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81–230 PDF 2002

S. HRG. 107–608

ZUNI INDIAN TRIBE WATER SETTLEMENT ACT

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

S. 2743

TO APPROVE THE SETTLEMENT OF THE WATER RIGHTS CLAIMS OF

THE ZUNI INDIAN TRIBE IN APACHE COUNTY, ARIZONA

JULY 18, 2002

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

DANIEL K. INOUYE, Hawaii, Chairman

BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

PAUL WELLSTONE, Minnesota

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

FRANK MURKOWSKI, Alaska

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

PATRICIA M. ZELL, Majority Staff Director/Chief Counsel

PAUL MOOREHEAD, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 2743, text of ......................................................................................................... 3

Statements:

Bowekaty, Malcolm B., Governor, Pueblo of Zuni, Zuni, NM ....................... 40

Brown, David, Brown & Brown Law Offices, Pinetop, AZ ............................ 49

Brown, Norman Ray, Lyman Water Company, St. Johns, AZ ..................... 49

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, vice chairman, Committee on Indian Affairs .............................................................. 1

Carter, Joe, vice chairman, Arizona Game & Fish Commission, Safford,

AZ ................................................................................................................... 44

Eriacho, Wilfred, chairman, Zuni Water Rights Negotiation Team ............. 43

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, Committee

on Indian Affairs ........................................................................................... 1

Kyl, Hon. Jon, U.S. Senator from Arizona ..................................................... 37

Marx, Jane, attorney, Zuni Tribe .................................................................... 40

McCaleb, Neal, assistant secretary, Indian Affairs, Department of the

Interior ........................................................................................................... 37

Odenkirk, James, assistant attorney general, Arizona Game & Fish Commission ........................................................................................................... 44

Padilla, Pablo, special assistant, Zuni Tribal Council ................................... 40

Page, Oliver, hydrologist .................................................................................. 40

Roberts, David C., manager, Water Rights and Contracts, Salt River

Project, Phoenix, AZ ..................................................................................... 50

Vicenti, Sr., Edison, head katchina leader ..................................................... 40

Weldon, Jr., John B., Salmon, Lewis & Weldon, Phoenix, AZ ...................... 50

APPENDIX

Prepared statements:

Bowekaty, Malcolm B. (with attachments) .................................................... 56

Brown, Norman Ray (with attachments) ........................................................ 72

Carter, Joe ......................................................................................................... 83

Kyl, Hon. Jon, U.S. Senator from Arizona ..................................................... 55

McCaleb, Neal ................................................................................................... 86

Roberts, David C. .............................................................................................. 92

Additional material submitted for the record:

Nelson, Michael C., presiding judge, Superior Court of Arizona, Apache

County (letter) ............................................................................................... 99

(1)

ZUNI INDIAN TRIBE WATER RIGHTS

SETTLEMENT ACT

THURSDAY, JULY 18, 2002

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

The committee met, pursuant to other business, at 10:10 a.m. in

room 485, Senate Russell Building, Hon. Daniel K. Inouye (chairman of the committee) presiding.

Present: Senators Inouye and Campbell.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, VICE CHAIRMAN, COMMITTEE ON

INDIAN AFFAIRS

Senator CAMPBELL [ASSUMING CHAIR]. We’ll now move to Senate

Bill 2743, the Zuni Indian Water Rights Settlement Act of 2002.

Maybe I’ll just say a few words on it. The chairman is absent.

Last session this committee and the Congress passed legislation

to settle treaty-based water claims for other tribes—the Southern

Utes—in our State. I’m very happy to say the President signed that

in the year 2000. I think it really set a precedent for negotiated

settlements on water among tribes, States, and the Federal Government.

Like the Zuni claims, those tribes involved a number of people

and a lot of discussions, but it was a good bill, and I’m interested

in encouraging negotiated settlements and I look forward to hearing from Secretary McCaleb and our other witnesses this morning.

