CSKT compact is the seventh and last water rights compact passed by the 

Montana legislature. As we all know, once a Tribe and state finalize their agreement, it has to come here to be affirmed by Congress, which often takes too long. 

While the State of Montana has done a good job finalizing water compacts with the 

Tribes in the state, we here in Washington need to do a better job. Congress still 

needs to pass three of these water rights settlements: this one for the CSKT, as well 

as settlements for the Blackfeet and Ft. Belknap communities. 

I understand from the testimony of the Department of the Interior that the CS-K-T settlement still has a ways to go before its ready for Congress to enact. But 

introducing the bill is the first step to getting the tribes and the federal government 

to sit down and hammer out the final agreement. This is the process that most 

water rights settlements have taken, including Blackfeet. 

Three years ago, the Department testified on an early version of the Blackfeet bill, 

and stated then, that they could not support the bill as introduced. Since then, the 

parties have negotiated, made compromises, and just last week the Administration 

affirmed that the current version of the bill conforms with the Criteria and Procedures that apply to Indian Water Rights Settlements. I expect to work with my colleagues in both the House and Senate to see Blackfeet successfully get across the 

finish line. 

For C-S-K-T, this hearing is just the next step in the process, and should spur 

the Tribes and DOI to work out their issues so we in Congress can then do our job 

in seeing these settlements get implemented. 

4 

Everyone on this Committee knows that pursuing water rights settlements is the 

best policy. Settling tribal water rights provides certainty to all stakeholders in a 

watershed, and saves everybody time and money by not forcing folks into a courtroom. So encouraging water settlements is just common sense and benefits tribes 

and non-Indians alike. 

I appreciate Senator Daines working with me on the Blackfeet bill and encourage 

him to work with me on this bill, and Ft. Belknap as well. The State of Montana 

has been a model for the country on settling water rights throughout the state, and 

its Congressional delegation should follow that example. 

While I understand that the Department may not now support the C-S-K-T settlement, I look forward to hearing from Ms. Belin on what the next steps are, and how 

we can get this bill to the finish line. I know it’s a lot of work, but I’ve seen the 

progress we’ve made on one settlement this Congress, and know we can make 

progress on other settlements as well. 

I want to reiterate this fact. The CSKT Water Compact was negotiated and constructed over years of on-the-ground collaboration between the tribe, local land owners, and the state. This bill has been a collaborative process that has been decades 

in the making—despite frivolous efforts to derail the process with fear and misinformation. And this hearing is just the beginning of the process here in Washington. 

I welcome members of Congress, the tribe, local stakeholders, and Interior to provide input so we can continue to grow support for this bill. 

The Salish and Kootenai Tribes are certainly ready to move forward. I’d like to 

welcome you, Chairman Finley and thank you for joining us today. Your leadership, 

and that of your council, has really gotten us to this point. Back in Montana you’ve 

worked diligently to get people behind this settlement, and I appreciate your efforts 

in building that coalition. It certainly makes our job easier when we receive letters 

of support from so many stakeholders outside the Reservation. The letters come 

from the Montana Farm Bureau, Stockgrowers, Water Resources Association, Gallatin Ag Irrigators, Ag Business Association, Farmers Union,Trout Unlimited, and 

local elected officials. They all recognize the importance of this settlement and how 

final passage will bring certainty to all stakeholders throughout the Flathead valley 

and western Montana. So I appreciate their support and ask unanimous consent for 

these letters to be entered into the record. 

Thank you, Senator Tester. 

Senator Daines. 

STATEMENT OF HON. STEVE DAINES, 

U.S. SENATOR FROM MONTANA 

Senator DAINES. Thank you, Mr. Chairman. 

And thank you, Senator Barrasso, as well as Vice Chairman 

Tester, for this hearing today. 

I first want to welcome CSKT Chairman Vernon Finley, who will 

be testifying shortly. It is always an honor to see the chairman who 

hails from truly one of the most beautiful places in our Country, 

the Flathead Indian Reservation. 

I would like to start by noting that I fully understand the value 

of Indian water rights settlements. They are, no doubt, a productive way to, number one, resolve conflict amongst Indian and nonIndian water users; two, to clear the burden of potential liability 

at the State and Federal levels; and, three, allowing Tribes to access and develop their water resources. 

Most importantly, these settlements are a key component of the 

Federal Government’s tribal trust responsibility to create tangible 

benefits for Indian Country, providing a Federal stream of support 

for water infrastructure and much needed maintenance. 

For these reasons, I have made passage and enactment of Senate 

Bill 1125, the Blackfeet Water Rights Settlement Act, one of my 

highest priorities this Congress. 

I want to commend Letty Belin, who is also testifying today, for 

her, her team’s diligence and commitment to that settlement. I 

5 

know it has been a long journey. It has been seven years since the 

Montana Legislature passed the Blackfeet Compact. 

Letty, again, thanks so much. I am proud of the progress we are 

making on that legislation and, as Senator Tester said, I look forward to that being completed and passed here before the end of the 

calendar year. 

The CSKT Compact is one of the most complex water settlements 

in history. It is the most expensive introduced, as Senator Tester 

noted, at $2.3 billion. It has meaningful implications for the Tribes, 

for our State, and other water users on and off the Reservation. 

Now, there is a lot of passion on this settlement back home regarding the Compact, and that was demonstrated by its narrow 

passage in our State Legislature. But it passed, and that is why 

we are up here today having these discussions. So I am glad we 

are having the conversation, we are examining the costs and the 

benefits of this legislation. 

I look forward to hearing from Chairman Finley, as well as Ms. 

Belin, on their perspectives, as well as from my colleagues here on 

the dais. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator. 

Senator Heitkamp. 

STATEMENT OF HON. HEIDI HEITKAMP, 

U.S. SENATOR FROM NORTH DAKOTA 

Senator HEITKAMP. Thank you, Chairman Barrasso and Vice 

Chairman Tester, for holding this hearing to discuss legislation before us, and my particular interest is legislation that would repeal 

obsolete laws and address water rights in Indian Country. 

I want to congratulate Senator Rounds and Senator Lankford for 

bringing this issue to the forefront. 

Chairman Flute, it is always a pleasure to see you and have you 

represent your Tribe today. A lot of people don’t realize this, but 

there is a portion of the Sisseton Wahpeton Oyate that is in fact 

in my home county of Richland County, and you are a particular 

treasured neighbor for all of us, so we are grateful for your presence and for the work that you have been doing on these obsolete 

laws. I know that this is a particular passion of yours. 

I want to point out that I read earlier this month that you were 

successful in a high school in Watertown, a town that you and I 

both know, which lies south of the border on your Reservation, in 

replacing disparaging activities in their homecoming festivals, so 

that certainly is a step forward for our region in becoming more 

culturally sensitive. I know the Tribe has worked long and hard to 

protect those cultural traditions, and that experiencing disparaging 

imagery is still an issue for many of your people, particularly your 

children, who at this point in time need a sense of pride in who 

they are. 

Similarly, to the outdated and often disparaging activities that 

take place in schools, I am glad you are here today to provide your 

thoughts regarding outdated Federal laws and policies that should 

be repealed to ensure your Tribe and the great Tribal Nations 

across this Country are properly respected. It is long overdue. Just 

6 

like assimilation and reorganization eras, it is time that they be officially repealed. 

We all know that during the assimilation era there was tremendous loss of Indian cultures, resources, and land, which later further impoverished our Tribes. During this period, the Federal Government broke down traditional family structures and relocated Indian children to religious- or Government-run boarding schools so 

that they could be assimilated into the dominant culture. This has 

created generational and, I believe, historic trauma that affects 

tribal members today and is reflected in the high rates of poverty, 

substance abuse, post-traumatic stress, and even suicide. 

It is critical that we acknowledge this trauma and the role that 

we all played in it with these outdates policies, and that we take 

the steps that we hope we can take in this Committee to rectify 

this wrong and to offer hope and opportunity. And I want to thank 

you so much for coming, Chairman. You are doing a great job and 

I know always lead with the interest of your people. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Heitkamp. 

Senator McCain. 

STATEMENT OF HON. JOHN MCCAIN, 

U.S. SENATOR FROM ARIZONA 

Senator MCCAIN. Thank you, Mr. Chairman and Mr. Vice Chairman. Thank you for holding today’s hearing on S. 2959. I understand that Chairman Ronnie Lupe was invited to testify, but had 

to cancel. I have had the pleasure of knowing Chairman Lupe for 

many years and can attest that he is a tireless advocate for the 

White Mountain Apache people. I am grateful that the Tribe’s Vice 

Chairman, Kasey Velasquez, will be testifying today on behalf of 

the Tribe. 

The bill would amend provisions of the Tribe’s Indian water settlement, the White Mountain Apache Tribe Water Rights Quantification Act of 2010, to enable a Tribe and the U.S. Department 

of the Interior to move forward with the construction of Miner Flat 

Dam on the North Fork of the White River. In 2010, Congress enacted legislation sponsored by Senator Kyl and myself that resolves 

a Tribe’s claims to the Salt River in Arizona. 

The linchpin in the settlement was congressional authorization 

to construct a water delivery system for the Fort Apache Indian 

Reservation through the construction of the Miner Flat Dam. Unfortunately, tribal engineers have identified seepage and stability 

concerns at the proposed dam site, which is delaying construction. 

Resulting cost overruns exceed the initial $126 million authorization for the construction of the Miner Flat Dam. 

The Interior Department has informed the Tribe that a clarifying 

amendment to the water settlement legislation may be necessary 

to allow other authorized funds in the settlement act can be applied to the construction project. 

The bill I have introduced with Senator Flake would clarify that 

the Interior Department may access a separate fund in the Tribe’s 

settlement legislation, called the WMAT fund, which covers waterrelated economic development projects, including dam operations 

and maintenance. 

7 

Mr. Chairman, the Federal Government made a deal with the 

White Mountain Apache six years ago that we would build the 

Miner Flat Dam. That was a commitment, part of the deal. The 

Tribe is currently facing a drinking water crisis. Groundwater 

wells on the Reservation have dropped by 50 percent and the North 

Fork of the White River is expected to run dry by 2020 without the 

Miner Flat Dam reservoir project. 

I believe it is pretty obvious that we have an obligation to meet 

the terms of the water settlement. I urge my colleagues to support 

this legislation. 

I thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator McCain. 

We welcome our four witnesses. You will each have about five 

minutes to give your testimony. Your complete written testimony 

will be made part of the permanent record of this Committee. I will 

ask each of you to identify yourself and who you represent, and we 

will start with Ms. Belin. 

STATEMENT OF ALLETTA BELIN, SENIOR COUNSELOR TO THE 

DEPUTY SECRETARY, U.S. DEPARTMENT OF THE INTERIOR 

Ms. BELIN. Thank you, Chairman Barrasso, Vice Chairman Tester, and members of the Committee. I am Letty Belin, Senior Counselor to the Deputy Secretary of the Interior. I am here today to 

provide the Department’s position on three bills, S. 3013, the Salish and Kootenai Water Rights Settlement Act of 2016, which 

would approve and authorize a settlement of the water rights 

claims of the Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana; second, S. 2959, a bill to amend the 

White Mountain Apache Tribe Water Settlement Authorization to 

clarify the use of amounts in the WMAT Settlement Fund; and, finally, S. 2796, an act to repeal existing substandard provisions and 

encourage conciliation with tribes, also known as the RESPECT 

Act. 

I will start with the two Indian water rights settlements. 

As this Committee knows, this Administration strongly supports 

the resolution of Indian water rights claims through negotiated settlement. Our policy of support for negotiations is premised on a set 

of general principles set forth in the 1990 criteria and procedures 

for the participation of the Federal Government in negotiations for 

settlement of Indian water rights claims. These include, first, that 

the United States participate in water settlements consistent with 

its responsibilities as trustee to Indiana; second, that Indian Tribes 

receive equivalent benefits for rights which they and the United 

States, as trustee, may release as part of the settlement; third, that 

Indian Tribes should realize value from confirmed water rights resulting from a settlement; and, fourth, that settlements contain appropriate cost-sharing proportionate to the benefits received by all 

parties benefitting from the settlement. 

So turning to S. 3013, we recognize that it and the underlying 

compact are the product of a great deal of effort by many parties 

and reflect desire by the people of Montana, Indian and non-Indian, to settle their differences through negotiation rather than litigation. We also recognize that the Confederated Salish and 

Kootenai Tribes have long been leaders in sound water and natural 

8 

resource management, and we commend the Tribes and the State 

of Montana for the excellent work they have done in furtherance 

of the compact and an overall settlement of the Tribes’ water rights 

claims. 

However, the Department cannot support S. 3013 as introduced. 

The Department has significant concerns about the Federal costs 

of the settlement, which total approximately $2.3 billion, and we 

have not yet completed a full and robust analysis and discussion 

of all aspects and ramifications of this substantial settlement. 

Next I will discuss S. 2959, the White Mountain Apache Tribe 

Water Rights Quantification Settlement. One of four Indian water 

settlements included in the 2010 Claims Resolution Act, this settles 

the water rights among the Tribe and non-Federal parties, including the State of Arizona. Since the enactment of the Claims Resolution Act, the Department has been working diligently on implementing all four of those settlements, including this one, which resolve well over a century of litigation and bitter disputes. 

S. 2959 would authorize funding from the WMAT Settlement 

Fund to be used for the completion of a rural water system. The 

Department is aware that the Tribe has identified potential cost 

overruns associated with the design of the rural water delivery system, specifically Miner Flat Dam. In order to evaluate whether discretionary funding beyond what is available in the cost overrun 

subaccount is needed to complete the rural water system, the Bureau of Reclamation needs to be provided with the necessary design 

and estimated cost of the rural water system. 

Therefore, the Department cannot support S. 2959 at this time. 

However, we are hopeful that this hearing will advance the implementation of this settlement and we look forward to working with 

the Tribe to ensure that Reclamation receives the relevant information. 

S. 2796 seeks to repeal laws that were passed by Congress during periods in U.S. history that were directly related to the Federal 

Government’s policy with Indian Tribes. The laws to be repealed by 

S. 2796 range in dates of enactment from 1862 through 1913, and 

were passed in eras of Federal Indian policy identified with removal, reservations, allotment, and assimilation. 

The language to be repealed by S. 2796 uses antiquated and obsolete terms and contexts such as reference to Indian Tribes in actual hostility to the United States and withholding monies or goods 

from Indian Tribes on account of intoxicating liquors. The Department agrees that such language should be repealed. 

Thank you for the opportunity to express the Department’s views 

on these bills. I am available to answer any questions the Committee may have. 

[The prepared statement of Ms. Belin follows:] 

PREPARED STATEMENT OF ALLETTA BELIN, SENIOR COUNSELOR TO THE DEPUTY

SECRETARY, U.S. DEPARTMENT OF THE INTERIOR

S. 2959, TO AMEND THE WHITE MOUNTAIN APACHE TRIBE WATER RIGHTS

QUANTIFICATION ACT OF 2010 TO CLARIFY THE USE OF AMOUNTS IN THE WMAT

SETTLEMENT FUND

Chairman Barrasso, Vice Chairman Tester and members of the Committee, I am 

Letty Belin, Counselor to the Deputy Secretary at the Department of the Interior 

9 

(Department). I am pleased to provide the views of the Department on S. 2959, a 

bill to amend the White Mountain Apache Tribe Water Rights Quantification Act 

of 2010 to clarify the use of amounts in the WMAT Settlement Fund. The Department supports the ongoing ef*forts to implement the White Mountain Apache Tribe 

settlement; however, we do not have sufficient information to develop a position on 

S. 2959 at this time. 

Background 

Over six years ago, this Administration supported and Congress enacted, four Indian water rights settlements for seven tribes that resolved well over a century of 

litigation and bitter disputes in the Claims Resolution Act of 2010 (PL 111–291). 

Our support for these four settlements demonstrated that settling Indian water 

rights disputes was and remains a high priority for this Administration. 

Since the enactment of the Claims Resolution Act, the Department has diligently 

been working on implementing the four settlements to support the maintenance of 

permanent water supplies and enhance economic security for five Pueblos in New 

Mexico, the Crow Tribe of Montana, the Taos Pueblo, and the White Mountain 

Apache Tribe (WMAT) of Arizona. We are here today to discuss the WMAT settlement. 

The WMAT settlement, as authorized by Title III of the Claims Resolution Act, 

settles the water rights among the Tribe and non-federal parties, including the 

State of Arizona, local water and power districts, local towns, and conservation districts. The Act authorizes design and construction of the WMAT rural water system 

that consists of a dam and storage reservoir, pumping plant, distribution system 

and water treatment facilities. 

Appropriated funds made available under the White Mountain Apache Tribe 

Rural Water System Loan Authorization Act (PL 110–390), are currently being used 

to implement the WMAT settlement. On September 30, 2011, the Bureau of Reclamation awarded a PL 93–638 contract to the Tribe in the amount of $11.8 million 

(indexed), which allowed the Tribe to move forward with the initial planning, engineering, and design of the WMAT rural water system, as well as to complete the 

requisite environmental impact statement (EIS). Through this contract, the Tribe 

has awarded three major engineering contracts, for 30 percent designs of each 

project component, including Miner Flat Dam, treatment plant, and distribution system. A fourth contract was awarded for preparation of an EIS. Thirty percent designs for the treatment plant and distribution system, including pumping plants are 

complete. Thirty percent design of the dam and reservoir continues along with preparation of the EIS. Final design on all components will commence subsequent to 

completion of the EIS and issuance of a Record of Decision. 

S. 2959 

S. 2959 would amend the White Mountain Apache Tribe Water Rights Quantification Act of 2010 to authorize funding from the WMAT Settlement Fund for the completion of the WMAT rural water system, including carrying out activities relating 

to the operation, maintenance, or replacement of the WMAT rural water system. 

The core of the settlement is the WMAT rural water system and the Act authorized 

approximately $126 million in mandatory spending for the Secretary of the Interior 

to carry out its planning, engineering, design, environmental compliance, and construction. The mandatory funding for construction is separate and apart from the 

WMAT Settlement Fund at issue in S. 2959. For this reason, I will now discuss 

briefly the history of the WMAT Settlement Fund authorization. 

In the 113th Congress, legislation approving the WMAT Settlement (S. 313) was 

amended in Committee to authorize $113.5 million for a WMAT Settlement Fund. 

The Administration subsequently submitted—through then-Commissioner of the Bureau of Reclamation Michael L. Connor—a views letter regarding S. 313 as reported 

by the Committee expressing concerns about the WMAT Settlement Fund. In response to the concerns of the Administration, the Claims Resolution Act ultimately 

reduced the WMAT Settlement Fund by $35 million in order to create a ‘‘Cost Overrun Subaccount,’’ to be administered by the Secretary in order to ensure that the 

WMAT rural water system would be completed with the funds specifically authorized and capped for its construction. The remaining $78.5 million originally included 

in the WMAT Settlement Fund remained available as discretionary appropriations. 

This $78.5 million in discretionary funding, plus any potential unobligated amounts 

of the Cost Overrun Subaccount, may be used for fish production, including hatcheries; rehabilitation of recreational lakes and existing irrigation systems; water-related economic development project; and protection, restoration, and economic development of forest and watershed health. 

10 

The Department is aware that the Tribe has identified challenges and potential 

cost-overruns associated with the design of the rural water delivery system, specifically Miner Flat Dam. However, the Bureau of Reclamation (Reclamation) has not 

been provided with the necessary design and cost estimate data to make a determination on the final project design of the WMAT rural water system. Under the 

Act, Reclamation is required, in consultation with the Tribe, to make changes to the 

design to ensure that the final design meets Reclamation standards; is cost effective; 

and may be constructed within the mandatory appropriations provided in the Act. 

Without necessary information from the Tribe on current design and cost estimate 

data, Reclamation is unable to make any determinations related to the feasibility 

of the design or cost of the system, or any potential cost overruns. Because of the 

history of the Cost Overrun Subaccount’s establishment and because Reclamation 

has not yet received the necessary design and cost estimate data, the Department 

cannot evaluate whether S. 2959 is needed to complete the WMAT rural water system. However, we are hopeful that this hearing will advance the implementation of 

this important settlement, and we look forward to working with the Tribe to ensure 

Reclamation receives the relevant information to advance the WMAT rural water 

system. 

Also, while we recognize the intent of S. 2959, we have identified some technical 

concerns with the language that we look forward to working with the bill sponsor 

and the Committee to resolve. Specifically, we would like to clarify how the use of 

the phrase ‘‘in accordance with subsection (e)(4)’’ would interact with the Cost Overrun Subaccount in in Section 312(e) if S. 2959 were to be enacted. 

S. 2796, A BILL TO REPEAL CERTAIN OBSOLETE LAWS RELATING TO INDIANS

Chairman Barrasso, Vice-Chairman Tester, and members of the Committee, 

thank you for inviting me to express the views of the Department of the Interior 

(Department) on S. 2796, a bill to repeal certain obsolete laws relating to Indians. 

The Department understands the need to repeal certain laws relating to Indian that 

were passed by Congress in the late 1800s. The Department supports S. 2796. 

S. 2796 

S. 2796 would repeal various laws that were passed by Congress during periods 

in United States Federal Government history that were directly related to the Federal Government’s policy with Indian tribes. The laws to be repealed by S. 2796 

range in dates of enactment from 1862 through 1913, and were passed in the eras 

of Federal Indian policy identified as ‘‘removal and reservations (1829–86), and allotment and assimilation (1887–1932)’’ eras. The language in many of these laws 

uses historical and antiquated terms and contexts such as ‘‘Indian tribe is in actual 

hostility to the United States,’’ or ‘‘while at war with the United States,’’ or ‘‘Moneys 

or annuities of hostile Indians’’ and ‘‘withholding of moneys or goods on account of 

intoxicating liquors.’’ These various laws were passed with the sole purpose of prescribing the appropriation of moneys or annuities on the condition of ‘‘non-hostility’’ 

with the United States, or not to be ‘‘under the influence of intoxicating liquors,’’ 

or withholding such appropriations to Indian tribes for Indian children not attending schools. The Department agrees that these laws should be repealed. 

S. 3013, SALISH AND KOOTENAI WATER RIGHTS SETTLEMENT ACT OF 2016

Chairman Barrasso, Vice Chairman Tester and members of the Committee, I am 

Letty Belin, Counselor to the Deputy Secretary at the Department of the Interior 

(Department). I am here today to provide the Department’s position on S. 3013, the 

Salish and Kootenai Water Rights Settlement Act of 2016, which would approve and 

provide authorizations to carry out, a settlement of the water right claims of the 

Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana 

(Tribes). We have not completed the necessary review of the legislation, and we 

have significant concerns about the Federal costs of the settlement, which total approximately $2.3 billion. Therefore, the Department cannot support S. 3013 as introduced. 

I. Introduction 

The Administration supports the resolution of Indian water rights claims through 

negotiated settlement. Our general policy of support for negotiations is premised on 

a set of general principles including that the United States participate in water settlements consistent with its responsibilities as trustee to Indians; that Indian tribes 

receive equivalent benefits for rights which they, and the United States as trustee, 

may release as part of a settlement; that Indian tribes should realize value from 

confirmed water rights resulting from a settlement; and that settlements are to conVerDate Mar 15 2010 10:53 Nov 01, 2016 Jkt 022291 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 S:\DOCS\22291.TXT JACK
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tain appropriate cost-sharing proportionate to the benefits received by all parties 

benefitting from the settlement. I want to affirm the Administration’s support for 

settling Indian water rights where possible. 

Disputes over Indian water rights are expensive and divisive. In many instances, 

Indian water rights disputes, which can last for decades, are tangible barriers to 

progress for tribes, and significantly, hinder the rational and beneficial management 

of water resources. Settlements of Indian water rights disputes break down these 

barriers and help create conditions that improve water resources management by 

providing certainty as to the rights of all water users who are parties to the dispute. 

That certainty provides opportunities for economic development, improves relationships, and encourages collaboration among neighboring communities. This has been 

proven time and again throughout the West as the United States has pursued a policy of settling Indian water rights disputes whenever possible. Indian water rights 

settlements are also consistent with the Federal trust responsibility to American Indians and with Federal policy promoting Indian self-determination and economic 

self-sufficiency. For these reasons and more, for nearly 30 years, federally recognized Indian tribes, states, local parties, and the Federal government have acknowledged that negotiated Indian water rights settlements are preferable to the protracted litigation over Indian water rights claims. 

The Confederated Salish and Kootenai Tribes have long been leaders in water and 

natural resources management. They have restored the ecosystem function of miles 

of streams and, with the State of Montana, co-manage the fishery on Flathead Lake, 

the largest freshwater body west of the Continental Divide. Most recently, the 

Tribes acquired ownership of Kerr Dam (now known as the Selis Ksanka Qlispe 

Dam) near the outlet of Flathead Lake, becoming the first tribe to hold exclusively 

a federal license for and operate a major hydroelectric dam. The State of Montana 

should also be commended for its efforts to resolve Tribal and Federal reserved 

water rights through the State’s unique and highly successful Reserved Water 

Rights Compact Commission. The Tribes and the State brought these leadership 

qualities to this tribal water negotiation, and the Department recognizes the substantial effort that they have made in negotiating a resolution of the Tribes’ water 

right claims; the issues surrounding these claims have been among the most contentious to be addressed to date in a tribal water settlement. 

II. Historical Context 

A. 1855 Hellgate Treaty 

The aboriginal homeland of the Salish, Kootenai and Pend d’ Oreille Tribes is located in present-day western Montana, northern Idaho and north into Canada. In 

1855, these Tribes negotiated with the United States and entered into what is 

known as the Hellgate Treaty. Under the treaty, the Tribes ceded to the United 

States a significant portion of their aboriginal territory and reserved to themselves 

the Flathead Indian Reservation (Reservation) in northwestern Montana. 

