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S. HRG. 114–539 

S. 2636, S. 3216, S. 3222, AND S. 3300 

HEARING 

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 14, 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 September 14, 2016 ..................................................................... 1 

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

Statement of Senator Cantwell .............................................................................. 5 

Statement of Senator Flake .................................................................................... 5 

Statement of Senator Franken ............................................................................... 4 

Statement of Senator Lankford .............................................................................. 4 

Statement of Senator Merkley ................................................................................ 6 

Statement of Senator Tester ................................................................................... 3 

WITNESSES

Allen, Hon. W. Ron, Treasurer, National Congress of American Indians ........... 24 

Prepared statement .......................................................................................... 26 

Clarke, Hon. Damon, Ed.D., Chairman, Hualapai Tribe ..................................... 13 

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

Jefferson, Hon. Lavern, Treasurer, Meskwaki Tribal Council, Sac and Fox 

Tribe of the Mississippi ....................................................................................... 20 

Prepared statement .......................................................................................... 22 

Lumley, Paul, Executive Director, Columbia River Inter-Tribal Fish Commission ........................................................................................................................ 27

Prepared statement .......................................................................................... 29 

Roberts, Larry, Principal Deputy Assistant Secretary, Indian Affairs, U.S. 

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

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

APPENDIX

Burke, Hon. Gary, Chairman, Confederated Tribes of the Umatilla Indian 

Reservation, prepared statement ........................................................................ 43 

Cooke, Theodore C., General Manager, Central Arizona Project (CAP), prepared statement ................................................................................................... 44 

Response to written questions submitted by Hon. John McCain to Larry 

Roberts .................................................................................................................. 48 

Roberts, David, Associate General Manager, Water Resources, Salt River 

Project (SRP), prepared statement ..................................................................... 45 

Stockbridge-Munsee Community, Band of Mohican Indians, prepared statement ...................................................................................................................... 46 

(1) 

S. 2636, S. 3216, S. 3222, AND S. 3300 

WEDNESDAY, SEPTEMBER 14, 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. I call this hearing to order. I appreciate all of 

you being here today. 

Today, the Committee will examine four bills, S. 2636, the Reservation Land Consolidation Act of 2016; S. 3216, a bill to repeal 

the Act entitled An Act to Confer Jurisdiction on the State of Iowa 

Over Offenses Committed by or Against Indians on the Sac and 

Fox Indian Reservation’’; third bill, S. 3222, the Columbia River InLieu and Treaty Fishing Access Sites Improvement Act; and then 

S. 3300, The Hualapai Tribe Water Rights Settlement Act of 2016. 

The bill S. 2636 was introduced in March by Senator Tester. This 

bill would amend the Indian Reorganization Act of 1934 to require 

the Secretary of the Interior to automatically take on-reservation 

land into trust for all federally-recognized Indian Tribes provided 

they apply with the proper evidence of title. 

Also, this bill would codify certain provisions in current regulations used by the Secretary to review trust land applications by Indian Tribes. 

In a few moments I will turn to Senator Tester for his statement 

on this bill. 

I think this bill was intended to help Tribes work through bureaucratic red tape at the Bureau of Indian Affairs. I am concerned 

that in some ways there may be some harm involved. A mandatory 

process for on-reservation trust land acquisitions could in fact inhibit a Tribe’s ability to consolidate lands and could create significant litigation. 

By eliminating the notice to other governments, including Indian 

Tribes, there is the potential to pit Tribe against Tribe in situations where lands are contested. For example, in my home State of 

Wyoming, this bill could have a detrimental impact on the Wind 

River Indian Reservation where two Tribes share a land base. 

2 

The bill also has the potential to undermine collaboration between Tribes and the surrounding communities, who can be important partners for economic development. 

The land into the trust process certainly need improvement, and 

we have worked to that end during this and several previous Congresses. As we have heard in hearings and roundtables, this improvement requires changes that enhance transparency and promote cooperation, so I hope to hear from the witnesses today on 

how we can achieve that and continue working with Senator Tester 

to find solutions that are beneficial to tribal communities. 

The next bill, S. 3216, was introduced in July by Senator Grassley. Senator Ernst and Senator Leahy are co-sponsors. 

In 1948 Congress enacted a law conferring criminal jurisdiction 

on the State of Iowa over misdemeanor and non-major offenses 

committed by or against Indians on the Sac and Fox Indian Reservation. This 1948 Act did not strip the Sac and Fax Tribe of jurisdiction over the same types of offenses. For major crimes, the 

Federal Government retained criminal jurisdiction on the Sac and 

Fox Indian Reservation. 

The Sac and Fox Tribe now seeks to repeal the 1948 Act. Senator 

Grassley’s bill would do just that. 

On April 8th, the State of Iowa passed legislation tendering all 

relevant criminal jurisdiction held by the State to the United 

States so that it may be returned to the Tribe. We will hear from 

the witnesses today on how this bill will provide meaningful justice 

on the Reservation and other benefits to the community. 

The bill S. 3222, the Columbia River In-Lieu and Treaty Fishing 

Access Sites Improvement Act, was introduced by Senator Merkley. 

Senators Wyden, Murray, and Cantwell have joined as co-sponsors. 

The bill S. 3222 requires the BIA to assess the current condition 

of tribal fishing access facilities along the Columbia River. This bill 

also authorizes the BIA to contract its obligations under this bill 

to an Indian Tribe or tribal organization under the Indian Self-Determination and Education Assistance Act. 

I would like to welcome Senator Merkley to the Committee, and 

we will turn to Senator Merkley in a moment for any statement 

that he would like to make. 

On September 8th, Senators Flake and McCain introduced The 

Hualapai Tribe Water Rights Settlement Act of 2016. This bill 

would comprehensively settle all water rights claims for the 

Hualapai Tribe. This is a negotiated settlement of the Tribe’s Federal Reserve water right claims with the State of Arizona, the Central Arizona Water Conservation District, the Salt River Project, 

the Freeport Minerals Corporation, and the United States. 

The bill authorizes $134 million to construct water infrastructure 

for the Tribe at certain trust parcels to the Reservation and reallocates 4,000 acre-feet of the Central Arizona Project water to the 

Tribe. 

I would like to welcome Senator Flake to the hearing, and I will 

turn to Senator Flake in a few moments. 

First, I would like to ask the Vice Chairman, Senator Tester, for 

his opening statement. 

Senator Tester. 

3 

STATEMENT OF HON. JON TESTER, 

U.S. SENATOR FROM MONTANA 

Senator TESTER. Well, thank you, Mr. Chairman. Thank you for 

holding this hearing today. 

But first things first. I want to congratulate Senator Franken on 

a new granddaughter. And hopefully that bundle of joy looks more 

like Frannie than you. 

[Laughter.] 

Senator FRANKEN. I resent that. 

Senator TESTER. So one of the bills we are going to hear today, 

as you pointed out, Mr. Chairman, is Senate Bill 2636, the Reservation Land Consolidation Act, which I introduced in March. I 

believe it would be a major step forward toward fulfilling the promise of restoring tribal homelands first made by the Federal Government over 80 years ago. I know you have concerns about this bill, 

Mr. Chairman, but I look forward to working with you because I 

think you are right, the land into trust situation does need to be 

improved. 

From the early 19th century to the early 20th century, the 

United States adopted a Federal Indian policy of allotment which 

encouraged private land ownership on Indian reservations. This 

policy greatly reduced the portion of reservation land owned by 

Tribes, causing over 90 million acres to go out of trust. 

Not only did Tribes lose millions of acres of land, allotment 

caused severe fractionation of lands. They have created a checkerboard of tribal and non-tribal ownership that causes a number of 

problems to this very day. The allotment policy degraded tribal 

governance, created jurisdictional problems that have undermined 

public safety, economic development, and tribal relations with 

neighboring communities. 

Congress passed the Indian Reorganization Act in 1934 to reverse the problems that allotment caused by revitalizing tribal governments and restoring tribal homelands. Section 5 of the IRA gave 

the Secretary of the Interior the authority to take back land into 

trust for the benefit of the Tribes. And since its passage, Section 

5 has helped Tribes begin to repair their land bases. Despite these 

efforts, the promise of IRA remains largely unfilled because regulatory hurdles have impeded Tribes from regaining their lost reservation lands. 

Currently, Interior has to go through 16 steps, 16 steps just to 

take a parcel into trust. As a result, large portions of many reservations still have checkerboard holdings, which makes it difficult 

for Tribes to police their communities, regulate activity, and engage 

in large-scale economic development. 

The Reservation Land Consolidation Act would cut through the 

red tape that prevents Tribes from restoring their reservation 

lands. It would do this by requiring the Secretary of the Interior 

to approve applications on on-reservation parcels into trust. And it 

is worth pointing out that these parcels aren’t always giveaways; 

these lands are already owned by the Tribes. 

My bill would simply streamline the fee-into-trust process for onreservation parcels, which may help Tribes make significant 

progress at fixing these jurisdictional checkerboards affecting Indian Country today. In doing so, it would promote the continued reVerDate Mar 15 2010 10:51 Jan 24, 2017 Jkt 023558 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\DOCS\23558.TXT JACK
4 

vitalization of tribal governments as intended by the Indian Reorganization Act, and the bill would be a big step toward fulfilling 

the promises made by the United States through treaties and statutes establishing reservation lands. 

I want to thank you again, Mr. Chairman, for holding this hearing on the four bills before us today. I look forward to hearing from 

our witnesses and having a robust discussion about these bills. 

The CHAIRMAN. Thank you very much, Mr. Vice Chairman. 

Any other members of the Committee like to make a statement 

before we turn to Senators Flake and Merkley? 

STATEMENT OF HON. AL FRANKEN, 

U.S. SENATOR FROM MINNESOTA 

Senator FRANKEN. Sure, I would, Mr. Chairman. Thank you. 

I want to thank all the witnesses today for their testimony, and 

obviously the Chairman and the Vice Chairman for holding this 

hearing. 

As we have heard before in this Committee, there are many benefits of land into trust acquisitions, including the ability to create 

housing, promote economic activities, and protect tribal culture. 

The land into trust process is extremely important to Tribes across 

the Country. Many Tribes lost most of their trust land base in the 

late 19th and early 20th centuries through broken treaties and 

fraudulent land transactions. 

In Minnesota, out of nearly 61,000 acres originally included in 

the Mille Lacs Indian Reservation, there are only 2,600 acres held 

in trust today. The land into trust process is the only avenue available to restore a vastly depleted trust land base. 

As a result of the hearing today, we members who sit on this 

Committee can hopefully educate our colleagues who aren’t on the 

Committee and get this issue the attention that it deserves. 

Thank you again, Chairman Barrasso and Vice Chairman Tester, 

and to all our witnesses again today, and I look forward to your 

testimony. 

The CHAIRMAN. Thank you, Senator Franken. 

Senator Lankford? 

STATEMENT OF HON. JAMES LANKFORD, 

U.S. SENATOR FROM OKLAHOMA 

Senator LANKFORD. Mr. Chairman, I want to say, first off, I really do appreciate the Vice Chairman on this bill and the intent of 

it. It is a big issue for us. 

Obviously, as we have discussed before and as most members of 

this Committee know full well, Oklahoma has a very unique dynamic, with 39 Tribes and a lot of overlapping area and a lot of 

integration where we are in a non-reservation State. So there is 

this integration between cities, States, counties that has worked 

very well for us as a State and a lot of partnership, but I am not 

sure this wouldn’t break down some of that partnership and some 

of that relationship. 

So in its current form I couldn’t support it. I do think this a big 

issue. I would tell you whether you are in eastern Oklahoma or 

western Oklahoma, the rules and the timing is different for how 

you are going to move land into trust. So not only is it a broken 

5 

process even within our own States; the rules and the timing is not 

enforced consistently, and it is an issue that I frequently hear and 

it is one of the things that has to be resolved long-term. 

Senator TESTER. We want to make sure this bill solves problems, 

not create problems. Look forward to working with you. 

Senator LANKFORD. I agree. Look forward to it. Thank you. 

The CHAIRMAN. Senator Cantwell? 

STATEMENT OF HON. MARIA CANTWELL, 

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Mr. Chairman, thank you. I will be brief, 

since the vote has started and all our colleagues would like to get 

a statement in. 

I want to welcome two of our witnesses here today, the Honorable Ron Allen, who is the chair of the Jamestown S’Klallam Tribe, 

who is going to talk about the importance of 2636, which would require mandatory approval of fee to trust applications on reservations. Thank you for your long advocacy about land into trust as 

an economic development tool for Tribes, so thank you for being 

here. 

And also welcome to Paul Lumley for your leadership on S. 3222, 

the Columbia River In-Lieu and Treaty Fishing Access Sites Improvement Act, basically led by my colleague from Oregon who is 

here today, Senator Merkley. Glad to join in with him on that legislation and look forward to hearing both of your statements today. 

Thank you. 

The CHAIRMAN. We would like to welcome two Senate guests to 

the Committee today and I would like to call on Senator Flake. 

STATEMENT OF HON. JEFF FLAKE, 

U.S. SENATOR FROM ARIZONA 

Senator FLAKE. Thank you, Mr. Chairman, and thank you, Mr. 

Vice Chairman, as well. Thanks for holding this hearing and allowing me to provide testimony on S. 3300, The Hualapai Tribe Water 

Rights Settlement Act. 

I would like to welcome Hualapai Tribe’s Chairman, Dr. Clarke. 

Thank you for coming here and appearing and giving testimony. 

Representatives from the other parties in the settlement of the 

State of Arizona, Central Arizona Water Conservation District, Salt 

River Project, Freeport Minerals Corporation, are here today as 

well. They are in support of this settlement. I would like to include 

their statements for the record. 

The CHAIRMAN. No objection. 

Senator FLAKE. Thank you. 

Last week, this water settlement act was introduced and it is important, obviously, for the State of Arizona and the Tribes. This 

roughly 1 million acre reservation is ill-suited for an economy 

based on mining, oil and gas, timber, and agriculture. What the 

Hualapai Tribe has done is build an economy based on the one resource we have in abundance, and that is people wanting to see 

and experience the Grand Canyon and the Colorado River. 

The Tribe’s development of Grand Canyon West draws nearly 

one million visitors a year to northwestern Arizona. Without access 

to additional reliable water supplies, they are unable to realize its 

6 

full potential, which includes the residential community at Grand 

Canyon West for their tribal members who work there. 

In short, the legislation provides significant, but fair, benefits to 

the Hualapai Tribe. 

This legislation also has benefits outside of the reservation and 

the region. The Hualapai Tribe makes a claim to the Colorado 

River, a critically important water source for the State that provides roughly 40 percent of our water supplies. And because of the 

priority of the Tribe’s claims, there is a possibility that future development of the water rights would displace current water users 

in Arizona. This fair settlement dedicates 4,000 acre feet of CAP’s 

Colorado River water to the Tribe in a way that puts them on par 

with existing CAP water users. 

Those who are unfamiliar with Arizona water, I should point out 

that CAP serves an area with nearly 80 percent of the State’s population, so we are talking about widespread impacts here. As I 

have often said, Arizona has a history of forward-looking water 

planning. We need to continue this kind of planning and do more. 

This legislation is one of the next steps we need to take both for 

the sake of the Hualapai Tribe and for those of us in Arizona who 

depend on Colorado River water. 

I look forward to working with the Committee to advance this 

bill and find a suitable offset for the spending that is authorized 

by it. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Flake. 

Senator Merkley? 

STATEMENT OF HON. JEFF MERKLEY, 

U.S. SENATOR FROM OREGON 

Senator MERKLEY. Thank you very much, Mr. Chairman. Appreciate your holding the hearing on this bill today. I would also like 

to thank the co-sponsors, Senator Wyden and Senator Murray, but 

particularly Senator Cantwell, who serves on this Committee. I 

welcome Paul Lumley, the Executive Director of the Columbia 

River Inter-Tribal Fish Commission, who is here to testify, and I 

appreciate his expertise. 

This legislation is important for the four treaty tribes along the 

Columbia River: the Yakama, the Nez Perce, Warm Springs, and 

Umatilla. When the Federal Government built dams along the 

river in the 1930s and 1940s, entire communities and hundreds of 

traditional tribal fishing sites were flooded. Because the construction of the dams along the river adversely impacted the treaty-protected fishing sites, Congress authorized the Corps to rehabilitate 

existing in-lieu sites and designate new in-lieu treaty fishing access 

sites. 

However, this responsibility has been seriously neglected. The 

Federal Government failed to meet the most basic obligations of 

maintaining safe and sanitary conditions at the fishing sites along 

the river. I have personally visited to see the conditions myself, and 

they are shocking. Sites lack utilities, lack running water, electricity; others have no law enforcement to prevent trespassing or 

other public safety issues. 

7 

The Federal Government agreed to meet obligations to members 

of these Tribes and it is completely unacceptable that our Government has failed to live up to the agreement. Tribal members 

shouldn’t have to live in unsafe, unsanitary conditions in order to 

practice their ancestral traditions. 

This bill, S. 3222, is a step in the right direction. It will help 

make desperately needed improvements along the 31 tribal fishing 

sites on the Columbia River. These include structural improvements like fishing platforms, public restrooms, and general structural upkeep. It includes improvements such as fire hydrants, 

drinking water, electrical infrastructure for safe electrical hookups, 

basic sewer and septic infrastructure. 

The bill also allows the BIA to contract with Tribes and tribal 

organizations to do enhancements chosen by the Tribe based on the 

Tribe’s best judgment of the improvements that are needed. 

I invite and encourage the members of the Committee to support 

passage of S. 3222 because we need to right this historic wrong. 

Thank you. 

The CHAIRMAN. Thank you very much, Senator Merkley. 

We are now going to hear from our witnesses. As the witnesses 

know, we are in the middle of two roll call votes. Some of the members have left, will be coming back and coming in and out as we 

hear your testimony, and then we will be back for questioning. 

First we will hear from Mr. Larry Roberts, who is the Principal 

Deputy Assistant Secretary of Indian Affairs at the U.S. Department of Interior; next, the Honorable Damon Clarke, Chairman of 

the Hualapai Tribe of Peach Springs, Arizona; next is the Honorable Lavern Jefferson, who is the Treasurer of the Meskwaki Tribal 

Council of the Sac and Fox Tribe of the Mississippi in Iowa. Appreciate your being here, as well as your significant service to the 

Country. The Honorable Ron Allen, Treasurer of the National Congress of American Indians in Washington, DC; and Mr. Paul 

Lumley, who is the Executive Director of the Columbia River InterTribal Fish Commission from Portland, Oregon. 

I would remind the witnesses that your full statement will be 

made part of the official hearing record today, so please keep your 

statements to five minutes or less so that we may have time for 

questions. 

I look forward to hearing your testimony, beginning with Mr. 

Roberts. Please proceed. 

STATEMENT OF LARRY ROBERTS, PRINCIPAL DEPUTY 

ASSISTANT SECRETARY, INDIAN AFFAIRS, U.S. 

DEPARTMENT OF THE INTERIOR 

Mr. ROBERTS. Thank you, Chairman Barrasso, members of the 

Committee. Thank you for the opportunity to testify this afternoon 

on four bills. I will begin with S. 3222, the Columbia River Treaty 

Fishing Sites bill. 

The Department supports that bill with amendments. We think 

that the authorization in Section 2 of Senate Bill 3222 should include other agencies like Indian Health Service, as they have expertise in sanitation issues facing some sites. 

With regard to the Hualapai Indian Water Settlement, S. 3300, 

while the Department cannot support the bill as introduced, we do 

8 

commit to continuing to work with the sponsor and the parties to 

move forward with legislation to achieve a settlement for the Tribe. 

The Department continues to believe that water settlements are 

certainly preferable over protracted litigation. 

Negotiated settlements provide wet water to foster economic development and ensure a viable homeland for Tribes. The Hualapai 

certain maintains substantial reserved water rights and deserves 

the ability to make use of that water through a settlement for current and future generations, so the Department will continue to 

work closely with the Tribe to ensure continued progress on achieving a settlement. 

With regard to S. 3216, the Sac and Fox bill, the Department 

supports that bill as well. As the Chairman noted, the bill would 

repeal an act that was passed in 1948. Sac and Fox Nation currently operates their own tribal court, law enforcement and detention facility, and so, if enacted, the bill would ensure that the Nation is treated similar to other Tribes across the Country. 

With regard to Senator Tester’s bill, Senate Bill 2636, under the 

fee-to-trust process currently, Tribes obviously have to purchase 

their lands from voluntary sellers. In many instances they are literally repurchasing with their own funds the very lands that they 

lost because of the allotment policy that has since been repudiated 

by Congress. 