Senator Inouye is now off the phone, so I will return the gavel,

Senator.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. S. 2743, a bill to approve the settlement of the

water rights claims of the Zuni Indian Tribe in Apache County, Arizona, and for other purposes, will now be taken up.

On August 28, 1984, the United States established a reservation

for Zuni Indian Tribe in Apache County, AZ, for the purpose of enabling the members of the Zuni Tribe to continue their centuriesold religious and sustenance practices. In order to sustain life on

the reservation, there must be access to water. However, the water

rights of all water users in the Little Colorado River Basin in Arizona have been the subject of an ongoing stream adjudication since

1979.
2

In an effort to reach a final resolution of the various claims to

water rights, the parties that will be affected by this bill entered

into negotiations which have culminated in a settlement agreement. This legislation would ratify that settlement agreement,

which provides not only for the resolution of the water rights,

claims of the Zuni Indian Tribe, but also provides a means for assisting the tribe in acquiring surface water rights to provide the

tribe’s use of groundwater and provide for the restoration of wetlands located on the tribe’s lands.

[Text of S. 2743 follows:]
3

1

II

107TH CONGRESS

2D SESSION S. 2743

To approve the settlement of the water rights claims of the Zuni Indian

Tribe in Apache County, Arizona, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 17, 2002

Mr. KYL (for himself and Mr. MCCAIN) introduced the following bill; which

was read twice and referred to the Committee on Indian Affairs

A BILL

To approve the settlement of the water rights claims of

the Zuni Indian Tribe in Apache County, Arizona, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Zuni Indian Tribe

5 Water Rights Settlement Act of 2002’’.

6 SEC. 2. FINDINGS AND PURPOSES.

7 (a) FINDINGS.—Congress makes the following find8 ings:

9 (1) It is the policy of the United States, in

10 keeping with its trust responsibility to Indian tribes,
4

2

•S 2743 IS

1 to promote Indian self-determination, religious free2 dom, political and cultural integrity, and economic

3 self-sufficiency, and to settle, wherever possible, the

4 water rights claims of Indian tribes without lengthy

5 and costly litigation.

6 (2) Quantification of rights to water and devel7 opment of facilities needed to use tribal water sup8 plies effectively is essential to the development of

9 viable Indian reservation communities, particularly

10 in arid western States.

11 (3) On August 28, 1984, and by actions subse12 quent thereto, the United States established a res13 ervation for the Zuni Indian Tribe in Apache Coun14 ty, Arizona upstream from the confluence of the Lit15 tle Colorado and Zuni Rivers for long-standing reli16 gious and sustenance activities.

17 (4) The water rights of all water users in the

18 Little Colorado River basin in Arizona have been in

19 litigation since 1979, in the Superior Court of the

20 State of Arizona in and for the County of Apache

21 in Civil No. 6417, In re The General Adjudication

22 of All Rights to Use Water in the Little Colorado

23 River System and Source.

24 (5) Recognizing that the final resolution of the

25 Zuni Indian Tribe’s water claims through litigation
5

3

•S 2743 IS

1 will take many years and entail great expense to all

2 parties, continue to limit the Tribe’s access to water

3 with economic, social, and cultural consequences to

4 the Tribe, prolong uncertainty as to the availability

5 of water supplies, and seriously impair the long-term

6 economic planning and development of all parties,

7 the Tribe and neighboring non-Indians have sought

8 to settle their disputes to water and reduce the bur9 dens of litigation.

10 (6) After more than 4 years of negotiations,

11 which included participation by representatives of

12 the United States, the Zuni Indian Tribe, the State

13 of Arizona, and neighboring non-Indian communities

14 in the Little Colorado River basin, the parties have

15 entered into a Settlement Agreement to resolve all of

16 the Zuni Indian Tribe’s water rights claims and to

17 assist the Tribe in acquiring surface water rights, to

18 provide for the Tribe’s use of groundwater, and to

19 provide for the wetland restoration of the Tribe’s

20 lands in Arizona.