The Hellgate Treaty is one of a series of similar Indian treaties entered into between the United States, represented by Washington Territory Governor Isaac Stevens, and numerous tribes in the Pacific Northwest. A common attribute of these 

‘‘Stevens treaties’’ is the express reservation of tribal aboriginal hunting, fishing and 

gathering rights on- and off-reservations. In the Hellgate Treaty, the Tribes reserved to themselves the ‘‘exclusive right of taking fish in all streams running 

through and bordering’’ the Reservation. They also expressly reserved the right to 

fish at usual and accustomed fishing sites off the Reservation ‘‘in common’’ with 

non-Indian settlers. These and similar terms found in Indian treaties, discussed 

more below, have been found by state and federal courts to support reserved 

instream flow water rights for Tribal fisheries. 

In addition, there are extensive Tribal lands within the Reservation that are economically viable agricultural lands when irrigated. Articles four and five of the 

Hellgate Treaty address the commitment of the United States to provide the necessary materials, equipment, and other support to convert the Tribes to an agrarian 

society. Under the Winters Indian reserved water rights doctrine, these lands would 

be entitled to substantial reserved water rights for irrigation as part of the homeland purpose of the Reservation. 

B. Water Resource Development and Conflict on the Flathead Reservation 

There have been extensive and bitter disputes over the Tribes’ water rights and 

resources dating back a century. These longstanding conflicts can be traced directly 

to Congressional actions in the early 20th Century. From 1855 to 1904 the Tribes 

enjoyed the exclusive use of the Flathead Reservation. This included the initiation 

of irrigated farming by Tribal members. Pressures for non-tribal settlement of lands 

within the Reservation began to mount, however, and in the 1904 Flathead AllotVerDate Mar 15 2010 10:53 Nov 01, 2016 Jkt 022291 PO 00000 Frm 00015 Fmt 6633 Sfmt 6621 S:\DOCS\22291.TXT JACK
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ment Act, Congress, over the objections of the Tribes, directed the allotment of Tribal land to individual Indians and authorized the disposal of additional ‘‘surplus’’ 

unalloted Tribal land for non-Indian homestead entry. 

The 1904 Flathead Allotment Act authorized limited irrigation facilities for Indian 

use as part of allotting lands to individual Indians. In 1908, Congress amended the 

1904 Act and authorized the construction of a greatly-expanded irrigation system 

to serve extensive irrigable lands on the Reservation, both Indian and non-Indian. 

This irrigation system became known as the Flathead Indian Irrigation Project 

(Project). Over the next few decades, the Project was constructed to irrigate approximately 130,000 acres. By the 1930s, most of the lands allotted to individual Tribal 

members within the Project were no longer in Indian ownership, and currently nearly 90 percent of the lands irrigated by the Project are owned by non-Indians. 

C. Court Confirmation of Tribal Reserved Water Rights for Instream Flows 

Much of the irrigation water supply for the Project is diverted directly from several streams which also support the Tribes’ reserved fisheries. By the 1980s, these 

diversions had significantly impacted the natural flows and the fisheries on the Reservation. In a series of interrelated lawsuits filed in the 1980s by the Tribes and 

others, federal courts conclusively confirmed that the Tribes, by the terms of the 

1855 Hellgate Treaty, are entitled to on-Reservation instream flows water rights 

sufficient to support fishery resources. The courts further found that these reserved 

instream flow rights have a priority date of time immemorial and thus are senior 

to the irrigation water rights for the Project. 

After these rulings, the Tribes agreed to accept lower ‘‘interim’’ flows until the 

instream flow rights could be fully quantified in the Montana water court or 

through negotiations. Since the 1980s, the situation on the Flathead Reservation between flows and irrigation demands essentially has been at an impasse. The Bureau 

of Indian Affairs (BIA) continues to operate the Project, but is on record stating that 

the existing minimum flow protections are not adequate. Population growth on and 

near the Reservation over the past few decades has increased the demand for water 

resources. 

Montana is in the process of adjudicating water rights throughout the state. It 

was clear to Montana representatives and most water users on the Reservation that 

at the end of a long and expensive process, the non-Indian rights would be junior 

to the Tribes and and their water supplies could be shut off to meet the Tribes’ 

instream flow rights. The Tribes also had a number of senior water rights claims 

throughout Montana that created uncertainty about future water uses. 

III. Salish and Kootenai Water Rights Compact and Proposed Legislation 

A. Negotiations 

Seeking to avoid costly litigation, provide certainty for all water users, and meet 

the Tribes’ needs, the State of Montana, the Tribes and the United States have 

made a number of attempts since the early 1990s to negotiate the Tribes’ instream 

flow and other water right claims. These negotiations became more active and focused in 2007, when the Tribes submitted a set of key negotiation principles. First, 

the Tribes committed to negotiate toward a settlement in which all verified existing 

water uses on the Reservation—Tribal and non-Tribal—would be protected. This included a commitment that the water supply for the Project would be protected to 

the full amount needed to meet existing net irrigation requirements. Second, rather 

than exercise the full extent of the Tribes’ instream flow rights (which are senior 

in priority to and would reduce water available for irrigation water rights), the 

Tribes agreed instead that flow protections for fish would be met by dedicating 

water saved through conservation practices and Project improvements. Third, all 

waters on the Reservation would be jointly administered by the Tribes and the State 

to reflect the principle that water on the Reservation is a unitary resource. 

B. Compact 

The Salish and Kootenai Tribal water compact as negotiated and as approved by 

the Montana legislature in 2015 represents a comprehensive resolution of all of the 

Tribes’ water right claims in concert with the negotiating principles discussed above. 

Among other things, the Compact includes a set of Tribal irrigation, domestic, 

instream flow and other water rights to meet the Tribes’ current and future water 

needs on the Reservation. The Compact entitles the Tribes to additional water 

sources from the Flathead River and from the federal Hungry Horse Project (a large 

dam and reservoir on the South Fork of the Flathead River under the jurisdiction 

of the U.S. Bureau of Reclamation). Off-reservation water right claims are also resolved under the Compact, which provides for Tribal water rights and other flow 

13 

protections in key streams throughout the Clarks Fork and Kootenai River basins 

in western Montana. 

Finally, once it is fully executed, the Compact provides a unique and carefully 

crafted framework for the administration of water rights on the Reservation through 

the Unitary Administration and Management Ordinance (or Law of Administration). 

It describes the process to (1) register existing uses of water; (2) change water 

rights; and (3) provide for new water development. The Compact also establishes a 

Water Management Board to administer the Compact and Ordinance on the Reservation. 

The Department’s federal negotiating team participated in water related compromises contained in the Compact as required by the Department’s many federal 

responsibilities with respect to the disputed water rights and resources on the Flathead Indian Reservation, its ownership and operation of the Project, and its ownership and operation of Hungry Horse Reservoir located above Flathead Lake. Finally, 

the Department has worked with the U.S. Department of Justice to develop and file 

extensive claims for water on and off the Reservation in the Montana water court 

as part of the Montana general stream adjudication. These claims have been stayed 

by the Montana water court until February 2017 while the parties seek federal and 

other approvals of the Compact. 

C. S. 3013 

Among other things, S. 3013 would ‘‘authorize, ratify, confirm, and provide funding’’ for the Salish and Kootenai Tribal water compact; would ratify the tribal water 

right set forth in the Compact and make ‘‘any use of the tribal water 

right. . .subject to the terms and conditions of the Compact and [S. 3013]’’; and, in 

conformance with the Compact, would direct the Secretary to ‘‘allocate to the Tribes 

90,000 acre-feet’’ of storage water in the federal Hungry Horse Reservoir ‘‘for use 

by the Tribes for any beneficial purpose on or off the Reservation.’’ Section 7 addresses future hydropower development on the Reservation by (a) directing that the 

Commissioner of the Bureau of Reclamation would have exclusive jurisdiction to authorize the development of any hydroelectric power generation project within the 

Reservation and (b) providing that the Tribes ‘‘shall have the exclusive right to develop and market hydropower on water bodies within the Reservation.’’ Section 8 

would provide several authorities to rehabilitate, modernize and mitigate the impacts of the federal Project. S. 3013 would authorize approximately $2.3 billion of federal funds and provide 

for the waiver of CSKT water and damages claims. The following accounts would 

be established: 

• Selis-QLispe Ksanka (Tribal) Settlement Trust Fund (Section 9) 

—Agriculture Development Account—$365,207,225 

—Economic Development Account—$93,633,566 

—Community Development Account—$233,361,200 

• Salish and Kootenai Compact Fund (Section 10) 

—Compact Implementation Account—$116,209,294 

—Flathead Indian Irrigation Project Account—$1,519,408,000 

With the Project-related fund, CSKT is seeking funding through S. 3013 to rehabilitate and modernize the Project so that the water savings can be used to meet 

instream flow requirements. 

IV. Department of the Interior Positions on S. 3013 

While the Department has a record of strong support for Indian water rights settlements and the Compact is similar to many other water rights settlements that 

Congress has approved, the Department is unable to support S. 3013 as introduced. 

Additional time is needed for the Department to complete its review of the legislation. The Department has serious concerns about and cannot support the approximately $2.3 billion in federal appropriations that S. 3013 calls for. The proposed 

amounts and the legislative language contain little information regarding the purposes for which the proposed funds and accounts would be put to use. The Department has made clear to the Tribes that a more realistic level of funding is required 

before the Department will be able to support S. 3013. 

We are also concerned about the magnitude of the increased cost of this settlement compared to enacted Indian water rights settlements. While we recognize that 

this proposed settlement would seek to resolve longstanding and intense conflicts, 

we would also note that the size of the proposed Federal funding obligation created 

under S. 3013 in relation to the Department’s budget presents significant challenges. As an example, the Bureau of Reclamation currently has a backlog of more 

than $1 billion in authorized, but unfunded, Indian Water Rights Settlements. 

14 

V. Conclusion 

S. 3013 and the underlying Compact are the products of a great deal of effort by 

many parties and reflect a desire by the people of Montana—Indian and non-Indian—to settle their differences through negotiation rather than litigation. This Administration shares that goal, and hopes to be able to support ratifying legislation 

for the Confederated Salish and Kootenai Tribes after a full and robust analysis and 

discussion of all aspects and ramifications of this substantial settlement. 

The Administration is committed to working with the Tribes and other settlement 

parties to reach a final and fair settlement of the Tribe’s water rights claims. The 

Administration is committed to working with Congress and all parties concerned in 

developing settlement legislation that the Administration can fully support. 

Mr. Chairman, this concludes my written statement. I would be pleased to answer 

any questions the Committee may have. 

The CHAIRMAN. Thank you so much for your testimony. 

Next we will hear from the Honorable David Flute. And I will 

just tell you Senator Rounds, earlier today, told me the story of 

your incredible military service, your bravery, your courage, and it 

is a privilege to have you here with us today testifying. Thank you 

very much. If you could introduce yourself and who you represent. 

STATEMENT OF HON. DAVID FLUTE, CHAIRMAN, SISSETON– 

WAHPETON OYATE SIOUX TRIBE 

Mr. FLUTE. Mr. Chairman, Vice Chairman, I respectfully ask to 

be able to introduce myself in my native tongue according to my 

Dakota protocol. 

The CHAIRMAN. Please. 

Mr. FLUTE. [Greeting in native tongue.] I shake each and every 

one of your hands from my heart today. 

[Speaking native language.] I thank you for allowing me to stand 

before you. 

[Speaking native language.] The testimony I am about to give I 

ask that it strengthens your understanding and your knowledge of 

what I am about to say today. 

With that [speaking native language], I thank you very much. 

Good afternoon, Mr. Chairman, Mr. Vice Chairman, members of 

the Committee. My name is David Flute. I am the Chairman of the 

Sisseton-Wahpeton Sioux Tribe. I am pleased to testify in support 

of Senate Bill 2796, the RESPECT Act, which would repeal certain 

obsolete laws concerning Indians. As Native Americans, respect for 

our somber Nations’ treaty rights and Indian lands is imperative 

because our right to self-governance on our Reservation is freedom 

and liberty for us. It is the essence of Tribal self-governance. 

Senator Rounds provides leadership and reconciliation with Native Americans in the Senate, as he did as governor of the State 

of South Dakota, and for that I thank him. 

The Sisseton-Wahpeton Sioux Tribe is a signatory of two treaties, 

the 1851 Treaty and the 1867 Lake Traverse Treaty, which established a permanent homeland for my people in northeast South Dakota and, as Senator Heitkamp had mentioned, southeast North 

Dakota. 

We are proud of our service to the United States through the 

military. Woodrow Wilson Keeble, one of our most respected tribal 

veteran members, served in World War II and in Korea and was 

posthumously awarded the Congressional Medal of Honor by President George W. Bush. 

15 

And today, Mr. Chairman, the reason I bring that up is there are 

laws in our legal code that talk about withholding the annuities of 

Tribes that are hostile towards the United States Government. As 

Senator Rounds had mentioned, and I appreciate, Mr. Chairman, 

acknowledging my service to this Country, that many of us have 

volunteered to serve this Country. Many of us were not drafted. 

Many of us did not have to go. We volunteered to serve this Country, and when we created treaty and when we established those relationships with the United States Government, we created a partnership and an alliance. And on behalf of those older veterans that 

served in World War I, World War II, as my grandfather did, and 

as he had heard from his grandfather, those treaty obligations we 

felt, on our part, were an obligation for us to serve the United 

States of America. So we are very proud of our service to the Country, thus why these laws are obsolete and are concerning to us in 

that it questions the position of the United States Government towards us that have volunteered our patriotism to the United States 

of America. 

Senator Rounds introduced the RESPECT Act to strike antiquated laws which have historically disadvantaged our Indian Nations and our people. For example, there are still laws on the books 

for the removal of Indian children from the homes to be sent to 

compulsory boarding schools run by military officers where the 

mantra was ‘‘Kill the Indian and save the Man.’’ 

My grandfather was a World War II veteran. He served with the 

101st Airborne Division, the Battle of the Bulge, Bastards of the 

Stone. He was taken, at five years old, from his mother’s arms and 

he didn’t see his grandparents, he did not see his parents for 11 

years. When he came back to the Reservation to look for his home, 

there was no home. And the boarding school laws in Title 25 that 

spell out where a BIA agent can go into a home and take that child 

without consent of the parents is appalling, and we ask that those 

laws like that be removed from our code. 

In closing, Mr. Chairman, I would just like to say I have never 

met Senator McCain before, but I would like to say, sir, I am very 

honored, I am very humbled to be in your presence knowing what 

you did for our Country in Vietnam. I am very honored to be in 

your presence, sir. 

Senator MCCAIN. Thank you very much, sir. I am very honored 

by your service, and I am sure that Senator Tester and Senator 

Heitkamp are paying close attention to your words. 

That was a joke. 

I thank you. 

[Laughter.] 

Senator MCCAIN. I thank you very much for your service. Thank 

you. 

[The prepared statement of Mr. Flute follows:] 

PREPARED STATEMENT OF HON. DAVID FLUTE, CHAIRMAN, SISSETON-WAHPETON

OYATE SIOUX TRIBE

Good morning, Mr. Chairman, Mr. Vice Chairman, Members of the Committee 

and Honored Guests. My name is David Flute, and I am the Chairman of the 

Sisseton-Wahpeton Oyate. I want to give a special greeting to our Senators from 

South Dakota and North Dakota, Mike Rounds and Heidi Heitkamp. I am pleased 

to testify in support of S. 2796, the Repealing Existing Substandard Provisions EnVerDate Mar 15 2010 10:53 Nov 01, 2016 Jkt 022291 PO 00000 Frm 00019 Fmt 6633 Sfmt 6621 S:\DOCS\22291.TXT JACK
16 

couraging Conciliation with Tribes Act or RESPECT Act, which would repeal certain 

obsolete laws with concerning Indians. Thank you for the opportunity to testify 

today. 

As Native Americans, it is important for us to have respect for our Native Nations, treaty rights, and Indian lands because our right to self-governance and selfdetermination on our Reservations is the essence of Freedom and Liberty for us. 

Senator Rounds is providing important leadership on Respect and Reconciliation for 

Native Americans in the Senate, as he did as Governor of the State of South Dakota. We thank him. 

I would note that the Federal Government has just undertaken an effort to update the United States Code by striking the term ‘‘Oriental,’’ which is offensive to 

some Asians. It is important for the United States to put an end to historical racism 

against all Americans. 

The Oceti Sakowin, or Seven Council Fires, of the Dakota-Nakota-Lakota Oyate 

or Sioux Nation are the original people of the forests, woodlands, prairies and plains 

of Southern Minnesota, Iowa, North and South Dakota, Nebraska, Wyoming and 

Montana. The Sisseton-Wahpeton Oyate (meaning Sisseton-Wahpeton Dakota Nation and we also have been known historically as the Sisseton-Wahpeton Sioux 

Tribe) had our original homelands in Minnesota, North and South Dakota. 

The Sisseton-Wahpeton Sioux Tribe is signatory to the 1851 Treaty with the 

Sisseton-Wahpeton Bands of Dakota Sioux (Traverse des Sioux) and the 1867 Lake 

Traverse Treaty, which set aside the Lake Traverse Reservation as our ‘‘permanent 

reservation’’ homeland: 

Beginning at the head of Lake Travers[e], and thence along the treaty-line of 

the treaty of 1851 to Kampeska Lake; thence in a direct line to Reipan or the 

northeast point of the Coteau des Prairie[s], and thence passing north of Skunk 

Lake, on the most direct line to the foot of Lake Traverse, and thence along the 

treaty-line of 1851 to the place of beginning. 

The Lake Traverse Reservation is located in the Northeastern part of South Dakota and a small portion of southeastern corner of North Dakota. The reservation 

boundaries extend across seven counties, two in North Dakota and five in South Dakota. 

During the Dakota Conflict of 1862, the Sisseton-Wahpeton Sioux Tribe assisted 

the United States by rescuing white residents of our 1851 reservation and rescuing 

hostages and captives. Our 1867 Treaty continues our ‘‘friendly relations with the 

Government and people of the United States.’’ Our Treaty also recognizes our people’s right to self-government and to adopt ‘‘laws for the security of life and property,’’ to promote the ‘‘advancement of civilization’’ and promote ‘‘prosperity’’ among 

our people. 

Today, we have a total of 13,177 tribal members on our Reservation, throughout 

the United States and others serving overseas in the Armed Forces. We are rightfully proud of our service to the United States through the military. Woodrow Wilson Keeble, one of our most respected tribal members, served in World War II and 

in Korea and was posthumously awarded the Congressional Medal of Honor by 

President George W. Bush. 

Senator Rounds introduced the Repealing Existing Substandard Provisions Encouraging Conciliation with Tribes Act or RESPECT Act, S. 2796, to strike some of 

the substandard laws which have historically disadvantaged Indian nations and our 

people. For example, there are still laws on the books concerning the removal of our 

children from our homes to be sent to compulsory boarding schools run by military 

officers, where the mantra was ‘‘Kill the Indian, save the Man.’’ National Public 

Radio reported on Indian Boarding Schools, which cited the example of Floyd Red 

Crow Westerman, the famed Sisseton-Wahpeton singer and actor: 

Floyd Red Crow Westerman was haunted by his memories of boarding school. 

As a child, he left his reservation in South Dakota for the Wahpeton Indian 

Boarding School in North Dakota. Sixty years later, he still remembers watching his mother through the window as he left. At first, he thought he was on 

the bus because his mother didn’t want him anymore. But then he noticed she 

was crying. ‘‘It was hurting her, too. It was hurting me to see that,’’ Westerman 

says. ‘‘I’ll never forget. All the mothers were crying.’’ Westerman spent the rest 

of his childhood in boarding schools far from his family and his Dakota tribe. . . 

The Federal Government began sending American Indians to off-reservation 

boarding schools in the 1870s, when the United States was still at war with Indians. An Army officer, Richard Pratt, founded the first of these schools. He 

based it on an education program he had developed in an Indian prison. He described his philosophy in a speech he gave in 1892. ‘‘A great general has said 

17 

that the only good Indian is a dead one,’’ Pratt said. ‘‘In a sense, I agree with 

the sentiment, but only in this: that all the Indian there is in the race should 

be dead. Kill the Indian in him, and save the man.’’ 

Title 25 U.S.C. sec. 283, Regulations for Withholding Rations for Nonattendance 

at Schools, and 25 U.S.C. section 285, Withholding Annuities from Osage Indians 

for Nonattendance at Schools should be struck from the United States Code because 

these statutory provisions reflect a racist outlook that we, as American Indians, cannot manage our own affairs and our own children. 

As Senator Rounds said upon his introduction of the bill, ‘‘These statutes are a 

sad reminder of the hostile aggression and overt racism displayed by the early federal government toward Native Americans as the government attempted to ‘assimilate’ them into what was considered ‘modern society.’’’ 

Title 25 U.S.C. sec. 302 entitled Indian Reform School perhaps should be modernized and amended as follows: 

Strike the existing title and paragraph and insert a new title and a new paragraph: Education, Counseling Services and Other Assistance to Indian Children 

and Youth: The Secretary of the Interior, in consultation with and with the support of the Attorney General, the Secretary of Health and Human Services, the 

Secretary of Education, and Secretary of Labor, is authorized to provide education, counseling, training, family and community rehabilitation for Indian 

children and youth in need of services in BIA or tribal government custody, supervision or in court ordered foster placement. The Secretary of the Interior, in 

cooperation, coordination and with the support of the appropriate Attorney General, Secretary of Health and Human Services, and Secretary of Education, 

upon receipt of an appropriate plan acceptable to the Secretary of the Interior, 

authorize the tribal government to coordinate, in accordance with such plan, to 

consolidate its federally funded education, counseling, training, and community 

rehabilitation services for Indian children and youth in need of services in BIA 

or tribal government custody, supervision or court ordered foster care consistently and waive non-mandatory regulations as needed to integrate programs 

and services into a single coordinated, comprehensive program that improves 

performance and results and reduces administrative costs and burdens by consolidating functions. 

This provision would provide modernized services for Children and Youth in need 

of services in BIA or tribal custody, supervision or court ordered foster care in accordance with the principles of Public Law 102–477 (Indian Employment, Training 

and Related Services Demonstration Act of 1992). 

We agree that there is no place in our legal code for many of these laws today. 

For example, 25 U.S.C. sec. 72 provides for the Abrogation of treaties by the President, when an Indian tribe is in actual hostility with the United States. In the earlier post-Civil War era, the Constitution’s 14th Amendment Citizenship Clause and 

amended Apportionment Clause acknowledged that the citizens of Indian nations 

were ‘‘Indians not taxed,’’ with allegiance to our own Indian nations and subject primarily to tribal jurisdiction, not directly ‘‘subject to the jurisdiction’’ of the United 

States. Today, we are United States citizens and citizens of our own Indian nations, 

and our treaties provide for perpetual peace, which we have sustained and protected 

through our active participation in the Armed Services of the United States for 140 

years or more. Accordingly, this provision should be struck from the United States 

Legal Code. 

Title 25 U.S.C. sec. 127 provides for the withholding of annuities and appropriations under treaties to ‘‘hostile Indians.’’ As President Washington acknowledged in 

his Third Annual Address to Congress (which we call the State of the Union Address today) ‘‘the main source of discontent and war’’ was the alienation of Indian 

lands and the encroachment of non-Indians on reserved Indian lands. President 

Washington recommended ‘‘provision should be made for inflicting adequate penalties upon all those who, by violating [Indian] rights, shall infringe the treaties, 

and endanger the peace of the Union.’’ Address From George Washington to the 

U.S. Senate and House of Representatives, 25 October 1791 (National Archives— 

Founders Online). In 1934, President Franklin Roosevelt acknowledged that too 

much land had been taken from our Indian nations, and provided an avenue for the 

restoration of Indian lands in 25 U.S.C. sec. 465, the land into trust process. Today, 

the United States and Indian nations are working to redress the loss of Indian lands 

through the Indian Land Consolidation Act, and the Cobell Buy-Back Program. Title 

25 U.S.C. sections 127, 128, 129, 130, 137, and 138 should be struck from the 

United States Code because these sections are antiquated and racist. 

18 

Title 25 U.S.C. Section 273 and title 25 U.S.C. sec. 276 should be amended and 

consolidated. Strike the existing language and insert: Excess Federal Buildings and 

Real Property; Staffing. The Secretary of Defense, GSA and other Federal agencies 

are authorized to provide excess Federal Buildings, Land and Property with priority 

to Indian tribes that demonstrate educational or economic need for, or treaty, historical or geographical nexus to such properties; and the Secretary of Defense or other 

appropriate official may lend staff to said Indian tribe to assist in the transfer and 

rededication of such facility. By modernizing these provisions, Indian tribes can receive the benefit that Congress originally intended without the antiquated language 

that sends the wrong message about modern Federal—Tribal Relations to the public. 

Finally, in the spirit of Respect and Reconciliation, perhaps Congress can add a 

provision to call upon the President of the United States to issue a proclamation 

to announce the United States’ Apology to Native Americans. On December 19, 

2009, President Barack Obama signed the Native American Apology Resolution into 

law. Senator Sam Brownback (R–KS), sponsor of the bill, had it successfully added 

to the 2010 Defense Appropriations Act, H.R. 3326, after five years of effort. The 

Section 8113 of the Defense Act, Public Law No. 111–118 is as an apology ‘‘on behalf 

of the people of the United States to all Native peoples for the many instances of 

violence, maltreatment, and neglect inflicted on Native peoples by citizens of the 

United States.’’ President Obama has never formally issued or proclaimed the Apology although the Act: ‘‘urges the President to acknowledge the wrongs of the United 

States against Indian tribes in the history of the United States in order to bring 

healing to this land.’’ Such an Act deserves appropriate public recognition. 

In conclusion, the Sisseton-Wahpeton Oyate supports the passage of the RESPECT Act as amended. As Senator Rounds said, the RESPECT Act is ‘‘one small 

step Congress can take to heal some of the wrongs imparted upon Native Americans 

by the Federal Government.’’ Black Elk, our Lakota Holy Man said: 

You have noticed that everything an Indian does is in a circle, and that is because the Power of the World always works in circles, and everything tries to 

be round.. . . The Sky is round, and I have heard that the earth is round like 

a ball, and so are all the stars. The wind, in its greatest power, whirls. Birds 

make their nest in circles, for theirs is the same religion as ours.. . . Even the 

seasons form a great circle in their changing, and always come back again to 

where they were. The life of a man is a circle from childhood to childhood, and 

so it is in everything where power moves. 