So the bill would mandate the Department to accept land into 

trust for Tribes where the subject lands are wholly within or contiguous to the Tribe’s reservation. We would, under the bill, determine whether the land fits that criteria and, if so, we would be required to take it into trust. We would continue to provide notice to 

both the applicant and the public of the acquisition when it occurs, 

if the bill is enacted. 

But the effect would be to restore lands within a Tribe’s reservation. If purchased by the Tribe, it would facilitate housing, infrastructure, economic development, and would also reduce, over time, 

the checkerboard nature of reservations, which is something that 

the Department and Indian Country continue to grapple with to 

this day. And if legislation like this isn’t introduced, I think we will 

just continue to grapple with this problem. 

The bill would not change the processing of off-reservation trust 

acquisitions. It also wouldn’t change gaming eligibility for acquisitions. 

The bill, in closing, allows us to continue the successful practice 

of things like the land buy-back program, where we are supporting 

Tribes to consolidate their land holdings and remedy the failed policy of allotment. 

So I want to thank you for the opportunity to testify today, and 

I am happy to answer any questions. 

[The prepared statement of Mr. Roberts follows:] 

PREPARED STATEMENT OF LARRY ROBERTS, PRINCIPAL DEPUTY ASSISTANT

SECRETARY, INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

S. 3216

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

name is Larry Roberts. I am the Principal Deputy Assistant Secretary for Indian 

Affairs at the Department of the Interior (Department). Thank you for the opporVerDate Mar 15 2010 10:51 Jan 24, 2017 Jkt 023558 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 S:\DOCS\23558.TXT JACK
9 

tunity to testify before the Committee on S. 3216, a bill to repeal the Act entitled 

‘‘An Act to Confer Jurisdiction on the State of Iowa Over Offenses Committed By 

Or Against Indians On The Sac And Fox Indian Reservation’’ referenced as 62 Stat. 

1161, Chap. 759. The Department supports S. 3216. 

Criminal Jurisdiction in Indian Country 

Improving public safety in Indian Country is a bi-partisan priority. We know that 

Tribes are best positioned to provide for the safety and well-being of their communities and that law enforcement is a federal trust and treaty responsibility. Under 

the repudiated policy of termination, Congress enacted legislation that displaced 

federal criminal jurisdiction and transferred that jurisdiction to certain States. As 

a result of these laws, criminal justice systems in Indian Country were understaffed 

and underfunded when compared to reservations of similar size and population that 

were not subject to such laws. Like other more recent enactments by Congress, S. 

3216 reflects the modern federal Indian policies of self-determination and self-governance. S. 3216 clarifies a muddled and complex jurisdictional scheme. We support 

S. 3216 and similar legislation which clarifies jurisdiction and moves forward from 

the termination policy of the past. 

The recent passage of the Tribal Law and Order Act (TLOA) in 2010, reflects the 

strong federal policy to promote collaboration among tribes and the Federal Government and to promote tribal self-determination and self-governance for criminal justice in Indian Country. This legislation for the Sac and Fox Indian Reservation reflects those policies. 

S. 3216 

S. 3216 is a bill to repeal the Act entitled ‘‘An Act to Confer Jurisdiction on the 

State of Iowa Over Offenses Committed By Or Against Indians On The Sac And Fox 

Indian Reservation.’’ By repealing 62 Stat. 1161, Chap. 759, criminal jurisdiction 

over offenses by or against Indians on the Sac and Fox Indian Reservation would 

be exclusive to either the Tribe or the Federal Government under the Major Crimes 

Act. 

The Sac and Fox Nation (‘‘Tribe’’) located in Iowa currently operates their own 

tribal court, law enforcement and detention facility. However, the Bureau of Indian 

Affairs, Office of Justice Services does not currently fund any of these activities. The 

only related funding the BIA provides to the Tribe is Consolidated Tribal Government Program (CTGP) funding, which the Tribe uses to support their tribal court 

operations through a P.L. 93–638 contract. Enactment of S. 3216 would ensure that 

the Tribe is treated similar to other Tribes across Indian country where either BIA 

or the Tribe provides those federal law enforcement services. 

If enacted into law, the bill could have funding implications as current funding 

streams to existing tribes cannot be reduced in order to make funds available for 

the Tribe. The Department is aware that both the Tribe and the State of Iowa seek 

to repeal of 62 Stat 1161 Chap. 759 and support S. 3216. 

Conclusion 

Thank you for providing the Department the opportunity to testify on S. 3216. 

The Department supports S. 3216. I am available to answer any questions the Committee may have. 

S. 3222

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

name is Larry Roberts. I am the Principal Deputy Assistant Secretary for Indian 

Affairs at the Department of the Interior (Department). Thank you for the opportunity to testify before the Committee on S. 3222, the ‘‘Columbia River In Lieu and 

Treaty Fishing Access Sites Improvement Act,’’ a bill to authorize the Secretary of 

the Interior to assess sanitation and safety conditions at Bureau of Indian Affairs 

(BIA) facilities that were constructed to provide treaty tribes access to traditional 

fishing grounds and expend funds on construction of facilities and structures to improve those conditions. The Department supports S. 3222, with amendments. 

Background 

United States entered into treaties with tribes along the Columbia River in the 

1850s guaranteeing the tribes the rights to their fisheries in exchange for the peaceful cession of most of their territory. However, by the late 1880s, non-Natives had 

encroached on many of the tribes’ treaty fisheries. The United States filed lawsuits 

to protect the tribes’ fishing rights, and resulting court determinations re-affirmed 

their treaty-protected right of access to usual and accustomed fishing grounds. 

10 

1 Yakima Nation, the Confederated Tribes of the Umatilla Indian Reservation, the Nez Perce 

Tribe, and the Confederated Tribes of the Warm Springs Reservation of Oregon. 

Currently, the Columbia River Inter-Tribal Fisheries Commission (CRITFC) provides the operations and maintenance of 28 fishing sites along the Columbia River 

through a BIA Indian Self-Determination and Education Assistance Act Title I, P.L. 

93–638 contract, for the exclusive use of Indian fishers from the four CRITFC member tribes. 1 The sites, which are held by the United States for the benefit of the 

tribes, offer a wide range of amenities for the fishers including access roads and 

parking areas, boat ramps and docks, fish cleaning tables, net racks, drying sheds, 

restrooms, mechanical buildings, and shelters. 

S. 3222 

S. 3222, if enacted, would authorize the Secretary of the Interior to assess sanitation and safety conditions at BIA facilities that were constructed to mitigate 400 

acres of traditional fishing villages inundated by federal hydro development. Today 

many of these facilities receive high use in excess of what they were originally designed. Any funds appropriated would be expended on facilities and structures to 

improve those conditions, and for other purposes set forth in Section 2(c). 

The Department agrees that S. 3222 would help ensure that the lands necessary 

for Indians to conduct treaty protected fishing remain wholesome and open for Indian fishers actively engaged in the continued use of these fisheries. 

The Department notes that Section 2(a) of the bill applies to sites ‘‘owned’’ by BIA. 

We think it would be more accurate to describe the sites as ‘‘lands held by the 

United States for the benefit of the Treaty Tribes.’’ 

In addition, the Department recommends extending the Secretary of the Interior’s 

exclusive authorization-delegation authority in Sec. 2 (b) of S. 3222, to include other 

agencies, (in addition to tribes or tribal organizations already in the bill), that have 

expertise in the issues facing some sites. 

Section 2(c)(2) of S. 3222 would authorize the improvement of ‘‘. . .access to electricity, sewer and water infrastructure, where feasible, to reflect needs for sanitary 

and safe use of facilities.’’ When such structures exist it is important to note, that 

water sources and washrooms are community structures, and where it is feasible, 

such community structures could be improved or expanded. The Department would 

not interpret this provision to include improvements for individual electricity and/ 

or sewer water hookups associated with recreational vehicles. 

Conclusion 

Thank you for providing the Department the opportunity to provide input into S. 

3222. The Department supports S. 3222, with amendments. I am available to answer any questions the Committee may have. 

S. 3300

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

Larry Roberts, Principal Deputy Assistant Secretary for Indian Affairs at the Department of the Interior (Department). I am here today to provide the Department’s 

position on S. 3300, the Hualapai Tribe Water Rights Settlement Act of 2016, which 

would approve and provide authorizations to carry out a settlement of the water 

right claims of the Hualapai Tribe in Arizona (Tribe). We have significant concerns 

about the Federal costs of the settlement, which totals approximately $173.5 million 

in 2016 dollars, and may also underestimate its true cost. In addition, the Department is unable to conclude at this time that a pipeline bringing water from the Colorado River to remote locations on the Hualapai Reservation is the best and least 

costly alternative to supply water to the Hualapai Reservation (Reservation) communities and economic development projects. Therefore, the Department cannot 

support S. 3300 as introduced. 

I. Introduction 

First, let me begin by acknowledging that disputes over Indian water rights are 

expensive and divisive. In many instances, Indian water rights disputes, which may 

last decades, are tangible barriers to social and economic 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 

11 

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. This Administration supports the resolution of Indian water rights claims through negotiated settlement where possible, consistent 

with the Criteria and Procedures for the Participation of the Federal Government in 

Negotiations for the Settlement of Indian Water Right Claims (‘‘Criteria and Procedures’’). These principles include that the United States participates in water settlements consistent with its role 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 included in a settlement; and that settlements should include appropriate 

cost-sharing by all parties proportionate to the benefits received by each from the 

settlement. 

II. Historical Context 

A. The Hualapai Reservation and the Hualapai Tribe 

The aboriginal homeland of the Hualapai Tribe is the Grand Canyon and plateau 

region to the south of the Grand Canyon. The main Reservation was established by 

Executive Order on January 4, 1883, and encompasses approximately 992,462 acres 

of tribal trust lands located in northwestern Arizona. The tribal headquarters is 

Peach Springs, Arizona, near the southern boundary of the Reservation. The entire 

northern boundary of the main Reservation is 108 miles along the Colorado River 

in the Grand Canyon. In addition to the main Reservation, there is also a 60-acre 

Executive Order Reservation located approximately 40 miles south of the main Reservation. 

According to the 2007 population estimates, the population of the Reservation was 

1,776. The total tribal membership in 2010, including members living off the Reservation, was 2,300. The majority of on-Reservation residents reside in or near 

Peach Springs. 

Employment on the Reservation primarily consists of recreation, tourism, and 

tribal and Federal Government services. Tourism is driven primarily by activities 

related to the Grand Canyon: the Tribe’s tourism center, Grand Canyon West: and 

river rafting in the Colorado River. The Tribe also owns and operates the Hualapai 

Lodge, located in Peach Springs. 

Opened in 2007, Grand Canyon West includes the Skywalk, a horseshoe-shaped 

glass-bottom walkway that extends out from the rim of the Grand Canyon. Annual 

visitation at Grand Canyon West has steadily increased since its opening, and exceeded one million visitors for the first time in 2015, making it the primary economic driver on the Reservation. 

B. Water Resources of the Hualapai Reservation 

The main Reservation is located primarily in the Colorado River basin with a 

small portion in the Upper Verde River basin. The majority of streams on the Reservation are ephemeral. Several springs discharging from the regional aquifer at the 

bottom of canyons can provide baseflow for short perennial reaches, which ultimately discharge to the Colorado River. The largest of these perennial streams are 

Diamond Creek and Spencer Creek, with mean annual flows of over 3,700 acre-feet 

per year (afy) and about 4,600 afy, respectively. The springs that feed these streams 

are remotely located in deep canyons and are not practically accessible for use by 

the Tribe. Smaller springs on the plateaus provide water for livestock purposes. 

Groundwater resources on the Reservation occur in varying degrees of magnitude, 

depending on the type and location of water-bearing zones. The Department is conducting groundwater studies and is preparing to perform two additional groundwater studies in an effort to accurately characterize the groundwater resources on 

and near the Reservation. 

The major water use on the Reservation occurs in two locations: The town of 

Peach Springs and Grand Canyon West. Three wells serve the Peach Springs public 

water supply system and are located approximately 6.5 miles southwest of the town. 

The current level of water use in Peach Springs is approximately 250 afy. All three 

supply wells produce water from the Truxton aquifer, an aquifer in the alluvial sand 

and gravel and lake deposits of Truxton Valley that extends off the Reservation. 

Water for Grand Canyon West is supplied via a pipeline from a well approximately 

12 

30 miles away. Current water use at Grand Canyon West is 40 afy. Current cumulative water use for the Reservation is around 300 afy. 

III. Proposed Hualapai Tribe Settlement Legislation 

A. Negotiation 

The Tribe claims water rights in the Colorado, Verde, and Bill Williams River basins. Negotiations regarding potential settlement of the Tribe’s water rights claims 

have been ongoing since 2011, when the United States established a negotiating 

team to negotiate a comprehensive settlement of all the Tribe’s water rights within 

Arizona. The settlement was divided into two phases, the first phase addressed certain water rights in the Bill Williams River basin and resulted in the Bill Williams 

River Water Rights Settlement Act of 2014, P.L. 113–223. The second phase, addressed in S. 3300, covers additional water rights in the Bill Williams River basin, 

as well as the remainder of the Tribe’s water rights in the Colorado River basin and 

the Verde River basin. 

S. 3300 would resolve the Tribe’s water rights claims in Arizona; ratify, and confirm the Hualapai Tribe water rights settlement agreement among the Hualapai 

Tribe, the United States, the State of Arizona, and others; and authorize funds to 

implement the settlement agreement. The bill would reallocate 4,000 acre-feet of 

fourth-priority Central Arizona Project (CAP) non-Indian agriculture priority water 

to the Tribe to be used for any purpose on or off the Reservation within the lower 

Colorado River basin in Arizona. 

S. 3300 authorizes the appropriation of a total of $173,500,000 for the following 

purposes: 

• $134,500,000 to design and construct the Hualapai Water Project (Project), consisting of approximately 70 miles of pipeline from the Colorado River to Peach 

Springs and Grand Canyon West, two water treatment plants, several pumping 

plants, and other appurtenant features with an overall capacity designed to deliver 3,414 afy; 

• $32,000,000 for the Hualapai OM&R Trust Account, to be used by the Tribe for 

operation, maintenance, and replacement of the Project; 

• $5,000,000 for the Secretary of the Interior for operation, maintenance, and replacement of the Project until such time that title of the Project is transferred 

to the Tribe by the Secretary; and 

• $2,000,000 for the Secretary to provide technical assistance to the Tribe, including operation and management training for the Project. 

IV. Department of the Interior Positions on S. 3300 

While the Department has a record of strong support for Indian water rights settlements, the Department has significant concerns about S. 3300 and does not support the legislation for the reasons stated below. 

The Department is concerned by the disparity between the level of funding called 

for in S.3300 and the relatively small amount of water to be delivered to the Tribe 

through the Project. The Department is also concerned about the scope and size of 

the Project given current and projected water uses on the Reservation. In addition, 

we believe the cost to construct a 70-mile pipeline from the Colorado River lifting 

water over 4,000 feet in elevation will be significantly higher than the amount authorized in S. 3300. Moreover, we believe that the proposed infrastructure project 

is likely to generate substantial litigation on multiple fronts. 

The Criteria and Procedures require us to analyze whether the settlement 

‘‘include[s] non-Federal cost sharing proportionate to the benefits received by the 

non-Federal parties.’’ In this instance, the State parties have failed to make earnest 

efforts to provide for adequate cost-sharing relative to the benefits they will receive 

in this Indian water rights settlement. 

The Department is concerned that S.3300 would set a precedent requiring tribes 

to pay CAP costs that are unrelated to settlement benefits. This settlement would 

be the first in Arizona that includes CAP water but does not use any portion of the 

CAP operating system for water deliveries to the Reservation. Despite lack of use 

of the system, S. 3300 would obligate the Tribe to pay the CAP fixed OM&R charges 

for all water deliveries. Under such an arrangement, water delivered to the Reservation would incur two OM&R costs—the fixed CAP OM&R charge and the Tribe’s 

own Project OM&R costs. The Department does not support this ‘‘double charge’’ for 

water deliveries. 

S. 3300 also includes two provisions that the Department continues to have concerns about: a broad waiver of sovereign immunity and a restriction limiting all future land into trust acquisitions to be accomplished only through acts of Congress. 

13 

While other Arizona Indian water rights settlements contain somewhat similar provisions, the Department has opposed such provisions in the past and continues to 

do so. The sovereign immunity waiver is even broader than prior provisions and is 

far broader than it needs to be for any reasonable purpose. 

As a final matter, the Department is deeply concerned about provisions of S.3300 

and the settlement agreement that prohibit the Tribe and the United States from 

objecting to any use of groundwater outside the boundaries of the Reservation even 

if those uses interfere with acknowledged Federal reserved groundwater rights. This 

provision represents significant risks to both the Tribe and the United States and 

implicates Federal trust responsibilities. 

V. Conclusion 

S. 3300 reflects a significant effort by the Tribe and the state parties to settle the 

Hualapai Tribe’s water rights through negotiation. The Department shares this goal 

and is committed to working with the Tribe and the parties to reach a final and 

fair settlement of the Tribe’s water rights claims that we can fully support. 

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

any questions the Committee may have. 

The CHAIRMAN. Well, thank you very much. 

We are down to the last two minutes or so on the vote, and I 

don’t want you to have to testify, Chairman Clarke, without people 

up here to hear exactly what you have to say, so I am going to call 

a brief recess until one of the other members who is voting returns. 

I know Senator Tester is on his way back, so if it is all right with 

you, I am just going to interrupt the proceedings at this point, and 

then as soon as one of the members returns, we will continue with 

the hearing. 

Thank you. 

[Recess.] 

Senator LANKFORD. [Presiding.] I will bring us back into our legislative hearing. I apologize for the recess as members go back and 

forth during the voting time, but we would like to continue our testimony and time. 

I believe up next is Chairman Clarke, so we would be honored 

to be able to receive your testimony now. 

STATEMENT OF HON. DAMON CLARKE, ED.D., CHAIRMAN, 

HUALAPAI TRIBE 

Mr. CLARKE. Chairman Barrasso, Vice Chairman Tester, and 

members of the Committee, my name is Dr. Damon Clarke, Chairman of the Hualapai Tribe. The Hualapai Tribe strongly supports 

S. 3300, the Hualapai Tribe Water Rights Settlement Act of 2016. 

The Hualapai Reservation encompasses approximately one million acres in northwestern Arizona. Our Reservation has no significant surface streams other than the Colorado River, and has very 

limited groundwater. While the Tribe is presently able to serve our 

principal residential community at Peach Springs with groundwater, it is a resource subject to depletion and water levels on the 

Reservation is dropping. 

The Colorado River is the only feasible supply for satisfying longterm water needs to our Reservation. Our Tribe needs the delivery 

of Colorado River water both to provide a permanent and secure 

water supply to our future population in Peach Springs and elsewhere on our Reservation, and to realize the unique opportunities 

for economic development at Grand Canyon West, a world class resort tourist development the Tribe operates on the western rim of 

the Grand Canyon on our Reservation. 

14 

Grand Canyon West currently employs approximately 300 tribal 

members, as well as about 300 non-tribal members, and hosts over 

a million visitors a year. But it is located on a two-hour drive on 

a dirt road from Peach Springs, where virtually all our tribal members on the reservation live. Thus, tribal members at Grand Canyon West have a daily route of four hours a day to their jobs at 

Grand Canyon West, and longer in inclement weather. 

Currently, it is impossible to locate a residential community at 

Grand Canyon West because of the lack of water there. This imposes an unsustainable burden on the tribal members and their 

family. The Tribes needs Colorado River water at Grand Canyon 

West in order to allow tribal members to reside on the Reservation 

near their jobs. 

We are proud of the fact that the Tribe is moving forward towards achieving full employment for our members and economic 

self-sufficiency. But the severe lack of water on the reservation is 

a major obstacle in reaching these goals. With additional water, the 

Tribe could take advantage of the potential for further development, and that would provide additional jobs for tribal members 

and non-Indians, as well as revenues for our tribal government. 

Over the past six years, the Hualapai Tribe has negotiated a 

comprehensive settlement of all the Tribe’s reserve water rights. 

The United States actively participated in the settlement negotiations through a Federal negotiating team. Legislation to ratify this 

settlement is now before the Committee. The legislation is strongly 

supported by the State of Arizona and other parties to the settlement: the Salt River Project, the Central Arizona Water Conservatory District and Freeport Minerals Company. 