21 (7) To facilitate the wetland restoration project

22 contemplated under the Settlement Agreement, the

23 Zuni Indian Tribe acquired certain lands along the

24 Little Colorado River near or adjacent to its Res25 ervation that are important for the success of the
6

4

•S 2743 IS

1 project and will likely acquire a small amount of

2 similarly situated additional lands. The parties have

3 agreed not to object to the United States taking title

4 to certain of these lands into trust status; other

5 lands shall remain in tribal fee status. The parties

6 have worked extensively to resolve various govern7 mental concerns regarding use of and control over

8 those lands, and to provide a successful model for

9 these types of situations, the State, local, and tribal

10 governments intend to enter into an Intergovern11 mental Agreement that addresses the parties’ gov12 ernmental concerns.

13 (8) Pursuant to the Settlement Agreement, the

14 neighboring non-Indian entities will assist in the

15 Tribe’s acquisition of surface water rights and devel16 opment of groundwater, store surface water supplies

17 for the Zuni Indian Tribe, and make substantial ad18 ditional contributions to carry out the Settlement

19 Agreement’s provisions.

20 (9) To advance the goals of Federal Indian pol21 icy and consistent with the trust responsibility of the

22 United States to the Tribe, it is appropriate that the

23 United States participate in the implementation of

24 the Settlement Agreement and contribute funds for

25 the rehabilitation of religious riparian areas and
7

5

•S 2743 IS

1 other purposes to enable the Tribe to use its water

2 entitlement in developing its Reservation.

3 (b) PURPOSES.—The purposes of this Act are—

4 (1) to approve, ratify, and confirm the Settle5 ment Agreement entered into by the Tribe and

6 neighboring non-Indians;

7 (2) to authorize and direct the Secretary of the

8 Interior to execute and perform the Settlement

9 Agreement and related waivers;

10 (3) to authorize and direct the United States to

11 take legal title and hold such title to certain lands

12 in trust for the benefit of the Zuni Indian Tribe; and

13 (4) to authorize the actions, agreements, and

14 appropriations as provided for in the Settlement

15 Agreement and this Act.

16 SEC. 3. DEFINITIONS.

17 In this Act:

18 (1) EASTERN LCR BASIN.—The term ‘‘Eastern

19 LCR basin’’ means the portion of the Little Colo20 rado River basin in Arizona upstream of the con21 fluence of Silver Creek and the Little Colorado

22 River, as identified on Exhibit 2.10 of the Settle23 ment Agreement.
8

6

•S 2743 IS

1 (2) FUND.—The term ‘‘Fund’’ means the Zuni

2 Indian Tribe Water Rights Development Fund es3 tablished by section 6(a).

4 (3) INTERGOVERNMENTAL AGREEMENT.—The

5 term ‘‘Intergovernmental Agreement’’ means the

6 intergovernmental agreement between the Zuni In7 dian Tribe, Apache County, Arizona and the State

8 of Arizona described in Article 6 of the Settlement

9 Agreement.

10 (4) PUMPING PROTECTION AGREEMENT.—The

11 term ‘‘Pumping Protection Agreement’’ means an

12 agreement, described in Article 5 of the Settlement

13 Agreement, between the Zuni Tribe, the United

14 States on behalf of the Tribe, and a local landowner

15 under which the landowner agrees to limit pumping

16 of groundwater on his lands in exchange for a waiv17 er of certain claims by the Zuni Tribe and the

18 United States on behalf of the Tribe.

19 (5) RESERVATION; ZUNI HEAVEN RESERVA20 TION.—The term ‘‘Reservation’’ or ‘‘Zuni Heaven

21 Reservation’’, also referred to as ‘‘Kolhu:wala:wa’’,

22 means the following property in Apache County, Ari23 zona: Sections 26, 27, 28, 33, 34, and 35, Township

24 15 North, Range 26 East, Gila and Salt River Base

25 and Meridian; and Sections 2, 3, 4, 9, 10, 11, 13,
9

7

•S 2743 IS

1 14, 15, 16, 23, 26, and 27, Township 14 North,

2 Range 26 East, Gila and Salt River Base and Me3 ridian.

4 (6) SECRETARY.—The term ‘‘Secretary’’ means

5 the Secretary of the Interior.