President George Washington intended to respect Indian nations and Indian treaties when he entered into the first Indian treaties after the ratification of the U.S. 

Constitution in 1790. Today, with the leadership of the Senate Committee on Indian 

Affairs, Congress is returning full circle to the original respect for our Native Nations as America’s original sovereigns. 

Again, thank you for the opportunity to testify on behalf of the Sisseton-Wahpeton 

Oyate. 

The CHAIRMAN. Thank you. I appreciate your testimony. 

We will next hear from Mr. Kasey Velasquez. I know you are 

substituting, but we appreciate you making it here and to be willing to give this testimony today. 

STATEMENT OF HON. KASEY VELASQUEZ, VICE CHAIRMAN, 

WHITE MOUNTAIN APACHE TRIBE 

Mr. VELASQUEZ. Good afternoon, Chairman Barrasso, Vice Chairman Tester, Senator McCain, and members of the Committee. 

Likewise, as my colleague, I would like to introduce myself in my 

Apache language. 

[Greeting in native tongue.] 

My name is Kasey Velasquez. I am Tribal Vice Chairman of the 

White Mountain Apache Tribe. I come to Washington, D.C. with 

prayers and culture, heritage adherence in our Apache language, 

acknowledgment for the White Mountain Apache Tribe. 

Chairman Lupe is recovering from being ill. As you guys all 

know, Chairman Lupe is a Korean War veteran, United States MaVerDate Mar 15 2010 10:53 Nov 01, 2016 Jkt 022291 PO 00000 Frm 00022 Fmt 6633 Sfmt 6601 S:\DOCS\22291.TXT JACK
19 

rine Corps. He asked me to testify in his place and he sends his 

regrets. 

Thank you for this opportunity for the White Mountain Apache 

Tribe to testify in support of Senate Bill 2959, and thank you, Senator McCain, for introducing and moving this vital legislation. 

We also thank Senator Jeff Flake for his support of this amendment. 

Our people, the Apache people of the White Mountain Apache 

Tribe, have lived on our homeland in eastern Arizona since time 

immemorial. The headwaters of the Salt River system arises on our 

Reservation and merged to become the Salt River, which flows 

south to the Phoenix Valley. Water flowing from our land built the 

skyscrapers there. 

Ironically, despite hundreds of miles of streams on our land, our 

own economic development has been stifled by the lack of safe, 

clean, and reliable drinking water for our people, housing, schools, 

hospital, and Reservation residents. The reason is Mother Nature. 

We have very little groundwater on our Reservation; yet, 14,000 

people, almost our entire population, are dependent upon a declining well field that was built in 1999. The decline is not reversible. 

Production is down to half of what it was in 1999. There is no recharge. 

There is also natural arsenic in our groundwater. We have to 

blend it to meet EPA standards. Drinking water must be hauled 

by hand in one community and piped into another. 

Congress, recognizing the White Mountain Apache Tribe Water 

Rights Act that our current and future drinking water needs could 

only be met by surface water and then by building a rural water 

system, including a dam, a small reservoir with 6,000 acres feet of 

active storage, a treatment plant, and a 55-mile pipeline to deliver 

the treated water to our tribal communities. 

Section 312 of the White Mountain Water Rights Act authorizes 

up to $78.5 million in the settlement fund for water-related economic development projects. Among other listed purposes, Congress 

gave us broad discretion on how to use the $78.5 million. 

Last year our engineer consultants discovered previously unknown potential seepage and stability conditions to the foundation 

material at the dam site. They advise that there will be a construction cost overrun to build the dam and reservoir. We are certain, 

however, that any cost overrun will not exceed the total amount 

authorized in the Water Rights Act for the rural water system, the 

settlement fund, and for cost overruns. 

We have always understood that the funding authorized by Congress for water-related economic development projects would naturally include using money from settlement funds, if necessary, to 

pay for any cost overrun to complete the rural water system, a 

water-related economic development project on its own. We therefore became concerned that the Department of Interior indicated 

that it was not absolutely clear from its perspective whether the 

settlement fund could be used for a cost overrun to build the rural 

water system. Enacting bill 2959 will ensure the Interior that the 

settlement fund, as needed, can be used to complete the rural 

water system. 

20 

1The White Mountain Apache Tribe Water Rights Quantification Act became Title III of the 

Claims Resolution Act of 2010 (the ‘‘Act’’). P.L. 111–291. 

As I testify before you today, I am mindful of an image and a 

hope that I have held for years that I would be fortunate, and our 

tribal members to be fortunate to live long enough to see a child 

or adult in the community of Carrizo casually open a faucet on a 

kitchen sink to fill a glass of water, something they cannot do 

today. 

Thank you. I am ready to answer any questions you may have. 

[The prepared statement of Mr. Lupe follows:] 

PREPARED STATEMENT OF HON. RONNIE LUPE, CHAIRMAN, WHITE MOUNTAIN APACHE

TRIBE

Chairman Barrasso, Vice Chairman Tester, Senator McCain and members of the 

Committee: Thank you for the opportunity to testify in support of S. 2959—A Bill 

to amend the White Mountain Apache Tribe Water Rights Quantification Act of 

2010 to clarify the use of amounts in the WMAT Settlement Fund. 

My name is Ronnie Lupe, and I am the Tribal Chairman of the White Mountain 

Apache Tribe. We live on the Fort Apache Indian Reservation upon aboriginal lands 

which we have occupied since time immemorial. Our Reservation is located about 

200 miles Northeast of Phoenix in the White Mountain Region of East Central Arizona. The Tribe’s current water sources and infrastructure have been and continue to 

be grossly inadequate to meet the current demands and needs of our reservation 

communities. Fortunately, subsequent to our agreeing to a quantification of our aboriginal and federally reserved water rights in 2009 with various state parties following decades of litigation, Congress enacted the White Mountain Apache Tribe 

Water Rights Quantification Act 1 (‘‘Quantification Act’’)(P.L. 111–291). The cornerstone of that Act, which confirmed the 2009 Water Rights Quantification Agreement 

and Settlement, is the authorization for the design and construction of the White 

Mountain Apache Tribe Rural Water System (the ‘‘Rural Water System’’)(P.L. 111– 

291), which will bring desperately needed safe and reliable drinking water to our 

Tribe and its members. 

S. 2959 will clarify the intent of a provision in the Act concerning the Rural Water 

System and enable us to shift some amounts of already authorized spending among 

authorized activities. Specifically, the legislation would clarify Congress’s intent to 

allow the Tribe to use the existing authority under Section 312(b)(2) of the Act for 

‘‘water-related economic development’’ projects to complete the construction of the 

Rural Water System. 

If this issue is not resolved, the completion of the Rural Water System project will 

be threatened, thereby increasing the ultimate cost to the United States and delaying the delivery of life-sustaining drinking water to our reservation communities. 

Fort Apache Indian Reservation and the Tribe’s Reserved Water Rights 

The Tribe holds full beneficial title to 1.66 million acres of trust land in the east 

central highlands of the State of Arizona. The Tribe’s Fort Apache Indian Reservation was established by Executive Order in 1871. We have retained actual, exclusive, use and occupancy of our aboriginal lands within the boundaries we agreed to 

and later designated by the Executive Orders dated November 9, 1871 and December 14, 1872, without exception, reservation, or limitation since time immemorial. 

The Tribe’s vested property rights, including its aboriginal and other federal reserved rights to the use of water, often referred to as Winters Doctrine Water 

Rights, that underlie, border and traverse our lands, have never been extinguished 

by the United States and are prior and paramount to all rights to the use of water 

in the Gila River drainage, of which the Salt River is a major source. 

Except for a small portion of the Reservation that drains to the Little Colorado 

River Basin, virtually our entire Reservation drains to the Salt River. The headwaters and tributaries of the Salt River arise on our Reservation and are the principal sources of water for the Tribe, and the greater metropolitan Phoenix area. Specifically, 78 percent of the water in Theodore Roosevelt Reservoir located north of 

the Phoenix Valley is contributed from our reservation; at Saguaro Lake reservoir, 

further South, 60 percent of the water is contributed from our reservation; and 

below the confluence of the Verde River and Salt River, near Granite Reef Dam, 

Scottsdale, 42 percent of the water comes from our reservation. The importance of 

21 

achieving implementation of our 2009 Water Rights Quantification Agreement is essential to the well-being of the White Mountain Apache Tribe and the downstream 

water users in the Phoenix Valley. 

White Mountain Apache Tribe Water Rights Quantification Act of 2010 

In 2010, this Congress approved the historic White Mountain Apache Tribe Water 

Rights Quantification Act as part of the Claims Resolution Act of 2010 (P.L. 111– 

291). The legislation was sponsored in by Senator McCain, now-retired Senator Jon 

Kyl, and the entire Arizona delegation in the House. Importantly, the Act was budget neutral. 

The Quantification Act resolved the Tribe’s water related damage and reserved 

water rights claims against the United States, the State of Arizona, and a number 

of state parties in regards to rights in the Little Colorado River and the Gila River 

(Salt River and Tributaries thereto). In consideration for the Tribe waiving its water 

related claims and prior reserved rights, the Act authorized funding for the construction of the Rural Water System comprised of a dam and reservoir, treatment 

plant, and a 55 miles of pipeline to serve virtually every reservation community. In 

addition, the Act also authorized funding for, among other things: (1) cost-overruns 

for the Rural Water System (Sec. 312(e)) and (2) ‘‘water-related economic development projects’’ as part of the WMAT Settlement Fund (Sec. 312(b)). 

The White Mountain Apache Tribe Water Rights Quantification Agreement, which 

was respectfully negotiated amongst all parties, was formally approved by the White 

Mountain Apache Tribe and all parties, including the Secretary of the Interior, and 

subsequently approved by the Superior Courts (Apache County and Maricopa County Superior Court) of the State of Arizona on December 18, 2014. The White Mountain Apache Tribe Water Rights Quantification Settlement Judgment and Decree 

was filed in Maricopa County and Apache County on March 15, 2015. The Judgments and Decrees become enforceable on the date that the White Mountain Apache 

Tribe Water Rights Quantification Act becomes enforceable with the publication by 

the Secretary of the Record of Decision allowing the construction of the Rural Water 

System project to go forward. 

The Tribe’s Drinking Water Crisis 

The driving force behind the 2009 water rights settlement and the 2010 Quantification Act was the long-standing need to provide a reliable and safe water supply 

and delivery system to the members of the White Mountain Apache Tribe. The Tribe 

and Reservation residents are in urgent need of a long-term solution for their drinking water needs. Currently, the Tribe is served by the Miner Flat Well Field. Well 

production has fallen sharply and is in irreversible decline. Over the last decade, 

well production has fallen by 50 percent. A small diversion Project on the North 

Fork of the White River was constructed several years ago to compensate for the 

precipitous loss of well production, but was only a temporary fix and drinking water 

shortages remain a chronic problem. The Tribe experiences annual summer drinking water shortages, and there is no prospect for groundwater recovery as there is 

little or no groundwater on the reservation. The quality of the existing water 

sources threatens the health of our membership and other Reservation residents, including the Indian Health Service Regional Hospital and State and Bureau of Indian Affairs schools. The only viable solution is the replacement of failing groundwater resources with surface water from the North Fork of the White River. 

Without reservoir storage behind Miner Flat Dam, a feature authorized by the 

Act, the stream flows of the North Fork of the White River, supplemented by shortterm capacity of the Miner Flat Well Field, are together inadequate to meet current, 

much less future, community demands of the White Mountain Apache Tribe in the 

Greater Whiteriver Area, Cedar Creek, Carrizo, and Cibecue and to maintain a minimum flow in the North Fork of the White River. The demands of the Tribe for its 

Rural Water System will literally dry up the North Fork of the White River before 

2020, even in combination with a supplemental supply from the Miner Flat Well 

Field. Therefore, Miner Flat Dam is necessary to store 6,000 acre feet of water during runoff periods for release and enhancement of the North Fork of the White River 

to not only meet demands of the Reservation Rural Water System but to maintain 

a minimum flow required for aquatic and riparian habitat preservation and enhancement. 

In sum, the Rural Water System will replace the failing and terminal groundwater well system and enable the Tribe to construct a secure, safe and reliable 

drinking water supply for the current 15,000 White Mountain Apache Tribal members and residents living on our Reservation and to meet the increasing drinking 

water needs of the Reservation for a future population of nearly 40,000 persons in 

the decades to come. 

22 

Need for Technical Clarification 

After passage of the Act, the Tribe continued, with a loan from Reclamation, with 

work on the design and geotechnical work for the proposed dam site of the Rural 

Water System. In the course of this work, the Tribe’s consulting engineers discovered potential seepage and stability conditions in the foundation material at the 

dam site than had not been previously known. The cost-overrun funding necessary 

to address these design and construction issues will in no event be greater than the 

total amounts authorized in Sections 312(a), (b), and (e), of the Act which respectively authorized the Rural Water System, the WMAT Settlement Fund, and costoverruns for the System. 

The WMAT Settlement Fund authorized in Section 312(b)(2) of the legislation was 

written sufficiently broad to authorize the use of the fund for cost-overruns. Consistent with the goals of self-determination and self-sufficiency, Congress intended 

the Tribe to have wide discretion on how to use and prioritize any of the authorized 

uses in Section 312(b)(2)(C), which, as noted, includes the very broad category of 

‘‘water-related economic development projects.’’ This intent that we would have wide 

discretion on the use of these funds has always been our understanding and we 

have relied on that belief. Since the Rural Water System will serve a number of 

water-related activities from housing to hydropower, it fits squarely within the Settlement Fund’s authorized purposes. For example, the System will provide: (1) water 

for new and existing housing on the reservation; (2) water for existing irrigation; 

(3) the ability to expand irrigation (approximately 2,000 acres); (4) improvements to 

the Alchesay fish hatchery; (5) lake-based recreation for fishing and non-motorized 

boats; and (6) the potential for small-scale hydro-electric (approximately two 

megawatts). Given the importance of the Rural Water System and its economic development purposes, the Tribe is willing to use this existing authorization to complete the Rural Water System in lieu of other development alternatives listed in 

Section 312(b). 

Recognizing that the Rural Water System was the cornerstone of the Act, Congress provided sufficient flexibility in its funding authorization to ensure that funding for the Rural Water System could be accessed from various authorizations, including Sections 312(a), (b), and (e). The Secretary is only authorized to require 

changes to the design of the Rural Water System if it cannot be constructed ‘‘for 

the amounts made available under Section 312.’’ Sec. 307(c)(2)(B)(iii). Section 307 

does not limit how funds within Section 312 can be used, nor was it intended to. 

Notwithstanding the language of the Act, the Department of the Interior has indicated that it is not absolutely clear (from its perspective) whether the Settlement 

Fund can be used for the System’s cost overruns. Consequently, a technical amendment is necessary to clarify that authorization authority exists in Section 312(b) for 

any necessary cost-overruns associated with the WMAT Rural Water System. 

The importance of our water rights settlement and the WMAT Rural Water System to the health and welfare of our people cannot be overstated. We must ensure 

its timely design and completion by resolving the cost issue within the Act’s existing 

authorization now, not later. This legislation would clarify that we have the necessary authorization to complete the project. If it is not resolved, the completion of 

the project will be threatened, thereby increasing the ultimate cost to the United 

States and delaying the delivery of life-sustaining drinking water to our reservation 

communities. 

The CHAIRMAN. Thank you so much for your testimony today. 

Now, Mr. Vernon Finley. 

STATEMENT OF HON. VERNON FINLEY, CHAIRMAN, 

CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE 

FLATHEAD RESERVATION 

Mr. FINLEY. [Greeting in native tongue.] 

Chairman Barrasso, Vice Chairman Tester, members of the Committee, I thank you for providing me the opportunity to provide 

some testimony to you today. I would like to begin by thanking 

Senator Tester for the introduction of S. 3013. Not only this bill, 

but for all of the things that you have done for Indian Country 

throughout the State of Montana. 

I have to admit that I had my doubts when you were elected and 

here was this rancher from over the mountains in Flattop. I had 

23 

my doubts whether the Nations within the State of Montana would 

be well represented, and I am very honored to testify today that 

I was proven very wrong. So thank you very much, not only for us, 

but for all of the folks in Montana. You represent the entire State 

very well, and thank you very much. 

Senator TESTER. Thank you. 

And I am sure Senator McCain was paying close attention. 

[Laughter.] 

Senator MCCAIN. It was wonderful testimony, Mr. Finley. 

[Laughter.] 

Mr. FINLEY. Would you start my five minutes? 

[Laughter.] 

Mr. FINLEY. This bill represents exactly what I was just talking 

about. There was a lot of time put into this bill to get it here, to 

what it is today. 

Since time immemorial, our Nations have traveled throughout 

western Montana, throughout most of Montana and Wyoming and 

Idaho and British Columbia, and have utilized the waterways. The 

waterways were actually our highways before any of the current 

highways or any of the travel currently existed. Utilizing the waterways meant that we depended upon the fish, and so when these 

negotiations started about 12 years ago, there was one important 

part that the elders brought forward to the people, brought forward 

to the negotiating team, and they stressed that the elders said protect the water, protect the water, and with that they were meaning 

all of the things and how much we depend upon it. 

The United States Government, by signing a treaty with us in 

1855, promised us that throughout our aboriginal territory that we 

would be able to utilize and practice all of our traditional practices 

throughout our homeland and all of our custom territory. We would 

also be able to, within the Reservation, have the exclusive right 

within the boundaries of the Reservation, we would have the exclusive right for fishing. 

Immediately upon afterwards, by opening up the reservation to 

homesteading and the construction of the Flathead irrigation 

project, what happened was they created an irrigation system that 

went entirely along the mountain front and dissected every single 

stream, every single stream that comes throughout our valley from 

the south to the north. They went to the west side of the Reservation and did the same thing. 

And with the construction of that project, it had severe effect, severe effect on our treaty right. When we signed the treaty, the 

United States Government accepted the responsibility of being our 

trustee, and with that action, with those actions since then has violated that trust responsibility. 

Throughout the history of time since that time, there have been 

numerous actions that have infringed upon those rights. Now, this 

bill and the past 12 years of negotiations was a culmination of the 

State of Montana, the people in Montana, the Tribes to sit down 

and to negotiate and to come to an agreement about what is the 

best use and what is the best way forward in order to resolve all 

of our water responsibilities, so I strongly urge the Committee and 

the Senate to approve this legislation. 

Thank you again, Mr. Tester. 

24 

[The prepared statement of Mr. Finley follows:] 

PREPARED STATEMENT OF HON. VERNON FINLEY, CHAIRMAN, CONFEDERATED SALISH

AND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION

Chairman Barrasso, Vice Chairman Tester and members of the Committee, the 

Confederated Salish and Kootenai Tribes of the Flathead Reservation are very 

pleased to appear before you in strong support of this legislation which begins a 

process to heal the wounds to our people caused directly by over a century of destructive federal policies and failures by the United States to protect our federally 

reserved water rights, fishing rights and natural resources on our Reservation. This 

bill resolves existing and potential litigation involving thousands of litigants, settles 

costly claims by the Tribes against the federal government and water users across 

roughly two-thirds of Montana, and provides future certainty for all Montanans and, 

indeed, all Americans. It also makes federal investments that will rehabilitate and 

modernize decaying infrastructure in order to provide water to our Tribal members 

as promised by Congress over a century ago, will restore natural resources and fisheries within our Reservation, and will provide an overall savings to the taxpayers. 

The value of the Tribes’ waived claims under this bill is over 14 times higher than 

the total cost of the proposed settlement, according to nationally-recognized engineers, hydrologists, scientists and economists. 

No natural resource is more vital to our Se ́lisˇ, Ksanka and Qlispe ́, people than 

water—the importance of water to our people is woven into all aspects of our lives. 

We are a fishing people. For thousands of years, the Bitterroot Salish, Kootenai and 

Upper Pend d’Oreille, thrived in our aboriginal homeland situated in what is now 

Montana, Idaho, British Columbia and Wyoming, subsisting off of healthy native 

fisheries, plants, and wildlife. But over the course of the last one hundred fifty 

years, federal policy endeavored to sever our relationship with water and failed utterly to protect our federally reserved water rights—instead diverting that water 

and seizing our resources for the benefit of non-Indians. 

Our Reservation is located in northwestern Montana, west of the continental divide. Under the Treaty of Hellgate of July 16, 1855, the Confederated Salish and 

Kootenai Tribes (‘‘Tribes’’), which includes the Upper Pend d’Oreille, ceded over 20 

million acres of land in return for a permanent homeland on the 1.3 million-acre 

Flathead Reservation. And, in the Hellgate Treaty, the United States guaranteed 

the Tribes that the Flathead Reservation would be set-aside for our ‘‘exclusive use 

and benefit.’’ ‘‘[T]he Reservation was a natural paradise for hunting and fishing.’’ 

Conf. Salish and Kootenai Tribes v. United States, 437 F.2d 458, 478 (Ct. Cl. 1971). 

In that Treaty, the Tribes also reserved ‘‘the exclusive right of taking fish in all 

the streams running through or bordering said reservation,’’ and ‘‘the right of taking 

fish at all usual and accustomed places. . . .’’ Ours is the only treaty in Montana 

reserving off-reservation fishing rights—a more common practice in treaties with 

tribes in Washington and Oregon—rights that have been repeatedly upheld by the 

United States Supreme Court. 

However, in the century after the promises made in the Hellgate Treaty, the 

United States broke its word and diminished the tribal land holdings to less than 

one-fifth of the 1.3 million-acre Reservation that had been reserved under the Treaty. In 1904, over the Tribes’ strenuous objection, Congress enacted a statute that 

opened much of the Reservation to non-Indian settlement, and promised to use the 

proceeds from the sale of reservation lands to develop an irrigation project ‘‘for the 

benefit of said Indians.’’ But, in fact, in a blatantly transparent breach of its trust 

responsibility to the Tribes, the United States constructed the Flathead Indian Irrigation Project to provide water to, almost exclusively, the non-Indian homesteaders. 

The measure of damages sustained by the Tribes and its resources caused by this 

breach of trust is approximately $4 billion. 

For over 100 years the operation of the Project created—and still creates—an environmental catastrophe on our Reservation. It diverts water from most mountain 

streams on our Reservation—like Mill and Sullivan Creek that flow into the Little 

Bitterroot River—dewatering them and destroying the native fisheries and fish 

habitat. For example, the diversion of streams and creeks for the Project has led 

to complete dewatering of streams in some places, erosion and elimination of natural wetlands throughout the Reservation well beyond the actual footprint of the 

Project. The Project’s inefficiencies and polluted return flows have created severe 

water quality issues that threaten endangered species. Fish native to the Reservation like westslope cutthroat trout have been evaluated for listing under the Endangered Species Act, and others, like bull trout, have been listed as threatened. 

25 

These federal actions had and continue to have disastrous impacts on our Tribal 

people that this legislation will finally begin to correct. The Tribes decided to negotiate the Water Compact—that this legislation will approve—rather than litigate 

our federally reserved water rights because we think no good can come from decades-long litigation, with millions of dollars in legal costs for the Tribes, non-Indians 

and the federal government. Protracted litigation would only serve to cloud title to 

and likely place significant limitations on water availability and usage throughout 

two-thirds of Montana. So for the last two decades, the Tribes negotiated this settlement with the Montana Reserved Water Rights Compact Commission, an entity created by the State Legislature in 1979 to negotiate federally reserved water rights 

claims throughout the state. 

In 2015, the Montana Legislature enacted Senate Bill 262, ratifying the Water 

Rights Compact between the Tribes, the State of Montana and the United States. 

The Compact has strong bipartisan support and Governor Steve Bullock signed it 

into law on April 24, 2015. Recognizing the benefits, and the time-sensitive nature 

of the Compact, the State of Montana has already begun appropriating its share of 

the funding. Once fully appropriated, Montana’s $55 million contribution to the 

Tribes’ settlement will be the largest of state contribution to any Indian water settlement in the Nation. Approval of the Compact through this bill will secure the 

Tribes’ water right while protecting existing non-Indian water uses, and allow parties to develop and implement water using homegrown creative solutions based on 

local knowledge and values. 

This bill will also have a positive impact on Tribal members, the Reservation, and 

indeed all of Western Montana, addressing the many needs of the decrepit, centuryold BIA irrigation project. This includes upgrading the federal facility to comply 

with the Endangered Species Act. If the Tribes could rewrite history, this Project 

would have never been constructed. However, we cannot rewrite history. We can 

only go forward. And the only way that we can undo the damage that this Project 

has caused to our lands and resources, is to repair this federal facility in order to 

halt and reverse the destruction that it has caused. This will also result in benefits 

to the agricultural economy within the Reservation by improving water use efficiency, and will ultimately restore our natural resources by improving instream 

flows for fisheries—helping farmers, ranchers, and both recreational and subsistence 

fishermen. The alternative is to leave this federal facility as it is and let it continue 

to degrade our lands and our resources leading to eventual and complete destruction 

of our fisheries and way of life. This is entirely unacceptable to us. 

By ratifying the Compact, which quantifies the Tribes’ reserved and aboriginal 

water rights, this legislation will bring certainty to stakeholders in the region regarding their water rights. Further, in recognizing the federal government’s neglect 

and mismanagement of the Tribes’ resources, this legislation is an effort to move 

forward in a constructive way and bring a positive change to the Reservation to protect our Treaty rights and resources. The positive change that will be realized by 

our Tribes through approval of S. 3013, falls into five categories. First, the legislation will provide necessary funding to implement the Compact. For example, funding will be provided to register, monitor and enforce the Tribes’ water rights, support fisheries programs, and carry out water measurement activities for the Flathead Indian Irrigation Project. 