Let me summarize the principal elements of this legislation. The 

Act comprehensively settles all of the Hualapai Tribe’s federally reserved water right claims for its Reservation and trust lands. The 

Tribe receives exclusive rights to all groundwater and surface 

water on the Reservation and its other trust lands, and agrees not 

to object to any pumping of groundwater or diversions of surface 

water outside the Reservation or its trust lands. 

The Tribe receives an allocation of 4,000 acre feet a year of Central Arizona Project water from the Colorado Water. Of this 

amount, 1,115 acre-feet a year will be ‘‘firmed,’’ half by the United 

States and half by the State, until 2108 to protect against future 

shortages of the Colorado River in Arizona. 

The Act authorizes a federally funded infrastructure project to 

deliver up to 3,414 acre feet a year from the Colorado River to the 

Reservation. The project would construct a diversion of water from 

the Colorado River at Diamond Creek, which is on the Reservation, 

and then a 70-mile pipeline to deliver water to both Peach Springs 

and Grand Canyon West. The construction cost of this infrastructure project is about $134.5 million. 

I want to emphasize the two major non-Federal contributions to 

this settlement. First, pursuant to the Bill Williams River Water 

Right Settlement Act of 2014 provided a major contribution to the 

Hualapai Tribe which we can use to purchase additional Colorado 

River water rights. The 2014 Act viewed that money via non-Federal contribution to the settlement. Freeport also contributed $1 

15 

million to help fund our engineering study of the infrastructure alternatives for the settlement. 

Second, the State of Arizona is making a contribution afirming 

a portion of the CAP water. 

Passage of this legislation is essential for our Tribe to realize the 

full potential on our Reservation. The use of water for economic development within the parameters of past water right settlements. 

Most Indian water rights settlements in this century have provided 

Federal funding for infrastructure development to support commercial, as well as residential, uses of water. 

Thank you for the opportunity to testify before you today. I 

would be pleased to answer any questions you may have, and our 

Tribe will help in any way to securing enactment of this critical 

legislation. 

[The prepared statement of Mr. Clarke follows:] 

Senator LANKFORD. Thank you very much, Chairman. 

PREPARED STATEMENT OF HON. DAMON CLARKE, ED.D., CHAIRMAN, HUALAPAI TRIBE

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

name is Dr. Damon Clarke, Chairman of the Hualapai Tribe. Our Hualapai Tribal 

Council strongly supports S. 3300, the Hualapai Tribe Water Rights Settlement Act 

of 2016. Before I describe the major elements of this legislation and the critical benefits the Tribe receives from it, let me briefly inform the Committee of the Tribe’s 

water needs. 

The Hualapai Reservation encompasses approximately 1 million acres in northwestern Arizona. All lands on the Reservation are tribal trust lands; there are no 

allotments or fee inholdings. The Colorado River forms the 108-mile northern 

boundary of the Reservation through a portion of the Grand Canyon. 

Our Reservation has no significant surface streams other than the Colorado River, 

and has very limited groundwater resources. While the Tribe is presently able to 

serve our principal residential community, Peach Springs, with groundwater, that 

groundwater is a depletable resource, and well levels on the Reservation are dropping. The only feasible water supply for satisfying the long-term future needs of 

Peach Springs and of the rest of our Reservation is the Colorado River. Our Tribe 

needs delivery of Colorado River water both to provide a permanent and secure 

water supply to our future population in Peach Springs and elsewhere on our Reservation, and to realize the unique opportunities for economic development we have 

already undertaken at Grand Canyon West—a world class tourist development the 

Tribe has constructed and operates on the Reservation on the western rim of the 

Grand Canyon. 

Grand Canyon West currently employs approximately 300 tribal members (as well 

as about 300 non-members) and hosts over 1 million visitors a year. But it is located 

a two-hour drive on a dirt road from Peach Springs, where virtually all tribal members on the Reservation live. Thus, tribal employees at Grand Canyon West have 

daily round-trip commutes of four hours a day to their jobs at Grand Canyon West, 

and longer in inclement weather. Currently, it is impossible to locate a residential 

community at Grand Canyon West because of the lack of water there. This imposes 

an unsustainable burden on tribal members and their families. The Tribe needs Colorado River water at Grand Canyon West in order to allow tribal members to reside 

on the Reservation near to their jobs. 

The Tribe also employs approximately 100 other tribal members in a triballyowned hotel in Peach Springs and a seasonal tribal river rafting enterprise. We are 

proud of the fact that, without conducting any gaming, our Tribe is moving towards 

achieving full employment for our members and economic self-sufficiency. 

But the severe lack of water on the Reservation is the major obstacle to reaching 

these goals. The nearest groundwater to Grand Canyon West is 35 miles away, and 

that supply is barely adequate for current operations, and completely inadequate for 

growth. With additional water, the Tribe could take advantage of the potential for 

further development that would provide additional jobs for tribal members and nonIndians, as well as revenues for our tribal government. And critically, as noted 

above, a supply of water at Grand Canyon West would also permit the Tribe to develop a residential community there, so our tribal employees would have the option 

16 

of living at Grand Canyon West, near their jobs, instead of having unreasonably 

long commutes from Peach Springs to get to their jobs. 

Over the past six years, the Hualapai Tribe has negotiated a comprehensive settlement of all of the Tribe’s reserved water rights with the State of Arizona and 

major private entities in Arizona. The United States actively participated in these 

settlement negotiations through a Federal Negotiating Team consisting of representatives from affected Interior Department agencies and from the Department of Justice. Legislation to ratify this settlement is now before the Committee. The legislation is strongly supported by the State of Arizona and by the private entities who 

are parties to the settlement—the Salt River Project, Central Arizona Water Conservatory District and Freeport Minerals Company. The settlement legislation would authorize the expenditure of $134.5 million in 

federal funds to construct the infrastructure necessary to deliver vitally needed Colorado River water to Peach Springs and Grand Canyon West, as well as an OM&R 

Trust Fund of $32 million to defray future costs of operating, maintaining and replacing the project works. In addition, under the Bill Williams River Water Rights 

Settlement Act of 2014, Pub. L. 113–223, 128 Stat. 2096 (Dec. 16, 2014), the Freeport Minerals Company provided a major contribution to a Hualapai Tribe economic 

development fund which the Tribe can use to purchase Colorado River water rights 

in order to facilitate this comprehensive settlement. The 2014 Act states that this 

significant funding from Freeport constitutes a non-federal contribution to the 

Tribe’s comprehensive water rights settlement. Sec. 5(d)(1)(B). Freeport also contributed an additional $1 million to the Tribe that enabled the Tribe to complete an 

essential ‘‘appraisal level’’ study to determine the feasibility and costs of an infrastructure project to bring Colorado River water to the Hualapai Reservation. That 

study is the technical report referenced in this settlement legislation. 

Both of these contributions by Freeport represent a very substantial non-federal 

contribution to the costs of this comprehensive settlement. 

Let me now summarize the principal elements of the comprehensive water rights 

settlement ratified by the legislation before you: 

• The Act comprehensively settles of all of the Hualapai Tribe’s federally reserved 

water right claims for its Reservation and trust lands. 

• The Tribe receives exclusive rights to all groundwater and surface water on the 

Reservation and its other trust lands, and agrees not to object to any pumping 

of groundwater or diversions of surface water outside the Reservation or its 

trust lands. 

• The Tribe also receives an allocation of 4,000 acre feet a year of Central Arizona 

Project water from the Colorado River. Of this amount, 1,115 acre feet a year 

will be ‘‘firmed’’ (half by the United States and half by the State) until 2108 

to protect against future shortages of the availability of Colorado River water 

in Arizona. The ‘‘firming’’ of this water by the State of Arizona represents another significant non-federal contribution to the costs of the settlement. The Act 

also provides the Tribe itself can ‘‘firm’’ additional portions of the Central Arizona Project Water allocated to the Tribe in any year the water is available and 

is not needed for delivery to the Reservation. 

• As noted, the legislation authorizes a federally funded infrastructure project to 

deliver up to 3,414 acre feet a year from the Colorado River to the Reservation. 

The project would construct a diversion of water from the Colorado River on the 

Reservation at Diamond Creek and then a 70-mile pipeline to deliver the water 

to both Peach Springs and Grand Canyon West. This system would replace the 

Tribe’s reliance on the existing groundwater wells (except when those wells are 

needed as an emergency backup). The construction cost of this water delivery 

infrastructure is $134.5 million (in February 2016 dollars). In addition, the legislation proposes additional federal funding of $32 million for a trust account 

to defray operation, maintenance and replacement (OM&R) costs of the project. 

Of the several alternatives studied for an infrastructure project to deliver water 

to the Reservation, this Diamond Creek diversion project has significant advantages—(1) the diversion is at an area which is already developed as a boat launch 

onto the Colorado River, thus minimizing disturbance of any pristine areas in the 

Grand Canyon; (2) there is already a road from Peach Springs down to the River 

at Diamond Creek, thus providing good access for construction, and (3) this location 

is one of the few areas along the Colorado River where there is relatively flat land 

back from the River’s edge to locate pumps and infrastructure. 

This also is the only project alternative that delivers water to both Peach Springs 

and Grand Canyon West, providing sensible flexibility to allow the Tribe to serve 

its needs both in the near term and in the future. In addition to laying the foundaVerDate Mar 15 2010 10:51 Jan 24, 2017 Jkt 023558 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 S:\DOCS\23558.TXT JACK
17 

tion for a residential community at Grand Canyon West, the proposed project also 

provides for delivery of water to expand the Tribe’s world-class tourism attraction 

there. The use of water for such economic development is well within the parameters of past Indian water rights settlements. Most Indian water rights settlements 

in this century have provided federal funding for infrastructure development to support commercial as well as residential uses of water. There is, for example, ample 

recent precedent for federally-funded irrigation projects to deliver water to Indian 

reservations for purposes of commercial agricultural, where agriculture is the basis 

of a tribe’s economy. And in other recent settlements, federally-funded projects have 

delivered water to support other kinds of economic development—including hydropower and other energy development, agriculture and a retail travel center. 

The Hualapai Reservation does not have the natural resources to permit agriculture, timber or mineral development, but its virtually unique location on the 

Grand Canyon gives it a strong basis to create a self-sustaining tourism-based economy. The Tribe should be encouraged and supported in its efforts to develop the resources and economic opportunities that it has. Just as a federally funded irrigation 

project for an agriculture-based tribal economy supports a ‘‘commercial’’ use of 

water, so too the ‘‘commercial’’ use of water to develop Grand Canyon West is fully 

deserving of the Federal Government’s support. 

As I noted above, passage of this legislation is absolutely essential if our Tribe 

is to realize the full economic potential of our Reservation. We have done everything 

possible to provide jobs and income to our people in order to lift them out of poverty—but the lack of a secure and replenishable water supply on our Reservation 

is our major obstacle to achieving economic self-sufficiency. We recognize that the 

infrastructure project authorized by this legislation entails federal costs, but it is far 

more costly for our people to be mired in poverty and to lack reasonable and adequate access to jobs. 

Federal Indian policy has long favored economic self-sufficiency on Indian reservations, and the quantification of tribal water rights reserved under federal law in a 

manner that allows tribes to put their water to an economically productive use. Passage of this legislation is essential to allow my Tribe to attain these goals. 

Thank you for the opportunity to testify before you today. I will be pleased to answer any questions you may have, and our Tribe will help in any way it can to secure enactment of this critical legislation. 

SUPPLEMENTAL TESTIMONY 

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

name is Dr. Damon Clarke, Chairman of the Hualapai Tribe. I would like to supplement my testimony regarding S. 3300, the Hualapai Tribe Water Rights Settlement 

Act of 2016, which I presented at the Committee’s hearing on September 14, 2016. 

This supplemental testimony is in response to several matters raised by the written 

testimony of Acting Assistant Secretary of the Interior, Lawrence Roberts. 

1. Concerns about level of funding for water delivery infrastructure project 

The Assistant Secretary’s testimony (p. 4) expresses concerns about (1) the level 

of funding contained in S. 3300 and ‘‘the. . .amount of water to be delivered to the 

Tribe through the Project,’’ and (2) ‘‘the scope and size of the Project given current 

and projected water uses on the Reservation.’’ I can assure the Committee that the 

Project was designed to deliver the amount of water that is minimally necessary to 

satisfy the Tribe’s water needs in the foreseeable future for an economically self-sufficient homeland. This is the standard established by the Arizona Supreme Court 

for quantifying tribal reserved water rights. See In re General Aqjudication of All 

Rights to Use Water in the Gila River System and Source, 35 P.2d 68 (Ariz. 2011) 

(Gila V). The Tribe’s needs are based upon expert projections of future population 

growth on the Reservation over a 100-year period (the same period that State law 

requires non-Indian communities in Arizona to use in permitting new residential 

areas). The Tribe’s calculation of needs also takes account of all future needs, both 

municipal and domestic, as well as the planned expansion of Grand Canyon West, 

the Tribe’s showcase tourism resource along the Grand Canyon—which the Assistant Secretary’s testimony acknowledges is ‘‘the primary economic driver on the Reservation’’ (Roberts testimony, p. 3). 

Since under this settlement the Tribe waives all future claims to federally reserved water rights, the Project must deliver the amount of water that the Tribe 

requires for the foreseeable future. Otherwise this settlement would not be ‘‘consistent with the federal trust responsibility to American Indians and with federal 

policy promoting Indian. . .economic self-sufficiency’’ which the Assistant Secretary 

18 

avows is the purpose of ‘‘settling Indian water rights disputes.’’ (Roberts Testimony, 

p.1). 

Finally, Assistant Secretary Roberts’ testimony makes the unsupported assertion 

that ‘‘the cost to construct a 70 mile pipeline from the Colorado River lifting water 

over 4,000 feet in elevation will be significantly higher than the amount authorized 

in S. 3300.’’ However, the amounts authorized in S. 3300 are directly based on a 

thorough study conducted by a highlyregarded construction engineering firm, 

DOWL–HKM of Tucson, Arizona. The study was conducted at above the appraisallevel standard commonly used in other Indian water settlements (some of which 

have experienced cost overruns) and was designed and completed in close consultation with the Bureau of Reclamation. The Tribe knows of no reason to expect cost 

overrides in this project, and the federal participants in the settlement negotiation 

have never presented any specific reasons to believe there will be cost overruns. 

This statement in the testimony of Assistant Secretary Roberts is entirely unexplained and without any foundation. 

2. The possibility of litigation 

The Assistant Secretary’s testimony (at p.4) also asserts that ‘‘the proposed infrastructure project is likely to generate substantial litigation on multiple fronts.’’ The 

Tribe knows of no possible or threatened litigation if the Project is authorized. In 

the nearly six years of settlement negotiations in which representatives of the Interior and Justice Departments participated, no one has ever suggested or alluded to 

any such litigation threat. Of course, if any interested party had raised the possibility of litigation against the Project, the Tribe and the other settlement parties 

would have attempted to address its concerns. But again, this statement in the Assistant Secretary’s testimony is entirely unexplained and without any foundation. 

3. Groundwater uses 

The Assistant Secretary’s testimony expresses concerns about provisions in S. 

3300 and the settlement agreement that prohibit the Tribe from objecting to the 

pumping of groundwater outside the boundaries of the Reservation (p. 5). These concerns ignore the provisions of S. 3300 and of the settlement agreement that give 

the Tribe the exclusive use of all groundwater on the Reservation, thereby prohibiting any non-Indian from objecting to any tribal use of groundwater on the Reservation. These concerns also ignore the fact that the settlement is a negotiated 

package with reciprocal concessions. As the Interior and Justice Department participants in the negotiations over the past six years well know, the State parties to the 

negotiations firmly refused to agree to any restrictions on groundwater pumping 

outside the Reservation, and advised the Tribe and federal participants that any 

such restrictions would require changes to State law that would be impossible to 

enact in the Arizona Legislature. 

The Assistant Secretary’s testimony also alludes to groundwater studies the Department currently is conducting on the Reservation, and to additional groundwater 

studies that it expresses an intention to conduct (p. 3). These additional studies of 

groundwater on the Reservation furnish no basis for Congress to delay its consideration of S. 3300—or for the Department to withhold its support of this legislation. 

Multiple studies of groundwater resources on the Reservation have been done, over 

a period of decades. None of the extensive studies that have been done over time 

has shown that there is any appreciable amount of accessible, reliable groundwater 

on the Reservation. 

We attach as Exhibit A a summary of past Reservation groundwater studies that 

has been compiled by Natural Resources Consulting Engineers (NRCE), the Tribe’s 

expert hydrologist. The summary is divided into two categories: studies done of the 

‘‘Deep Regional Aquifer’’ that extends under most of the Reservation, including the 

Grand Canyon West area, and studies done of the ‘‘Alluvial-Volcanic Aquifers’’ that 

include the Truxton aquifer. 

The NRCE summary references seven studies of the Deep Aquifer, done in 1962, 

1977, 1987, 1992, 1999, 2005 and 2013. These studies were done by, among others, 

the United States Geological Survey (USGS), the Bureau of Land Management 

(BLM), the Bureau of Indian Affairs (BIA), the Bureau of Reclamation (BOR), 

NRCE and DOWL–HKM. The only well that has been successfully completed in the 

area near Grand Canyon West (GCW–1) suffers from both low water quality and 

low yield. It is currently not used for this reason. 

Even more studies—nine in all—over an even longer period of time, have been 

done of the alluvial aquifer. The NRCE summary lists studies of this aquifer that 

were done in 1942, 1973, 1975, 1987, 1991, 1992, 2007, 2009 and 2011, by USGS, 

the Indian Health Service, BOR and the Tribe. Again, none of these studies suggests 

19 

that the alluvial aquifer can serve as the source of water for the Tribe’s long term 

needs. 

Finally, NRCE has advised the Tribe and Interior Department that the construction costs of an infrastructure project to produce and deliver 3,400 acre feet a year 

of groundwater on the Reservation would most likely not be appreciably lower than 

the cost of the infrastructure project authorized by S. 3300 to deliver water from 

the Colorado River to both Peach Springs and Grand Canyon West. 

NRCE estimates that if deep groundwater is pumped for supplying a substantial 

amount of this water, the construction and operating costs of delivering that groundwater would likely exceed the costs of the Project in S. 3300. This is so because of 

the extraordinarily high cost of drilling the large number of wells that would be 

needed to produce this amount of groundwater, with each such well having an estimated unit cost of $2 million. Thus, no money would be saved by a project to 

produce and deliver groundwater instead of Colorado River water, even if sufficient 

groundwater was available. And given the number of past studies that have failed 

to show any significant amount of groundwater on the Reservation, there is no basis 

for the new studies that the Department proposes to undertake, which will only 

serve to delay this matter for years more. 

We appreciate the opportunity to submit this supplement to the Committee. 

Attachment 

MEMORANDUM, DECEMBER 4,2015 

To: Hualapai Project Files 

From: NRCE, Inc. 

RE: PREVIOUS GROUNDWATER STUDIES

This memorandum presents a list and brief description of previous groundwater 

studies on the Hualapai Reservation. The list of studies is separated between the 

deep regional aquifer and the alluvial-volcanic aquifers. 

Deep Regional Aquifer 

Description: The deep regional aquifer on the Hualapai Reservation includes the 

Redwall-Muav Aquifer (R-Aquifer) and the Tapeats Sandstone lying at the bottom 

of the Paleozoic section in contact with crystalline basement rocks. 

• Representative well yields from the R-Aquifer range from 5 to 40 gallons per 

minute, with 150 gallons per minute the highest reported in the region 

(Twenter, 1962; Myers, 1987; and others). 

• There is some evidence indicating that faults, fractures, and folds may enhance 

aquifer properties that can localize potential for larger well yields; however targeting these features using surface geophysics is speculative and drilling costs 

are very high. 

• The USGS conducted a hydrogeological study of the Reservation between 1957 

and 1962 (Twenter, 1962). The R-Aquifer was identified as the most promising 

aquifer, but drilling depths were prohibitive. 

• Several wells were drilled to various depths (mostly shallow) in the late 1960’s 

and 1970’s by the BLM and the BIA loosely based on Twenter’s recommendations but most were unsuccessful (Huntoon, 1977). 

• Several deeper wells were completed on the Hualapai Plateau in 1992 by the 

Bureau of Reclamation. One well drilled near the GCW resort in 1992 targeted 

the deep regional R-Aquifer. The well was deepened in 1999 (Watt, 2000). That 

well (GCW–1) encountered groundwater only in the Tapeats Sandstone. The 

shallower Redwall and Muav Formations were unsaturated. The well is 

equipped with an oilfield-type pumping unit but is currently unused due to low 

water quality and low yield (15–26 gpm). 