6 (7) SETTLEMENT AGREEMENT.—The term

7 ‘‘Settlement Agreement’’ means that agreement

8 dated June 7, 2002, together with all exhibits there9 to. The parties to the Settlement Agreement include

10 the Zuni Indian Tribe and its members, the United

11 States on behalf of the Tribe and its members, the

12 State of Arizona, the Arizona Game and Fish Com13 mission, the Arizona State Land Department, the

14 Arizona State Parks Board, the St. Johns Irrigation

15 and Ditch Co., the Lyman Water Co., the Round

16 Valley Water Users’ Association, the Salt River

17 Project Agricultural Improvement and Power Dis18 trict, the Tucson Electric Power Company, the City

19 of St. Johns, the Town of Eagar, and the Town of

20 Springerville.

21 (8) SRP.—The term ‘‘SRP’’ means the Salt

22 River Project Agricultural Improvement and Power

23 District, a political subdivision of the State of Ari24 zona.
10

8

•S 2743 IS

1 (9) TEP.—The term ‘‘TEP’’ means Tucson

2 Electric Power Company.

3 (10) TRIBE, ZUNI TRIBE, OR ZUNI INDIAN

4 TRIBE.—The terms ‘‘Tribe’’, ‘‘Zuni Tribe’’, or ‘‘Zuni

5 Indian Tribe’’ means the body politic and federally

6 recognized Indian nation, and its members.

7 (11) ZUNI LANDS.—The term ‘‘Zuni Lands’’

8 means all the following lands, in the State of Ari9 zona, that, on the effective date described in section

10 9(a), are—

11 (A) within the Zuni Heaven Reservation;

12 (B) held in trust by the United States for

13 the benefit of the Tribe or its members; or

14 (C) held in fee by or for the Tribe.

15 SEC. 4. AUTHORIZATION, RATIFICATIONS, AND CONFIRMA16 TIONS.

17 (a) SETTLEMENT AGREEMENT.—To the extent the

18 Settlement Agreement does not conflict with the provi19 sions of this Act, such Settlement Agreement is hereby

20 approved, ratified, confirmed, and declared to be valid.

21 The Secretary is authorized and directed to execute the

22 Settlement Agreement and any amendments approved by

23 the parties necessary to make the Settlement Agreement

24 consistent with this Act. The Secretary is further author25 ized to perform any actions required by the Settlement
11

9

•S 2743 IS

1 Agreement and any amendments to the Settlement Agree2 ment that may be mutually agreed upon by the parties

3 to the Settlement Agreement.

4 (b) AUTHORIZATION OF APPROPRIATIONS.—There is

5 authorized to be appropriated to the Zuni Indian Tribe

6 Water Rights Development Fund established in section

7 6(a), $19,250,000, to be allocated by the Secretary as fol8 lows:

9 (1) $3,500,000 for fiscal year 2004, to be used

10 for the acquisition of water rights and associated

11 lands, and other activities carried out, by the Zuni

12 Tribe to facilitate the enforceability of the Settle13 ment Agreement, including the acquisition of at

14 least 2,350 acre-feet per year of water rights before

15 the deadline described in section 9(b).

16 (2) $15,750,000, of which $5,250,000 shall be

17 made available for each of fiscal years 2004, 2005,

18 and 2006, to take actions necessary to restore, reha19 bilitate, and maintain the Zuni Heaven Reservation,

20 including the Sacred Lake, wetlands, and riparian

21 areas as provided for in the Settlement Agreement

22 and under this Act.

23 (c) OTHER AGREEMENTS.—Except as provided in

24 section 9, the following 3 separate agreements, together
12

10

•S 2743 IS

1 with all amendments thereto, are approved, ratified, con2 firmed, and declared to be valid:

3 (1) The agreement between SRP, the Zuni

4 Tribe, and the United States on behalf of the Tribe,

5 dated June 7, 2002.