Second, the legislation will rehabilitate and modernize the dilapidated Flathead 

Indian Irrigation Project and remediate Tribal natural resources within the Reservation that have been devastated by the Project. These activities will ensure future responsible management of federal infrastructure by applying modern technology to improve efficiency for the advancement of agriculture and industry. At the 

same time this work will restore severe damages sustained to the Reservation’s ecosystem and habitat by restoring wetlands, addressing noxious weeds and erosion 

issues across the Reservation, and revitalize and restore important in-stream flows 

for the restoration of a healthy native fishery. 

Third, the bill will sustain the Tribal agricultural economy into the future by investing in Tribal agricultural resources and infrastructure commensurate with past 

investments to non-Indian agriculture in order to promote the advancement of the 

region’s economy. The primary focus will be on strengthening the sustainability of 

tribal agricultural projects, which is key to contributing to Tribal economic development and the creation of jobs, while ensuring protection of the Reservation’s ecosystem. 

Fourth, the legislation will ensure safe, reliable drinking water and wastewater 

systems on the Reservation, thereby promoting economic development throughout 

the Reservation. Through the implementation of the Tribal water right, drinking 

water and wastewater systems will be improved and brought to modern standards 

ensuring the protection of the quality of Reservation surface and ground water. 

26 

Finally, a critical component of the bill invests in the Tribes’ endeavor to repair 

and rebuild Tribal culture and language decimated by misguided federal water policies of the past. Because we are fishing people, the destruction of our waters and 

fishery has had an enormous impact on our language and culture. As we start to 

rehabilitate and restore our waterways and natural resources we must also have the 

resources to teach traditional ways and language to our members, adults and children alike. This will ensure true Tribal self-determination and self-sufficiency for 

generations. 

The Compact also contains new and creative concepts such as the Unitary Management Ordinance for the practical administration of non-Indian and Indian water 

rights within the Reservation, which includes the establishment of the independent 

Flathead Reservation Water Management Board. Meandering streams know no political boundaries, so instead of having water rights disputes dispersed to various 

courts based on land status, approval of the Compact will allow for unitary management by the management board with a cross section of non-Indian and Indian stakeholders serving on it. The Compact includes provisions assuring that irrigators remain entitled to the right to the verified use of water that they have historically 

put to beneficial use. 

During the nearly ten years of negotiations at the state level, many compromises 

were made in order to reach consensus. This resulted in a compact that ultimately 

reflects a win-win situation for the Tribes, the State of Montana and the United 

States, as trustee for the Tribes, regarding the ownership, use and management of 

much of the water in Northwest Montana. The Compact reflects what can happen 

when stakeholders work in earnest to seek resolution that can bring a true measure 

of justice and satisfaction to the parties involved. 

The federal settlement presented in S. 3013 provides an opportunity for the federal government to authorize a contribution to this settlement, both in its capacity 

as trustee and as the entity most responsible for causing the damages that have 

resulted from the past and current federal policies. In addition, S. 3013 allows the 

United States to finally honor its obligations to the Tribes and our members. 

While non-Indians, and the larger non-Indian society, benefitted from the taking 

of Confederated Salish and Kootenai Tribal lands and waters, Tribal members 

bore—and continue to bear—the brunt of the costs and damages. Approval of S. 

3013 will bring peace in a part of Montana, where there has been controversy for 

over 100 years, and will be a win-win for all parties. 

We are grateful to this Committee and its leadership for working so hard to find 

mechanisms to fund Indian water settlements and operational, maintenance, and 

modernization costs of both existing and new water and irrigation projects. We 

thank Chairman Barrasso for his leadership on these matters and are grateful to 

our Senator, Vice Chairman Tester, for introducing this historic legislation. I will 

be happy to answer any questions you may have and hope the Committee will report this legislation favorably to the Senate. 

The CHAIRMAN. Well, thank you so much for your testimony. 

We are now going to have a round of questions and we will start 

with Senator Daines. 

Senator DAINES. Thank you, Mr. Chairman. 

Chairman Finley, in your testimony you note that CSKT decided 

to negotiate the water compact versus litigate reserved water 

rights, and you discuss a number of benefits that the ratified compact will bring to the Tribes. As you think about the benefits, 

which are most important to you? 

Mr. FINLEY. Could you repeat that last part, please? 

Senator DAINES. Yes. As you look at the benefits that the ratified 

compact will provide versus litigation, so forth, was the other path 

to go down, when you think about the benefits, which do you think 

are most important to you and your people? 

Mr. FINLEY. I think the most important part of it is not only the 

protection of the water, but there are multiple things, the important part being the protection of the water, but also the Salish and 

Kootenai Nation has always proven to be a good neighbor, a good 

neighbor to all of our friends. Even though our Reservation was 

opened up to homesteading, opposites are married to one another. 

27 

My grandmother used to always tell me that. Opposites are married. And with all of the things, from one perspective you could 

look at that opening of the Reservation as an extreme negative, but 

there were also positives that came along with it. We also respect 

the economic benefits that have come with the integration. 

But there are always a lot of problems with it, a lot of issues. 

Being a good neighbor, you know, there is a saying out there that 

strong fences make good neighbors. Well, in our respect, the process of negotiating this compact has really built some strong fences. 

So we have been able to sit along with our neighbors, and the benefit for everybody is that it provides certainty. It provides certainty, 

as opposed to decades and decades of litigation. That is really the 

primary advantage to it. 

Thank you for the question, Mr. Daines. 

Senator DAINES. Thank you, Mr. Chairman. 

I want to bring the question over to Ms. Belin. And, again, 

thanks for your commitments working with the Blackfeet water 

settlement. And I hope we can get that across the finish line this 

Congress. I know you were challenged to justify the $420 million 

price tag authorizing the Blackfeet settlement and, in fact, had to 

cut authorized spending from the Blackfeet Tribe’s original request, 

which was nearly $600 million in authorizations. 

Ms. Belin, what were the Department’s thoughts when you saw 

the price tag of the CSKT water compact? 

Ms. BELIN. Well, it is a significantly higher price tag than any 

enacted water settlement to date. It is obviously a substantial Federal price tag, and to date we have not negotiated Federal contributions at all; and we intend to do that with the Tribe and the other 

parties just as soon as we can get to it. 

Senator DAINES. How will the Federal Government cover those 

costs? 

Ms. BELIN. Well, in the past the Federal Government has been 

covering the cost through a combination, I guess in the 2010 

Claims Resolution Act there was a combination of mandatory funding and funding out of our budgets. Now I am blanking on the 

name of the fund that got set up in 2009 that will provide $120 

million of Federal funding for each of 10 years in a row that will 

be used, and some of that will likely be available for the CSKT. 

Senator DAINES. I want to move to page 2 of your written testimony. I noted it says here, ‘‘The issues surrounding these claims 

have been among the most contentious to be addressed to date in 

a tribal water settlement.’’ Could you expand on that statement 

and what, in the Department’s view, about this tribal water settlement is more contentious than the others? 

Ms. BELIN. Well, I think the Chairman addressed one set of 

issues that I have not seen in another settlement, which is the 

whole issue of the Tribes’ water rights to instream flows on the 

Reservation, and the fact that the water projects got constructed 

largely for non-Indian use. Removing the instream flows on the 

Reservation is a major, major issue. I am not aware of any precedent for that, so that creates a whole set of issues of trying to balance the need to protect existing uses of the water project water, 

at the same time to restore health of instream flows. That is quite 

28 

complex and that will be the major difference that I would point 

to. 

Senator DAINES. Okay. Thank you. I am out of time. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator Daines. 

Senator McCain. 

Senator MCCAIN. Thank you, Mr. Chairman. 

Ms. Belin, I want to thank you for attending the summit in Phoenix, Arizona this March to work with Governor Ducey, Senator 

Flake, Navajo President Russell Begaye, and Hopi Chairman Herman Honanie, in the Little Colorado River Settlement negotiations. 

You were good enough to come to Arizona, and we appreciate all 

the help that you have given us. 

I understand in your opening statement that you need additional 

data from the Tribe, and I understand that and I appreciate it. But 

can I confirm that you support the goal of the Administration, 

which is clearly in the original legislation, which is to complete the 

Miner Flat Dam? 

Ms. BELIN. Senator McCain, we strongly and absolutely are committed to the settlement. We strongly believe in it. We will get it 

implemented. Just this morning we met with the Vice Chairman 

and his team, and I understand that as soon as next week the information that the Bureau of Reclamation has been requesting will 

be made available. We have already set up a meeting, or at least 

a phone call, for the following week. We are firmly committed to 

implementing the settlement; we think it is an excellent settlement. 

Senator MCCAIN. Well, I appreciate that testimony very much. 

Not to repeat the obvious, but the dam was part of the settlement 

that we need to honor. 

Mr. Velasquez, these are facts. The wells on the Reservation 

have declined by 50 percent. True? The groundwater wells on the 

Reservation have declined by 50 percent. 

Mr. VELASQUEZ. Yes. 

Senator MCCAIN. Parts of the North Fork of the White River will 

be reduced to a trickle by 2020. 

Mr. VELASQUEZ. Yes. 

Senator MCCAIN. The Tribe’s population is around 15,000 today 

and is expected to grow to 40,000 in the coming decades. 

Mr. VELASQUEZ. Yes, sir. 

Senator MCCAIN. Under the present circumstances, there is no 

way you are going to have an adequate water supply without the 

construction of that dam. 

Mr. VELASQUEZ. Most definitely. 

Senator MCCAIN. It seems to me that gives it some time sensitivity associated with this legislation. 

Mr. VELASQUEZ. Yes, very important. 

Senator MCCAIN. Well, I just want to assure you that a lot of 

treaties have been broken, a lot of agreements have been broken, 

as we all know, throughout our history of our relations with Native 

Americans. But it is very clear here that we need to get this dam 

built if your Tribe is going to have the lifestyle which is dictated 

by an adequate supply of water. So you have mine and Senator 

29 

Flake’s commitment, and I am sure the other members of the Committee share your concern and our priority. 

Mr. VELASQUEZ. Thank you, Senator McCain. Most importantly, 

as I sit here addressing information for the people of the White 

Mountain Apache Tribe, I know for a fact the White Mountain 

Apache Tribe and the tribal members have the utmost respect for 

you, sir. 

Senator MCCAIN. Well, thank you. And I want to invite Senator 

Barrasso and Senator Tester out to visit the White Mountain 

Apache Tribe, which is one of the most beautiful parts of our State, 

far more beautiful than anything in their States. 

[Laughter.] 

Senator MCCAIN. Mr. Flute, again, I want to thank you, sir, for 

your kind remarks and thank you for your service. I might mention 

that Chairman Ronnie Lupe also had a distinguished Marine Corps 

career, as well. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator McCain. 

Senator Tester. 

Senator TESTER. Thank you, Mr. Chairman. 

I am going to start out with you, Ms. Belin. Your testimony stated you can’t support the CSKT legislation as introduced, and that 

we are just getting started, just getting started for sure. I guess the 

real question is does the Administration support the goal of coming 

to a final resolution and getting to a final settlement of the CSKT 

water rights. 

Ms. BELIN. That would be most definitely yes. We believe that 

we support the compact, we support all the aspects that have already been negotiated in relation to that, and our negotiation team 

has worked very hard with the Tribe and the State over several 

years on all those aspects of the settlement, and we are ready to 

jump in and work on the Federal contribution aspect. 

Senator TESTER. Okay. 

The Chairman talked about it in his opening statement and I 

just kind of want to go over it with you, Chairman Finley. Your 

statement says that there was an irrigation project developed about 

100 years ago that basically bisected all the streams and stopped 

that water from flowing onto your Reservation. Is that an accurate 

representation? 

Mr. FINLEY. Most of the streams were completely de-watered at 

one point, but at least minimizes the flow of most of them, yes. 

Senator TESTER. And that happened 100 years ago, right? That 

project was put in 100 years ago. 

Mr. FINLEY. Correct. 

Senator TESTER. Okay. 

Now I want to go back to you, Ms. Belin. We can call it anything 

we want, but it is part of the water project, it is part of the water 

compact. And I am not putting you on the spot, but I kind of am, 

have you ever dealt with a water compact that basically dealt with 

an issue like this, where the water was diverted away from the 

Reservation? 

Ms. BELIN. As I said to Senator Daines, no. I think this is a 

unique complication that we have to actually protect the diversions 

30 

out of the streams and we also have to protect the flows in the 

streams. That is very challenging. 

Senator TESTER. So let’s get right to it. Do you think a water 

compact is the appropriate place to place, this is probably the 

wrong word, but I am not a lawyer, damages as it applied to 100 

years of wrongdoing? 

Ms. BELIN. I am sorry, do I think that a water compact is? 

Senator TESTER. The right place to place a monetary sum of 

money to take care of 100 years of what, quite frankly, if it were 

done today, the outfit that built that canal would probably be out 

of business the minute they put a shovel in the ground. Because 

you just don’t divert water like that in this day and age; you don’t 

stop fisheries from happening; you don’t do a lot of stuff. So I guess 

my question is you have never dealt with it before in another compact. Obviously complicates it a little bit. 

But I will just tell you my thought. It would seem to me that this 

compact is a much better place to deal with this and get it taken 

care of than in the courts. So for the same reason that this water 

compact system was set up, to keep people out of court, to bring 

people together, to build the kind of groups that can make this 

happen. So I am just trying to get an idea if the Department is 

open to really talking about this being a part of this bill or if you 

guys have a problem with it. 

Ms. BELIN. First of all, yes, this is a far better structure for solving this problem. Litigation does not solve these kinds of problems. 

Senator TESTER. Right. 

Ms. BELIN. Litigation goes on. In fact, having to do with CSKT 

and the water rights, I can’t even count how many lawsuits there 

have been over decades, and the problems are not solved. So we 

know that doesn’t work. 

We also know, at least the Department strongly believes the 

compact that has already been negotiated sets an excellent framework for an overall solution. 

Senator TESTER. Okay. So that leads me to almost my last question before I make a comment, actually, and that is we talked 

about Blackfeet introduced three years ago. This one today a little 

more complex, but nothing that smart people can’t figure out. What 

kind of timeframe do you think we should reasonably expect you 

coming to an agreement with CSKT and CSKT coming to an agreement with you so that Congress can deal with it? Do you think we 

can do it in three years, two years, one year? 

Ms. BELIN. If I say yes, I will probably get something thrown at 

me from behind, because those are the people who are doing the 

work. 

Senator TESTER. Walk on this side of the table; they can’t reach 

you here. 

[Laughter.] 

Ms. BELIN. I think, given the fact that we have come so far, barring unforeseen developments, I don’t see why we couldn’t do it in 

that timeframe. 

Senator TESTER. So one last question. There is going to be an Administration change before this settlement gets done. My guess 

would be that is fairly clear. So the people who are working on this 

settlement now, are they career folks that stay in the Department? 

31 

Ms. BELIN. Yes. 

Senator TESTER. Okay, good. 

One other thing, Mr. Chairman, if I might, and I know I am over 

time. 

Ms. Belin, there has been some new guidance from the Administration from OMB that would add even more layers to these negotiations. I have been on this Committee for 10 years now, almost, 

and we have seen a number of settlements come through Congress. 

I think that as this bill gets to this level, there are tons of people 

involved. 

I am not sure we need more people involved looking at this, because it has been looked at and it will be looked at by over and 

above you and over and above all the folks on the Tribe that have 

looked at it, over and above all the people that looked at it as it 

went through the process, all the different groups, all the different 

farmers, ranchers, city people; the works. 

Now we are going to add another layer and, quite frankly, I 

think the water rights process has worked reasonably well. I think 

if we could get those reclamation dollars so we had a sum of money 

to fund this stuff with, it could even work a little quicker. 

But slower is really not a direction that I am real crazy about 

heading. So I am going to ask your counsel, do you think we ought 

to send a letter, the Committee, to OMB and say, you know, we 

really appreciate you, but I am not sure you are going to help us? 

Ms. BELIN. Maybe I can answer the rest of your question and not 

that last one there, and just say that we work very closely with 

OMB. Yes, we have a memo. We will continue to work closely with 

them. We brief them on all these settlements as we are working 

on them. 

Senator TESTER. So do you think this is going to add time, this 

new directive, this new guidance is going to add time to the process? 

Ms. BELIN. I have no reason to believe it will add time. 

Senator TESTER. Okay. Music to my ears. My fears have been allayed. 

Thank you all very, very much. I appreciate all of your service 

and look forward to working with Rounds to get this done and Senator McCain to get yours done. So thank you all very much. 

Senator BARRASSO. Thank you, Senator Tester. 

Ms. Belin, according to the White Mountain Apache Tribe’s written testimony, the Tribe believes Congress intended that they have 

wide discretion on ‘‘how to use and prioritize’’ the uses of the 

money in the water settlement. So the term ‘‘water-related economic development projects’’ in the Claims Resolution Act of 2010, 

to me at least, seems to very clearly cover funding of the White 

Mountain Apache Tribe’s rural water system. The fact that Interior 

claims that the White Mountain Apache Tribe needs specific new 

authorization from Congress is troubling. 

The Administration just seems to be discovering new authorities 

from existing statutes on almost a daily basis here; not just in this 

Committee, kind of everything that we interact with in Congress. 

I guess I am trying to figure out why you feel, suddenly, in this 

case new legislation is needed to clarify such language, which to 

me is pretty clear language. 

32 

Ms. BELIN. Well, Senator, I guess this is something that our legal 

team has done, their analysis, and I think the main reason for it 

is that, in addition to the WMAT account, there is a separate account specifically allocated for cost overruns. So I believe that is 

the main reason they felt that since Congress had seen fit to establish a specific fund to address cost overruns, which is different from 

this fund that is being tapped into now, that was the basis for their 

determination. 

Let me just add that we are happy to sit down and work on technical amendments or whatever we need to do to address this problem. 

Senator BARRASSO. Because even if there is ambiguity, as the Department claims, is there not a doctrine of law regarding statutory 

construction in favor of Indian Tribes when there is ambiguity? 

Ms. BELIN. Yes, there is. 

Senator BARRASSO. So I would think that that doctrine out to be 

applying. 

Ms. BELIN. We do. Yes, we always apply that doctrine. 

Senator BARRASSO. Another question. In your written testimony 

you state the Department of Interior supports S. 2796. Based on 

the Department’s legal analysis of the bill, what legal effect would 

the repeal of the laws listed in S. 2796 have on Tribes and the Department of Interior, and would Tribal sovereignty or treaty rights 

be impacted that you see? 

Ms. BELIN. Mr. Chairman, our legal teams would be the ones to 

get into a detailed analysis. I would just say that they carefully reviewed, both in the Department and in the White House, carefully 

reviewed this language and they do not feel it will create any problems of any sort. 

Senator BARRASSO. So, Mr. Flute, along those lines, S. 2796 

would repeal certain obsolete rules and laws ranging from 1862, as 

you pointed out, all the way to 1913 that relate to Indians. How 

would the repeal of these laws help your Tribe and tribal members? 

Mr. FLUTE. Mr. Chairman, if you have had a chance to read the 

written testimony, I would like to recognize one of our many spiritual leaders of the Oceti Sakowin, more commonly known as the 

Great Sioux Nation, and that was Black Elk, and he talks about 

mending that sacred hoop that in our culture and our way of life 

that we live by and we believe in. As Dakota people, we are very 

hospitable people and we love to be great hosts, and we come from 

a very socialistic society. But we also have the warrior societies and 

the soldiers lodges. When our encampments and our people are in 

danger, in trouble, they feel other types of challenges, we tend to 

feel that our ways are being disrespected. So the RESPECT Act 

would help mend those hoops. 

As I mentioned, not just my family, but I know Tribes across the 

Nation have experienced probably similar challenges and experienced with their grandfathers, some worse. So it would help to 

mend those hoops and it would also help to acknowledge and 

strengthen our alliances through the treaties that we have with the 

United States Government. We also cherish this flag that we serve 

under, and it will help just strengthen those alliances we have. 

Senator BARRASSO. Chairman Finley, in the mitigation fund in S. 

3013 there is about $670 million. Could you explain what this 

33 

money is going to go towards in a little more detail and how these 

funds will benefit the Tribe? 

Mr. FINLEY. Yes, Mr. Chairman, thank you for the question. That 

particular part of the funding would go for restoring the wetlands, 

stream restoration. There was a lot of diversion that happened, a 

lot of the diversions that I had spoken about, but also others 

throughout the Reservation that there was meandering, for example, meandering streams were straightened in order to create other 

farmlands. So a lot of the restoration is exactly where that funding 

would go. 

Senator BARRASSO. Thank you very much. 

I want to thank all the witnesses for being here today. 

Members may also submit follow-up written questions for the 

record, so if you get a question, please get back to us quickly. 

The hearing record will be open for two more weeks. 

So I want to thank you all for your time and your testimony. 

Finally, I want to acknowledge the hard work of Caleb Carroll, 

staff assistant for the Committee, who is from Evanston, Wyoming. 

He came here as an intern to the Committee. Today is his last day 

with the Committee, and I wish you every success with your future 

endeavors and education. So thanks so much. 

With that, this hearing is adjourned. 

[Whereupon, at 3:36 p.m., the Committee was adjourned.] 

(35) 

A P P E N D I X 

PREPARED STATEMENT OF HON. MIKE ROUNDS, U.S. SENATOR FROM SOUTH DAKOTA

Chairman Barrasso, Ranking Member Tester, Members of the Committee, I am 

pleased that the Committee on Indian Affairs is marking up S.2796, the RESPECT 

Act, or the ‘‘Repealing Existing Substandard Provisions Encouraging Conciliation 

with Tribes’’ Act. Senator Lankford has agreed to join me in this effort to begin the 

process of reversing a list of historic wrongs laid out in U.S. law against Native 

American citizens. I also want to thank Chairman David Flute, of Sisseton 

Wahpeton Oyate in South Dakota, who will testify today to the history behind the 

laws the RESPECT Act seeks to repeal. 

The idea that these laws were ever considered is disturbing, but the fact that 

these laws remain on our books is—at best—an oversight. Currently, Native Americans, who are U.S. citizens just like you and me, are still legally subject to a series 

of obsolete, historically-wrong statutes. These statutes are a sad reminder of the 

hostile aggression and overt racism that the federal government exhibited toward 

Native Americans—as the government attempted to ‘‘assimilate’’ them into what 

was considered modern society. 

In 2016, laws still exist that would allow for the forced removal of their children, 

who can be sent to boarding schools and denied rations if they refuse. Because these 

laws still remain, they could still be subject to forced labor on their reservations, 

as a condition of their receipt of ‘‘supplies.’’ 

Moreover, they can be denied funding if found drunk on a reservation. These statutes actually remain the law of the land and in many cases are more than a century 

old and continue the stigma of subjugation and paternalism from that time period. 

It is without question that they must be stricken. We cannot adequately repair history, but we can move forward. 

Let me list some of the laws that RESPECT will repeal: 

In Chapter 25 of the U.S. Code, Section 302, entitled ‘‘Education of Indians, Indian Reform School; rules and regulations; consent of parents to placing youth in 

reform school,’’ the Commissioner of Indian Affairs was directed to place Indian 

youth in Indian Reform Schools, without the consent of their parents. 

The issue of off reservation Indian Boarding Schools in particular is a rightfully 

sensitive one for Native Americans. 

Between 1879 and into the 20th Century, at least 830,000 Indian children were 

taken to boarding schools to allegedly ‘‘civilize them.’’ Many parents were threatened with surrendering their children or their food rations. This law in fact, is also 

still on the books. 

A requirement exists in Section 283, entitled, ‘‘Regulations for withholding rations 

for nonattendance at schools,’’ the Secretary of the Interior could ‘‘prevent the 

issuing of rations or the furnishing of subsistence to the head of any Indian family 

for or on account of any Indian child or children between the ages of eight and twenty-one years who shall not have attended school during the preceding year in accordance with such regulations. . .’’ 

Yet there still exist, other outdated laws relating to war-time status between Indians and the United States such as those found in Section 72 of the Code, entitled, 

‘‘Abrogation of treaties.’’ 

Here, the president was authorized to declare all treaties with such tribes ‘‘abrogated if in his opinion any Indian tribe is in actual hostility to the United States.’’ 

In Section 127, entitled ‘‘Moneys of annuities of hostile Indians,’’ moneys or annuities stipulated by any treaty with an Indian tribe could be stopped if that tribe ‘‘has 

engaged in hostilities against the United States, or against its citizens peacefully 

or lawfully sojourning or traveling within its jurisdiction at the time of such hostilities. . .’’ 

Likewise, in Section 128, entitled, ‘‘Appropriations not paid to Indians at war with 

United States,’’ none of the appropriations made for the Indian Service could ‘‘be 

paid to any band of Indians or any portion of any band while at war with the United 

States or with the white citizens of any of the States or Territories.’’ 

36 

Moreover, in Section 138, entitled, ‘‘Goods withheld from chiefs violating treaty 

stipulations,’’ delivery of goods or merchandise could be denied to the chiefs of any 

tribe, by authority of any treaty, ‘‘if such chiefs’’ had ‘‘violated the stipulations contained in such treaty. . .’’ 

Finally, in Section 129, entitled, ‘‘Moneys due Indians holding captives other than 

Indians withheld,’’ the Secretary of the Interior was ‘‘authorized to withhold, from 

any tribe of Indians who may hold any captives other than Indians, any moneys due 

them from the United States until said captives shall be surrendered to the lawful 

authorities of the United States.’’ 

In Section 130, racist identifications tying drunkenness by Indians to receipt of 

funds, entitled, ‘‘Withholding of moneys of goods on account of intoxicating liquors,’’ 

still exist stipulating that no ‘‘annuities, or moneys, or goods,’’ could ‘‘be paid or distributed to Indians while they’’ were ‘‘under the influence of any description of intoxicating liquor, nor while there are good and sufficient reasons leading the officers 

or agents, whose duty it may be to make such payments or distribution, to believe 

that there is any species of intoxicating liquor within convenient reach.’’ 