• NRCE was contracted in 2005 to investigate and evaluate all possible water 

supply options for the resort. The preferred alternative recommended diversion 

from the Colorado River. Groundwater development options were judged to be 

infeasible for a variety of reasons, but primarily because of their inability to 

supply the sustainable yield required by the Grand Canyon West resort at a 

reasonable overall project cost. 

• DOWL (2013) further assessed a few Colorado River alternatives considered in 

the NRCE study. Groundwater development alternatives were judged to be infeasible in this study for the same reasons as the 2005 study by NRCE. 

Alluvial-Volcanic Aquifers 

Description: The main alluvial-volcanic aquifers are in the northern Aubrey Valley 

around Frazier Wells (eastern part of the Reservation), Westwater Canyon, Peach 

Springs-Truxton Wash Valley, and elsewhere along the southwest flank of the 

20 

Hualapai Plateau (e.g. Horse Flat area and the upper Milkweed Canyon). The alluvial-volcanic aquifers have areal extents that are limited by the valleys and washes 

that contain them. The volume of stored groundwater is similarly limited. Depth to 

water is generally shallow, typically less than 500 feet below ground level, and well 

yields of up to 170 gallons per minute have been reported. Water from these 

aquifers is generally acceptable for domestic use. 

• The Santa Fe Railroad drilled 6 fairly shallow wells within Peach Springs between 1903 and 1922. The Hualapai Tribe acquired use of water from the railroad spring-fed water system between 1931 and 1954. One well near the town 

is currently used. 

• The USGS conducted a study in 1942 to assist location of prospective sites for 

development of stock water supply on the Hualapai Reservation (Peterson, 

1942). In addition to a hydrogeological characterization of the region, the study 

inventoried numerous existing wells and stock ponds. Peterson recommended 18 

sites across the Reservation for drill-testing. 

• N.J. Devlin evaluated the Peach Springs water system in 1973 and considered 

possibilities for development of additional water supplies for the town. Devlin 

recommended further development of the aquifer contained in the lake beds of 

Truxton Valley. Development of other springs and other exploration areas were 

judged to have low potential. 

• The Indian Health Service drilled two wells in Truxton Valley in 1972 to provide additional water supply for Peach Springs. A third well was drilled in 1976 

by the IHS in Truxton Valley near the wells drilled in 1972. These wells currently supply all of the water needs for the town of Peach Springs. 

• The Bureau of Reclamation drilled an unsuccessful hole into Cenozoic volcanics 

near the head of Milkweed Canyon in 1975. A second successful well in 

Westwater Canyon alluvium and volcanics was completed in 1975. This well 

currently provides most of the water to Grand Canyon West via a 30-mile pipeline. 

• A well drilled in the Frazier Wells area in the eastern part of the Reservation 

serves a fish-rearing facility. An additional two boreholes were completed in the 

shallow alluvial aquifer in the Frazer Wells area in an effort by the Tribe to 

develop additional groundwater supply. Both wells were dry and were abandoned. 

• Regional hydrogeological mapping by Richard Young (State University of New 

York at Geneseo) focused on the Tertiary volcano-sedimentary aquifer in the 

area of Westwater Canyon near the well drilled by the Bureau of Reclamation 

(Young, R. A., 1987, 1991, 1992, 2007). Stantec (2009) estimated the safe yield 

of this aquifer to be approximately 600 afy. Further development of this aquifer 

is prohibited by tribal policy as it would likely reduce spring flow (considered 

to be a cultural resource) in its discharge area. 

• NRCE conducted an evaluation of the groundwater supply for the town of Peach 

Springs in 2011. That study included an inventory of wells in the sub-regional 

area, a comprehensive review of the regional geology, an evaluation of 

hydrologically attractive areas for development of additional groundwater supplies in the southern part of the Reservation, and made some specific recommendations for exploratory evaluation of both the R-Aquifer and 

alluvialvolcanic aquifers. The adequacy of natural aquifer recharge to support 

existing and future water needs was also assessed. 

Next I will introduce the Honorable Lavern Jefferson, who is the 

Treasurer of the Meskwaki Tribal Council, Sac and Fox Tribe of 

the Mississippi in Iowa. 

Thanks for being here today. We are honored to be able to receive your testimony. 

STATEMENT OF HON. LAVERN JEFFERSON, TREASURER, 

MESKWAKI TRIBAL COUNCIL, SAC AND FOX TRIBE OF THE 

MISSISSIPPI 

Mr. JEFFERSON. Chairman Barrasso, Vice Chairman Tester, and 

members of the Committee, good afternoon. I am Lavern Jefferson, 

Treasurer of the Sac and Fox Tribe of the Mississippi in Iowa, also 

21 

known as the Meskwaki Nation. Thank you for this opportunity to 

testify today in support of S. 3216, which would repeal a 1948 act 

of Congress that conferred jurisdiction to the State of Iowa over offenses committed by or against Indians on our settlement. 

The history of my Tribe, like many Tribes in the United States, 

is complicated and unique, and its present criminal justice system 

is a subject that cannot be understood unless I share a bit about 

our story. 

While our lands are held presently in trust by the Federal Government, we do not live on a reservation. In 1857, the Meskwaki 

Nation of Iowa was the only Indian Tribe to purchase land in Iowa 

for the establishment of the Meskwaki Indian Settlement. Not 

being considered citizens of the United States, my ancestors could 

not hold title to land. Because of this, the Iowa legislature consented to the governor of Iowa holding our land in State trust. 

By 1896, the governor of Iowa held 2,720 acres of land in trust 

for the benefit of the Tribe, and the Federal Government agreed to 

accept this land into trust. We are one of the few Tribes in this Nation who settled on a piece of land. The fact that we were never 

placed on a reservation remains a very important part of our history and heritage. Due to the State of Iowa’s aid in holding land 

for the Tribe, the Meskwaki and the State have enjoyed a progressive and positive relationship that has endured over the years. 

For generations, we took care of our own criminal issues and 

shared jurisdiction over crimes committed on the Settlement with 

the Federal Government. This changed in 1948, during the termination era, when the Federal Government passed a one-sentence 

law to give the State of Iowa criminal jurisdiction over the Settlement. At that time, we did not have a formal tribal police force, nor 

could we afford to create one. 

The 1948 Act derived from the Kansas Act, which sought to address reported gaps in jurisdiction over crimes committed between 

Indians occurring in Indian Country within Kansas. Prior to enactment of the Kansas Act, there was a concern that if the State did 

not step into the gap to prosecute criminal offenses on Indian land, 

criminal conduct would go unchecked. These laws provided States 

the authority to ensure that would not happen. 

However, 68 years after the passage of the 1948 Act, circumstances have changed and the Settlement is a much different 

place. To start, the Meskwaki Nation now operates and maintains 

a fully functional criminal justice system. We have a full-time police department consisting of 10 officers. The department is the primary agency dispatched to all emergency and non-emergency complaints involving potential criminal violations which occur on the 

Settlement. Our tribal police officers are certified by the State of 

Iowa. This enables and allows them to arrest non-Natives who commit crimes on the Settlement. 

The Tribe has a fully functioning court system. Our trial court 

is composed of full-time judges, all of whom are law-trained and 

members of a State bar. The court handles both civil and criminal 

cases and has adopted court rules. There are approximately 30 lawyers who are admitted to practice before the court, including a 

prosecutor and public defender. 

22 

Offenders are offered various forms of rehabilitation and punishment, and those convicted of crimes are regularly placed on probation, working with a full-time probation officer who sets up and coordinates community service, performs drug tests, conducts unannounced home visits, and takes other steps to assure that probationers are complying with court sentencing orders. 

Despite these great strides, the 1948 Act continued to undermine 

effective law enforcement and implementation of a criminal justice 

system on the Meskwaki Settlement. 

The 1948 Act has created a dual-concurrent criminal justice system composed of both tribal and State justice systems. Because a 

criminal case can be brought both in State court and in tribal 

court, a Native American defendant who commits an offense on the 

Settlement must face the possibility of two prosecutions by the 

State and the Tribe. 

Consider a case where a non-Native and a Native both commit 

the same offense on the Settlement. The non-Native is prosecuted 

once in State court, as tribal courts have no jurisdiction over nonNatives. The Native, however, is prosecuted twice, once in State 

court and once in tribal court, for the very same offense. The Native defendant is therefore penalized more harshly and is subjected 

to greater fines, costs, and receives two criminal convictions for 

committing one offense. This is unfair and unjust. 

Earlier this year, the State of Iowa approved legislation calling 

on Congress to repeal this outdated law. We are grateful that our 

delegation has answered this call and thank Senator Grassley and 

Senator Ernst and Senator Leahy for introducing this legislation. 

Congress should now take swift action to pass the bill. By doing 

so, you will promote better law enforcement on our Settlement and 

strengthen our ability to chart our own course as a sovereign Nation. This Committee has taken great strides to eliminate many of 

the injustices of the Termination Era, and the Meskwaki Nation 

applauds you for your effort. We urge you to take similar action 

here. 

Thank you again for this opportunity, and I am happy to answer 

any questions you may have. 

[The prepared statement of Mr. Jefferson follows:] 

PREPARED STATEMENT OF HON. LAVERN JEFFERSON, TREASURER, MESKWAKI TRIBAL

COUNCIL, SAC AND FOX TRIBE OF THE MISSISSIPPI

Chairman Barrasso, Vice Chairman Tester, and Members of the Committee: 

Good afternoon. I am Lavern Jefferson, Treasurer of the Sac and Fox Tribe of the 

Mississippi in Iowa, also known as the Meskwaki Nation. Thank you for this opportunity to testify today in support of S. 3216, which would repeal a 1948 act of Congress that conferred jurisdiction to the State of Iowa over offenses committed by or 

against Indians on our Settlement. 

The history of my tribe, like many tribes in the United States, is complicated and 

unique, and its present criminal justice system is a subject that cannot be understood unless I tell you a little of the historical dimensions of how we got to where 

we are now. 

While our lands are held presently in trust by the Federal Government, we do 

not live on a reservation. On July 13, 1857, the Meskwaki Nation of Iowa was the 

only Indian Tribe to purchase land in Iowa for the establishment of the Meskwaki 

Indian Settlement. Not being considered citizens of the United States, my ancestors 

could not hold title to land. Because of this, the Iowa Legislature consented to the 

Governor of Iowa holding our land in state trust. 

23 

Between 1856 and 1896, the Tribe acquired more land in Tama County with 

funds generated through the sale of pelts and horses, charitable contributions, and 

treaty annuities. By 1896, the Governor of Iowa held title to 2,720 acres of land in 

trust for the benefit of the Tribe. Finally, in 1896 the Federal Government agreed 

to accept this land into trust. We are one of the few, and perhaps the only, tribe 

in this nation who settled on a piece of land. The fact that we were never placed 

on a reservation remains a very important part of our history and heritage. Due to 

the State of Iowa’s aid in holding land for the tribe, the Meskwaki and the State 

have enjoyed a progressive and positive relationship that has endured over the 

years. 

For generations, we took care of our own criminal issues and problems and shared 

jurisdiction over crimes committed on the Settlement with the Federal Government. 

This all changed in 1948, when the Federal Government—in the era of termination 

and assimilation, and at a time when our tribe did not have formal mechanisms for 

law enforcement on the Settlement nor was the tribe financially in a position to create a criminal justice system similar to what existed elsewhere in the state—passed 

a one-sentence law to give the State of Iowa criminal jurisdiction over the Settlement. 

A precursor to the well-known Public Law 280, the Act of June 30, 1948 states: 

That jurisdiction is hereby conferred on the State of Iowa over offenses committed by or against Indians on the Sac and Fox Indian Reservation in that 

State to the same extent as its courts have jurisdiction generally over offenses 

committed within said State outside any Indian reservation; provided however, 

that nothing herein contained shall deprive the courts of the United States of 

jurisdiction over offense defined by the laws of the United States committed by 

or against Indians on Indian reservations. 

The law is a descendent of the Kansas Act, which sought to address reported gaps 

in jurisdiction over crimes committed between Indians occurring in Indian country 

within Kansas. Prior to enactment of the Kansas Act there was a concern that if 

the State did not step into the gap to prosecute criminal offenses on Indian land, 

criminal conduct would go unchecked. Enactment of the Kansas Act led to the passage of similar laws including the 1948 Act (which is virtually identical to the Kansas Act). This is no accident—a letter written by the head of an agency under the 

Bureau of Indian Affairs after the passage of the Kansas Act states ‘‘that the Indian 

Office in Washington [BIA] is planning to recommend similar legislation for Indian 

areas in other states when the plan has been tried out in Kansas.’’ 

Eight years after passage of the Kansas Act, Congress moved forward on the bill 

that our tribe seeks to repeal today. In the corresponding committee report the 

House Committee on Public Lands wrote, ‘‘The need of this legislation arises from 

the fact that in certain instances, Indian tribes do not enforce the laws covering offenses committed by Indians; under the present law the State has no jurisdiction 

to enforce laws designed to protect the Indians from crime perpetrated by or against 

Indians; and law and order should be established on the reservation when the tribal 

laws for the discipline of its members have broken down.’’ 

Additionally, an accompanying letter from Under Secretary of the Interior Oscar 

L. Chapman said, ‘‘On the Sac and Fox Indian Reservation in Iowa. . .the old tribal 

laws and customs for the disciplines of its members have broken down completely. 

There is no Indian court. A number of years ago, an Indian judge was employed by 

the Federal Government but, because of factionalism and the close blood and marital relationship among the members of the tribe, the Indian judge did not satisfactorily perform the duties of his office, and the position was abolished. The employment of Indian police on the reservation met with similar difficulties.’’ 

Sixty-eight years after passage of the 1948 Act, the Settlement is a much different 

place. The Meskawki Nation operates and maintains a fully functional criminal justice system. 

We have a full time police department consisting of 10 officers. The Meskwaki Nation Police Department is the primary law enforcement agency dispatched to all 

emergency and non-emergency complaints involving potential criminal violations 

which occur on the Settlement. All tribal police officers are certified by the State 

of Iowa—this enables and allows them to arrest non-natives who commit crimes on 

the Settlement. 

The Tribe has a fully functioning court system. Our trial court is composed of full 

time judges all of whom are law trained and members of a state bar. The Court 

handles both civil and criminal cases and has adopted court rules. There are approximately 30 lawyers who are admitted to practice before the Sac and Fox of the 

Mississippi in Iowa Court. 

24 

The Tribe appoints indigent defendants with court appointed lawyers at tribal expense. Appeals are heard by a Court of Appeals composed of judges who are all attorneys as well. 

The Tribe employees a full time prosecutor who is a licensed attorney. The Prosecutor handles all criminal prosecutions on behalf of the Tribe in tribal court. In 

addition, the prosecutor regularly works closely with the tribal police department 

on criminal cases and investigations. The tribal prosecutor is available 24 hours a 

day to render advice to the Tribal Police Department including the drafting of 

search warrants and subpoenas. 

Offenders are offered various forms of rehabilitation and punishment and those 

convicted of crimes are regularly placed on probation, working with a full time probation officer who sets up and coordinates community service, performs drug tests, 

conducts unannounced home visits and takes other steps to assure that probationers 

are complying with court sentencing orders. 

Despite making great strides and progress in developing its own criminal justice 

system, the ramifications of the 1948 Act continue to plague effective law enforcement and the implementation of a criminal justice system on the Meskwaki Settlement. 

The 1948 Act has created a dual-concurrent criminal justice system composed of 

both tribal and state justice systems. Because a criminal case can be brought both 

in state court and in tribal court, a Native American defendant who commits an offense on the Settlement must face the possibility of two prosecutions by the state 

and the tribe. This is exceedingly unfair, and violates basic notions of justice and 

fair play. This also produces an absurd and unduly burdensome application of criminal laws. 

Consider a case where a non-native and native both commit the same offense on 

the Settlement. The non-native is prosecuted once in state court, as Tribal courts 

have no jurisdiction over non-natives. The native, however, is prosecuted twice 

(Once in State Court and once in Tribal Court) for the very same offense. The native 

defendant is therefore penalized more harshly and is subjected to greater fines, 

costs and receives two criminal convictions for committing one offense. There have 

been occasions where defendants had to report to two probation officers. 

If Congress repeals the 1948 statute, the role of the state criminal justice system 

in Indian country would be limited to non-Indian v. non-Indian crimes only—or 

similar to the situation on most reservations today. 

This Committee has taken great strides to eliminate some of the unjust vestiges 

of the Termination Era, and I applaud you for your effort. We urge you to take similar action here. 

Earlier this year the State of Iowa approved legislation calling on Congress to repeal this unjust and outdated law. Congress should heed the State’s call and take 

swift action on this important bill. By doing so, you will promote better law enforcement on our Settlement and strengthen our ability to chart our own course as a sovereign nation. 

This Committee has taken great strides to eliminate some of the unjust vestiges 

of the Termination Era, and the Meskwaki Nation applauds you for your effort. 

We urge you to take similar action here. 

Thank you again for this opportunity, and I am happy to answer any questions 

you may have. 

The CHAIRMAN. [Presiding.] Well, thank you very much for your 

testimony. 

Mr. ALLEN. 

STATEMENT OF HON. W. RON ALLEN, TREASURER, NATIONAL 

CONGRESS OF AMERICAN INDIANS 

Mr. ALLEN. Thank you, Mr. Chairman and members of the Committee. As you have noted, my name is Ron Allen. I am the Treasurer for the National Congress of American Indians. I am also the 

Chairman of the Jamestown S’Kallam Tribe, located in western 

Washington State. And I am here to testify on behalf of our organization, which represents and advocates for Indian Country, the 567 

Indian Nations that have many issues that come before this Committee and Congress. 

25 

So we are in full support of S. 2636. We have been working very 

closely with the Department of the Interior and Bureau of Indian 

Affairs, and we want to compliment them. This Administration has 

made it a priority to help Tribes restore our homelands. 

As Senator Tester noted, the Indian Reorganization Act authorized the Interior to be able to take land into trust so we can restore 

our homelands. We know about the Allotment Act. That Act caused 

all kinds of problems in the history of Indian Country throughout 

the United States for Tribes and their tribal lands, as well as the 

allottees who own land individually. 

This bill, in our opinion, will help expedite the restoration of 

those homelands and help the Tribes to be able to strengthen our 

ability to become more self-reliant, to strengthen our economies, to 

provide better clarity with regard to both civil and criminal jurisdiction issues that happen within our reservation borders, and to 

protect many of the interests of the Tribes, including cultural interests. 

What this bill would do, even though the Administration has 

been working to refine its system, this bill will refine it even better 

and faster. It doesn’t mean that the Administration won’t look at 

any issues of concern that have been raised by sister Tribes or by 

local communities, etcetera. As Assistant Secretary Roberts noted, 

it will be very public when these proposals are being taken into 

trust and subsequently into reservation status. But what it will do 

is it helps us move our agenda forward. 

I have been a chairman for 40 years in my Tribe and have had 

the pleasure of watching Tribes across the Country become stronger governments and become stronger in terms of their business 

acumen. The business component of our tribal governments that 

generate the unrestricted revenues to help meet the unmet needs 

that Congress and the Administration can’t provide. We can show 

you all kinds of areas where they can’t provide the kinds of resources necessary to deal with health and education and housing, 

et cetera. 

So what this bill will do is streamline that process, allow us to 

be able to take those lands into trust, help us improve our infrastructure for housing, for economic development, for light industry, 

even heavy industry if we want to pursue those kind of venues on 

our reservation. It helps us provide better accommodations for our 

people. So it really will help solve our problems in our community 

and we just think it works well with what the current Administration is doing. 

Its current goal in this eight-year administration has been 

500,000 acres out of the 90 million. We only have about 8, 9 percent now that is in reservation trust status, and it is costly for us 

to reacquire those homelands. The non-Indian owners around us, 

you know, they basically take advantage of us in terms of acquiring 

those properties, so we use our resources to do that, so we just 

want to be able to improve our governmental infrastructure and 

our capacity to be able to advance our agenda. 

So we appreciate this Committee taking this up and we look forward to working with the Congress and the Administration with 

regard to any refinements necessary with regard to questions they 

26 

1 78 Cong. Rec. 11731 (1934). 

