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[Senate Hearing 114-539]
[From the U.S. Government Publishing Office]

                                                   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

                               __________

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                      COMMITTEE ON INDIAN AFFAIRS

                    JOHN BARRASSO, Wyoming, Chairman
                   JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona                 MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska               TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota            AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma             BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana                HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
     T. Michael Andrews, Majority Staff Director and Chief Counsel
       Anthony Walters, Minority Staff Director and Chief Counsel
                           
                           
                           
                           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

 
                 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 In-Lieu 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.
    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.

                 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 on-reservation 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 revitalization 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 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 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.
    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 Inter-Tribal 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 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 opportunity 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.
    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.
---------------------------------------------------------------------------
    \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.
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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 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 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. 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 long-term 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.
    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 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 
tribally-owned 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 non-Indians, 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 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 foundation 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 
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 
appraisal-level 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 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 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 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.
    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 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. 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.
    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.
    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.
    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 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\
---------------------------------------------------------------------------
    \1\ 78 Cong. Rec. 11731 (1934).
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    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\
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    \2\ 25 U.S.C.  465

    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.
    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 non-Indians, 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 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 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 
Inter-Tribal 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.
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    \1\ Treaty 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.
---------------------------------------------------------------------------
    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 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 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  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 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 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.
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 Inter-Tribal 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 Inter-
Tribal Fisheries Enforcement dispatch and had rapport with Columbia 
River Inter-Tribal 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 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-Ge-Shig 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 federally-recognized, 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.
    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-Ge-Shig 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.
    Senator Franken. That is what we are doing with the Bug-O-
Nay-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.
    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 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 land-
based 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 on-reservation 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 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 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 
on-reservation acquisitions under our current regulations, 
there are 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.]

                            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 in-lieu 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.
                                 ______
                                 
   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 Vice-Chairman 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 to CAP. Specifically, the supply is part 
of the 650,724 acre-foot volume under long-term 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 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 immediately 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.
---------------------------------------------------------------------------
    \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 seventy-five percent (75 percent) of the Tribe's current 
trust land holdings were acquired not through the IRA, but through this 
specific Congressional action.
---------------------------------------------------------------------------
    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.
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 fee-to-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 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.
---------------------------------------------------------------------------
    \1\ Three 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.
---------------------------------------------------------------------------
    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 against the Department under 
the National Environmental Policy Act, the Endangered Species Act, as 
well as other federal statutes.

                                  [all]
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