Mandatory work on reservations still exist in Section 137, entitled, ‘‘Supplies distributed to able-bodied males on condition,’’ for the purpose of inducing Indians to 

labor and become self-supporting, ‘‘it is provided that, in distributing the supplies 

and annuities to the Indians for whom the same are appropriated, the agent distributing the same could require all able-bodied male Indians between the ages of eighteen and forty-five to perform service upon the reservation, for the benefit of themselves or of the tribe. . .’’ in return for supplies. 

Let me summarize what I said in the beginning. In the year 2016 in the United 

States, Native Americans, citizens like you and me, are still legally subject to outrageous, racist and outdated laws that were wrong at their inception. There is no 

place in our legal code for such laws. 

In my state of South Dakota, which is home to nine tribes and roughly 75,000 

enrolled members, we strive to work together, to constantly improve relationships 

and to mend our history through reconciliation and mutual respect. It’s not always 

easy, but with our futures tied together—with our children in mind—‘‘reconciliation’’ 

is something we’re committed to. 

History also proves that since the onset of the government’s relationship with the 

tribes, which has been complicated and challenging over the years—sometimes 

downright dark and disrespectful—and to this day, often has led to mistreatment 

by the federal government. As governor, I proclaimed 2010 the ‘‘Year of Unity’’ in 

South Dakota. 

This was done in recognition of the need to continue building upon the legacy and 

work of those who came before us. 

The year 2010 also marked the 20th anniversary of the ‘‘Year of Reconciliation’’ 

in South Dakota, which was an effort by the late Governor George Mickelson as a 

way to bring all races together. The ‘‘Year of Unity’’ and the ‘‘Year of Reconciliation’’ 

were efforts to build upon a common purpose—acknowledge our differences—and yet 

find ways to work together. We need more of that in Washington, D.C. 

While legislative bodies before us have taken steps to rectify our previous failures 

relative to Native Americans, sadly these laws remain and out of a sense of justice, 

we should repeal them. Imagine a scenario, where descendants of those from Norway, Britain, Italy, or any other group for that matter were treated with the same 

patronizing superiority. Only Native Americans face this discrimination and it is 

long overdue to repeal these noxious laws. We can’t change our history, but we can 

start to change the paternalistic mentality of the federal government towards Native people. 

Chairman Barrasso, I want to thank you and the Committee for considering this 

legislation. 

PREPARED STATEMENT OF BRUCE FARLING, EXECUTIVE DIRECTOR, MONTANA

COUNCIL OF TROUT UNLIMITED

Chairman Barrasso and Vice Chairman Tester, thank you for this opportunity to 

submit written testimony on behalf of the Montana Council of Trout Unlimited in 

support of S. 3013, which provides for Congressional ratification and implementation of the water rights compact negotiated among the Confederated Salish and 

Kootenai Tribes of Montana (CSKT), the State of Montana and the U.S. Department 

of the Interior. 

The Montana Council of Trout Unlimited represents 4,200 conservation-minded 

anglers dedicated to conserving, protecting and restoring our state’s coldwater fisheries and their watersheds. Most of our members reside within the recognized abVerDate Mar 15 2010 10:53 Nov 01, 2016 Jkt 022291 PO 00000 Frm 00040 Fmt 6601 Sfmt 6621 S:\DOCS\22291.TXT JACK
37 

original territory of the tribes. Many are residents of the Flathead Indian Reservation, or they live in neighboring communities. In the 52-year history of our council 

we have often found common ground or partnered with the tribes on natural resource matters, including federal licensing of a large hydroelectric dam, creation of 

tribal water quality standards, fishery management in Flathead Lake, and restoration of populations of native fish species. Because of our knowledge of fisheries 

around the state, the tribes and State asked us to provide advice on potential inclusion in the Compact of important fisheries within the off-reservation aboriginal 

homeland of the tribes. We have found the tribes to be dependable and forthright 

partners. The CSKT are served well by a talented cadre of natural resource and 

legal professionals who enjoy strong support from the tribal council and tribal members. 

The Compact greatly benefits the tribes because it permanently resolves uncertainty as to what constitutes the tribes’ reserved water rights under The 1855 Treaty of Hellgate, as well as aboriginal rights claimed within those portions of Montana 

constituting traditional hunting and fishing territory. Further, the Compact advances systematic and consistent water-use administration on the reservation, while 

also accommodating conservation and orderly development of water resources. The 

Compact will also eliminate the cloud of uncertainty surrounding much of the existing and all future groundwater development on the reservation. Once Congress and 

the tribal council ratify the Compact, a final decree for general adjudication of water 

rights in more than half of Montana can be completed, benefitting the CSKT, State 

of Montana and the federal government. Also furthering the interests of the tribes 

are the 90,000 acre-feet of Hungry Horse Reservoir water that the Compact makes 

available for mitigation and development on and off the reservation in Montana. 

The CSKT will benefit from implementation of the Compact’s investments in conservation measures for irrigation, as well as instream flow protections that will benefit native fish species important to tribal members. Finally, the Compact does 

much to bring people together in Montana under common purpose. By allowing for 

co-ownership and management with the State of Montana of existing instream flow 

water rights for fish currently held by the State’s fish and wildlife agency, the Compact ensures the tribes have a formal role in protecting fisheries that served them 

for millennia. For instance, the water rights associated with instream flows from 

Painted Rocks Reservoir in the Bitterroot River basin ensures the Salish people will 

have a role in cooperatively managing for healthier fisheries in the core of their traditional homeland. The Compact’s conveyance of an instream flow water right for 

fisheries on the Kootenai River and lower Clark Fork Rivers recognizes the historical interests of the Pend Oreille and Kootenai peoples in waters that were among 

their usual and accustomed fishing sites. 

Montana Trout Unlimited is pleased to be able to support S. 3013 and look forward to final congressional approval of this important water compact. 

PREPARED STATEMENT OF ELAINE D. WILLMAN, MPA, FLATHEAD INDIAN

RESERVATION

Introduction 

As background for the comments provided below, please know that I have lived 

on three separate reservations for the past 26 years (Yakama, Oneida of Wisconsin, 

and Flathead). Further I have been an active researcher of federal Indian policy, 

and am the author of two books on the aforesaid policies: Going to Pieces. . . the 

dismantling of the United States of America (May 2005); and Slumbering Thunder. . . a primer for confronting the spread of tribalism overwhelming America 

(March 2016). 

I moved to the Flathead Indian Reservation to assist tribal and non-tribal landowners, farmers and ranchers with the foreboding consequences of a Proposed CSKT 

Water Settlement Compact, approved by the Montana State Legislature on April 11, 

2015. 

As a result of CSKT Water Compact approval by federal, state and tribal officials, 

30,000 Montana residents, both tribal and non-tribal, have no government as advocate for their Constitutional Rights, civil, property or water rights. The small CSKT 

tribal government now has 100 percent control over all water and power emanating 

from the former Kerr Dam, rivers and streams, all land and residential access to 

water, and all access to electric power. Residents of the Flathead Indian Reservation 

are now at the mercy of a tribal government that has no duty to 75 percent of the 

reservation population, for livelihood on their lands and businesses; this condition 

will be locked in perpetuity, if the State Legislators’ Proposed CSKT Water Settlement Compact, and/or S. 3013 is ratified. 

38 

In addition to total control of water and power, the CSKT Compact provides for 

no cap on rate-setting for water and power, nor review by federal entities or the 

State Public Services Commission. 

Request 

This writer requests that the Senate Committee on Indian Affairs and the Indian 

Insular and Alaska Native Affairs Subcommittee of the House Natural Resources 

Committee take no further action on S. 3013 until the following consequences of S. 

3013 are investigated and resolved: 

Issue No. 1. Due Process and Procedure. The CSKT Compact passed by the Montana Legislature has been inordinately and dramatically expanded by S. 3013 beyond what the State Legislature actually approved on April 11, 2015, without the 

review or approval of the Montana Legislature. May a federal senator bypass, expand and override decisions made by a State Legislature without State legislative 

consent? And if such is legal, is such imbalance of separation of power remotely ethical? S. 3013 controls and pre-empts the Montana Legislature’s Proposed CSKT 

Water Settlement Agreement. 

Issue No. 2. U.S. & Montana State Constitutions. Both the State approved Compact and S. 3013 entirely violate the U.S. Constitution and Montana’s State Constitution. The Compact violates the 1st, 5th and 10th Amendment of the U.S. Constitution. The Compact violates numerous individual rights of Montana citizens as 

identified in Article II of Montana’s Constitution and Section 3 of Article IX of the 

Montana Constitution, to wit: 

‘‘All existing rights to the use of any waters for any useful or beneficial purpose 

are hereby recognized and confirmed. (1972) 

‘‘All surface, underground, flood and atmospheric waters within the boundaries 

of the state are the property of the state for the use of its people are subject 

to appropriation for beneficial uses as provided by law.’’ (1972) 

Issue No. 3. Judicial Rulings. In a June 13, 2013 unanimous decision, the U.S. 

Supreme Court ruled in Tarrant v. Herrmann: 

‘‘The sovereign States possess an absolute right to all their navigable waters 

and the soils under them for their own common use. . .So, for example, a court 

deciding a question of title to a bed of navigable water within a State’s boundary must begin with a strong presumption against defeat of a State’s title.’’ 

The Governor and Attorney General of the State of Montana are fully aware but 

have declined to acknowledge Tarrant v. Herrmann and have sacrificed Montana 

navigable state waters in 11 counties of Western Montana, affecting 20 percent of 

Montana’s land and 30 percent (350,000) of Montana citizens. 

Likewise, by signing the Compact, Governor Bullock has confiscated individual 

Montana citizen’s ‘‘consent to be governed by a tribal government’’ as ruled in the 

U.S. Supreme Court in Montana v. U.S. (1980) which provides that non-tribal persons will not be governed by tribal governments absent their individual consent. The 

Executive and Legislative Branches of the State of Montana have entirely walked 

away from their responsibilities to protect and serve Montana citizens, tribal and 

non-tribal, within the Flathead Indian Reservation. 

Issue No. 4. Violations of the General Allotment (Dawes) Act and Homestead Act. 

When settling the West and opening up Indian Reservations, Congress provided in 

perpetuity that each land patent issued under the above Acts, whether to tribal or 

non-tribal persons, was guaranteed a water right permanently attached to the patent. Settling the West and opening the reservations could not happen unless water 

was guaranteed by Congress to each patent issued. The water rights attached by 

Congress to individual land patents have been confiscated by the Federal, State and 

Tribal governments, and incorporated into the CSKT Water Compact. Landowners 

subject to the CSKT Water Compact had significant liens placed against their properties for purpose of constructing the Kerr Dam and a federal Irrigation project in 

the early 1900s. Liens were long-ago paid off, from revenue generated by the dam, 

and later by tax assessments for irrigation project operations, but landowners have 

never ever been reimbursed, nor have their properties been cleared of these liens. 

Private property water rights have attached to the lands have been literally stolen, 

while liens permanently exist on the allotted and homestead parcels within the Flathead Reservation. The CSKT Water Compact would render this condition permanent. 

Issue No. 5. Federal and Tribal Sovereign Immunity. The CSKT Water Compact 

as passed by Montana Legislature on April 11, 2015 contained a waiver of tribal 

sovereign immunity. S. 3013 is silent as to tribal sovereign immunity but S. 3013 

provides that where there is inconsistency between the Legislature’s Compact, and 

39 

Senator Tester’s inflated version of the CSKT Water Settlement Compact, that the 

Act contained in S. 3013 controls. The end result is that S. 3013 holds the United 

States entirely harmless from all administrative accountability, use of funds and 

project impacts, while also (by intentional omission) eliminating the CSKT tribal 

waiver of sovereign immunity approved by the Montana legislature. By entirely 

locking out due process of affected landowners, there is no recourse when further 

harm occurs to landowners and residents other than a small appointed Compact 

management organization heavily seated and controlled by the tribes. 

Issue No. 6. National Environmental Policy Act (NEPA) and State Environmental 

Policy Act. Prior to passage of the CSKT Water Compact by the Montana State Legislature on April 11, 2015, absolutely no environmental impact analysis was conducted by the federal, state or tribal governments for a project that will physically 

disturb and impact thousands of acres of land within the Flathead Indian Reservation. Senate Bill 3013 affirms compliance with the National Environmental Act, and 

in the very next sentence, exempts S. 3013 from NEPA compliance with the following statement: 

‘‘The execution of the Compact by the Secretary under this section shall not constitute a major Federal action for purposes of the National Environmental Policy Act of 1969.’’ 

To state that the CSKT Water Settlement Compact (S. 3013) does not constitute 

‘‘a major federal action’’ is disingenuous at best, and patently false. 

Issue No. 7. The Hellgate Treaty of 1855 and the CSKT Constitution under the Indian Reorganization (IRA) Act of 1934. The foundational framework asserting tribal 

water rights is based upon the Hellgate Treaty of 1855. This treaty executed by Territorial Governor Isaac Stevens provided beneficial use and occupancy only of a 

bounded reservation. Treaty reservation land was owned and governed by the 

United States and Bureau of Indian Affairs. Tribal leaders nor tribal members had 

any jurisdictional authority or ownership of the land, or the water within that reservation under the Treaty of 1855. To claim in 2016 that the Hellgate Treaty provided tribal government ‘‘ownership’’ or jurisdiction of the land or water when the 

Treaty only affirmed ‘‘the right to fish,’’ is remarkable revisionist history. 

Additionally, the Confederated Salish-Kootenai Tribe was the very first to be ‘‘federally recognized’’ as a governing entity under the Indian Reorganization Act (IRA) 

of 1934. The IRA is the instrument that converted ‘‘beneficial use and occupancy’’ 

to governing and jurisdictional authority over Indian trust lands within reservation 

boundaries. Tribal governments were required to take a majority vote of adult, enrolled members to either remain a ‘‘Treaty’’ tribe, or become an IRA tribe, but not 

both. The tribe’s IRA constitution granted in 1936 supersedes its Hellgate Treaty 

of 1855. 

The CSKT Water Settlement Compact as passed by the State Legislature and in 

S. 3013, claim the Hellgate Treaty, rather than the tribe’s official governing instrument, its IRA Constitution, as authority for the Water Compact. The tribe’s constitution is given almost no mention in either version of the Water Compact. This 

is a result of two goals: (1) The tribe wants to claim 1855 as its date of superior 

water rights; and (2) The Tribe’s Constitution gives it absolutely no authority to govern non-tribal persons or properties. 

Issue No. 8. Pre-Compact Ratification Activities. As a resident on the Flathead Indian Reservation I was made aware shortly after State Legislative approval of the 

CSKT Water Compact of examples of ‘‘pre-implementation’’ tactics of the CSKT 

Tribe. The tribe shut off the water to stock ponds for a land owner’s large her d 

of cattle, forcing the landowner to relocate his cattle to someone else’s land. Upon 

relocating the cattle, the tribe turned his stock water back on. In another example, 

one of my neighbors had two hundred acres of peas coming to peak in a historic 

heat wave (104∂ degrees) at the end of June/first of July last year. His entire crop 

was scorched. After the crop was lost, the tribe turned the irrigation water back on. 

There are numerous similar experiences that landowners endured last year, at a 

significant financial loss. Unauthorized ‘‘Pre-Implementation’’ activities of the proposed CSKT Water Compact (S. 3013) have been ongoing since initial approval by 

the Montana legislature on April 11, 2015. 

Conclusion 

The Flathead Indian Reservation includes all or portions of three counties, 11 

towns and 30,000 residents. The majority population (75–80 percent) is non-tribal, 

and the greater land base within this reservation is equally non-tribal—land paying 

taxes to a State that no longer serves them. 

Citizens either have federal and state constitutional protections, or they do not. 

Federal, state and tribal governments either follow the rule of law, federal and state 

40 

regulations, or they do not. Senate Bill 3013 has not followed the rule of law or traditional environmental impact regulations. The end result is that the Executive and 

Legislative branches of the State of Montana, and its federal Senator, Jon Tester, 

no longer acknowledge an oath to serve and protect the Montana residents, both 

tribal and non-tribal, within the Flathead Indian Reservation. 

S. 3013 must be rejected outright. 

OFFICE OF THE GOVERNOR—STATE OF MONTANA 

July 7, 2016 

Honorable John Barrasso, 

Honorable Jon Tester, 

Chairman, Vice Chairman, 

Committee on Indian Affairs, 

Washington, DC. 

RE: S.3013 

Dear Chairman Barrasso and Vice Chairman Tester: 

I write on behalf of the State of Montana to express my strong support for S. 

3013, the Salish and Kootenai Water Rights Settlement Act of2016. This legislation 

is the product of decades of work and hard negotiation between the Confederated 

Salish and Kootenai Tribes of the Flathead Indian Reservation (Tribes), the State 

of Montana, and the United States, to resolve the significant water rights claims 

of the Tribes. 

S. 3010 includes a Compact, ratified by the 2015 Montana Legislature, which affirms and quantifies the water rights of the Tribes on and off the Flathead Indian 

Reservation and provides for the administration of water on the Reservation. It will 

make new water available for commercial and irrigation use, end the water administration void on the Reservation, allow for economic development under conditions 

of legal certainty on and off the Reservation, and facilitate the completion of the 

statewide general stream adjudication. In addition, the Compact establishes a process to plan and implement irrigation project upgrades to protect historic irrigation 

use and meet Tribal in-stream flow targets. The Compact is the seventh and final 

negotiated water compact that the State has entered into with the tribal governments located within Montana. 

Further, the Compact represents the largest monetary commitment that the State 

has made in any state-tribal water agreement. Within five years of federal ratification of the compact legislation, the State has committed to funding: 

• $4 million for water measurement activities; 

• $4 million for improving on-farm efficiency on lands served by the Flathead Indian Irrigation Project (FIIP); 

• $4 million for stockwater mitigation to replace FIIP stockwater deliveries outside irrigation season; 

• $30 million to provide an annual payment to offset pumping costs and related 

projects; and 

• $13 million to provide for aquatic and terrestrial habitat enhancement. 

Passage of a settlement bill is critically important to Montana. The Compact was 

born of compromise. In it, the Tribes agreed to less water than they believe they 

could legally claim, including significant claims for water both on and off reservation 

in the Tribes’ aboriginal territory. The Tribes’ water rights claims number in the 

thousands and cover a significant portion of Montana. If the legislation does not 

pass, the Tribes and claimants to water rights arising under state law will be forced 

into contentious litigation that could last decades. Because the Tribes’ claims have 

senior priority dates, including claims with time immemorial priority, litigation 

would be arduous, expensive, and carry great risk for the State and individual water 

right owners. It is essential for Montana that the protections provided in the Compact be ratified by federal legislation. 

I thank you for this opportunity to provide Montana’s views and look forward to 

working with the Committee on this important matter. 

Sincerely, 

41 

STEVE BULLOCK, 

Governor. 


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42 


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Seventh, Section 5 part (b), (3) provides th!lt the Act and not the compact prevails. This docs not 

reJlect lhe oat.ure of the Compact as it was a negotiated oontract b~tween lhe Tribes and SIJi.le of 

Montana. nol a Federal starute, In the spirit of compromise lllld working cooperatively it would 

31:\.>JII. that reversing this lBDguogc would be i!ppropdate. 

Eighth, Section 5, partd l, 2, and 3, should be amended to reflect th~ terms ofth~ comfl""t and 

should provide ac:cCSll to lhc Tribul Water Right for ull al!otment ~Is, regardless ofowndlp 

or trust statuS ofUiis time. Further, the3 section could reflect that ''all reservation inigators, not 

only allottees, should be entitled tn a just and equitable allocation of irrigation water". 

Ninlh, Section :5 part (d) provides mrtbority to protect only allottees. Broader authority to protect 

other users, with valid claims, or othi:r amenities would seem more appropriatc,w; it provides the 

benefit I1Ud a remedy to all citizens a.tfooted. 

Tenth, Section 6, pw:agmph (e.) provide9 the water as meilSured at the Hwtgry Horse Dam. Our 

question is simply is that going into or coming out ofthe structure'! Clarifillliticm would help 

v.ilh tl1is long tcrmql.JI:Siion. 

Eleventh, Section 6, paragraph (c) (2) Dis ll!lclear as to iflhe storage rights are pro·rala or 

absolute or adjusted otherwise. As this may impact the lewis of Fla.tln.'a<! L,Jce Wid irrigation 

wnler a.vailabllity, clarity would be helpful as to the nmounts. 

Twelfth, Section? paragraph (a) provides the commission with ~uthorhy 1o regula.te 

hydro~lectrlc power within the reservation. Paragraph (b) is unci ell!' PS it notes the Tribes' right 

i~ exclusive to develop and market any hydro project on bodies of water within !he menration. 

If off body of water hydro-generution is ~«X:epttlble for other mtilies or per~oi!ll that should be 

madeelear. This would beeonsistent with national energy policy to encourage alternate energy 

produotion without limit as to Tribul only. 

Thirteenth, Section 7, paragraph "d" limits the ability of other users to profit from a project. For 

eltamplo, if per paragraph "d" 16 a gnmrator is in a Bureau Rec Irrigation facility that is funded 

and mu.intained by irrigators, it seems fair that the irrigators should be entitled to a portion of the 

r-:venue genere.ted. This is based upon the fact that they pay repair, operation Md maintenance 

on the facility. Amending parts d, e, lllld fofthat part of paragraph (d) oi'Seclion (7) would 

seem much more equitable 10 all involved. 

l'ourteenth, Section 8,"a" I identifies in general rchabilita«ion work to be carried out by the 

Secretary through the Commission. The Bureau of Reclamation is identified as the "Lead 
43 


629a3.eps

Ag~y" in Se!:tion & (a) 5, but no language reglm!lngcooperating agencies cr local 

govenunents like Sanders County is made. This is significant as parts of the system are owned 

b} individuals and by this county or local entities like cities or towns, who should be consulted 

and who should be provided meaningful richts to participate. This rarticipation is important in 

S{'('tion &(b) 3 and4 as Jocul pllrticipation mailers aml'"loccl" in~luding this county owns parts of 

tMse facilities. 

Fifteenth, Sccti011 R(d) should provi<k: that local government entities that aln.-ady provide: n:pllir, 

and malutenance, and construction of parts oflhe project should be party to the ugreement, and 

alio fund<:d to provide these services to the project. We 8S a county own the road right-of-ways 

u~ed by the project9 and the crossing ~tructurcs ani should be funded to provid!lthose s.;:rviccs. 

Si:o:leelllh, Section 8(e) 2 provides fO£ acquisition of easements liom landowm:r.:1 without 

compensation far land value taken or reduced by tbe work. This seems a taking without 

Cllmpcruwtion and no 11.381m111Cll ofnmtoration oftbe land is included in the par;:~graph, We 

believe both should be. Furth~r, Section([) n:quin:s that th!lland, i.e. right-of-way is held in 

trust frlrtbe Tribes bene lit. This seems lop:;ided and i~ a for<:ed sale to an entity that is only for 

bt:nefit of the "Tribes". It is nota preferred alternative to mlll\y. 

S.!Venteenth, Se~tion 3{e) and (f) harms all local government units here and our schools and tire 

districts, etc. as trustiWlds do not pay taxes-, placing an unfair and oppressive bunlen on our other 

tmtpayen;. 

Eighteenth, Section 9 (I) uses mandates !hill the Ag Development act:ount is w;cd for"lndian 

land'" in parts A. B. C. D, and F, with M acknowledgment of system improvements that henefit 

llQII·Indian land or IW'lds that are impacted. No discussion of cost al!o~alion is Included and we 

bt:li!lvcit should bt: as collateral costs to m~n-IOOiao land may be non-economic for tbe long 

term. mid unfair to other owners. 

Nineto:enth. Section 10 includes funding for Plathcarllnigalion Project maintenance with no 

mcehnnlsm to al!ocate costs related to noiJ-allotted beneficiaries. 

Twentieth, pamgmph Section 12 a (3) does not obtain a release from allonees and 12 (c) allows 

the Tribe:i to make claim 11g11inst WJywatcr rights recognized under any Final Decree. That 

seems contl'a!y to the compact and statements that the Tribe gave up .,.,rtain claim~, which this 

PIU'II!!rapb does not give up. 

Twenty First, Section 13 a and b could release this slate and this county from liability El!i 

W!l Ullderetood that Y>"IIS the benefit of a compact. 
44 


629a4.eps

RocKY MouNTAIN LAw 

P A R T N E. R S, P L L P 

U.S. Senale Committee on Indian Afiail'!l 

838 Hllrt Senate Office Bnilding 

WI!Sbington,D.C. 20510 

testimnnv@indinn.senate.AAV 

MorkW.Buekw..t~~ 

Bruce A. Fndrkltson•• 

Kristic. L Omvi;gMmh-allMumly 

Qt.W.:d) 

July 12, 20115 

Re: S.30l3··Aulhorizatlon and JmplcmClltatioo of the WnterRights Compn.ct with the 

Confederated Soilih mdKoolemli Tribes, Montana, 

Dear Committee Members: 

Thlmk you fur giving U8 the oppodunily lo 8Ubmit writleu comment on behDlf of the 

FlllthCild Joint Board ofConllol, ajoiD.t opm'3!ion ei!lity fonned pursuant to MOJtt. Code Ann., 

§ 85-7-1601, etseq., its membcrsbip comprised of 'the Flath~ Jocko Valley a.ndMissiou 

Irrigation Districts (''FIBC") in OPPooilioll to S.3013. The FJBCrepre:Jent:; approltii!ulteiy90% 

of"lhe fee land loca.ted within tho Flathead Indian R.eilervatlon ("FIR") which translates into 

apprull.imately 2,51}{1 Urigatore who derive their livelihood~ from tho areo.. Authorization and 

impl=entllli.= of S.31) 13 will result in the devastation !llld deslruclion of 1hose funtily famls nnd 

ranches. MotO'parlicularly, our con= are related to S.3013 alODgwith its companion 

Iegislrlli.on commontyrefemd to as tb.eMonlllnll2015 Confederated Salish and Kootenai Tribes 

of the Flathead Reserv~lion Water Compact (Mont!lna Senate Bi11252) (hereu£le,; the 

"Compact'?: 

1. S. 3013 A bill to llllihcrize and implement the water righ'ls compact among the: 

dm:federoted Sllll.sb and Kootew.l. Tribes oftheFllllbead Indian Rooom-atioo, th~ 

StaleofMonbW& and the United States as illlroduced by Montana S81latorTesler on 

May2tl, 2016, fl1;presslyoverturn.s oongresslonalncts datlngbnckto th.e CIII!y 1900's. 