2 25 U.S.C. § 465 

would have with respect to the Tribes being able to reacquire their 

homelands and have a better future for our future citizens. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Allen follows:] 

PREPARED STATEMENT OF HON. W. RON ALLEN, TREASURER, NATIONAL CONGRESS OF

AMERICAN INDIANS

On behalf of the National Congress of American Indians (NCAI), the oldest, largest, and most representative American Indian and Alaska Native organization serving the broad interests of tribal governments and communities, I would like thank 

the Senate Committee on Indian Affairs for holding this hearing on these important 

pieces of legislation. 

I am here to present NCAI’s testimony on S. 2636—the Reservation Land Consolidation Act of 2016. This simple and straightforward legislation will amend the Indian Reorganization Act to allow tribes to restore their tribal homelands by making 

certain land transactions occurring within tribal reservation boundaries mandatory. 

NCAI fully supports this legislation as it fits within the original intent of the Indian 

Reorganization Act, by helping restore tribal homelands and streamlines the 

lengthy, and sometimes arduous, process at the Department of the Interior. We urge 

this Committee and Congress to pass S. 2636 to further tribal self-governance and 

self-determination by restoring tribal homelands. 

After the initial colonial and treaty era, tribes had to contend with the Indian removal policies of the 1830s which placed tribes on reservations, in many cases hundreds if not thousands of miles away from their traditional homelands and sacred 

places. With the passing of the Dawes Act in 1887, the Federal Government began 

to allot Indian lands, breaking up reservations into smaller parcels and placing 

them into individual ownership. 

While some individual Indians received title to the lands, most of it was sold to 

settlers, timber and mining interests, and otherwise left tribal ownership. In total, 

nearly two-thirds of all reservation lands, more than 90 million acres, were removed 

from tribal control without compensation. 

Allotment created a checker board effect on tribal lands, with some land within 

the reservation boundaries held in trust, and some owned by private land owners 

or other. The non-contiguous nature of jurisdiction lands has harmed tribes’ ability 

to exercise their sovereignty governmental rights over all of the lands within their 

reservation boundaries. 

The IRA marked a significant change in federal Indian law policy, signaled a 

shifting from the detrimental policies of assimilation and allotment, to the reorganizing of tribal governments and restoration of tribal homelands. The principal goal 

of the Indian Reorganization Act was to reverse the abrupt decline in the economic, 

cultural, governmental, and social well-being of tribal communities. 

One of the IRA’s principal authors, Congressman Howard of Nebraska, described 

the fundamental purpose of the IRA: 

This Congress, by adopting this bill, can make a partial restitution to the Indians for a whole century of wrongs and of broken faith, and even more important—for this bill looks not to the past but to the future—can release the creative energies of the Indians in order that they may learn to take a normal and 

natural place in the American community. 1

Section 5 of the IRA (25 U.S.C. § 465), which will be bolstered by the passing of 

S. 2636, is broadly designed to implement the fundamental principle that tribal 

homelands are an integral part in supporting tribal self-governance, self-determination, and tribal cultures: 

The Secretary of the Interior is hereby authorized, in his discretion, to acquire, 

through purchase, relinquishment, gift, exchange, or assignment, any interest 

in lands, water rights, or surface rights to lands, within or without existing reservations, including trust or otherwise restricted allotments, whether the allottee be living or deceased, for the purpose of providing land for Indians. 2

Further, the legacy of the allotment policy still means that deeply fractionated 

heirship of tribal trust lands means that, for most tribes, far more Indian land 

passes out of trust than into trust each year. 

27 

Only about 8 percent of the 90 million acres of lost tribal lands have been restored 

since the IRA was passed over 80 years ago—and most of this was land that was 

returned soon after passage of the Act. While the current Administration has established a goal of placing 500,000 acres back into trust, and is close to achieving it, 

that’s still only about half a percent of the original 90 million acres. 

Today, many tribes are located far away from their historical, cultural, and sacred 

places, and far from traditional hunting, fishing, and gathering areas. And many of 

these lands are insufficient lands to support housing, exercise civil and criminal jurisdiction, economic development, enforce, and expand tribal infrastructure—essential, to practice true tribal self-governance. 

The restoration of tribal homelands is the most fundamental obligation of the federal trust responsibility. 

The bill before the Committee today, S. 2636, plays an important role in strengthening the original intent of the IRA while helping support tribal self-governance and 

self-determination by making commonsense tribal land acquisitions to restore the 

tribal jurisdiction over their homelands. 

The trust land acquisitions impacted by S. 2636 take place in extremely rural 

areas and involve home sites of less than 30 acres within the tribe’s current reservation boundaries. These acquisitions are not controversial in any way, and necessary 

for the consolidation of fractionated and allotted lands which most often are grazing, 

forestry, agricultural, housing, health care clinics that serve both Indian and nonIndians, and Indian schools. 

S. 2636 also addresses one of the most difficult issues in the land to trust process 

which is raised by tribal leaders at every NCAI meeting: the backlog of applications 

and the interminable delays on decisions at the Department of the Interior. 

Too often have tribes spent scarce resources to purchase land and prepare a trust 

application only to have it sit for years or even decades without a response. In addition, the Department of the Interior has limited resources in its budget to address 

all of the applications in a timely manner. By restoring lands already owned by a 

tribe back to trust status within the reservation boundaries, allows both tribes and 

the Department of the Interior to focus their resources elsewhere because these decisions are non-controversial. Tribes will no longer risk losing funding and support 

for the projects that they have planned for the land and will be better equipped to 

provided services and opportunities for their tribal citizens. 

Further, while S. 2636 fits squarely into the original intent of the IRA and Section 

5, it supports tribal self-governance and self-determination. Land consolidation and 

restoration of trust lands within reservations boundaries provides surety for tribes 

looking to exercise the fundamental right of self-governance. Lack of contiguous parcels of land within a tribe’s boundaries makes it extremely difficult to plan development projects, buildout infrastructure, provide health and education services to tribal citizens, exercise tribal jurisdiction to protect the safety of all members of the 

community. 

In closing, the simple clarification S. 2636 makes to Section 5 of the IRA not only 

seeks to bolster the original intent of the Act to restore tribal governments and 

homelands, but stands in the 21st Century policies of further tribal self-governance. 

NCAI fully supports S. 2636 and asks that this Committee act swiftly to pass it so 

it can be considered by the Senate. 

The CHAIRMAN. Thank you very much, Mr. Allen. 

Mr. LUMLEY. 

STATEMENT OF PAUL LUMLEY, EXECUTIVE DIRECTOR, 

COLUMBIA RIVER INTER–TRIBAL FISH COMMISSION 

Mr. LUMLEY. Thank you, Mr. Chairman. It is a great pleasure 

and an honor to be here today. My name is Paul Lumley. I am the 

Executive Director of the Columbia River Inter-Tribal Fish Commission, and I am here today to present the views of four Tribes 

that have treaty rights to fish and hunt at all usual and accustomed places along the Columbia River: the Yakama, the Umatilla, 

Warm Springs, and Nez Perce. And today we stand in strong support of Senate Bill 3222. 

That treaty right to fish is only part of it. We also have the right 

to access the river. And there have been many legal determinations, historic determinations concluding such, and we even have 

28 

modern day recognitions, as well, such as Public Law 100–581, 

which resulted in the construction of 31 in-lien treaty fishing access sites. That construction was completed in the year 2011. 

I especially want to thank Senators Merkley, Wyden, Murray, 

and Cantwell for their support on this important legislation. Some 

of those Senators have been out to view these sites and recognize 

the severe conditions. 

We urgently need this bill to pass to address three primary 

areas: safety, sanitary, and health. 

These fishing sites drew immediate attention primarily because 

of overuse of the sites as a result of more fish runs, more fishing 

seasons, and the fact that we have a housing crisis on the Columbia River. And that housing crisis was caused in large part by the 

Corps of Engineers because they have not lived up to their obligation at this time to rebuild those villages that were lost due to the 

construction of the hydropower dams. 

That legislation is being considered elsewhere. Back to this bill, 

I want to talk about the importance of addressing the living conditions along these areas. 

I used to be the executive director of the National American Indian Housing Council, so I have seen housing conditions up and 

down the river, I have seen them across the Nation, and I have 

never seen it this bad anywhere else in the Nation, and I have 

traveled the Nation. It is bad out there, so we are hoping that this 

bill will address the severe safety and sanitary issues that we are 

currently experiencing. 

Now, we do have funding for long-term operation of maintenance 

of these sites that is contracted to the Bureau of Indian Affairs. 

That funding will be depleted in the year 2022. At that point, we 

are going to hand the keys back to the Bureau of Indian Affairs 

to conduct operational maintenance, and I can guaranty there will 

be a housing crisis. So that is a serious issue that needs to be addressed, as well, in the future. 

For now, we are doing the best we can to address the basic services. It is a big stretch of the river, 140 miles, and it is not easy. 

We completed an assessment recently and showed that we are substantially lacking in potable water, clean water stations, restrooms, 

showers, septic systems. Fire suppression is a very substantial 

issue for us. We have fire hydrants that aren’t hooked up to water. 

Structures have burned because of it and we have a lack of extinguishers. 

Mr. Chairman, I wanted to leave with you and the Committee a 

stack of photographs. I would be happy to provide you electronic 

copies. It shows some of the severe conditions. Some of these facilities, for example, this one here at Lyle Point shows RV structures 

that have been turned into permanent living conditions that are 

really substandard living. So we will leave these photographs with 

you and send you some electronic copies. 

The CHAIRMAN. And if you could also provide the electronic copy, 

that would be terrific. Thank you. 

Mr. LUMLEY. You are welcome. 

So, Mr. Chairman, we stand before you still in strong support of 

Senate Bill 3222. I heard a few minutes ago that there was a proposed change by Bureau of Indian Affairs to address other Federal 

29 

1Treaty with the Yakama Tribe, June 9, 1855, 12 Stat. 951; Treaty with the Tribes of Middle 

Oregon, June 25, 1855, 12 Stat. 963; Treaty with the Umatilla Tribe, June 9, 1855, 12 Stat. 

945; Treaty with the Nez Perce Tribe, June 11, 1855, 12 Stat. 957. 

agencies. We would support that as well. But even if this bill 

passes, it will not solve all of our problems. We have the long-term 

operational maintenance fund to be concerned about. 

Also, in my written testimony I talk about the substantial lack 

of enforcement of these sites. We only have two officers. When Bureau of Indian Affairs handed us the enforcement authority, the 

program was about 60 percent greater than what we are funded at 

currently. So we do have a strong shortfall there in enforcement. 

So once again, Mr. Chairman, strongly supporting Senate Bill 

3222. 

[The prepared statement of Mr. Lumley follows:] 

PREPARED STATEMENT OF PAUL LUMLEY, EXECUTIVE DIRECTOR, COLUMBIA RIVER

INTER-TRIBAL FISH COMMISSION

Chairman Barrasso and members of the Committee, the Columbia River InterTribal Fish Commission (CRITFC) is pleased to share its view on Senate Bill 3222, 

the Columbia River In-Lieu and Treaty Fishing Access Sites Improvement Act. I am 

testifying in support of this legislation and on behalf of the four member tribes of 

the Columbia River Inter-Tribal Fish Commission wish to express our appreciation 

for the bold attention and unity of the Northwest Congressional delegation to assemble and introduce legislation, including S. 3222, to rectify wrongs stretching 

back nearly eighty years that were done to tribal communities along the river. My 

testimony will address the history and legal authority of CRITFC, a brief history 

of the In- Lieu and Treaty Fishing Access Sites and conclude with a current assessment of conditions and needs at the sites themselves. Though S. 3222 does not explicitly address law enforcement needs at the fishing sites my testimony will speak 

to this service’s fundamental role in public safety. 

Commission History and Legal Authorities 

The combined ancestral homelands of our four tribes cover roughly one-third of 

the entire Columbia River Basin in Washington, Oregon, and Idaho. Our existence 

on the Columbia River stretches beyond 10,000 years to time immemorial. Salmon 

has always been a unifying force and we rely on its abundance for physical and cultural sustenance. Collectively, we gathered at places like Celilo Falls to share in the 

harvest, forging alliances that exist today. Our fishing practices were disciplined 

and designed to ensure that the salmon resource was protected, and even worshipped, so it would always flourish. 

Salmon is so fundamental to our society that in 1855 when our four sovereign 

tribes 1 and the United States collaborated and negotiated treaties, our tribal leaders explicitly reserved—and the U.S. agreed to assure—our right to fish in perpetuity within our ancestral homelands as well as to ‘‘take fish at all usual and accustomed places.’’ The treaties of 1855 were all ratified by the Senate of the United 

States. The Supremacy Clause of the Constitution applies to all such treaties. 

The Columbia River Inter-Tribal Fish Commission was formed in 1977 by resolutions from the four Columbia River treaty tribes: Confederated Tribes of the 

Umatilla Indian Reservation, Confederated Tribes of the Warm Springs Reservation 

of Oregon, Confederated Tribes and Bands of the Yakama Nation, and Nez Perce 

Tribe. CRITFC’s mission is to ensure a unified voice in the overall management of 

the fishery resource and to assist in protecting reserved treaty rights through the 

exercise of the inherent sovereign powers of the tribes. CRITFC provides coordination and technical assistance to the tribes in regional, national and international efforts to ensure that outstanding treaty fishing rights issues are resolved in a way 

that guarantees the continuation and restoration of our tribal fisheries into perpetuity. 

Today the CRITFC tribes are globally-recognized leaders in fisheries restoration 

and management, working in collaboration with state, federal, and private entities. 

We are principals in the region’s efforts to halt the decline of salmon, lamprey, and 

sturgeon populations and rebuild them to levels that support ceremonial, subsistence and commercial harvests. To achieve these objectives, our actions emphasize 

‘‘gravel-to-gravel’’ management including supplementation of natural stocks, healthy 

30 

watersheds, and collaborative efforts. Programs referenced in this testimony are carried out pursuant to the Indian Self-Determination and Assistance Act. Our programs are integrated as much as possible with state and federal salmon management and enforcement efforts. 

A Brief History of the In-Lieu and Treaty Fishing Access Sites 

Before the advent of non-Indian settlement, our people had thriving salmon-based 

communities all along the Columbia River. After the treaties were negotiated and 

ratified in the 1850s, our people living in the Columbia Basin continued to fish at 

numerous places along the Columbia River and its tributaries. 

By the late 1880s, non-Indians had encroached upon many of the treaty tribes’ 

usual and accustomed fishing grounds and access to the fishing grounds was 

blocked. During 1888–89, George Gordon, Special Indian Agent, investigated the Indian fisheries along the Columbia River and several tributaries and found that Indian fishers were being excluded from many of their traditional fishing grounds. 

Agent Gordon submitted his findings and recommended that the U.S. government 

purchase or withdraw from entry approximately 2,300 acres along the Columbia for 

use by tribal fishers. Although the government never acted on Agent Gordon’s recommendations to acquire lands for tribal fishers, the U.S. did file several lawsuits 

seeking to protect the tribes’ right to take fish at usual and accustomed fishing 

grounds (e.g., U.S. v. Taylor, U.S. v. Winans, U.S. v. Seufert Brothers, U.S. v. Brookfield Fisheries). As a result of these lawsuits, the tribes’ treaty-protected right of access to usual and accustomed fishing grounds was firmly established as a matter 

of law. 

During the 1930’s, the Army Corps of Engineers (Corps), in response to congressionally mandated studies, proposed that a series of dams be built along the Columbia River. The Bonneville Dam was the first dam to be built in accordance with the 

Corps of Engineers proposals. Construction of the Bonneville Dam inundated the 

tribes’ ancient fishing grounds and villages from the dam site to above The Dalles, 

Oregon. In 1939, a settlement agreement was reached between the tribes and the 

United States relative to the inundation of these places. This agreement was approved by resolution of the Warm Springs, Yakama, and Umatilla tribes in 1939 

and by the Secretary of War in 1940; it provided for the War Department to acquire 

approximately four hundred acres of lands at six sites along the Columbia River and 

install fishing and ancillary facilities to be used by tribal fishers. 

In 1945, Congress included in the Rivers and Harbors Act of 1945 an authorization to the Secretary of War to, ‘‘acquire lands and provide facilities in the States 

of Oregon and Washington to replace Indian fishing ground submerged or destroyed 

as a result of the construction of Bonneville Dam. . .and that such lands and facilities shall be transferred to the Secretary of the Interior for the use and benefit of 

the Indians, and shall be subject to the same conditions, safeguards, and protections 

as the treaty fishing grounds submerged or destroyed’’ (P.L. 79–14). An appropriation of $50,000 was authorized; this sum was increased to $185,000 in 1955. The 

legislative history indicates that the 1945 congressional authorization intended to 

implement the terms of the 1939 agreement. See House Report No. 1000, 78th Congress, 2nd Session; Senate Report No. 1189, 78th Congress, 2nd Session. 

There were numerous disagreements among and between the Corps, the Bureau 

of Indian Affairs (BIA), state and local governments, and the tribes regarding the 

acquisition and development of the sites. It took the Corps nearly twenty years to 

acquire five sites, totaling slightly more than 40 acres. Two sites were essentially 

the same as proposed in 1939 (Wind River; Underwood); three sites were different 

(Lone Pine; Cascade Locks; Cooks); and the sixth site (Big Eddy) was acquired but 

later subsumed by The Dalles Dam project. 

Over the years, other dams were built, destroying other treaty fishing grounds 

and villages, and other development occurred, leading to other fishing conflicts and 

restrictions. In 1973, as a result of litigation initiated after the Army Corps of Engineers proposed to alter the water levels of the pools behind the dams, a settlement 

order was entered by the U.S. District Court for Oregon. The judgment and order 

in that case, CTUIR v. Calloway, noted that the Secretary of the Army and the Secretary of the Interior agreed to propose legislation providing for the acquisition and 

improvement of additional sites and the upgrading of all sites to National Park 

Service standards. Legislation was forwarded to Congress in 1974, but no action was 

taken by Congress at that time. The BIA pursued similar legislation again in the 

early 1980s but failed to garner Administration support. 

During the late 1970s and 1980s several things occurred that influenced in-lieu 

site issues. As a result of the improvement in the fish runs in the mid-1980s, the 

pressure on the existing in-lieu sites and the need for improvements and additional 

access to fishing sites increased. Pressure on the existing in-lieu sites and other 

31 

public camping/boat launching sites also resulted from the increase in recreational 

activities along the Columbia River. In addition, between 1982 and 1986 numerous 

bills seeking to establish a Columbia Gorge National Scenic Area were considered 

by members of the Northwest congressional delegation. During consideration of the 

Gorge legislation, the tribes once again brought attention to the in-lieu site issue, 

specifically the fact that the tribes were still owed significant acreage for fishing 

sites from the 1939 agreement. Although the congressional delegation decided not 

to address the in-lieu site issue in the Gorge legislation, several offices indicated 

they would consider providing additional fishing access and support sites in the future (Senator Evans (R–WA) and Senator Hatfield (R–OR)). 

In 1987 and 1988, at the request of Senator Evans and the Senate Select Committee on Indian Affairs, the tribes identified a number of locations which could be 

suitable for additional access and support sites. All of these sites were already being 

used by tribal fishers. During hearings held before the Senate Select Committee in 

April 1988, representatives from the Corps of Engineers testified that the Corps required additional legislation before the Corps could provide the tribes additional 

sites along the Columbia. The 1988 legislation (P.L. 100–581) provided the Corps 

with the authority the agency suggested to the Select Committee at the hearing. 

SUMMARY OF P.L. 100–581

Public Law 100 581, Title IV Columbia River Treaty Fishing Access Sites was enacted in November 1988. The legislation has six major elements: § 401(a)—designates certain federal lands along the Columbia River between Bonneville and 

McNary dams to be administered to provide access to usual and accustomed treaty 

fishing places and other ancillary fishing activities for members of the Nez Perce, 

Umatilla, Warm Springs and Yakama tribes. 

§ 401(b)—requires the Corps of Engineers to (1) identify and acquire at least six 

additional sites adjacent to Bonneville Pool from willing sellers for the purpose of 

providing access and ancillary fishing facilities; (2) improve the designated federal 

lands and acquired lands to provide facilities for treaty fishing and ancillary activities and then transfer those lands and facilities to the Department of Interior for 

the purpose of maintaining the sites; and (3) make improvements at the five existing (original) in lieu sites. 

§ 401(c)—specifies that the Corps shall treat the costs of implementing the 

a§ 401(b)(2) (b)(3) as project costs of the Columbia River projects and allocate such 

costs in accordance with existing principles of allocating Columbia River project 

costs. 

§ 401(d)—authorizes appropriation of $ 2 million to acquire the Bonneville Pool 

sites from willing sellers. 

§ 401(e)—provides the Secretary of Interior with the right of first refusal to accept 

any excess federal lands adjacent the Columbia between Bonneville and McNary 

dams and notes the total acreage provided adjacent to the Bonneville Pool not exceed 360 acres. 

§ 401(f)—contains a savings provision to protect existing treaty and other rights. 

Several post authorization amendments have been enacted that modify the legislation. These amendments provide the Corps with flexibility on technical boundary 

adjustments at the § 401(a) sites, increase the authorization for appropriations to acquire sites in Bonneville Pool to $4 million, authorize the Corps to transfer capitalized funding for operations and maintenance to the BIA, and authorize the Corps 

to make improvements at Celilo Village. 

SITE IMPLEMENTATION ISSUES

Site Development and Planning 

The tribes, Corps, and BIA (the Task Force) met regularly from 1989–2011 to discuss and address various implementation issues. The construction of facilities occurred in incremental contracts, each issued for a set of sites (4–6 at a time) and 

taking approximately one year to complete. Conceptual site designs were developed 

in the early 1990s and the Corps obtained OMB budgetary authorization to proceed 

with implementation using cost estimates based on the conceptual designs. The 

Task Force refined these designs as construction proceeded based on cost, site constraints, cultural resources issues, and engineering feasibility as well as the tribes’ 

recommendations, fishers’ needs, and BIA input. 

Throughout the implementation process, the Task Force addressed various issues 

with a cooperative, government-to-government approach. Although there was some 

bureaucratic resistance initially, the cooperative approach proved to be effective for 

developing solutions to difficult issues. For example, as many of the new sites were 

located near historic fishing places, the Task Force had to address the potential for 

32 

impacts to cultural resources. The Task Force developed a cultural resources MOA 

that outlined various processes and considerations that respected the tribes’ concerns. Similarly, the Tribal Employment Rights Offices assisted the Task Force in 

developing tribal employment opportunities during site construction. 

The Corps completed construction at the sites in 2011. Facilities at the sites include access roads and parking areas, boat ramps and docks, fish cleaning tables, 

net racks, drying sheds, restrooms, mechanical buildings, and shelters. Six additional sites were acquired along Bonneville Pool from willing sellers; with the 5 

original in-lieu sites and the addition of one 401(a) (designated) site, there are now 

12 sites in Bonneville Pool totaling 189 acres. The acreage amount for all the sites 

is approximately 718 acres. The sites are located throughout the three-pool, 140- 

mile long, Zone 6 area. There are ten new treaty fishing launch facilities in Washington; the total number of sites with launch facilities in Washington is 12. There 

are six new launch sites in Oregon; the Oregon side did not have sites with launch 

facilities prior to P.L. 100–581. 

Operation and Maintenance Issues 

For all new treaty fishing access sites (those designated in the P.L. 100–581 legislation and those acquired by the Corps of Engineers) and for the new facilities at 

the original in-lieu sites, the legislation requires that the Corps transfer those sites 

and facilities to the Department of Interior ‘‘for the purpose of maintaining the 

sites.’’ There is a long history of inadequate funding to provide operation and maintenance and enforcement protection services at the sites. Faced with the prospect 

of having additional sites added to its administrative responsibilities without additional funding, the BIA sought to make the Corps responsible for funding the O&M. 

In 1994, the Corps refused to begin construction under P.L. 100–581 until BIA 

agreed to a transfer process for when the construction was completed, while the BIA 

refused to agree to a transfer process until Corps provided O&M funding. 

This impasse between the two agencies led to a meeting between the agencies and 

the tribes in September 1994. Both agencies were represented by key staff at the 

ASA level. The agencies agreed to work out a solution to the O&M issue and in 1995 

the Corps and BIA agreed to an interagency MOU for the Transfer, Operation, 

Maintenance, Repair and Rehabilitation of the Columbia River Treaty Fishing Access Sites (1995 MOU). The 1995 MOU sets forth procedures for effectuating the 

transfer of facilities, lands, and for provision of operations and maintenance funding. The intent of the plan was for the Corps to provide a lump sum of monies appropriated to it for each set of sites to be built and then transfer those monies to 

the BIA upon completion of construction. The amount of money needed was calculated under a capitalized cost basis, the assumption being that the BIA would invest the lump sum in an interest bearing account and thus have steady funding to 

maintain the sites for five decades. An amendment to P.L 100–581 (P.L. 104–109, 

Section 15, February 1996) provided the authority to transfer funds and property 

between the Corps and BIA. 

In a February 10, 1998 memorandum, the Department of the Interior Solicitor’s 

Office determined that BIA could enter into a contract under P.L. 93–638 with a 

tribal organization to assume certain BIA responsibilities for the sites constructed 

or rehabilitated pursuant to P.L. 100–581, including fund investment and administration, provided all four tribes named in that statute pass resolutions authorizing 

the tribal organization to enter such a contract. Eventually, after each tribe passed 

resolutions authorizing CRITFC to be the contractor, the CRITFC and the BIA entered into a 638 contract in 2003. 

The 1995 MOU did not pan out as intended as the BIA lacked authority to invest 

and generate interest earnings on the Corps-provided O&M funds. In addition, the 

original capital account for O&M Fund for the sites assumed that funds could be 

invested in federal securities at the then prevailing interest rate of approximately 

5 percent and that this investment scenario would provide a stream of revenues to 

cover annual O&M costs. These interest rate assumptions, which over a 30-year retrospective period appeared reasonably safe, did not hold true. Effective federal interest rates dropped below 2 percent in 2002 and later collapsed in 2008 and have remained wellbelow 1 percent since 2009. In addition, BIA expended principal from 

the capital account between 1998 and 2003 to cover annual O&M costs. By the time 

CRITFC assumed 638 contract responsibilities in 2004, BIA’s expenditure of the 

principal and fallen federal interest rates, had diminished the time horizon of the 

useful life of the initial capitalization. 

CRITFC assumed O&M responsibilities for the sites on January 1, 2004. The 

Commission’s objectives for O&M program are: (1) Invest the principal and earnings 

to maximize the time horizon over which the O&M can be provided for the sites; 

(2) Perform the O&M for the sites in a cost effective manner that also ensures they 

33 

are maintained in good condition; and (3) Provide for tribal member employment. 

The program employs seven CRITFC tribal members (Six fulltime) who conduct the 

operations and maintenance of the sites pursuant to approved annual budgets. The 

investment program is managed to maximize the time horizon for the funds provided, but given higher than anticipated levels of use and costs, current funding levels, lower than anticipated interest rates on federal securities, and financial constraints, staff projects the funds to be depleted between 2022–2023 which is approximately 20 years earlier than planned. 

CRITFC is working on options to extend the time horizon for the O&M funding. 

These options include the BIA placing the Treaty Fishing Access Sites on the Indian 

Affairs Facilities Management System/MAXIMO (IAFMA to provide access to annual federal facilities funding for these sites (the five original in-lieu sites are already on the BIA’s FMIS)). Another option is to supplement the O&M account with 

annual BIA appropriations. This would involve developing a BIA program and account for In-lieu and TFAS O&M funding. Both of these actions would be covered 

by the terms of CRITFC’s existing Self-Determination Act Agreement for O&M. See 

Section (b)(3)(B)(v) and (vi). 

An Assessment of needs 

The 31 In-Lieu and Treaty Fishing Access Sites are highly used, often exceeding 

their capacities and compounded by extended seasonal and year-round occupancy. 

The sites were designed in the early 1990s based on estimated use during the then 

existing commercial gill net seasons. In the early 1990s the primary commercial season was the fall gill net season, which ran for four to six weeks between September 

and October. Over the past twenty years, the salmon runs started on a road to recovery which has led to increases of salmon abundance in Zone 6 of the Columbia 

River and to increases in the numbers and durations of the commercial gill net seasons when Columbia River treaty tribal members can exercise their right to harvest 

salmon. The levels of use at the In-lieu and TFAS have increased accordingly and 

currently many sites are occupied and used for 18 to 20 weeks of the 22-week period 

between mid-May and mid-October each year. 

The increase in usage duration, 300 percent to 500 percent over initial estimates, 

is also tied to a similar increase is usage population, 300 percent to 470 percent, 

on most of the sites between mid-May through mid-October. The increase in duration, population, and use of the sites has naturally caused an increase in utility 

costs, i.e. water, sewer, electricity and garbage. O&M labor costs have also increased 

over the course of the 13 years that CRITFC has had the BIA 638 Self-Determination Act contract, not only because of the increased use but five TFAS were added 

since 2003, increasing the original number of sites from 26 to the 31 we have today. 

The increase in duration and population has led to eight out of twelve In-lieu and 

TFAS that have wells on them being identified by the Indian Health Service as Public Water Systems. These sites are: North Bonneville, Stanley Rock, Dallesport, 

Celilo, Maryhill, Pasture Point, and Roosevelt TFAS, and Cooks Landing In-lieu 

site. 

Site evaluations conducted in 2016 by CRITFC and the Yakama Nation found 17 

of the 31 sites with distressed conditions and the remaining 14 sites with specific 

unmet needs. These evaluations were based on several criteria including safety, 

health, sanitation, and existing utilities. Among the most common needs are water 

based; for example, wash stations, showers, and drinking water systems. There are 

multiple instances of need for additional restrooms and fire suppression infrastructure. Wastewater disposal and maintenance and garbage collection are also continuing concerns. Four of the five original in-lieu sites were constructed without regards to washing dishes or anticipating occupancy for more than a few days at a 

time. 

Major expenses and incidents that bear on the continued increase costs of maintaining the In-lieu and TFAS are: 

• Number of sites available; 

• Weeks of commercial gillnet seasons; 

• Population using the sites; 

• Periodic major clean-ups; 

• Fuel costs, utility costs; and 

• Other relevant increases or actions—SDWA Public Water System, Acts of vandalism. 

We would be pleased to share our analysis with the Committee upon your request. 

34 

Law Enforcement Issues 

While not directly addressed by S. 3222, public safety provided by a fully equipped 

law enforcement detail are needed at the 31 sites and especially so for the off-reservation Columbia River corridor where the tribes conduct significant fisheries on 

a nearly year-round basis. Over the years, there have been numerous jurisdictional 

issues relative to criminal and civil law enforcement by tribes, BIA, Corps of Engineers, and state and local departments. Questions of where tribal, state, and federal 

jurisdictions begin, end, or are concurrent are complicated and unsettled judicially 

and politically. 

In 1997, the Nez Perce, Umatilla, Warm Springs and Yakama tribes passed resolutions authorizing and supporting the Columbia River Inter-Tribal Fish Commission to contract with the BIA under P.L. 93–638 for the law enforcement services 

at the sites. The Commission’s law enforcement department, Columbia River InterTribal Fisheries Enforcement, has had a 638 contract with the BIA since the early 

1980s to provide fisheries enforcement services in Zone 6 for the four Columbia 

River treaty tribes. The Commission’s 638 contract submission, which included a 

scope of work based on a 1990 BIA proposal and would have provided 24/7 law enforcement coverage at the six sites on line at the time, was declined by the BIA due 

to lack of funding. Several subsequent attempts were similarly declined. Still, Columbia River Inter-Tribal Fisheries Enforcement officers continued to respond to 

calls but without dedicated contractual support from BIA could only address the 

most serious problems. 

In the early 2000s BIA assigned one or two uniformed officers to the Columbia 

River sites. Their presence was scarce, no one knew how to contact the officer(s) or 

BIA dispatch, the officers had little or no knowledge of the tribal fishing practices 

or treaty case law and little or no coordination with Columbia River Inter-Tribal 

Fisheries Enforcement. Tribal members knew how to contact Columbia River InterTribal Fisheries Enforcement dispatch and had rapport with Columbia River InterTribal Fisheries Enforcement officers. Tribal members and leadership became increasingly dissatisfied with the BIA enforcement services, or lack thereof. As the 

fishing access sites were developed and fish runs improved, the number of tribal 

fishers using the sites increased and site usage throughout the year increased. Consequently, law enforcement problems and calls increased. These increases, compounded by the limited and ineffective policing by BIA, added to the pressure on 

the capacity of CRITFC law enforcement. 

In September 2010, CRITFC submitted to the BIA another proposal to enter into 

a contract under Title I of the Indian Self-Determination and Education Assistance 

Act, P.L. 93–638 as amended, to assume BIA law enforcement responsibilities and 

associated funding for law enforcement in the area of the Columbia River, including 

law enforcement responsibilities for the sites named in P.L. 100–581 and P.L. 79– 

14. This proposal was again supported by tribal resolutions and was finalized in 

2011. 

In addition to law enforcement responsibilities, our officers are also taked with 

search and rescue duties. These incidents put extreme pressures on staffing and resources when operations extend over many days. Often when tragedies in the treaty 

fishery occur, families establish vigil camps that are occupied until the missing individual is recovered. This requires a constant security presence. At this point, 

CRITFC would have major challenges in conducting search and rescue operation 

and camp security at the same time. 

Currently, capacity allows for response to calls for service (reactive policing). 

There is very little capacity in terms of implementing problem-oriented policing and 

community-oriented policing (proactive prevention) strategies, at least in any comprehensive manner. CRITFC is specifically concerned about the crime types of violence, substance abuse, child welfare, and property crimes. In order to fully achieve 

the capacity of a modern policing service at the In-lieu and Treaty Fishing Access 

Sites, the annual funding need is approximately $942,000 (not including indirect 

costs). 

Our immediate priority is to add two Patrol officers, one Sergeant, one Investigator and one Dispatcher. Full funding for this Enforcement need is $943,000 which 

would support a total of four officers, one sergeant, an investigator and a dispatcher. 

I respectfully say again, S. 3222 does not explicitly address law enforcement but we 

wish to identify this critically important unmet need because of its direct relationship to public safety at the sites. 

In summary, through the combined efforts of the four Columbia River Treaty 

Tribes, supported by a staff of experts, we are committed to assisting our tribes and 

tribal members to exercise fully their treaty reserved rights to fish in all usual and 

accustomed places. We support S. 3222, the Columbia River In-Lieu and Treaty 

35 

Fishing Access Sites Improvement Act as means to ensure the treaty fishing sites 

are safe and sanitary. 

The CHAIRMAN. Thank you. Thank you all for your testimony. 

Just a couple of questions I wanted to start with. 

Chairman Clarke, the land currently owned in fee by the Tribe 

that will now be held in trust as a result of this legislation, will 

that be used for tribal gaming in the future. 

Mr. CLARKE. No, absolutely not. 

The CHAIRMAN. Thank you. 

Mr. Roberts, as you seem to acknowledge in your written testimony under S. 2636, the Department might be forced to acquire 

contaminated properties. The responsibilities and litigation that 

may flow from this could be costly. Are there other unintended consequences that you can see that might occur? 

Mr. ROBERTS. I think that is the primary concern of the bill, is 

if there was an environmentally contaminated piece of property. 

Those types of applications are few and far between; I don’t think 

we receive very many of those. I don’t think Tribes are necessarily 

purchasing those properties, but that is one thing that, as a technical matter, we’d like to work with the Committee on. 

The CHAIRMAN. Thanks. 

I am going to defer the rest of my questions and turn the time 

over to Senator Franken. 

Senator Franken, I am going to go and vote and then return, so 

feel free to expand on any questions you might have. 

Senator FRANKEN. Kill time? 

The CHAIRMAN. Well, inquire of the witnesses of all your curiosities. 

Senator FRANKEN. Okay. All right. 

[Laughter.] 

Senator FRANKEN. Kill time. No. 

Well, let’s talk about Carcieri, Assistant Secretary. By the way, 

I went to the groundbreaking on the Bug School, Bug-O-Nay-GeShig School and I want to talk to you about a matter regarding 

that privately. 

Mr. ROBERTS. Okay. 

Senator FRANKEN. It is good news. 

Mr. ROBERTS. Great. 

Senator FRANKEN. Under Carcieri, the BIA now has to verify 

that a Tribe was under Federal jurisdiction in 1934 as part of the 

land into trust acquisition process. Carcieri created a lot of uncertainty for Tribes partitioning to the place in the trust, and this is 

a problem for all Tribes, regardless of when they were federallyrecognized, because it further complicates and delays the trust acquisition process. 

Mr. Assistant Secretary, if all federally-recognized tribes were eligible to have land taken into trust, is it fair to say that that would 

simplify the trust acquisition process for both BIA and the Tribes? 

Mr. ROBERTS. Yes, it absolutely would. It would simplify the 

process and it would save valuable resources not only for Tribes in 

sort of providing all of this information, and provide information on 

a Carcieri analysis, but it would also save the Department valuable 

resources in being able to turn to other things that are important 

to Indian Country. 

36 

Senator FRANKEN. Thank you. As you know, State and local governments have concerns about tribal land acquisitions through 

land into trust process. The State and local governments are worried about losing taxable land. Is the BIA or the Interior Department conducting outreach to State and local governments on the 

importance for restoring tribal lands? 

Mr. ROBERTS. Thank you, Senator. Yes, we do. I meet fairly often 

with counties on fee-to-trust acquisitions, but we have also been 

working with the National Association of Counties, so the director 

of the Bureau of Indian Affairs, Mike Black, spoke at their conference earlier this year in terms of the fee-to-trust process. So that 

type of dialogue is very important. 

I will say that we have acted on over 2,000 applications during 

the course of this Administration. Very few of those actually get 

challenged or litigated. So we have acted on over 2,000 that we 

have actually taken into trust that are not subject to litigation, so, 

you know, while there are some decisions that we make that do get 

challenged, it is a small percentage of the overall application pool. 

Senator FRANKEN. So you would say the outreach is working? 

Mr. ROBERTS. Sure. We can always do more, and we invite that 

outreach, but I think it is working. I think it is working. We have 

had a lot of good conversations with some counties when they come 

in and want to meet with us on fee-to-trust issues and understand 

the process better, and we are grateful for the invitation from the 

National Association of Counties and we will certainly appear at forums like that more if invited. 

Senator FRANKEN. Since I have you here and since I have unlimited time, I did go to the groundbreaking for the Bug-O-Nay-GeShig School, and that is something we are very grateful to you for 

and to Secretary Jewell for the funds to be able to rebuild that 

school, but there are a whole bunch of schools in Indian Country 

that are not in good shape. What can you tell me about going forward in terms of being able to address that? 

Mr. ROBERTS. Sure. So that overall we have a crisis in terms of 

the condition of BIE schools. We have over 60 schools across Indian 

Country that are in poor condition, so while we were very thankful 

for Congress in terms of the appropriations to fix and build new 

schools like the Bug-O-Nay-Ge-Shig School, there are 60 other 

schools out there that are in similar circumstance and that need 

to be addressed. They need to be addressed in a time period where 

we don’t have Native kids going through their whole schooling in 

the same school. So it is a crisis and we need to address it through 

improved funding and looking at different ways of how we can 

make better use of the funds that Congress provides us. 

Senator FRANKEN. What do you mean by that? Give me an example. 

Mr. ROBERTS. Sure. So an example is looking at we have done, 

brick and mortar construction historically, and looking at new ways 

to see if we can do some offsite construction that is more timely, 

less expensive, but delivers results and provides a longevity for the 

school of 50-plus years. 

Senator FRANKEN. And that is what you are doing? 

Mr. ROBERTS. That is what we are looking at. With the Bug 

School, exactly. 

37 

Senator FRANKEN. That is what we are doing with the Bug-ONay-Ge-Shig School. 

Mr. ROBERTS. Yes. 

Senator FRANKEN. My interest is in Senator Tester’s bill. Does 

anybody here have some more comment on that? 

Mr. ALLEN. Yes. Senator, again, my name is Ron Allen. I am 

Chairman for the Jamestown S’Kallam Tribe in Washington State 

and representing the National Congress of American Indians. 

Regarding one of your points that you just mentioned with Secretary Roberts is the Tribes now become economic engines in their 

communities, so when we take land into trust, one of our agendas 

is to help provide better certainty and confidence about how we develop our reservation for the infrastructure and so forth to help us 

develop our economies. Because Congress can never fund the needs 

we have, we need to generate stronger economies, and we have. 

Without a doubt, you see the casino industry in many sectors of 

Indian Country, so all those jobs, a significant portion of them, are 

non-Indians and they don’t live on the reservation; they live off the 

reservation and they generate a tax base for those counties and 

States because of the homes they buy and things that they buy as 

employees of the Tribe. 