Signi!icu.nt areas of concern exist .includiu.g but not limited to; 

• Supemedl'S {SB 262) if a COll.tlict tocists between t:he legi!:llations. 

• Improperly CJql!llldS the scope oflhc(SB 262). 

• Eliminates priorcongressionnl n.cts including but not limited to granting the 

right to all revenues from the sale ofhydmeleetric power to the CSK.T. 

• Elimlootes any obligation on the part of the Uoited States to account for, 

monitor, or administer any revenue received by the CSKT or any expellditure 

• """"' Expends approximately $2.3 billion. dollars. 

• Blimioales prior oongti!ISslorml aci<l which m!llldated that opera.tion and 

management of the Flnthend Irrigation. Projoct («p]p'') bt: turned over to the 

OWllCl.'ll of the irrigated lands. lnstcnd, S. 3013 anticiptrtes entering into an 

operlllion 1111d maintenance agreement with the CSKT. 

• Improper ntillzation of !he Indian. Self-Det=inaeion ~rul Bduc~tion 

AssistanceAct{Z:S U.S.C. § 450 et seq.) 

• Improperly provides that failure for the: Ser:retnry to approve or dise.p_prove an 

exprmditure plan within 90 days of receipt of n request is Butomaticnl1y 

doomed as approved. 

• Violates due process lll!d proce<!wul rights. 
45 


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2. Mo!lt!lml. Senate Bil1262 (SB 262): SB 262 consists of over 140 pages along with a 

stack of appendices, (which excludes the appendices which were NOT included in. 

the veto on &B 262), SignificanUy, SB 262 contains an~ law of admi~trntion 

which will eliminate the Montana Water Use Act and the Montana Watet Court from 

the equation. Significant pointi. ofoo.ucem inciurlO hut are not limited to: 

• Grants control over all wate!'l! whcthcr"federd, stuW orl!ibully" derived Ia 

theCSKT. • Implements a new law of administration which is, for all intents 11nd purposes, 

oontrolled by the CSKT, 

• Contains an illogical and potentially unavailable appeal process to a ''court of 

competent jutisdictmn" which may be state or tribal court if ull perties agree 

or fedaml court if (he parties do not agree despite the fil.ct the federal court, as 

a courl oflimited juri:ldiotion, may not legally possess jurisdiction. 

• atimi.nate:l ~11 c!ai.m.s for money damages against the State ofMont&la (i.e. 

property destruction, tcrt claims. cond=ati01l. and taldugs cl!Ums) us it 

grants the Stalt!: of Montana immunity for such causes of action. 

• Repl~ces property owners' water rights with a ''water rights delivery 

certificate" which the State of Montana. admits is not a property right. 

• Despite lhafimt historical wafer delivery data bas been kept on the 'FJP, it fails 

to account for or as51Ire irrigators historia!l delivery of irrigation. water. 

Instead it inCOiporates the concept of"adaptive management" whlch is atrial 

end error method of water Ellor:ution. 

• Fails to give iirigato:a; extra duty and non-quota water w.hich has historically 

betm rdied upon byinigetorn to grow crops under varying soil conditions. 

The State of Montana has already begun implementing the Compact despite the fact 

tha.tn.cilhcrlhc United States Congress nor the CSKT have approved it, all in 

violation of Art, I, Soo.. 10, cl. 3 of the United States Constitution whloh prohibits 

states from entering into a Compact with a foreign :power absent Congressional 

consoo.t. Various boards and technical feana were funned and in. place by October 

24,2015. Despite the fact the MorrtiiDD. Legislature failed to appropriate fw:Jds for 

implementation ofthe2015 CSKT Compact, the Governor ofMontanahas, in his 

dis~:retion. designatl:d $3,000,000.00 towards that end. 

3. From nn cnginecringsti\IIdpointSB 262, as dmfted, Cl!llllot be su=sfully 

implemented. More particularly it is scientffically 'Ullllound: 

• The 201::; CSKT Compact ®es not contain any Fll' ilrlgation water supply or 

delivery quantification infunnation. Without that critical information it 

cannot he detettnined llow much irriglllion water will be provided to PIP water 

users. • The2015 CSKT Compact contllins lwo different River Diversion Allowances 

(RDA). However, the Compact. reports several different values for the total 

FlP RDAs byFIP area. The Compact can oolybuve ONE acctllllte RDA 

enforceable fur each FIP area. • The Historical. Frum Deliveries (HFD) at tho farm turnout are presented as 

actual historical measure and recorded FIP data, but that is not the case. 

• Tho2015 CSKT Compact contains inCQJlsistcnt vtduC3, fuils to uccount for 

extra duty and non-quota water whic'h h!!!! bee11 hbtorically provided to 

irrigators bllsed primarily upon ~oil conditions. Further, it places stock water 

at ri:ik. 
46 


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4. Flathead Joint Board of Control v. StateofMonbma. Lake County, Montana, Cau!!e 

No, DV·15.n. The case i~presenUypending in Lake County, Monlllna Qnd 

chllilenges 1ha snfficl.ency of tho So:nate and House votes which nllegedl.y pnssed SB 

262. into llfW llli being a oonstitutional violation. More partiwla:rly, Mont. Con3!. .Art. 

IT, § 18 require!! a 213 vote nf ell.Cb legislative branch in order to grant sovereign 

immwlityto the State of Montana. SB 262 did not receive a 213 vote ofll.pproval in 

eithm' the Senate or HollStl. Thel'JBC believes the vote on. SB 262 was not sufficient. 

fllen::by n:ndcri:ngtho bill void as a matt!:!' ofl11w in its entirety, The issue has been. 

fully briefed and argued on 9UWIIlli!Yjudgment !llld we ll.Weit the court'g okcision. 

5. 190SFlal.head Allo!JuelltAct ('<pAA'') expressly mandating that once !he 

construction. costs hiiVtl been paid fbrthe FIP'B operation and management will be 

turned over to lheownm of the irrigated lands. Exhibit 1. Copy of sample Hen 

attaclled to irrigator' lands which ellCumber~d the lands aud assured the paymBD.t for 

construction costs of the FIP byindividullll!.l!ld owners, Exhibit 2. Copy ofFedera\ 

Land Patent Issued by U.S.A. to indMdulllland owner. Exhibit 3. Federal Register 

demon!ltrnting the FIP C~mstruction costs were paid for ln full as of January 2004. 71 

Fed Reg. No. 196, S9809 (Oct.l J, 20()ri). To date. those liens have not been 

released, S. 3013 expressly eliminates turnover ofth11 FIP to tOO ovmc~ of the 

lnigated lands; rather, ttplaces aU control in the CSKT. Presently pendingbcforu the 

N'll'lth Circuit Court of ApP{lllls 11 Caii!IB No. I S-35701 ls Flath~ad Trriut!on District ct 

aJ.y, Jewell, et a.l .. which is liliglltion tha/ •eeks =nforccmentoflhe FAA and turnover 

of the PIP to the owners oflh~ irrigated lands. 

6. Both SB 262 and S. JOB signifiCtlll!ly decrease the low cost blook of power whleh 

has been giiWIIlleed and provided to irrigalors for )'!:!Irs and negatively affects-the net 

power revenues ieoorated to reduce O&M charges, per Congressionnl.ll1!\lldatc. On 

June 8, 2016, the F~deral Energy Regulatory Commission concluded a hearing on the 

FJBC's request to maintain tha low coot Nock ofpowar, Tile patties a'Wftit the 

Judge's decision in that matter ns well. 

We llppteoiate your willingness to consider our comments. Thnnk you fe>r yaur tilM and 

lltlerJtion ID this matter. 
47 


629a7.eps

Senator Jolm Barrasso 

Chairman, ScmateSelectCommittee on Indian Affairs 

838 Hart Sen::.te Office Building 

Washington, D.C. 

Subjed: Ccmments on 5.3013 Hearing June 29,2016 

Dear Senator Barrasso: 

July 13,2016 

Please acceptthefollowlng r:omments regardilll! the June 29, 20l6l1earing on Senator T~ter's S. 3013 

before the Senate Select Commitlee on Indian Affai~ (SCI A). 

As a first matter, Senator Tester's bm erroneously refers ro a prop<~sed water S!!ttloment beLween the 

Confeder.~ted salish and Kootenai Tribes (CSKT], thest'lteofMontana, and the United States. The 

proposed CSKTCompact Is actually still In Montana and not reody for any congressional review or any 

all~gcd mwrlh~ because Its very existence Is In 1/ti!Jction. The !Xlnstitutionality of the Montana 

legislature's vote on the CSKT Comp&ct WM ch~llenged lmmedlnb!ly In AprH 20J.S and the case ts stlllln 

court. ~of this moment, there Is noW<ltersettlement to propose 10 Congress. We are ourprisedthat 

Senator Tester and the Montana delegatlon hUed to disclose tills to the SCI A befora it ~chadul~d a 

hearlnB. 

FUrthermore, on two oeCIISion~ In the lastsevernl months, y<>uroffiw, the Montan~ delegation, 

Cof11!re55man Rob Bishop's committee on Notural Resources, and the Department of the tnt~rior 

received e~teml~~e leiters advi>ing y<>u nol only oftha legal "mbo of the CSJ<TCompaet but oft he major 

lega~ lechnlc:a), and polll:'f is•ues plaguing the compact. 1l1esetssues will have to be litie;~ted before the 

compact is readv for arw congres:;lonal review. The lette11 arc ottached for your reference. The 

Neontroverslall!i!iues" menticn..d in the hearing didn't even come close to addressing the breadth and 

soope of this very destructilre water setllemenl 

Given thef~ctsofthe legalst~tus of the real CSJ<TCompact, Its deleterious effects on communltles, the 

numerow: vlolallcns of federal law contained th<!l'<!ln, ond th@ ~rac.>dBnt~Bttlng poll"! chong~• 

contemplated by this comp~ct,S~natorTester's ~rewrite" ofthe orlglna.l Montan,..based compact bill 

nol on!yi!Xllcerbales these Issues, but attempts to add "other purpcsesn which have nothing to do with 

af~deral reserved rights settlement. Indeed, S.30131s unwor1hy of any conslder.rtlon elven the 

Senah>r's untl&teral glossing over legal facts and lssu~ lmpor1•nl to Montano and those which lnvollle 

serious policy dlscu!iSions In Congress and the obvious avoidance of dti1en due process. 

Finally, we note thattheSCIA hear in~ on S. 3013was not notlted properly and the citi~ns of Montana 

affected bythlscompact were not invited to provide testimony. Such tesllmonywould have clarifi..d 

this issue for the SCIA but Instead, theSCIAgot a one--sided, ~rosY' picture of one ofworsllndlan water 

oettlement5 1\'1 emerge out llfMonlllna and all the western states. 

We urgetheSCIAtotake no fUrther action onS. 3013 and ob)ectlo an~ attempt to eet this to the 

Senate floor tor a vote, or to pass it on to the House of RepresentatiVes. It Is simply Inappropriate, 

untlm~ly, and unr:onsclortable, 

Slnc~relv, 

Catharine Vandemoer, Ph.D. 

doair, Mont~na L~nd and Water Alftance 
48 


629a8.eps

JAY F. STEIN• 

JAMES C. BROCKMANN• 

SE:IH R. FULLERTON 

OJComud 

KA.Tf!F:RINE:W. HALL 

• N••: M••ko lhlrd Cortlr.od 

Spo<iolioll in Water Low 

Senator John B=so 

STEIN & BROCKMANN, P .A. 

ATTORNEYSA"1'LAW 

Chairman, Senate Select Cllmmi!tee on Indian Arfail'li 

United Stales Senate 

Hart Office Building 

Washington, D.C. 

Dear Senator Barrasso: 

February J, 2016 

Our firm represents the Monla.naLand and Water Al!i:mce.l am writing regarding the rec~t water 

settlement cumpact rel!ChOO between the slate nfMon!llnn, the Cunfedcmtcd Salish a.nd Kootemli 

Tribes (CSKT) 1

, and the United Stntes known .as the "CSKT Compact". As you may be aware, 

the CSKT Compact allempts to setth; the fi:deral reserved water rights daims by the Confcdemted 

Salish and Kootenai Tribes of lite Flathead Reservation, We have [ei!med that tile CSKT, and 

perhaps others, are pressing for the introduction and ratiiication of the CSKT Compact in this 

session.~ We write lo expre:ss our concern about nnd complete opposition to its introduction in 

Congress this session. 

The CSKT Compact contains severnl provisions which negalil'llly affect the water rights oflndian 

and non-Indian Irrigators within the federal Flathead Irrigation Project, located within the exterior 

bowalaries of the Flath..ad Indian Res<:rvation, and comprising oome 127,000 acres of irrig~ted 

land. These provision~ include a delegati011 of admln!sirutive oolharity undcc the "Unitary 

Management Ordillllllce" from the Stale ofMonl!ma to~ P"liti~ally ~~ppointed, TribW!y-controlled 

''Water Man~sement Board" which will govern aU aspe~:~s of water usc. The 11mount ofwallll" 

historically used by irrigators in the Flathead Irrigation Project V>'OU!d be reduced to make water 

'Tbe Flotheod !~dian R<>Serwlian wo• CSU>h!i<hod by th~ 1855 Treaty ofHellg~te which Wll!l rotili!d !>y the s~nal< 

In \85~, The mei"VIllilm vm o~n•d to :IOI!h:mont in l'Xl~ by Pnl!identlot P111<1olm111ion. "The 1.2 mJIUon ncrc 

resuvation dom®l'phics ostablish lhat 4.5 ~~of the lanllond ~= ood 9D%oflho lrri!:"tlan pra]e<t kinds :If<! awned 

In r..., and SS% ofllnl t<ltllllond urea otld !0'~ aflh< inipli011 projocllond i• mv""d by the Tribe. 

1i'rnccedtn!l" oflh• Molllona leglslo!U<C'S W•t<r Polioy Interim Ccmmittro mcctincJnnua.y It otld 12,2015, 

l!eleno, Monllll\1t.. 
49 


629a9.eps

aVI!i!a.b!e fonriballnstream flows. Newappropriations and changes of use of t::>:i~ting water rights 

would be restricted. 

The Montana Lillld and Water Alliance is a coalition of fanners, rarn:bers, business owners, aml 

mnnyolhers, som~with irrigation rights within tire Flathead Irrigation Project whosllmcmbcrs arc 

adversely affected by the CSKT Compact and its lmp!ementalion. We me extremely concerned 

about any premature Congi'CS.'!ional review while many iS'ltles remain Wlre!mlved. 

Initially, the CSKT Compact is in litigation and therefore not yet ready for any Congressionlll 

review. The litigalion involves the constitutionality of the Montana Legislature's 2015 vote 

approving the CSKT Compact. This means that there is no CSKT Compact that is available for 

Congressional review at this time.l 

There Is also significant concern that the \C(:hnical studies underlying key provisions of !hi: 

compact--such as the lnll'lsferofagricultura\ water In a federal irrigation project to instream flows 

•• are insuffJCient to meet the Crit~rla and Proccdurcrl-, the federal Data Quality Act, and the 

standards guiding the quantification of a federal reserved water right. These are describ!ld in the 

atlached letter sent to lnteriorS=truy Jewell. 

M~ imponantly, for the Senate Select Committee on Indian Affairs, the CSJCT Compact 

provisionscxpand the Winters Doctrine, allowing the CSKT to claim more water on the reservation 

than they are legally entitled to.' Moraover, it allows the CSKT to claim "aboriginal water rights" 

with a time immemorial priority date, D./flht!: "'""rw:J/icm both in aud oLrtsidc ofthcir judiciallydetermined ceded territory. This t<ITort allemptslo merge ~ TJ'eilty right of access to fish to a water 

rightto sustain fisheries. 

Another key component ofll1e Compuct is Ure expansion ofTribaljurisdiction over non-.lndians 

and state law-based water rights within the exterior boundaries of the Flathead Indian RO;:SerVution. 

Titis is both inappropriate gillt:ll slate jurisdiction, the reservation demographics and land 

owncrnbip patterns, and highly significant to other Indian reservations and stales. 

The expansion of the Winters doctrine and Tribal jurisdiction overoon-lndinns are important legal 

and policy issues for the federal agencies, Congress and !he states. These issues must be fully 

identified, analyzed, the com;equern:~ determined, and h~ings held before the CSKT Compact 

can be: considered in or passed by Congress. We request that be done. 

'Th• CQilSI~utionotity .. n~. kgi:olo!lure'5 volco;~n u~ cgmp;10;l i:o currmty in titiJl(llion in Monl1111~'5 :zo~ J~ici~l 

Dlslri.t. (FJBC v. M<wa!IGI Dl-~/5-11}, lake County, Polson, MT. Wllotever dc<lslon I• "'"do In !hi• court wnt be 

"''l'••lod I» the Monloao S•prerno Court. ~ Critorla and Pm""r!o=f& the Pmtldpmlon oftM Fedl!t"al Gm·~r.w•m in thuSeutem~m of(nd/an WQ/e~ Ri;;!Jrs 

Ci<llms, Rdmt Tqli:;to;~ V<>t. S5 No. 48, M~r-eh 1:!, t9!XI. A bus..: Ull~r fr.;~m Chairm<W Rob JJ~/wp lo.411orMJ' 

~neral Hold"" ~Jm!lweril»' S•a'o!"'Y J<nre/1. Ftbruory ~li, 20\S 

~s~~ JNmcrsv.. Unn.dSrmu, '1JJ7 u.s. !1"6<1 [19!lB). 
50 


629a10.eps

STE[N & BROCKMANN, P.A. 

ATioRNEYSATLAw 

Honorable Sally Jewel 

Office of the Secretary 

Ol:pllrtmcnt of the Interior 

1849C Street, N.W. 

Washington. DC 20240 

Se,retaryJewcll@io.s.doi.gav 

D~ar Madame Sccretocy: 

February l, 2016 

JhYF.STI:IN• 

JAMES C BROCK~fANN• 

5eJI! R-l'ULI..ERTON 

OfO>OJt<tl 

1\l\TIIERitmW. HALL 

• No\\ M~txko Boord Ccr!ifl<d 

Spcclolisls in Vhror Law 

Our finn repre.senls the Monte.na Land 1111d Water Allillnee, Inc. (Alliance), regarding the rr:=t 

wnter seUlement reached b~twccn the slllte of MontanEJ., the Confederilled Salish and Kooto:mai 

Tribes (CSKn1, and the United Sllltcs, known liS the "CSKT Compnct",l As you may be nWllrc, 

the CompactattempiB to S~:ttiewaterrighls elllims by the Confederated Salish ll!ld Koolnai Tribes 

of liK: Fluthead Reservation. We have learned !hat the CSKT and perhaps otlters are pressing 

decision-m~kers to inlloduce and pass the CSKT Comp~ct in !his session. We wdl<! to express 

our conccm about and complete oppos!lion to its introduction to Congress thh session. 

The Compact contains several provisions which negatively affect the Willer right:; of all irrigators 

within the F!aJ.he&d Irrigation Project ("FIP"), These include a delegation of adminislnltive 

authority under the Unitary Management Ordinance from the State of Monlllna to a "Water 

Management Board" which will govern ~u aspects of water usc. Under the CSKT Compncl, lhe 

amountofwater hisloricaUy used by irrigators in the FIP would be reduced to mnlcewateraval!able 

for tribal instrcam flows. New appropriations ami changes of use or exlsUn& water rights would 

ba dctcmlined by the Water Manugem~nt Board. 

' The Flathead ln<llon Resorvllllon'""" ~slobli•hed lly the l E55 Tm~ty of H•llplo whioh was ratified by the s. .. te 

in l859.The l2millioo nore~ion dolllogmpOios oslllhlish lh!lt45%oftbctollllnnd aro:nond 9~% ofthe 

lrrlgationpmjet:tltmdsore awnc:d In feo,. ondi5%oflhe lc(;J\ fund tm1 und I (I% of the ini~:"tion projt:et l3ro:l is oooned~;t!JeTribe. 

'Tht M011!ml11 ll:go'sbllre estnbb's!Jed the Monl<rm Reserved Water Rig his C<tnJlllOt Commi«ian ;, 197; ta 

nego~~e dl~ ft:dm.l ~d righ~.< ~fedora] !~dian md ~011-!ndion rc~rwtions ns port oftlle M'I'Ooner.t! St=m 

Adj(tdicatkm stallllt!. S.Y<!nteen compacts hnv~ been <:<lmploted !•eluding wllh ,;~ of the •even T nbc• in Morllllni!. 
51 


629a11.eps

The Mani.Eina Land and Water Allinoce ("Allianct='') is a cwlition ofirrisators, ranchers, business 

O'.'o'llers, and others, some of whom have irrigation rights within the FIP lll'ld whose members are 

adversely affe~t~d by th~ CSKT Compact in its implemenla!ion. 

While the CSKT Compa~t is not yet final because. the state's legislative approval of the Compact 

is cum:ntly in litigatio.f, we were surprised to lemn that the Tribes have initiated no intensive 

effort to accelernte the CSKT Compact approval by federal agencies and seek administration 

support and concurrent Congressional ~pproval oflhe CSKT Compact before ordurins the 2016 

session ofCongrcss.~ This letter asserts that the hasty approval of! his Compact is premature given 

its sWSIIll'l!iYe lt:gal end tedmknl flaws as well as its broad impllcations for slate law-bused ll.lld 

fedel1ll reserved Willer ri£hls in western states. 

In the last severol years, the Alliance has been actively involved in the analysis of the Compact 

and the public, legislative, and loc:al decisioo-lllllkerlevels. The purpose of this effort was to both 

educate the public about the substnntive impncls of the Compact and 10 participate in providing 

vitnl expet1ise and information to the Montlll1D. legislature for their delibcmtions. Mlllly of the 

issues identified in the CSKT Compact require resolution at the fedcrellllVcl. In that regard, it 

has b~cn my client's C~~:pectation th~t before the CSKT compact was submitted to and discusSt:d 

in Congress, it would undergo at least the substantive interdepartmental ami Wk:rub'\:IICY revi~:w 

required by the federol Criteria and Pror:.edund amlthecertificationendanalysisrequired by the 

House Committee on Natural Re~ources.6 Accordinglywe submit the following lll'lalysis in support 

ofourassettion l!lld request your attention to this matter. 

I. ThcCSKT Compact is nat Final in Montana due to On-going Litigation 

As a first principle, the CSKTCompacl ~notyetreacly for fed em\ review. Altlmu>lh th~:Comp>~~l 

pllliSed in the 2015 l~:gislative session in Montana. its status is uncertain as a result of cl!rrent 

litigation challensing the conslitulionallly of lite le{lislature'~ vote? At iss~re is whether the 

legislature needed a 213 or super majority vote to pass the Compact as a result of an immunity 

provision in the CSKT Compact. a 

Th~ canstitulionnl~y oflhe kgisluture's 2<11 S vole p:ts:~!ng the comp•ct is cumontly Jn Utlg~llon lfi Moot lila's 20"' 

Juditilll Distrkl (F'JllC v. M<mrtma Dl'./5-73) wil~ fi11nl OfllUme!llo o.tJe4ul~d for mld-Mnreh 20 16. •P~t>~:eedinr;s oflhe M011l•m. k:Hiilalllro WolcrPolie,Y lnlorim Comtnln..,rneedn3 nfiOlltl<Hy 11 and 12;Wl~, 

Helen11, Mr. 

'Cd!ula a.HI Prowt!~resfOI' lh~ /'~rllr:!pa/lwt aftbc l'er:kral Gtmmmtem !11 theS<1t/,.umr '!flmJian fYMor Riglus 

C/ai"l$• fc<knllkglllerVoL 5~, No-48, Morch IJ, !990. • Letter linin Cllaloman Rob Bi<l.op to Allomey Oen=l Holderor.d lnlcrlor Sccrcw;> Jewell, Feblllary26, 201S. 7 FlallteadJalnl Bawtlq/C<mlroll\ StaloofA/amiJtla, DV-t5-73. 1 Article ll Soc!lo~ TH of Ute Moolan• Constltuli<>ll >Ill~ SlllleStobj~~ttoSu!L Thu:tme, mllltlhu, citiu, 101m3; "".,{1 odll:rla.."U! ga••mmartd mtflios slutlliNn!~llflimlmmlrJ• from sll/lf{}l' flrjory to a perso~ or propcr/y, e.w:qJ/ 

ru lm!Ybe spec{/ir:»>ly provld•d by low by o ]/J l<ll" '!f eaoh hotlse r("rlu: ltgls/a/ln'e.. A pm•isk>n oflhc eompoct pravidestbe sto!t ant'l(emplfoolfomthc immunity w:tlverror~cos~.dlmnges, nnd :ll!ome:ys fees" nnd ndlhcr 

hawc:oftho legi;T.oture ocltlned u 213 ~ole. AtthouJ:h the lomuit is no! about tbl! compnot Itself, the milJlltion 
52 


629a12.eps

~A //land 1¥i1hin the lim/Is qf aulr1dian resuwrion under tlwjurlsdictian of the Unit~d 

8/aJc:.· g.Jrcmmcnl " 13 

Whih: We areawarelhallhe CSKT Compact's defrnilion of the Flathead Indian Reservation us~s 

crlminaljurisdiction(l!! U.S.C.A 1151 (2013)), this definition not only oontmsts with Montana's, 

but when IISed in the contcKL of the fust. two retilals, clearly lay~ the foundation for Tribal 

jurisdktion over non-Indillns lllld state lllw-bi!Sed water riGht.s. 