In many of these communities we are the biggest employer. So 

when we take land into trust, that small amount of revenue that 

the county might lose for a land base is being returned tenfold simply by the economies that we enhance and our governmental activities which we employ, Indians and non-Indians alike. So it makes 

a significant difference. 

And what is happening now over the last 20 years particularly, 

the governmental infrastructure of Tribes has gotten far more sophisticated with regard to land use and land management. So 

when we collaborate with counties with regard to land uses, it is 

easier for us to coordinate what they like to see used in lands in 

their area versus what we would use those lands for in terms of 

housing or economic development or for other kinds of infrastructure needs such as health clinics and schools, as you mentioned 

earlier. All those issues are important to our communities and we 

are making a difference. 

So they benefit from us by creating all these jobs and creating 

employment and dropping that unemployment factor down as well, 

and helping us become self-reliant governments. 

Senator FRANKEN. Certainly, housing is something that we have 

talked a lot about in this Committee and something that I think 

is absolutely crucial. We see so many situations in which there are 

housing shortages. Families end up living with other families and 

sometimes exposing young children to dysfunction that causes trauma. Housing is just one of the many pieces of the equation. 

Senator Tester, the Co-Chairman has returned. I was basically 

talking up your bill, is what I was doing. 

Senator TESTER. Somebody needs to do that, Al. Thank you. 

[Laughter.] 

Senator FRANKEN. Well, I’m not quite sure what the objections 

are. Where I did hear any objections, it seemed to be from Senators 

who are willing to work with you to make any fixes that need to 

be made. 

38 

Senator TESTER. [Presiding.] Well, Senator Franken, as you well 

know, part of the sausage-making around here on bills is this hearing and then figuring out common ground, figuring out where you 

slice the pie to make sure that everybody can win. I look forward 

to working with the Chairman and anybody on both sides, and our 

Native American friends, to make sure that when we get done we 

have something that actually makes it better, because I really do 

think that the issues that revolve around land going into trust are 

overcomplicated right now, and we can do better. 

Senator FRANKEN. Well, the Chairman has left to vote. 

Senator TESTER. Yes. So it’s my turn? 

Senator FRANKEN. Well, you are ranking right now. 

Senator TESTER. Okay, good. 

Senator FRANKEN. You can decide. 

Senator TESTER. All right. We will carry on, Al. 

Senator FRANKEN. Okay. 

Senator TESTER. Thank you very much. 

And we will just kind of go on the same line of checkerboarding 

in jurisdictions, and I am going to start with you, Larry. I don’t 

know that I ever heard the term fractionalization as it applied to 

land until I got on this Committee. It is a complicated issue. I don’t 

think any of us fully understand the impacts. Hopefully, you do, 

Larry, and hopefully there are others that do. But could you explain specifically what the problems are with checkerboarding and 

fractionalization, and why it undermines a government’s ability to 

provide services to their citizens? 

Mr. ROBERTS. Thank you, Senator. The easy answer is that there 

is no clarity or certainty, so you have tribal citizens and non-citizens living within an Indian reservation and no one is quite sure 

what rules apply because it depends on whether they are a tribal 

member and whether they are on fee land or trust land. 

So if you have law enforcement responding to a situation, for example, they need to know, under the current rubric, whether they 

are dealing with tribal members or non-members and where the 

parcel is located. So it is something that Congress, when it enacted 

the IRA and stopped the alienation of Indian lands, they should 

have also done something like your bill, because it is literally restoring tribal homelands within existing reservation boundaries. 

Senator TESTER. Okay. The good senator from Oklahoma brought 

up the fact that Oklahoma is a little different because it sounded 

like some Tribes that own parts of the same parcel of land. I don’t 

know Oklahoma; you do. Are there any reservations like in Oklahoma or others that pose specific problems that this bill could address? 

Mr. ROBERTS. So what we would look to for Tribes in Oklahoma, 

let’s say, where a number of Tribes share ownership in a trust parcel, or we take land into trust for multiple Tribes, usually there is 

specific legislation for that Tribe or Tribes governing that. 

Senator TESTER. Right. 

Mr. ROBERTS. I don’t see your bill as changing that; we would 

still follow that specific legislation. So if, for example, you know, 

legislation provided that if a Tribe purchased property within the 

reservation with its own funds but it is to be jointly governed by 

all three Tribes on the reservation, we would follow that specific 

39 

congressional directive, but we would take the land into trust for 

those Tribes. So it would be a mandatory acquisition; we wouldn’t 

be changing the framework of specific legislation with regard to 

those particular Tribes. 

Senator TESTER. Got you. Okay. Today we heard that there is a 

backlog in applications in front of the Department. Just to flush 

that out a little bit, how many on-reservation applications are 

pending right now? 

Mr. ROBERTS. So, overall, we have just shy of 1,200 applications 

pending across Indian Country, both on-reservation and off-reservation. Roughly 950 of those are on-reservation, so the vast majority of those just under 1,200 are on-reservation. And when you 

put it in context of an Administration that has prioritized restoring 

tribal homelands over the last eight years, we have acted on 2,200 

applications, and that is with this Administration prioritizing it. So 

with 1,200 hanging out there in the balance, you know, you are 

looking at, you know, years to clear that. 

One other point on this is just even the simplest application, 

even the application that is, let’s say, no change in use for agriculture, nobody cares about it, right now, under our current process, it takes about a year to get through. 

Senator TESTER. Okay. As you know, Larry, and probably the 

whole panel does, I come from Montana. Those are large landbased Tribes up there. I think that the checkerboard fractionization 

issue is a huge issue for those large land-based Tribes. When my 

friend, Chairman of the Crow Reservation, Carl Van, was alive and 

I had just gotten into this job, he told me, you give me the tools 

that I need to work with and then get out of the road and let me 

go. 

Two questions. First of all, do you see this as a tool that would 

help Tribes with their self-determination, with their sovereignty, 

and with their ability to serve their citizens? 

Mr. ROBERTS. Absolutely. 

Senator TESTER. And the second issue is, and this is an education from me since I come from a State with large land-based 

Tribes, would it benefit the smaller reservations, or do they not 

have to deal with these issues? 

Mr. ROBERTS. No, there are Tribes with small reservations that 

have these same issues, and I guess the one thing about your bill 

and the one thing about our current regulations is that we treat 

as on-reservation acquisitions those lands that are contiguous to 

existing reservation boundaries. So for those Tribes that have, say, 

a small reservation and they seek to have land placed in a trust 

that is contiguous to their existing reservation, we treat that as onreservation now. 

Senator TESTER. Okay. 

Just one question for Dr. Clarke, since the Chairman is back. 

You mentioned that the Tribe is dependent on groundwater resources, limited groundwater resources. Could you explain how this 

water settlement is going to improve your Tribe’s ability to better 

utilize water resources? 

Mr. CLARKE. Well, currently, at this time, we do not have the 

water to build homes at Peach Springs. In Peach Springs alone, I 

talked to the housing director just recently and I asked him how 

40 

many homes can we build right now, and he said currently we are 

at zero because we do not have the water at Peach Springs. 

In doing so, taking the water from the Colorado River up to 

Peach Springs and on out to Grand Canyon West, that will help in 

building homes, building economy, building jobs, and looking at the 

future of the Hualapai Tribe. And the reasons all behind that is because we do not have the water, the water infrastructure. Down in 

the Truxton Aquifer, that is depleting as we speak today, and every 

year that we utilize that water in Truxton Aquifer, the water levels 

are going down. So that would help us. 

Senator TESTER. You been able to map how quickly they have 

been dropping? 

Mr. CLARKE. Pardon me? 

Senator TESTER. You been able to map how quickly those water 

levels have been dropping? 

Mr. CLARKE. Currently, I believe there have been studies happening there. There have been many studies on other groundwater 

that, it is showing that we do not have that sufficient amount. 

Senator TESTER. Got you. 

One last question. I lied. 

Ron Allen, it goes back to my land into trust bill. All acquisitions 

tend to be grouped together, whether the parcels are located within 

the reservations or outside the reservation borders. I think they get 

an undeserved rap, but I want to know from your perspective 

whether on-reservation acquisitions are typically controversial. 

Mr. ALLEN. From my perspective, no, they are not controversial. 

If the Tribe acquires the property within the reservation, for the 

most part, citizens who live inside a reservation border know about 

the Tribe’s jurisdiction and authority. If the Tribe takes over a 

property, whether it is 100 acres or 300 acres, whatever it is, then 

it helps clean up and clarify the jurisdiction. 

So it really is in the interest of the local governments because 

of the clarity of the jurisdiction with regard to the tribal reservation, and it helps the Tribe in terms of providing better infrastructure. I don’t care whether it is roads or whether it is water, wastewater, telecommunication systems, so that we can serve the whole 

reservation in a more effective way. 

So it serves the local communities as much as it does the tribal 

community from all aspects. As I mentioned to Senator Franken, 

we need homes, we need economic development. We need to be able 

to build better schools, better health clinics, better hospitals, and 

we need to have the infrastructure to accomplish that. By acquiring 

those properties and including a consistency for the whole reservation, it improves that situation for the Tribe and the surrounding 

community. So we don’t think it is controversial. 

And one other point is our governmental infrastructure is much 

stronger today than it was 20 years ago, so our land use management is much more sophisticated; building codes and health codes 

and so forth. So it just improves our relationship and people’s confidence about the activity that goes on within a reservation border. 

Senator TESTER. Okay, thank you. 

Thank you all for your testimony, and I will apologize only that 

it is not really our fault that the hearing got held during some 

votes and it made this a little bit dysfunctional. But I think the 

41 

Chairman did a great job of keeping the ball rolling. So thank you 

all and thank you, Mr. Chairman. 

The CHAIRMAN. [Presiding.] Well, thank you. Thanks for the 

questions. I have just a couple other questions. 

Mr. Roberts, your written testimony acknowledges that S. 3216, 

that that bill would promote self-determination and self-governance 

and support positive collaboration among Tribes and the Federal 

Government. It would also clarify what I think is a muddled jurisdictional system. Your written testimony suggests that, if enacted, 

it could have funding implications as current funding streams to 

existing Tribes can’t be reduced in order to make funds available 

for the Tribe. 

Could you talk about what cost you anticipate would be associated if we enact S. 3216? 

Mr. ROBERTS. So thank you for the question, Chairman. I believe 

that if the bill for repealing the Iowa Act, that is the bill you are 

asking about, Senator? 

The CHAIRMAN. Yes. And I am going to ask Mr. Jefferson a follow-up question. 

Mr. ROBERTS. Yes, I think that there would be. We do identify 

that there would be a cost. I think it would be relatively small. I 

don’t have that information today, but it is something that I would 

be happy to provide the Committee. 

The CHAIRMAN. So, Mr. Jefferson, you explain in your written 

that the Sac and Fox Tribe operates and maintains a fully functional criminal justice system, that the Tribe has its own robust 

legal code, a police department, a court system, a full-time prosecutor and a probation officer, correct? 

Mr. JEFFERSON. Yes. 

The CHAIRMAN. And that the Department of the Interior supports S. 3216, but said there may be associated funding implications. So if S. 3216 is enacted, does the Tribe plan to maintain operations of its criminal justice system, or would you then be reliant, 

instead, on the Bureau of Indian Affairs to operate the criminal 

justice system? Because it matters in terms of the cost. 

Mr. JEFFERSON. We plan on continuing to fund it ourselves and 

keep it the way it is now. 

The CHAIRMAN. Great. Okay, thank you. 

And then, Mr. Roberts, one last question on the Reservation 

Land Consolidation Act. That would eliminate several requirements in the review process that currently exists for both on-reservation discretionary and mandatory trust acquisitions. These 

processes are truncated in such a manner that they may prevent 

Tribes and all other stakeholders from commentating on and perhaps even learning about an acquisition until the final decision has 

been made, and I know we all want to avoid that. The secretary 

could also lack the ability to consider other interests, including 

other tribal interests over the land. 

So has the Administration kind of taken a look at that in terms 

of this could potentially, and I know we are trying to avoid it, potentially pit one Tribe against another, and could that undermine 

some tribal rights? 

Mr. ROBERTS. Thank you, Chairman, for the question. So for onreservation acquisitions under our current regulations, there are 

42 

very few, I am not aware of any instances that come to mind where 

one Tribe is challenging another Tribe’s on-reservation acquisition 

itself, so I think it is very rare. In our regulations themselves for 

the Tribe whose reservation it is, if another Tribe were to seek land 

into trust in that primary Tribe’s reservation, that Tribe whose reservation it is has to consent to that acquisition from an outside 

Tribe. So I don’t think that that would change under the bill being 

considered today. 

The CHAIRMAN. Well, thank you. 

If there are no other questions, Senator Tester, I think that other 

members may who had to get called away to vote and to other obligations, they may submit follow-up written questions. 

The hearing record is going to be open for two weeks. I appreciate all your patience in the give and take and back and forth to 

vote. I want to thank all of you for your time, your testimony. 

The hearing is adjourned. 

[Whereupon, at 3:48 p.m., the Committee was adjourned.] 

(43) 

A P P E N D I X 

PREPARED STATEMENT OF HON. GARY BURKE, CHAIRMAN, BOARD OF TRUSTEES, 

CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION

On behalf of the Confederated Tribes of the Umatilla Indian Reservation (CTUIR), 

thank you for allowing me to submit this statement of support for S. 3222, introduced by Senator Jeff Merkley. 

Pursuant to the 1855 Treaty of Walla Walla, the Cayuse, Umatilla and Walla 

Walla tribes (now the CTUIR) ceded to the United States more than 6.4 million 

acres in what is now northeastern Oregon and southeastern Washington. Those cessions were made while the tribes retained the Umatilla Indian Reservation as a permanent homeland. The Treaty of 1855 further reserved CTUIR perpetual rights to 

fish, hunt, and gather traditional foods and medicines throughout the its traditional 

use lands, including along the Columbia River. These rights—particularly those to 

fish along the Columbia River—remain fundamental to our culture and subsistence. 

Since time immemorial, our families have fished, hunted and gathered at all 

usual and accustomed places along the Columbia River. In the spring the tribes 

gathered along the Columbia River at places like Celilo Falls to fish for salmon and 

engage in a robust trade of goods with other tribes. They dried the salmon and 

stored it for later use. In late spring and early summer they traveled from the Columbia to usual and accustomed areas throughout our ceded territory to hunt and 

gather foods and medicines.. In late summer they traveled to the upper mountains 

to hunt and gather in preparation for the winter months. In the fall the tribes would 

return to the lower valleys and along the Columbia River again to catch the fall 

salmon run. All would stay in winter camps in the low regions until spring when 

the whole cycle would start all over again. 

In the mid-20th Century, however, the Federal Government constructed multiple 

dams along the river, inundating tribal fishing sites and villages. This impacted 

treaty-protected access to historic fishing grounds, tribal economies and displaced 

tribal fishing families that lived along the Columbia River. 

In Public Law 100–581, Congress authorized the U.S. Army Corps of Engineers 

to rehabilitate the five existing In-Lieu sites and to acquire and construct new inlieu treaty fishing access sites (‘‘TFAS’’) along the Columbia River to further the 

mitigation promised in the 1930s to the tribes for sites lost by construction of Columbia River dams and subsequent inundation by the river. 

In 1995 an agreement was reached between the Corp and BIA that, among other 

things, provided that once the TFAS were completed they would be placed on the 

BIA inventory of federal lands, and be designated as eligible to receive O&M funds. 

To date, the BIA has not placed these sites on the federal inventory and existing 

funding provided by the Corps is not sufficient to address basic maintenance needs 

at the sites. As a result, TFAS sites are dilapidated, unsafe and fail to meet basic 

sanitary standards. 

S. 3222, introduced by Senator Merkley, would call upon the Bureau of Indian Affairs to assess the current sanitation and safety conditions at Bureau-owned facilities that were constructed to provide treaty tribes access to traditional fishing 

grounds. The bill recommends expenditures as necessary for actions that would improve sanitation and other infrastructure such as water and sewer for the sites. 

The basic TFAS improvements called for in this legislation would be a welcome 

step toward fulfilling the Federal Government’s treaty obligations to Columbia River 

tribes. The Confederated Tribes of the Umatilla Indian Reservation strongly support 

S. 3222. We thank the Committee for holding today’s hearing on the bill, and recommend its timely passage. 

44 

PREPARED STATEMENT OF THEODORE C. COOKE, GENERAL MANAGER, CENTRAL

ARIZONA PROJECT (CAP) 

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

name is Theodore C. Cooke, General Manager of the Central Arizona Project (CAP). 

I previously sent a letter dated September 8, 2016 to Chairman Barrasso and ViceChairman Tester indicating that S. 3300, the Hualapai Tribe Water Rights Settlement Act of 2016, has the unanimous support of the Board of Directors of the Central Arizona Water Conservation District (CAWCD). 

This testimony addresses specific concerns raised by Acting Assistant Secretary 

of the Interior, Lawrence Roberts, in the Department’s written testimony: 

The settlement would be the first in Arizona that includes CAP water but does 

not use any portion of the CAP operating system for water deliveries to the Reservation. Despite lack of use of the system, S. 3300 would obligate the Tribe 

to pay the CAP fixed OM&R charges for all water deliveries. Under such an 

arrangement, water delivered to the Reservation would incur two OM&R 

costs—the fixed CAP OM&R charge and the Tribe’s own Project OM&R costs. 

The Department does not support this ‘double charge’ for water deliveries. 

I. Unrelated Costs 

In our assessment, the Department of Interior’s assertion of a ‘‘double charge’’ creates an incorrect linkage between the CAP Fixed OM&R charge, and costs incurred 

by the Tribe past the point of delivery. Virtually all recipients of CAP water incur 

additional costs associated with the use of CAP water, whether it is an irrigation 

district that must maintain lateral canals to receive CAP water, or municipalities 

that must treat the water before delivering it to their customers. The relevant question in this context is simpler: ‘‘Should the Tribe be required to pay CAP Fixed 

OM&R charges even though the supply is not delivered through the CAP system?’’ 

The answer to that question does not hinge in any way on the OM&R costs for the 

Tribe’s delivery system. 

II. CAP Charges 

As background, delivery of CAP water to non-federal recipients is contingent upon 

the payment of three charges: (1) capital charges; (2) Pumping Energy Charges; and 

(3) Fixed OM&R Charges. 

Capital charges that are collected by CAWCD are applied to repayment of the 

non-federal portion of the construction costs of the CAP. The federal portion of construction costs is non-reimbursable and is excluded from CAWCD’s repayment obligation. Therefore, CAWCD does not collect capital charges from the Tribes, nor has 

CAWCD required the Hualapai pay capital charges in this settlement. 

Pumping Energy Charges are collected to recover CAWCD’s costs for the generation, acquisition, and transmission of the energy necessary to deliver CAP water 

each year. The Pumping Energy Charge is a variable cost of CAP water delivery 

that is dependent on a number of factors, such as total water delivered through the 

CAP system, the amount of energy CAWCD must purchase on the wholesale energy 

markets, and the cost of any purchased energy. CAWCD then collects Pumping Energy Charges based on the volume of water any entity receives through the CAP 

system. Pursuant to the settlement, the Tribe would pay Pumping Energy Charges 

only for CAP water delivered through the CAP system, but not for CAP water that 

is delivered through the Hualapai Tribe Water Delivery Project. 

Fixed OM&R Charges are collected by CAWCD to recover the costs of operating 

the CAP. As the name indicates, these charges are based on costs that are incurred 

by CAWCD to provide for the operation, maintenance, and replacement of the CAP 

system, and they do not vary with the volume of water delivered. CAWCD is obligated to maintain the CAP system as set forth in its O&M Transfer Agreement with 

the United States (Contract No. 7–07–30–W0167, dated August 5, 1987). The calculation of the Fixed OM&R Charge is defined in the 1988 Master Repayment Contract and the November 21, 2007 Repayment Stipulation between the United States 

and CAWCD. Pursuant to the terms of individual water delivery contracts, all recipients of CAP water are obligated to pay the Fixed OM&R Charge. 

III. Project Water 

The Repayment Stipulation states that Fixed OM&R Charges are applied to each 

acre-foot of Project Water. Project Water is defined to include all Colorado River 

water to which Arizona is entitled under Arizona v California, less the volume used 

by Arizona Main Stream users with senior or equal priority water right to the CAP. 