The fi!St \V.'O w::i!als, plus the definition of the reservation, form the foundation for the (IS5er1ion 

of ownership and control over th~ federal irrigation project water rights, 14 the &ilure to quantify 

the amam~t of water necessmy to fulfill the purposes of the reservatiou and instead claim all the 

surface and growtd water on the reservation including state law-based water rights, nnd the off~ 

reservation claims for water rights to support a treaty right ofaccessto take fish. 15 None of these 

compact clements me anywhere near the concept of settling the fcdcrol reserved rights of an Indian 

Tribe in a McCamm Amendment proceeding. 

4. The Federal Data Quality Act (P.L.l05-554 §SIS) is Applicahle to the CSKT Compact 

The provisions t~fthe Data Quality Aci(P.L. 106-SS4 §SIS) 3pply to the data used tosuppon major 

agency 11etions that involve subslllntivc chlliiges to federal projects or actions tha1 rely on the 

collection and use of scientific information to SUJ>port those actions. Jn the CSKT Compact, the 

Bureau ofReclanw.t!WJ, Bureau of Indian Affairs (B!A), and the U.S. Fish and Wildlif., Service 

have the burden of assuring that the scientific informatiou backs up the policy dcdsions regarding 

the snpporl for components ofthis C(lmpaet. This is especially importunt wheo 11 federal action, 

such 115 lire approval ofthc CSKT Compact, is likely to h11vc local impacts to the local economy 

Cljuallo er greater than $100 million dollars. 

Of the many issues in the CSKT Compact related to the requirements ofthc Data Quality Act, one 

particular concern is the Compact·~ effuct on the federal FIP. The li!de raJ government reserved or 

llpproprlated water to serve the Project's Indinn allotccs and non-Indian settlers, and recogni;;:ed 

its neOO for and obligation to ensure the successful development of the reservation's irrigable 

u Tl1e Trl11ol i'IIJli<UU afMDilt.:r,a, a flarlrlbooliforL~rslalors, Commluoeon Indian Affolrs, Mo<cll19015,~"i...J 

2015. 

"Artick Ill C. t i<J) "FIIlth""d Indian lnig;llion Prqj•ot. Th~Tri'~ bavelhe ri§1>11o watorth:l1 i~ !>!pi' tied lO lhe 

1'\ .. b .. d lndi:on trril:atiw Pwjc<L to be used far su'h purposo~ in !uell volllrno• •nil now ro1es;md from such sour= of ~opp1)' as ldell!illed in !be abstrncts ofwoterrighlll(l!l<:lu:d horelo as Appendix AS. The RIP W\11 S<nt• 

up 10 hut not mcl'l! thon llS,ooo~...,.,, 

'' Dllod"""' :!012. 'TIHi El<<>il'l: lm;Nicd Wclo:r R!gllr[or Fi:;/r: Do O}f-r!!ServQ/lrm lm/n""' ll'ulor R.ighl• &in lo 

S/wlortl<JdianTrearyFi•llhrgR/gh!'l.'~4g IDAHO I. RliVIEW S\3 [2012]. 
53 


629a13.eps

acreage,l6 In 1924 non-Indian setlleiS omn:d BOo/o of the Project land; in 2016 non-Indian 

ownership of90% ofPwjeetlnnd. 

Although the Pruje~t water right is heW by the federol govo:mment in trust for all users in tl~e FIP, 

and the individu3! water use~ bold a beneficial interest, the CSKT Compact tnmsfern the bare 

legal title of all of the project water to the United States to be held in trust for the CSKT nlone. 

Titen the Compact pennlts the CSKT to tmnsferslgnlficant amounts ofirrigation v;a~r to inslrtlam 

flow. 

Ollr review of the data and models used to reduce inigalion wnter use nnd convert the remaind~r 

to in stream flow reveals the complete Inadequacy of the modeling effort. IUld of the Bureau of 

Indian Aff~irs in both supervising and correctingtheseerrors.U The U.S. Fish and WildlifeS~rvke 

did not contribute illlj' Wlalysis to or review of these instream flow detenninlitions in the CSKT 

ComJXI.C\. 

Thus, the BJA Jms not mel any n:qui~ments of its own guidelines under the Datn Quality Act for 

the thorough vetting of the CSKT Compact. ~ We suggest lha1.1he BIA's dW.a for this component 

of the compact is deficient. Instead, the CSKT Compact pennits these data and modeling 

inwieqtwcies to be ~built into" the "final" compact in tlw form of an "Adaplive Management Plan," 

This is unheard orin \he context of a final water settlement. 

5". The Fedeml Government Cannot Require a Stale to Viobte its Own Constitution to Meet 

a Fed~ml Obligation in un Indian Water Scttl~ment 

Certain provision~ of the CSKT Compact require the Slate to violate its own constitution with 

respect to wateradmlnlstratlon, the due process rights of !Is citizens, IUld unconstitutional takin~ 

without compellSI.Ition. We asstlrt that thestl viol3tions vn:re and arc unnecessary for a seUiement 

of the reserved water rights of the Tribes, and ml.!5t bt: remedied before the CSKT Compact is 

ready for Congressional consideration. 

For ~xample, the Compact requires that the state give up its constitutionally-derived administrative 

authority over its citizens and state-based water rights 19, requiring the creation ofnlocnllaw which 

treats ~iti01.cns living on the reservation differently than every other dtiu:n in Montana. The 

Montana constiMion prohibits the legislature from creating such aln~~- The creation of this 

local law simui!Bncously expands Tribal jurisdiction over non-Indians which is incansistcnt with 

"l!BO, Scallc'!O""' Rcpan. 17 I'rlle«lliDJ:!I oflhe Wmer Polioy Jnu:rim Commin~ CSKT Ctlmp2o1 T ~ctrnlcnt Rtvi<>W Team, Mny-Au£ust. 

2014. 

11 Blln!anofllldioo Affairs 10 JAM !~,Indian Affoir.i MI!IIUol lnplemevllngdir~<otim oflho Diii~QUII!ity Acl ~nd 

theossi!Cial<:d OMS Quido:line:; (67 fll. 84S4-i'\6DJ and l'ecrll.l:Vicw 6ulll:l!n (70 FRl664). 1' Sec U:ner loAitomq Gmora/ Fox; No...,mber 5, 2014, ••ll"rdlng ille Comp•ot w:uer admlnl<tratlon pl011 and 

Ankle IX oft!<< Mo<l1211:> Con<lhullon. 

"f>kmoumrlllm 10 ,A.kmtwro StJJI<J/e PraiJ..rl ~rrd Speu*u o}lfe Ho~s~on Cons~llutim•ul F/olm/Ons I(J· Compact 

&li}irxlllon,A[lfll6, 201.'i, by MLWA AIIC<TJey Richard A.Slrmu. 
54 


629a14.eps

federnl and state law. Finally, the aforementioned tronsfer of the bare legal title of the irrigation 

wat~r right to the Tribes, l!fld other Tnbal claims on and offre:servation, d~privc citizens ofllleir 

rights to receive a fair adjudication of their historic water rights in tbe Montana Gt!neral Stream 

Adjudiwtion. 

We=ert thai these and tire mWJy remaining constitlrtional violations of the CSKT ComJlacloould 

have been avoided had the Critwla and ProcetU1res been used to resolve a federul reserved rights 

issues, It would bean unforlunate.:rrorlo put the CSKTCompactforward bcforeCongressntthis 

time, 

This letter review of the CSKT Comp:~ct, while lengthy. tuuchcs only on u fev.• of the most 

imporlllnt issues that identifiably need considerab\dcdcralngency review before tbeCompaclcan 

even be considered fur introduction to Congress. 

Oiven that the CSKTCompac\ is nat yet final betauseit is in litigation, theextraordiiUl!)'scape of 

this unique Indian water settlem~nt, and the cansidll!'llb!c problems that are outstanding, we 

respr.:ctrully reiterate our request to hal\1\Jly rushed review 11nd approv11l or introduction oflhe 

CSKTCompact into Congress during 2016. 

Thank you foryourcon5idemtion in thi$ matter. 

Sincerely, 
55 


629b1.eps

Montana Land and Water All ian!;!! 

Polson, Montana 59860 

Senator Jon Tester 

311 Hart Senate Office Building 

Washington_ DC 20!i10-Z604 

June 10,2016 

Subject: Submittal of Confederated Salish and Kootenai (CSKT) Comp;:~ctto 

Senate 

Dear Senator Tester: 

The recent press announcement reeardlngyourlntroductlon of the C:SKT Compact to the 

United States Senate comes as a complete surprise and with great disappointment. Your action 

is espe~ial!ytrollblingliln~e we are still ilwoiting a response to our Febr11ary oorresponc!enceto 

you on this subject through our attorneys, Stein and Brockmann P.c..' We write to advise you 

again of our concern~ 

It is common knowledge th;rt the ~onstitution<~lity oft he Mantrm11 legislature's vote on the 

CSKT Compact Is currently in litigation {FJBC"v. Mootana, DV-15-73}, and whatever the dedsion 

is in this case, the Issue wlll be tied up in the Montana Supreme Court long <Jfter...,ards. aevo11d 

this lr~stant constltutlonallsstJe, there are several othervlolatlor~s of the Montana Constitution 

in the Cum pact that will be litigated. In other word~, the real CSKT Ctlmpa~t th~t you 

prem~turelysubmitted to the Senate has not made it out of Montana yet. 

The Montana lalld and Water Alliance apprised you of this litigation a11d other serious 

problems with the compact through uur ottomeys on F~abru~ry l, 2016. Our letter followed 

another ~mmunitatloll that had been sent to you by more than a dozen Montana state 

legislators i11lateJ~nuary. Both letters apprised you of the on-going litigation and the 

likelihood that any decision would be appealed to the Montana 5upmme Court. 

lrilPortantly, the constitutional Issue at hand In tourt is a stot~ Issue that cannot be resolved at 

tha federal lave I. Thus asking the llnlted States Senate to resoi'Ji! fundamental.l!;sues ttlat 

already have avenue in state court and whi'h mu>t be resolved therl! fs fnapproprlate. 

1.!:tt~..- from lay ~teln, Esq. to Senator Jon Tester on behltl ot I !IE! Montana L!lnd and Water Allianc~, February 1, 

=;. 
56 


629b2.eps

Your apprOl'lch to resoMng these diffimlt and Important state Issues, and to work around ongoing critlcallitlgat!on, was to completely rt!Wrlte tha CSKT Compact which does not address 

any of the problematic iss1.1es at tland In Montana. In doing so you have exacerbated the 

existing problems with the orfglnal C5KTCompact which already rewrites the history of 

agricultural development In western Montana, federal-state relations, federal-Tribal relations, 

and the Treaty of Hellgate. Tile rewrite added a required reinterpretation oft he 1887 General 

AllotmerJt Act. 

The Montana-based CSKT Compact and your rewrite both simply dismiss, without explanation, 

the lll02 Reclamation Act, 1904 Flathead Allotment Act (FAA), and l.SOB Amendment to the 

FAA, 1920 Federal Power Act, l9341ndian Reorgomlzation Act, the WintetS Dar:trine, and 

numerous federal contracts with irrigation districts ID:istingsince 1926. Al! of these 

Congresslom:.l acts c~;~ntinue to <Jpplyto the lands <1nd waters within the exterior bound<~ries of 

the Flathead Reservation. 

Both the existing Compact and vour rt!Wrile inS. 3DB undermln" existing legal prcc .. sses, 

lncludkl!l the on-going proceedinss with the Federal Energy Regulatory Commission IFERC), the 

ongoing legal aaiollS, and the Ninth Circuit Court of Appeals negotiations regarding the transfl!r 

oft he operation and mairrtellimce of the Flathead lrri~:ation Project to the Jandowner:s within 

the project as stipulated by the l~a Act. 

We urge you to withdrawS. 3013 on grounds that it is nat the Compact that was developed bv 

tl\e Montana State !eeislature. The major state constitutional issues In litigation on the 

compact at this time cannot be"tweaked", resolved, rewritten, or amsidered by Congress until 

resolved In Montana. 

We await your timely tl!sponse. 

Slm;,.rely, 

catherine Vandemoer, Ph.D. 

Chair, Montana land and Water 1\ll!ance 

Polson, Montana 
57 


629b3.eps

• 
58 


629b4.eps

TO: Sen>:~tor John Barrasso, Ch~lr, and 

All Members of the Senate Committee on Indian Affairs 

And, 

Ch~lrman Don Young, and All Members of: 

Indian Insular and Alas~a Native Affairs Subcommittee 

FROM: Elaine D. Willman, MPA 

Flathead Indian Reservation, Ronan, MT 

DATE: July 14,2016 

RE: S. 3013- Confederated Salish-Kootenai Trib"s (CSKT) Water Rights Compact 

Introduction. As backc:roum! fClr the comments provided below, please know th~t I have lived 

on threa separate rsservations for tile past 26 years (Yakama, Oneida of Wlsccmsln, and 

Flathead). Further I have been an active researcher of federal Indian pollcy, and am the author 

of two books on the afores~ld pClllcles: Going to Pieces •.• the dismantling of the United Stl:Jtes of 

Ameri~o (Mav 2005); and Slumfuuing Thunder •.• o primer for confronting the- spread of tribalism 

overwhe-lming AmerlcD (March 2016). 

I moved to the Flatheod Indian Reservation to assist tribal and non-tribal landowners, farmer~ 

and rcmchers with the foreboding oonoequences of a Proposed CSKT Watsr Ssttlemenl 

COmpact, approved by the Montana State Legislature on April11, 2015. 

As a res~lt of CSKT Water Compact approval by federal, state and tribal officio I>, 30,000 

Monta!Rl residents, both trib~l ~nd r~on-trlbol, have no government as advocate for their 

Constitutional Rights, civil, property or w~ter rights. The small CSKT tribal government now has 

100% control over all =tar and power emanating from the former Kerr Dam, rivers and 

streams, all land and residential access to water, and all ~ccess to electric power. Residents of 

the Flathead Indian Reservation are now at the mercy of a tribal government that has no duty 

to 75% of the reservation population, for livelihood r:~n their lands and businesses; this 

condition wilt be looked in perpetuity, If the st~te Lesislators' Proposed CSKT Water Settlem~nt 

Compact, and/or 5. 30131s ratified. 

In addition to total control of water and power, the CSKT Compact provides fur no cap on ratesetting for water and power, nor review by federal entitles or the State Public services 

Commls:;ion. 
59 


629b5.eps

Request. This writer requests that the Senate Committee on Indian Affairs and the Indian 

Insular and Alaska Native Affairs Subcommittee of the House Natural Resources Committee 

take no further action on S. 3013 until the following tonseguentes of S. 3013 are investigated 

and resol~ed: 

Issue No. 1. Due Process and Proxedure. The C:SKT Compact passed by the Mor~tana 

Legislature has been inordinately ond dramotically expanded by 5. 3013 beyond what the State 

legislature actually approved on Aprll1l,. 2015, withollt the review or approval of the Montana 

legislatum. May a federal senator bypass, !lXpand -and override decisions m-ade by a State 

Legislature without state Jecislatlve consent? And 1f sueh Is legal, is such imbalance of 

separation of power remotely ethical? s. 3013 control~ and pre-empts the Montana 

legislature's Proposed CSKT Water Settlement Agreement. 

Issue No. 2. U.S. & Montana State Constitutions. Both the State approved Compact ond S, 

3013 entirely violate the U.S. Constitution and Montan;;fs State Constitution. The Compact 

violates the 1rt, sill and 10th Amendment of the U.S. Comtitution. The Compact violates 

numerous individual rights of Montana citizens as identified in Article II of Montana's 

Constitution and Section 3 of Artide IX oft he Montana Constitution, to wit: 

"A!! existing rights to the use of ony woters tor any useful or benefklal pvrpose are 

hereby rerognlzeri and ron firmed. {1972} 

"All surfoce, underground, {iorJd and atma~pher!c waters within the boundaries of the 

stote are the property of the state for the use of it~ people are subject ra appropriation 

forbrmeficial uses as provided by law." (1972} 

Issue No.3. Judicial Rullngs. In a June 13, 201S unanimous de1;i~ion, the U.S. Supreme Court 

ruled In Tarrantv. Herrmann: 

"The sovereign States posse55 an absolute right to all their n;avigable waters and the 

~oils under them for their own common use ... So, for eKample, a court deddlng a 

question of title to a bed ofn;aviE:able W<Jterw!thln a State's boundary must begin with a 

strong presumption ag~lnst defeat of a State's title." 

lhe Governor ar~d Attorney General oftt\e State of Montana are fUlly aware but have declined 

to acknowledge Tarrant v. Herrmann and have sacrificed Mantana navigable state watersln 11 

counties cf Western Mor~tana, -affecting 20% of Montana's land and 30% (350,000) of MontMa 

citizens. 

Likewise, by signing the Comp~ct, Governor Bullock has confiscated individual Montana 

titi~en's ~consent to be governed by a tribal government'' as ruled in the U.S. Supreme Court In 

Montam• v. U.S, (1980) which provides that non-tribal persons will not be governed by tribal 
60 


629b6.eps

governments absent their Jmllvldual consent, The Ex~cutive and Legislative Branches of the 

State of Montana have entirely walked away from their respon~ibilities to protect and serve 

Montana clti~ens, tribal and nofl-triba), within the Flathead Indian Re5ervation. 

Issue No. 4. Violations of the Gener.~J Allotment (Oawes! Act and Homestead Act. When 

settling the West and opening up Indian Reservations, Congress provided in perpetuity that 

each !and patent issued under the above Acts, whether to tribal or non-tribal persons, was 

guaranteed a water right permanently attached to the p~bmt. Settling the West and openlnr: 

the reservations could not happen unless water was guar.~nl!!!!d by Congress to each patent 

!;sued. The water rights attached by Congress to Individual l~nd patents have been 

confiscated by the Federa~ State and Tribal 1111Vernments, and lnccrporated Into the CSKT 

Water Compact. Landowners subject to the CSKT water Compact had signiFicant liens placed 

a(i<linst their properties for purpose of constructing the Kerr D<lm and a federal lrri(i<ltlon 

project in the early 1900s. J..iens were long.agtl paid off, from revenue generated by the dam, 

and later by tax as~essments for irrigatim1 proJect operations, but landowners have never ever 

been reimbursed, nor have their prcperties been cleared of these liens. Private property water 

rights have attached to the lands have been llterally stolen, while I! ens permanently e~ist on the 

allotted and homestead parcels within the Flathead Reserv~tion. The CSKT Water Compact 