There is no dispute that the Colorado River water used for the settlement of the 

Hualapai Tribe’s water rights claims is part of the Project Water supply available 

45 

to CAP. Specifically, the supply is part of the 650,724 acre-foot volume under longterm contract to Arizona Indian tribes or available to the Secretary for allocation 

to Arizona Indian Tribes pursuant to the landmark Arizona Water Rights Settlement of 2004. Among other things, that settlement helped to resolve disputes between the United States and CAWCD over the allocation of CAP water to federal 

and non-federal interests (see P.L. 108–451, § 104(c)(1)(A)). CAWCD’s right to 

Project Water is not dependent on the use of the CAP system per se, so if CAP water 

is used for this settlement or for the settlement of the water rights claims of any 

other Arizona Indian tribe, that water is subject to the payment of Fixed OM&R 

Charges. 

IV. Hualapai Acceptance of CAP Fixed OM&R Charge 

Perhaps most important to the resolution of this issue is that, as Hualapai Chairman Clarke makes clear in his supplemental testimony, the Hualapai Tribe Water 

Rights Settlement Act of 2016 is a ‘‘negotiated package with reciprocal concessions.’’ 

Since the earliest days of these negotiations, CAWCD has conditioned its acceptance 

of a settlement upon the payment of Fixed OM&R by the Tribe regardless of the 

water delivery system used to deliver that CAP water. While the United States 

might prefer to exempt the Tribe from paying fees that every other user of the CAP 

system must and is contractually obligated to pay, the Tribe has expressed understanding for this necessity and agreed to do so since the earliest days of these negotiations. 

V. Impact of Non-Payment 

Fixed OM&R costs are, as the name implies, fixed costs that must be paid by 

someone. If the CAP water allocated and delivered to the Tribe did not incur Fixed 

OM&R Charges, those charges would increase for all other CAP users. 

Among the users affected by these increased costs are the other Arizona Indian 

Tribes receiving CAP water. Approximately half of the long-term contracts for CAP 

water are held by tribes and thus half of the increase in Fixed OM&R Charges 

would be borne by those tribes. The other half of that increase would be borne by 

non-federal recipients. Neither the tribes, to which the United States holds a trust 

responsibility, nor the non-federal recipients are parties to this settlement nor have 

any of those parties been consulted on the increases to Fixed OM&R that would be 

a consequence if the United States’ position were adopted. 

We appreciate the opportunity to submit this supplement to the Committee. 

PREPARED STATEMENT OF DAVID ROBERTS, ASSOCIATE GENERAL MANAGER, WATER

RESOURCES, SALT RIVER PROJECT (SRP) 

Dear Chairman Barrasso and Vice Chairman Tester: 

My name is David Roberts and I am the Associate General Manager of Water Resources at the Salt River Project (SRP), a large multi-purpose federal reclamation 

project embracing the Phoenix, Arizona metropolitan area. I am writing to express 

SRP’s support for S. 3300, the Hualapai Tribe Water Rights Settlement Act of 2016, 

which authorizes the Hualapai Tribe Water Rights Settlement Agreement among 

the Hualapai Tribe, the United States and neighboring Arizona water users, including SRP. 

SRP has a history of negotiating and settling Indian water rights disputes in Arizona including five settlements that have been approved by Congress. Over the past 

four decades, SRP has worked with numerous tribes and stakeholders to resolve Indian water rights disputes in a manner that benefits both Indian communities and 

their non-Indian neighbors. Most important among the benefits is water supply certainty, which is a fundamental outcome of any water rights settlement. 

SRP is comprised of the Salt River Valley Water Users’ Association (‘‘Association’’) 

and the Salt River Project Agricultural Improvement and Power District (‘‘District’’). 

Under contract with the Federal Government, the Association, a private corporation 

authorized under the laws of the Territory of Arizona, and the District, a political 

subdivision of the State of Arizona, provide water from the Salt and Verde Rivers 

to approximately 250,000 acres of land in the greater Phoenix area. Over the past 

century, most of these lands have been converted from agricultural to urban uses 

and now comprise the core of metropolitan Phoenix. 

The Association was organized in 1903 by landowners in the Salt River Valley to 

contract with the Federal Government for the building of Theodore Roosevelt Dam, 

located some 80 miles northeast of Phoenix, and other components of the Salt River 

Federal Reclamation Project. SRP was the first multipurpose project approved under 

the Reclamation Act of 1902. In exchange for pledging their land as collateral for 

the federal loans to construct Roosevelt Dam, which loans have long since been fully 

46 

repaid, landowners in the Salt River Valley received the right to water stored behind the dam. 

In 1905, in connection with the formation of the Association, a lawsuit entitled 

Hurley v. Abbott, et al., was filed in the District Court of the Territory of Arizona. 

The purpose of this lawsuit was to determine the priority and ownership of water 

rights in the Salt River Valley and to provide for their orderly administration. The 

decree entered by Judge Edward Kent in 1910 adjudicated those water rights and, 

in addition, paved the way for the construction of additional water storage reservoirs by SRP on the Salt and Verde Rivers in Central Arizona. 

Today, SRP operates the Project works, which include, among other things, six 

dams and reservoirs on the Salt and Verde rivers in central Arizona, and one dam 

and reservoir on East Clear Creek in northern Arizona. Water is stored by SRP in 

these reservoirs for subsequent delivery to municipal, industrial and agricultural 

water rights and uses. The watersheds for these dams include part of several national forests. SRP’s delivery system in the metropolitan Phoenix area encompasses 

1,300 miles of canals, laterals, ditches and pipelines serving cities, Indian communities, irrigation districts, homes and agricultural enterprises. Additionally, SRP operates over 250 deep well pumps to supplement surface water supplies available to 

the Phoenix area during times of drought. 

SRP holds the rights to water stored in the seven Project reservoirs, and to the 

downstream uses they supply, pursuant to the state law doctrine of prior appropriation, as well as federal law. Much of the water used in the Phoenix metropolitan 

area is supplied by these reservoirs. SRP also operates one of the nation’s largest 

public power systems, providing electrical power to more than 1,000,000 customers 

in the Phoenix area, and in certain rural areas of central Arizona. 

The Hualapai Tribe’s Reservation is located upgradient from and adjacent to the 

Colorado River, in northwestern Arizona. A portion of the Reservation is located in 

the extreme upper end of the Verde River watershed, upstream from SRP’s Verde 

River water rights. The United States, acting on behalf of the Tribe, has asserted 

claims in the pending Gila River Adjudication, to 14,495 acre-feet of water annually 

from the Verde River watershed. 

Over the past four years, SRP and other interested stakeholders have engaged in 

water rights settlement negotiations with the Hualapai Tribe. With the exception 

of an exhibit agreement among the United States and Freeport Minerals Corporation (FMC), which we understand is still in the process of being negotiated, the 

terms of the Hualapai Tribe Water Rights Settlement Agreement have been agreed 

to and finalized. SRP supports the portions of the settlement agreement that have 

been completed and urges the Senate Indian Affairs Committee to vote in favor of 

enactment of S. 3300. 

The Hualapai Tribe Water Rights Settlement Agreement would, among other matters, permanently resolve the claims of the Tribe and the United States on its behalf 

to the Verde River watershed, and would do so without impacting SRP’s downstream Verde River water rights. The settlement agreement also resolves the 

claimed rights of the Tribe to the Colorado River, as well as the Bill Williams River, 

tributaries in the Bill Williams River watershed, and groundwater for the Reservation and tribal trust lands. Finally, the settlement resolves claims by the Tribe to 

water rights for certain lands held in fee by the Tribe. 

Because the Hualapai Tribe Water Rights Settlement Agreement would achieve 

the important objective of providing certainty to neighboring Arizona water users 

regarding the extent of the Tribe’s water rights, and because we believe its terms 

are fair and equitable to the Tribe and the other settling parties, SRP supports S. 

3300, which would authorize the Tribe, and the United States on its behalf, to enter 

into the settlement agreement. We appreciate the opportunity to present these 

views to the Senate Indian Affairs Committee. 

PREPARED STATEMENT OF THE STOCKBRIDGE-MUNSEE COMMUNITY, BAND OF

MOHICAN INDIANS

Introduction 

On September 14, 2016, the Senate Committee on Indian Affairs held a legislative 

hearing on a number of bills, including S. 2636 (the ‘‘Reservation Land Consolidation Act of 2016’’). As currently drafted, S. 2636 would amend the Indian Reorganization Act of 1934, 25 U.S.C. § 465 (‘‘IRA’’) to provide that if a federally-recognized 

Indian tribe submitted an application to the Secretary of the Department of the Interior (‘‘Secretary’’) to have tribally owned lands that are wholly located within that 

tribe’s reservation taken into trust, the Secretary, subject only to Federal land acquisition title requirements applicable to federal acquisitions of land, must immeVerDate Mar 15 2010 10:51 Jan 24, 2017 Jkt 023558 PO 00000 Frm 00050 Fmt 6601 Sfmt 6621 S:\DOCS\23558.TXT JACK
47 

1 In 1972, pursuant to PL 92–480, Congress directed 13,077 acres of land within the Tribe’s 

original reservation to be placed into trust. Accordingly, despite the existence of the IRA for over 

70 years and its strong policy to reacquire lost lands in trust status for tribes, over seventyfive percent (75 percent) of the Tribe’s current trust land holdings were acquired not through 

the IRA, but through this specific Congressional action. 

diately take such lands into trust. S. 2636 would also provide that ‘‘where there has 

been a final judicial determination that a reservation has been disestablished or diminished, the term ’reservation’ means the area of land constituting the former reservation’’ of the tribe. 

This bill is of critical importance to the Stockbridge-Munsee Community (the 

‘‘Tribe’’) and the Tribe strongly supports it. S. 2636 would finally fulfill the promises 

of the IRA and enable the Tribe to reacquire lost lands within its original reservation boundaries in a timely and cost effective manner. As explained below, in the 

70-plus years since enactment of the IRA, the Tribe has reacquired in trust only 

a small fraction of its reservation lands pursuant to the IRA. The Tribe’s few trust 

land holdings are scattered throughout the reservation and as a result, the Tribe 

faces tremendous jurisdictional issues and challenges to its ability to provide governmental services to its members. Moreover, each trust acquisition is invariably 

challenged by local municipalities, and even though these claims are eventually dismissed, it is only after significant delays and costs to the Tribe. Requiring the Secretary to immediately acquire such onreservation lands into trust would allow the 

Tribe to finally reacquire its lands timely and efficiently, and would eliminate jurisdictional issues that continue to plague the Tribe. 

The Tribe respectfully submits this written testimony for the record of the Senate 

Committee on Indian Affairs’ ‘‘Legislative Hearing to Receive Testimony on the Following Bills: S. 2636, S. 3216, S. 3222, S. 3300.’’ The Tribe’s testimony is limited 

to S. 2636. 

Background 

IRA 

In response to the devastating effects of the General Allotment Act of 1887 which 

resulted in the loss of over 80 million acres of Indian lands, Congress enacted the 

IRA in 1934. Its clear objective and purpose was to reverse the allotment policy and 

to reacquire lands for tribes. Securing meaningful tribal land bases would allow 

tribes to provide permanent housing to their members, create opportunities for economic development and exercise selfdetermination. Unfortunately, despite the IRA’s 

important objectives, only a small percentage of Indian lands have been reacquired. 

Tribe 

The Stockbridge-Munsee Community was originally located on its ancestral lands 

in and around the Hudson River Valley in New York. However, through a series 

of forced removals over the span of several decades, the Tribe was eventually relocated to Wisconsin in the 1820s. 

The Tribe’s current reservation in Wisconsin was originally established pursuant 

to two 1856 treaties and consisted of two townships totaling more than 46,000 acres. 

After the reservation proved unsuitable for agriculture, Congress passed a series of 

acts in 1871 and 1906 to assist the Tribe in finding alternative lands. In spite of 

these acts, the Tribe remained on its reservation for 160 years and during this time, 

the United States treated all of these lands as the Tribe’s reservation for all purposes. 

In 2004, the United States District Court for the Eastern District of Wisconsin 

ruled that the 1871 and 1906 Congressional Acts diminished and disestablished the 

Tribe’s reservation. The U.S. Court of Appeals for the Seventh Circuit affirmed that 

decision in 2009. 

As a result, the Tribe’s existing reservation—once more than 46,000 acres—now 

consists of a mere 17,000 acres of trust land. Since 1937, the Secretary has placed 

only approximately 1,650 acres in trust for the Tribe pursuant to the IRA. 1 Expressed as a percentage, in the last nearly 70 years since the enactment of the IRA, 

the Tribe has reacquired in trust status less than four percent (4 percent) of its 

original reservation lands. 

Clearly, the intent of the IRA has not been fully realized. As a result, the Tribe 

continues to experience jurisdictional challenges and unnecessary delays in its efforts to reacquire its lands pursuant to the IRA. We believe S. 2636 will resolve 

these issues and allow the Tribe and the Secretary to finally achieve the goals and 

objectives of the IRA. 

48 

Current Fee-to-Trust Process and Problems 

The Tribe currently has twenty-seven fee-to-trust petitions for approximately 

1,983 acres pending with the Department of the Interior. All of these petitions are 

for lands located within the Tribe’s original reservation boundaries. Over the last 

two decades, the Tribe has spent millions of dollars to acquire its former lands. It 

currently owns 7,522 acres of fee land within the reservation and pays approximately $200,000 in property taxes each year on such lands. 

The last time the Secretary placed land into trust for the Tribe was in 201 1. The 

Tribe filed the petition for approximately 404 acres in 2000—over a decade before 

it was taken into trust. The decade-long process was the result of the discretionary 

nature of the acquisition, the slow bureaucratic process at the Bureau of Indian Affairs, as well as appeals brought by the surrounding County of Shawano (‘‘Shawano 

County’’ or ‘‘County’’). Unfortunately, the untimeliness of this particular trust acquisition is not unique—in fact, it is the norm. 

For many years, Shawano County has had a standing resolution to oppose all feeto-trust petitions of the Tribe as well as decisions by the Secretary to take land into 

trust. Although the County has since withdrawn its resolution, it continues to challenge every favorable trust acquisition decision. Currently, there are two bundled 

applications under appeal with the Assistant Secretary—Indian Affairs. The first 

application has been pending for approximately nine years and the second has been 

pending for almost six and a half years. It is important to point out that despite 

the County’s challenge to each discretionary trust acquisition decision, no favorable 

decision has been overturned. 

Like virtually all other tribes, the Stockbridge-Munsee Community is in desperate 

need of additional trust land in order to facilitate housing, infrastructure and economic development. In order to simplify jurisdictional issues and avoid additional 

costs, the Tribe would prefer that all new housing for tribal members be located on 

trust lands. At present, the Tribe has at least 43 families on wait lists for housing 

and the Tribe has assigned all of its habitable trust lands to members; there are 

no unassigned lots available. Moreover, a portion of the Tribe’s trust lands is not 

suitable for housing because of nitrate contamination. The Tribe’s shortage of trust 

lands also adversely impacts community infrastructure and economic development 

efforts. The Tribe’s secondary source of governmental income is forestry. As such, 

the Tribe is not in a position to clear forestry lands for housing because that would 

impact tribal budgets. Rather, the Tribe desires to increase its ability to provide 

governmental services by adding to its overall acreage of trust lands so more can 

be used for forestry. S. 2636 would provide the means to finally address these issues 

and as a result, improve the general welfare of the Tribe and its members. 

The Tribe also believes that S. 2636 would be improved by clarifying that once 

contiguous or on-reservation land is taken into trust, it would automatically be 

deemed as part of the reservation. Under current policy and practice, the Secretary, 

in a separate action, must proclaim the lands as reservation lands. Although there 

is little to no impact on jurisdictional issues, an additional process and action by 

the Secretary allows for yet another legal challenge to the status of the land. 

Conclusion 

The Tribe strongly supports S. 2636. Mandating the Secretary to treat all contiguous and on-reservation fee-to-trust petitions as mandatory acquisitions would dramatically shorten the fee-to-trust process and result in fewer appeals and challenges 

to trust acquisition decisions because such actions would be mandatory and not discretionary. Coupled with language indicating that such newly acquired trust land 

would be deemed part of the Tribe’s reservation, S. 2636 would also clarify the 

Tribe’s jurisdiction over such lands. 

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. JOHN MCCAIN TO

LARRY ROBERTS

Question 1. Please advise the Committee of all studies that any Interior Department agency has conducted of groundwater resources on the Hualapai Reservation 

since 1950, the result of each study and why the Department believes these studies 

establish the need for the two additional groundwater studies it now proposes to 

conduct. 

Answer. Since 1950, the Department has conducted or partnered on the following 

groundwater studies in order to supplement the growing understanding of hydrology 

in and around the Hualapai Reservation: 

Freethey, G. W. and Anderson, T. W., 1986, Predevelopment Hydrologic Conditions in the Alluvial Basins of Arizona and Adjacent Parts of California and 

49 

1Three previous studies estimated groundwater storage of the greater Peach Springs watershed, which includes the Hualapai Reservation aquifer systems, to be about 1,000,000 to 

10,000,000 acre-feet. 

New Mexico: U.S Geological Survey Hydrologic Investigations Atlas HA–664, 3 

plates, 1:500,000. 

Twenter, F.R., 1962. Geology and promising areas for ground-water development in the Hualapai Indian Reservation, Arizona: U.S. Geological Survey, 

Water-Supply Paper 1576–A, scale 1:125000. 

Watt, D., 2000. Groundwater Exploration Drilling and Well Development near 

Grand Canyon West, Hualapai Reservation, Arizona. U.S Department of the Interior, Bureau of Reclamation. Lower Colorado Region. Boulder City, Nevada. 

Unpublished 

These previous reports relied on the evaluation of limited well and spring information and a limited geologic and structural framework of the reservation lands to 

identify and characterize groundwater in the Muav Limestone (the R–M Aquifer) 

and in alluvial, volcanic, and basin fill sediments (the Truxton and Westwater 

Aquifers). As a result, the published groundwater resource assessments of the reservation provide only general ranges of estimated groundwater discharge from reservation lands. 1 None of the reports give a high degree of certainty about the overall occurrence and movement of groundwater on reservation lands owing to limited 

understanding of the overall hydrogeologic framework. 

In addition, many of the published reports recommended the need for additional 

studies to more completely characterize the occurrence and movement of groundwater resources underlying reservation lands. Two studies discussed the importance 

of a thorough understanding of complex geology and geologic structure by managers 

and drillers for the proper location of test and production wells. In fact, past attempts at drilling and development of new supply wells have met with limited success because of a poor understanding of the complex geology and geologic structure 

that controls the occurrence and movement of groundwater. 

However, existing well and spring data indicate that substantial but variable 

groundwater resources occur on reservation lands. For this reason, the Department 

believes that conducting regional hydrogeologic assessments of the reservation’s 

groundwater resources using state-of-the-art hydrogeologic tools will provide improved understanding of the geologic and hydrogeologic frameworks on reservation 

lands. We believe that this insight may lead to improved characterization of groundwater resources and potentially more successful groundwater development. The insight may also enable more effective water-management decisions now and in the 

future as groundwater demands on aquifer resources across Arizona increase with 

increasing development, population growth, and changing climate conditions. 

Question 2. Please supply the Committee with the specific reports that cause the 

Department to believe the costs of constructing the pipeline will be higher than the 

$134,500,000 authorized in S. 3300. 

Answer. There are no finalized specific reports with respect to costs of the infrastructure project. The Department reviewed DOWL HKM’s (DOWL) ‘‘Grand Canyon 

West Water Supply Study’’, December 2014, and recent addendum, June 2016, referred to as Appraisal Design Report (ADR) and found that the report underestimated certain costs, including costs associated with water treatment plants, storage 

tanks, number of storage tanks, pumping plants, intake and pretreatment facility, 

and pipelines. Additional costs related to design contingencies, construction contingency, and distributed non-contract costs were also determined to be underestimated, and the collective short-comings of the report informed the Department’s 

conclusion that the cost estimate is substantially low. The Department continues to 

analyze the costs of constructing the pipeline, and looks forward to working with 

the Tribe, the Arizona delegation and this Committee to facilitate a consensus settlement agreement. 

Question 3. Please enumerate the specific types of ‘‘substantial litigation on multiple fronts’’ the Department believes will result from the proposed infrastructure 

project. 

Answer. The Department believes that because the project is located in part within the Grand Canyon National Park it is likely that environmental and conservation 

organizations will oppose the project, and such opposition may include litigation 

50 

against the Department under the National Environmental Policy Act, the Endangered Species Act, as well as other federal statutes. 

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