would render this condition permanent. 

~~~m~~~~~~~~~~~~~~:iTh~e csKT water comp:3ct as passed by of trlbal sovereign immuntty. S. 3013 

butS. 3013 provides that where there Is fnccnslsbmcy 

between the legislature's and Senator Tester's inflated version of the CSKT Water 

Settlement Compact, that the Act contained ins. ::1013 wntrols. The end result Is that S. 3013 

holds the United States entirely hannless from all administrative aecountability, use of funds 

and project Impacts, while also {by intentional omissicn) elfmlnat/ng the CSKT tribal waiver of 

sovereign immunitv approved by the Montana legislature. Ely entirely locking out dt!e process 

of affected londowners, there is no recourse when further harm occurs to landovmers and 

residents other than a small appointed Compact management organization hc~vlly seated and 

controlled by the tribes. 

Issue No. Ei. National Environmental Pclicy Act /NEPAl and State Environmental Polley Art. 

Prior to passage of the CSKT Water Compact by the Montana st~te legi5lature on April 11. 

2015, absolutely no envlronm!!lltal imp<l~t analysis was ccnducted by the federal, state or tribal 

governments fcr a project that will phvsically disturb and Impact thcu5ands of acres of land 

within the Flathead Indian Reservation. Senate Bi!l.3013 affirms compliance with the National 

Environmental Act, and in the very ne~t sentence, ~:xempts s. 31113 from NEPA compliance with 

the following statement: 

"The ~xecutlon of the Compact by the Sf?Cfetary under this section shall not ctmstitute a 

majM Fedem/ crr:tfonfor purposes of the National Envfronmentol Polfcy Act ofH59:" 
61 


629b7.eps

To state that the CSKT Water Settlement Compact [5. 3013} does not constitllte #a majar 

federal action" Is dislngenuDus at best, and patently false. 

Issue No. 7. The Hellrne Treaty of 1855 and the CSKT COnstitution under the Indian 

Reorgan!z;nion ORAl Act of 1934. The foundational fr~mework ""'"'rting tribal water rights Is 

based upon the Hel!gate TrEaty of 18SS. This treaty e~ecul€d hy Territorial Governor Isaac 

Stevens pmvlded benefirla{ use and ocruponcy only of a bounded reservation. Treaty 

reservation land was own~d ~nd governed by the United States and Bureau of Indian Affairs. 

Tribal leaders nor tribal members hod any jurisdictional authority or ownership of the lar1d, or 

the water within that reservatlorl under the Treaty of 1855. To claim In 2016 that the Hellgate 

Treaty provided tribal government ~ownership" or jurisCictian of the land or water when the 

Treaty oniy affirmed nthe rightto fish/ is remarkable re'lisionist history, 

Additionally, the Confederated Salisf1-Kootenai Tribe was the very first to be "feder~lly 

retognized" as a governing entity under the Indian Reorganl:tatlon Act (!RA} of 1S34. The IRA Is 

the Instrument that converted "beneficial use and occup~r1cy" to governllll:: and jurisdictional 

authority over indlar1 trust l~r1ds within rese.v~tlon bound~ries. Tribal governments were 

required to take a majority vote of adult, enrolled members to either remain a ''Tmaty" tribe, 

or become an IRA trltle, but not both. The tribe's IRA oon~titution granted in 1936 .supersedes 

its Heligate Treaty of 1855. 

The CSKT Water Settlemer~t Compact as passed by the Stilte Legisl~turc ~ncl ir1 S. 3013, claim 

the He ligate Treaty, rather than the tribe's official governing instrument, its IRA Constitution, as 

authority for the Water Compatt. The tribe's cor~stitutlon Is gl~en almost r10 mer~tlon In either 

~erslorl of the Wuter Compact This Is a result of two goals: 1) The tribe wants to daim 1855 as 

Its date of superior water rights; ar~d 2) The Tribe's Constitution gives it absolutely no authority 

to govern non--tribal persons or properties. 

!!;SUI! No. 8. Pre-Compact Ratification Adhritles. As ~ reslder1t on the Flathead lncl!an 

Reservation I was made aware shortly after St~te leglslatl'!e approval of the CSKT Water 

Compact of e~amples of ~pre-lmplemer~tatlon" tactics of the C.SKT Tribe. The tribe sf-Jut off the 

water to stock por1ds for a lar~d ovmer's large herd oF cattle, for~ing the landowner to relo~ate 

his cattle to someor1e else's land. Upon relocating the c~ttle, the tribe turned his stock water 

ba[k on. lrl anothEr eX>tmple, one of my neighbors had two hundred acres of peas cam ina to 

peak In a historic heat wave (:l.OH dearees) at the end of Jur~e/flrst of July last year. His er~tire 

crop was scorched. After the crop was lost, the tribe turned the Irrigation water back on. There 

are numarous similar eMperiences that lando\•mers er~dured last year, at a slgr~lflcant financial 

loss. Unouthorized "Pre-lmplemer~tatlon" actMtles of the proposed CSKT Water Comp~ct (S. 

3013) have been ongoing since Initial approval by the Montana legislature on April11, 2015. 

Contluslon. The Flathead Indian Reserv~tion Includes all or portions of three counties, 11 

towns ar1d 30,000 rGsidents. The majority popu!atior1 (75-80%) is non-tribal, ar~d the greater 

land base within this resE>rvatlon is equally r~on-tribal-land paylns taxes to a State that no 

longer serves them. 

Citizens e!ther have federal ar~d state oonstitutlonal protections, or they do not. F@deral, state 

and tribal govemments either follow the rule of law, federal and state regulatloi"IS, or they do 

not, Senate Bill 3013 has not followed the rule of law or traditional environmental impact 

regulations. The end result Is that the Executive and Legislative branches of the st~te of 

Montana, ar1d its federal Senator, Jan Tester, no longer acknowledge ar1 oath to si!IYe ;md 

protett the Montana reslder~ts, both tribal and nor~-trlbal, within the flathead Indian 

Reservatior1. 

S. 3013 must be rejected outright. 
62 


629b8.eps

July 13, 2016 

Testimony from Mont;:ma State Representative Dan Salomon 

U.S. Senate Committee on Indian Affairs 

W~shlngte>n D.C. 

RegardingS. 3Dl.3 

Chairman Barrasso and Vice Chairman Tester, thank you for this opportunity to submit written 

testimony. 1 rap resent !louse llirtrict#93 which •mcompa.,es the Flathead Indian Reservation. I served 

on the Me>ntana Reserved Water Ri~hts Compact Commlsste>n os the Repubff~an member from the 

Montana Hou~e oFReprasantallves. I am ~lso a farmerwith5~0 irri!f<iled acres served byth~ Flatheod 

Indian lrrlgB"Ikm Pmj!!d. 

ne CSKT water compact has many ~lgniflcant benefits for the people <Jf Montano. 

It will perm~ncntl~ resolyc the Fcdcr.JI Reserve Woter Rights that the CSKT tribes were granted with 

theslgnlng of the Hellgate Treaty. The neg<Jtlatlon prooer.s wa• extensive and brought many Ideas which 

will help all the parties Involved moW! forward, provide certainty for everyone with \vaterrightswlthout 

the very lengthy and expensive litigation that Is certain to follow without an agreement. 

The C<lmpact allows fur the FliP to have hlsiorlc water supply with on opportunity tel utlliz" more 

water as efficlendeswithinthe project am realized. Tfle eoonomic driver of the Mission V<llley and the 

Flathead Indian Reservation Is agriculture. The shared shortage and adaptive management agreements 

in the compact allow for the ability to serve the lrrig;ltion community while meeting the In stream flow 

demands needed f<Jrhealthyfi•herle•. 

The 90,000 acre feet of new Compact water will allow for continued growth, both population w!sa 

and eoonomk:ally, furthest ate of Montano for many decades. 

The negotiation ofthetribes off reservation Reserved Water flights will allcwthe adjudlcotlan of 

manyofthewaterbaslns in Montana tel continue to be proeessed without delay. If the Tribes claims ara 

activated due to failure of the compact, a slgniHCi"lnt numbcroftMscw<~terbosins will Mve to be readjudlcated, Thlswlll be a significant expen:;e to the state of Monlana for continuation of it:; Woler 

CDUrt and the Individual Vl."'terright h<llders If they wish to object to the Trlhes claims. 

A primary gool of the Reserved Water Rights Compact Commission was to proted:thee~lsllng water 

rl&hts of Montan~ water rights holders. The negotiation proce55 allowed fur this to happen. 

Thank you fur the opportunity tr> comment. lw<luld be happy to ~nswerany questiomthat orise. 

Sincerely, 

Rep"'•~ntatlue Dan Salomon 

Di>trict 1193 

42470 Salomon Ro~d 

RDnan, Montana 59854 
63 


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Pamel& Flllthead Coul'lty J. lllllmquist 

GazyD.~ 

PhDip B. Mlll:beH Board of Commissioners 

The Honorable John B!IIIl!Soo 

The Honorable Jon Tester 

Senate Committee on Indian Affairs 

U.S. Senate 

838 Hart Office Building 

Wasbingtoo. D.C. 20510 

RE: 8.3013 

Dear Scnntor Barraslio and Senator Tester. 

Julyll,2016 

Thmik: yw for the opportunity to comment on S, 3013, which provides for Cllngn:ssional 

llliificalion IIIld implementn.l:ion of~ CSKT wate:r rights cornpact. This Compact was the last 

one to be negotiated in. Montana. Significantly, the othersb: compacts do not grant off-

~n water rights. The propclsed CSK.T Compact for the first time ever grants offreservation water rights lo a tribe, which ill anew type of water right that would set 11 precedent 

furolher tri~ lhroughoUI: the nation. Therefbre, we strongly object to grnntingoff-n~Servation 

water rights to the CSKT. 

The CSKT tribe claims to have water rights that cover nearly half of the State of Montana and 

that they IIR: willing to give up many of those clllirns with the passage of the compact. Of course 

they would be willing to give up claims in other areas of the State, because the water is not easily 

delivembl~ to them in most oflhose urew. But because the water that !lows through Flathead 

County is delivernble without thern doing llllything, then they have put the Illl\iority of the burden 

ooFlathead Clluntyto satisfY !he water rights claimedehewhere in the State. 

This wmpact is an agreement that has no expiration or renegotiating date. We don't belh:ve that 

ll!l)tlfll: should enter inlo any agreement that is forever. 

A water bottliog plllllt is going tluuugh the permitting process with tbc Stat" of Montane. on the 

east side ofFlathead County. I'm enclosing the Objection to the Application tiled by th" CSKT. 

Their objection was bi!Sed on legal availability and adverse effect. I'm aloo attaching Exhibit A 

and B which they provided as docmnentation 'With their objection. The Compact hils not been 

nltifiedyet. Wearenlso enclosiPgAppendix IS dated January2S, 2015, General Abstract, for 

"'""""'· Our hope is that the Compact can ~n.vised ro identifY and prof~ the CSKT'B reserved wat~a 

right& on the reservation and also protect the water rights oft:hcl citbcns of Flathead County off 

th~r=vation. If the CSKT Compact isoot revis~ we urge you ro vote:. "no" on S. 3013. 

Gacy D. Knseger, Member 
64 


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tai;S,T~iia® June 27, 2018 

. ...-

The Honorable John Barrasso Chairman 

The Honorable Jon Tester VIce Chainnan 

David C. RobMS 

AssDCia!e Gsn•nNM•~>agor 

Waw R~~oun:M 

Senate Committee on Indian Affair.; 

washington, DC 20510 

Dear Chairman Barrasso and Vice Chairman Tester. 

I am writing to you on behalf of the Salt River Project rsRP'), in support of S. 

2959, a bill to amend the White Mountain Apache Tribe Water Rights Quantification Act 

of 2010, (Pub.L. 111~291; Title Ill, 124 Stat 3064, 3073 (2010}) to clariry the use of 

amounts In the White Mourn a in lip ache Tribe Settlement Fund. SRP was one of the firnt 

fi'IS federal reclamation projects authorized by the Secretary of Interior in 1903. Today, 

SRP is a multi~purpose federal reclamation project operated by the Salt River VaUey 

Water Users' Association and the Salt River Project Agricultural Improvement and 

Power District under a 1917 contract wHh the United States. SRP is the largest water 

suppHer for the Phoenix metropolitan area and power to mare than a mmion electric 

customers in Central Arizona. 

Much of the surface water supply delivered by SRP to ~s water users In the 

Phoenix metropolitan area originates in the While Mountains in eastern Arizona, which 

is also the aboriginal homeland of the While Mountain Apache Tribe ("WMAT''}. In 2010, 

after decades of litigation and several years of negotiations, the WMAT, SRP and other 

interested parties, including the United States, resolved the WMAT's competing claims 

1o water from the Salt River and its tributaries for its reservation. The center piece of the 

Wfl-tAT Quantification Agreement and settlement legislation Involved the construction of 

Miner Flat Dam on the WMAT reservation, together with a water treatment plant and 

pipeline to delfver polable water to sevsra! communities across the reservation. Without 

this project, those communities will continue to suffer water shortages in the summer, 

requfring the hauling of water for community distribution, as welt as poor quality water 

from nearby streams, wl'len they do flow, contaminated by a variety of na!ura!!y 

occurring constituents. 

During the technical work in designing tile dam, the Tribe's consulting engineers 

discovered potential seepage and stability issues asoociated with the dam site that had 

not been previously known. The Act's authorizations for this project are sufficient to 

address any additional construction costs that may be necessary to address these 

geologic issues, but the Interior Department has indicated that it is not absolutely clear 

from its perspective that the WMI\T Settlement Fund authorized by Section 312(b)(2) of 

the Act Is worded broadly enough to permit its usage for these expenditures. tt was the 

belief of all of the settlement parties, perhap:;; other than by the United States, at the 

time the settlement legislation was enacted into law that this Fund could be used in 

case there were any unforeseen construction cost overruns. However, in order to 

resolve this uncertainty with the Interior Department over the usage of the already 

authorized Fund for !his purpose, It Is necessary to clarify the language to ensure that 

the Fund can be used far these construction cost overrun purposes. 

The importance of completing this important water rights settlement to waler 

users In Central Arizona and to the WJvlAT and its people cannot be overstated. This 

clarifying legislation would resolve this interpretive difference of the Fund's purposes 

and would permit this project to move forward to tlmety ecmpletion. We urge the 

Committee to act favorably on this bill. 

Sincerely, 

D~J£./),L 
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629b11.eps

LAKE COUNTY. A POLITICAL SUBDMSION OF THE STATE OF MONTANA, 

SUBMITS TIIESE tNITIAL COMlviENTS ON S. 3013, THE "SALISH AND KOOTE1\1

A1 

WATER RIGHTS SETI'LJJMENT ACT OF 2016" These issues are significant and more detail 

can be provided subsequent hereto. 

Initially, Section 2, paragraph (1), on page2, please add Section (C) the benefit of the residents 

of the Sta.te of Montana and the Flathead RI':Servation and vicinity that arc Tribal and non-Tribal 

members. 

Sooond, Ser.tion 3, paragraph 5, part B Inclu~ions, should he corrected to clarify if or what 

amendment or amendments to the compact or attachments would be included and what 

~executed in accordance with this Act" means or involves. 

Third, Section 3 parogroph 10, pnmgraph (B), I inllludcs "any othcrfucility ofthc Flathead 

Iuigation Project," without a definition of what is included in a "fadlity'', and without an 

indication ofowncr8bip or control of any such "facility". Clarification would help this 

paragraph, as this county owns somt: facilities like bridges and culverts. 

Further, Section 3, 10, B ii includes "any other physical tangible object: used in the management 

and operation of the Flathelld frrigation Project". No discussion of who owns, maintains, or 

opcrntes those "objects" is made, nnd ''object" may or not be part oftllc Project. Ex!U11pl~ may 

include bridges orculvlll'ls owned andlorlnsta.lled by private persons, the railroad, and operated 

by the Project but not owned by or repaired or maintained historically by the Project. 

Fourth, Section 3, Pllfllgraph 2 defines "Allottee" to limit the definition to be only owners v.ith 

tru.<;t lands. This deficition when utilized in the act, section 5 paragraph (a) limits the benefit to 

only trust land llCrcage and e:;cludes persons who own historic allotment parcels !hat are T rib!!l 

or non-Tribal members with lands nat in trusL This limits the benefit of Section 5, (a) to only 

trust lmu:ls parties and therefore the definition and intent poragrnph deny all o1hcr persons equ!l\ 

protection or benefits from the act. A revised or functional definition providing b::ncfits fur all 

allotment or histuric allotment holders would perhaps mitigate this problem. 

Fifth, Section 4, (a) Ratification, (1) provides that the compacl is authorized, mtified and 

confirmed "Except as modified by this Act." We are unclear how or if the Act can modifY the 

compact, but not ratifY the same modifications, and nlso not ratifY portions of the compact in 

conflict with the Act. Clarification of what modificatioru; occur w:ith the Act nod what conflicts 

exisl would help the county nod citizcm better evaluate the Act itself. 

Sixth, Sllction 5 page 9 could be amended to reflect that the Act seeks similar benefits for nil 

persom affected by the Compact, not only allottee's. 
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Seventh, Section 5 part (b), (3) p>ovides that the Act and not the compn!lt prevnils. This does not 

reflect the nature of the Compact as it was a negotiated contract bct\.1:ccn the Tribes and State of 

Montana, not a Federal statute. In the spirit of compromise nnd working cooperatively it would 

seem that revBisingthis Language would be appropriate. 

Eighth, Scotian 5, part d I, 2, and 3, should be amended tn reflect the tern:Js of the compact nnd 

should provide oocess to the Tribal Water Right for all allotment parcels, regardless of owncrsl1ip 

or trust status of this time. Further, the 3 section could reflect tlmt "all reservation irrigators, not 

only a!loltees, should be entitled to a just and equitable allocation of irrigation water''. 

Ninth, Section 5 part (d) provides authority to protect only a!lottees. Broader authority to protect 

other users, with valid claims, or other amenities would seem more appropriate, as it provides tile 

benefit and a remedy to all citizens affi:cted. 

Tenth, Seetion 6, paragraph (a) provide~ fhc water as ffi(:!ISUrcd at the Htmgry HorooDam. Our 

question is simply is that going into or coming out of the ~iructure? Clarification would help 

with this long term question. 

Eleventh, Section 6, p!ll11graph (c) (2)D is unclear as to if the storage rights are pro-rata or 

absolute or adjusted otherwise. As this may impact the levels c.fFJathea.d Lake and irrigation 

water nvailahllity, clarity would be helpful as to the amounts. 

Twelfth, Secticm7 paragraph (a) provides the ~ommission with authority to regulate 

hydroelectric power within the reservation. Paragraph (b) is unclear as it notes the Tribes' right 

is exclusive to dowelop andmorket any hydro proje(;ton bodies cfwaterwithin the reservation. 

lfo!Tbody ofwaterhydro"generation is acGcpl.able for other entities or persons, that should be 

made clear. This would be consistent with national energy policy to encllu!"llge alternate energy 

production without limit as to Tribal only. 

Thirteenth, Section 7, paragrapll "d" limits the ability of other users to profit from a project. For 

11X!U11ple. if per paragraph "d" lB 11 generator is in a Bureau Rec Irrigation facility that is funded 

and maintained by irrigators, it seems fair that the irrigators should be entitled to a portion of !he 

revenue gCllctated. This is based upon the fact that they pay repair, opom~tion lll!d maintenance 

on the facility. Amending parts d, e, and fofthat part of paragraph (d) of Section (7) would 

seem much more equitnble to all involved. 

Fourteenth, Section 8,"a" 1 identifies ingcn=l rehabilitation work to be cnnied out by the 

Secretary through the Commission. Titc Bureau ofRedamation is identified as the "Lead 
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Agency" in Section 8 (a) 5, but no hmgunge regarding cooperating agencies or local 

governments like Lnke County is made. This is significant as parts ofth~ systom arc owned by 

individuals and by this county or local entities like cities or towns, who should be consulted and 

who should be provided meaningful tights to pmticipnte. This participation is important in 

Section S(b) 3 and4 as local p3rticipation matters and "local" including this county owns parts of 

these facilities. 

Fifteenth, Section 3(d) should provide that local government entities tlmt already provide repair. 

and maintonancc, and construction of parts ofthcproject should be party to the agreement, nnd 

also funded to provide these services to the projecL We liS a county own the rami right-of"ways 

used by the projects and the crossing structures and should be funded to provide those services. 

Sixteenth, SectionS(e) 2 provides forw:quts!tlon of easements ftom landowners without 

compensation for land vnlue tnl"en or reduced by the work. This seems n taking without 

compensation and no assurance of restoration of the land is included in the paragraph. We 

~lieve both should be. Further, Se~:tion (f) rcquiri:S that the land, i.e. right"{lf"•Nay is held in 

trust for the Tribes benefit. lbis seems lopsided and is a. forced sale to an entity that is only for 

benefit of1hc "Tribes". It is not a prefi:rred alternative to many, 

Seventeenth, Section 8(e) and (f) hru:ms all local govcrnm<mt uaits here and our &:hools and fire 

districts, etc.ll.ll trust lands do not pay taxes, placing an unfair and oppre~~ive burden on our other 

taxpayers. 

Ei~toonth, Section 9 (1) uses mandates that tl1e Ag Development accmmt is used for "Indian 

Lund" in parts A, B, C. D, andF, v.ith oo acknowledgment of system improvements thru: benefit 

non" Indian land or lands that are impacted. No discussion of cost allocation is included and we 

beHeve it should be lUI: collateral costs to non"Indianland may be non"economic fortl1e Ions: 

term, and unfuir 1o other ownen. 

Nineteenth, Section 10 includes 1il.nding for Flathead Irrigation Project maintenance with no 

mechanism to allocate costs related to non..a,llottee benriliciaries. 

Twentieth. pru:agroph Section 12 a (3) does not obtain a release from allottees and 12 (c) allows 

the Tribes to make claim against nny waterrighl.s recognized under any Final Decree, That 

seems ~:ontrMy !o the compact and statements that the Tribe gave up certain !:luims, whiclJ this 

p!ll'agrnph does not give up. 

Twenty First, Section 13 a and b could release this state and this county from liability as 

we understood that wns tl1e benefit of a oompacL 
68 

GREAT PLAINS TRIBAL CHAIRMEN’S ASSOCIATION, INC. 

Rapid City, SD, June 27, 2016 

Senator John Barasso, Chairman, 

Senator Jon Tester, Vice Chairman, 

Senate Indian Affairs Committee, 

Washington, DC. 

RE: S. 2796, THE RESPECT ACT 

Dear Chairman Barasso and Vice Chairman Tester: 

We write on behalf of the 16 Member Tribes of the Great Plains Tribal Chairmen’s Association, Inc., to support S. 2796. We appreciate the leadership of Senator 

Rounds in bringing forward the RESPECT Act to eliminate substandard, frankly— 

anti-Indian measures from the era of Indian wars and cultural oppression. And, 

thank you for your assistance in securing its enactment. 

Senator Rounds introduced the RESPECT Act, S. 2796, to strike some of the laws 

which have historically disadvantaged our Indian nations and our people. For example, there are still laws on the books for the removal of our children from our homes 

to be sent to compulsory boarding schools run by military officers, where the mantra 

was ‘‘Kill the Indian, save the Man.’’ These laws should be struck from the books. 

Perhaps the provision on Indian Reform Schools can be updated to provide for 

Education, Counseling, and Other Assistance to Indian youth in custody. Perhaps 

the Army provision on facilities and staff can be consolidated and updated to provide for the transfer of unneeded facilities to Indian tribes. 

Finally, perhaps a request can be added to President Obama and Congress to hold 

a public ceremony to announce America’s Apology to Native Americans, enacted 

under the leadership of Senator Brownback and Senator Inouye as Section 8113 of 

the 2010 Defense Appropriations Act. The President signed the Act, yet never held 

a ceremony with our Indian nations and tribes to proclaim it. 

Thank for your leadership for Indian country. 

Sincerely, 


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69 

JOHN YELLOW BIRD-STEEL, 

President, Oglala Sioux Tribe, Chairman, Great Plains Tribal Chairman’s 

Association 

MONTANA FARMERS UNION

Great Falls, MT, June 22, 2016 

Senator John Barasso, Chairman, 

Senator Jon Tester, Vice Chairman, 

Senate Indian Affairs Committee, 

Washington, DC. 

RE: S. 2796, THE RESPECT ACT 

Dear Chairman Barasso and Vice Chairman Tester: 

Montana Farmers Union wishes to go on record in support of S. 3013, introduced 

by Senator Tester, and which will authorize and implement the water rights compact negotiated by the Montana Compact Commission and members of the Consolidated Salish and Kootenai Tribe. The policy of our organization has long supported 

State Water Court adjudication of all state water disputes, including all federal, 

state and private permits and/or reservations. 

Action on this bill is critical for our rural producers to be ensured that irrigators 

on farms and ranches in Montana have all the water resources they need to maintain production of their crops and livestock. Montana is a semi-arid climate with an 

average of less than 15 inches of moisture per year and depends on irrigation water 

to sustain and firm up commodities for harvest in the fall. The passage of this Compact will benefit all members of the agriculture community and sustain the number 

one industry in our state. 

Passage of the compact assures Montanan’s certainty of adequate water, while 

protecting existing water rights from tribal call and assuring individual water uses 

will not have to pay for litigation through the water courts. 

The CSKT Water Compact improves the irrigation infrastructure on Montana as 

it will assure funds for the improvement of water delivery systems, ditches, turnouts, storage and assures efficient use of our scarce water resources. 

The exciting piece of this legislation is, that of assuring water certainty for our 

producer members. We pledge to continue working with you as this legislation 

moves forward. Feel free to call, should you have concerns. 

Sincerly, 

ALAN MERRILL, PRESIDENT

E-MAIL SUBMITTED BY MARY MATHEIDAS

I am a rancher and irrigator on the Flathead Indian Reservation. I am non-tribal. 

I have lived here for 20 years. 

As a result of CSKT Water Compact approval by federal, state and tribal officials, 

a water compact passed illegally by the Mt. state legislature without the mandated 

2⁄3 majority, Mt. residents, both tribal and non-tribal, have NO government to advocate for their constitutional rights, civil, property or water rights. The small CSKT 

tribal government now has 100 percent control over all water and power emanating 

from the former Kerr Dam, rivers, streams and all land and residential access to 

water and all access to electric power. Residents of the Flathead Indian Reservation 

are now at the mercy of a tribal government that had no responsibility to the bulk 

of the reservation population, for livelihood on their lands and businesses; this condition will be locked in perpetuity if the state legislators’ proposed CSKT water settlement compact or S.3013 is ratified. 

In addition to total control of water and power, the CSKT refuses to amend the 

compact to allow for a cap on rate-setting; or review by federal entities or the state 

public services commission. This was a commitment agreed to many years ago and 

is now being ignored. Jon Tester’s bill makes us basically wards of the tribe. 

This constitutes a request that any action of Jon Tester’s bill S. 3013 be stayed 

until proper study has been done. This study need to include the following: 

1. DUE PROCESS AND PROCEDURE The CSKT compact passed by the Mt. legislature has been inordinately and dramatically expanded by S. 3013 beyond what 

the state legislature actually approved on April 11, 2015 all without the approval 

or review of the Mt. legislature. I am appalled that any federal senator can bypass, 

expand and override decisions made by a state legislature even if if legality of the 

70 

original passage of the water compact is in question. This bill now in consideration 

pre-empts the Mt. legislature’s proposed CSKT water settlement agreement. 

2. Both the state approved compact and S. 3013 entirely violate the U.S. Constitution and Montana State Constitution. The compact violates the first, fifth and 10 

amendments of the U.S. Constitution. The compact violates numerous individual 

rights of Mt. citizens as identified in Article II of Mt.’s Constitution and Section 3 

of Article IX of the Montana Constitution. 

3. There are several JUDICIAL RULINGS being ignores and need to the addressed. Among them are TARRANT v. HERRMANN AND MONTANA v. U.S. The 

first governs use of water and the second provides that non-tribal people will not 

be governed by tribal governments without their consent. The executive and legislative branch of the State of Montana have entirely abdicated their responsibilities 

to protect and serve Mt. citizens, tribal and non-tribal, within the Flathead Indian 

Reservation. 

4. VIOLATIONS OF THE GENERAL ALLOTMENT (DAWES) ACT AND HOMESTEAD ACT When settling the west and opening un indian reservations, Congress 

provided in perpetuity that each land patent issued under the above leading Acts. 

Whether to tribal or non-tribal persons was guaranteed a water right permanently 

attached to the patent. Settling the west and opening the reservation could not happen unless water was guaranteed by Congress to each patent issued. Now the water 

rights attached by Congress to individual land patents have been confiscated by the 

Federal, State and Tribal governments and incorporated into the CSKT water compact. Land owners subject to the CSKT water compact had significant liens placed 

against their properties for the purpose of constructing the Kerr Dam and a federal 

irrigation system in the early 1900s. Liens were paid off but many properties lack 

the endorsement of a water deed attached to the particular properties. Nor have all 

liens been cleared.. Private property water right have been literally stolen while the 

liens permanently exist on the allotted parcels. The CSKT water compact would 

render this condition permanent. 

5. FEDERAL AND TRIBAL SOVEREIGN IMMUNITY The CSKT water compact 

as passed by the Mt. Legislature on April 11, 2015, contained a waiver of tribal sovereign immunity. S. 3013 is silent as to tribal sovereign immunity but S3013 provides that where there is inconsistency between the Mt. legislature’s compact and 

Tester’s inflated version of the compact that the Act contained in S. 3013 controls. 

The end result is that S. 3013 holds the United States entirely harmless from all 

administrative accountability, use of funds and project impacts, while also eliminating the CSKT tribal waiver of sovereign immunity approved by the Mt. legislature. By locking out due process of affected land owners, there is no recourse when 

further harm occurs to land owners and residents other than a small appointed compact management organization probably heavily seated and controlled by tribal 

members. 

6. NATIONAL ENVIRONMENTAL POLICY ACT AND STATE ENVIRONMENTAL POLICY ACT Prior to the passage of the water compact in April 2015, 

no environmental impact analysis was conducted by federal, state or tribal governments for a project that will physically disturb and impact thousands of acres of 

land on the Flathead Indian Reservation. S. 3013 affirms compliance with the NEA 

and in the next sentence, excepts S.3013 for NEPA compliance. Read carefully. 

7. HELLGATE TREATY OF 1855 AND THE CSKT CONSTITUTION UNDER 

THE INDIAN REORGANIZATION ACT OF 1934 The foundational framework asserting tribal water rights is based on the Hellgate Treaty of 1855. The treaty provided for beneficial use and occupancy only of a bounded reservation. Treaty reservation land was owned and governed the the United States and Bureau of Indian 

Affairs. Neither tribal leaders nor tribal members had any jurisdictional authority 

or ownership of the land or the water within the reservation under the Treaty. To 

claim in 2016 that the Hellgate Treaty provided tribal government ownership or jurisdiction of the land or water when the Treaty only ‘‘affirmed’’ the right to fish is 

quite a remarkable change in theory. 

There are many immoral and constitutional flaws in both the original compact 

and Jon Tester’s current version. I sincerely hope there a people of vision and moral 

character who will closely scrutinize this bill and reject it outright for what it is: 

to subjugate all irrigators and peoples of the Flathead Indian Reservation to the will 

of the tribe, i.e. the government. 

Senator Daines 

71 

I wish to add my name to the growing list of Montana legislators that are against 

the Salish Kootenay water compact. I feel the non-native American farmers on the 

reservation are not well enough protected by the Company as it passed the legislature in 2015. 

Thank you for your time, 

KEN HOLMLUND, 

House District 38, Miles City. 

I am concerned that this Compact is being addressed at this time. We have court 

proceedings that need to be processed, the notion that the CSKT Compact may supersede Compacts that are a head is disturbing to me and some people that are involved in these other Compacts. Those of us who live off the reservation have a reel 

problem with the verbiage off reservation water rights being considered . I feel this 

needs to be put on hold till it is resolved through litigation. So if it comes to be 

voted on vote against it. 

REP MARK NOLAND. 

Please consider a no vote on the Compact. This compact give control of the off 

reservation water rights to a tribal council and, more importantly, to a small group 

of old water rights farms, making water a commodity worth far more than the land 

being farmed. This negatively impacts over one hundred thousand residents. Again, 

please don’t let this out of Committee. 

RANDY BRODEHL, 

Representative, Montana House District 9. 

Esteemed public servants, 

My name is Nick Schwaderer, I am the State Representative for House District 

14 in Montana, which covers the greatest area of the CSKT Reservation of any 

House District. I have lived in this area my entire life. 

Following years of meeting the community door-to-door and serving them as their 

representative, I fully oppose this water compact. I can say with full honesty that 

my community, who lives here, back me in this opposition. 

Overall, this water compact goes far beyond the intent of original caselaw and 

convention with the allocation and administration of native water rights, and acts 

as a threat to those who live, work and own property in our community. 

Sincerely, 

REPRESENTATIVE NICK SCHWADERER, 

House District 14, Superior, MT. 

Not only is the CSKT a violation of the MT Constitution, it is an overreach and 

power grab by the U.S. government. 

Please defeat this egregious affront to state sovereignty in Montana. 

REP. BRAD TSCHIDA, 

MT House Dist. 97. 

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