6 (2) The agreement between TEP, the Zuni

7 Tribe, and the United States on behalf of the Tribe,

8 dated June 7, 2002.

9 (3) The agreement between the Arizona State

10 Land Department, the Zuni Tribe, and the United

11 States on behalf of the Tribe, dated June 7, 2002.

12 SEC. 5. TRUST LANDS.

13 (a) NEW TRUST LANDS.—Upon satisfaction of the

14 conditions in paragraph 6.2 of the Settlement Agreement,

15 and after the requirements of section 9(a) have been met,

16 the Secretary shall take the legal title of the following

17 lands into trust for the benefit of the Zuni Tribe:

18 (1) In T. 14 N., R. 27 E., Gila and Salt River

19 Base and Meridian:

(A) Section 13: SW1⁄4, S1⁄2NE1⁄4SE1 20 ⁄4,

W1⁄2SE1⁄4, SE1⁄4SE1 21 ⁄4;

(B) Section 23: N1⁄2, N1⁄2SW1 22 ⁄4,

N1⁄2SE1⁄4, SE1⁄4SE1⁄4, N1⁄2SW1⁄4SE1 23 ⁄4,

SE1⁄4SW1⁄4SE1 24 ⁄4;
13

11

•S 2743 IS

(C) Section 24: NW1⁄4, SW1⁄4, S1⁄2NE1 1 ⁄4,

N1⁄2SE1 2 ⁄4; and

(D) Section 25: N1⁄2NE1⁄4, SE1⁄4NE1 3 ⁄4,

NE1⁄4SE1 4 ⁄4.

5 (2) In T. 14 N., R. 28 E., Gila and Salt River

6 Base and Meridian:

(A) Section 19: W1⁄2E1⁄2NW1 7 ⁄4,

W1⁄2NW1⁄4, W1⁄2NE1⁄4SW1⁄4, NW1⁄4SW1 8 ⁄4,

S1⁄2SW1 9 ⁄4;

(B) Section 29: SW1⁄4SW1⁄4NW1 10 ⁄4,

NW1⁄4NW1⁄4SW1⁄4, S1⁄2N1⁄2SW1⁄4, S1⁄2SW1 11 ⁄4,

S1⁄2NW1⁄4SE1⁄4, SW1⁄4SE1 12 ⁄4;

(C) Section 30: W1⁄2, SE1 13 ⁄4; and

(D) Section 31: N1⁄2NE1⁄4, N1⁄2S1⁄2NE1 14 ⁄4,

S1⁄2SE1⁄4NE1⁄4, NW1⁄4, E1⁄2SW1 15 ⁄4,

N1⁄2NW1⁄4SW1⁄4, SE1⁄4NW1⁄4SW1 16 ⁄4,

E1⁄2SW1⁄4SW1⁄4, SW1⁄4SW1⁄4SW1 17 ⁄4.

18 (b) FUTURE TRUST LANDS.—Upon satisfaction of

19 the conditions in paragraph 6.2 of the Settlement Agree20 ment, after the requirements of section 9(a) have been

21 met, and upon acquisition by the Zuni Tribe, the Sec22 retary shall take the legal title of the following lands into

23 trust for the benefit of the Zuni Tribe:

24 (1) In T. 14 N., R. 26E., Gila and Salt River

Base and Meridian: Section 25: N1⁄2NE1 25 ⁄4,
14

12

•S 2743 IS

N1⁄2S1⁄2NE1⁄4, NW1⁄4, N1⁄2NE1⁄4SW1 1 ⁄4,

NE1⁄4NW1⁄4SW1 2 ⁄4.

3 (2) In T. 14 N., R. 27 E., Gila and Salt River

4 Base and Meridian:

(A) Section 14: SE1⁄4SW1⁄4, SE1 5 ⁄4;

(B) Section 16: S1⁄2SW1⁄4SE1 6 ⁄4;

(C) Section 19: S1⁄2SE1⁄4SE1 7 ⁄4;

(D) Section 20: S1⁄2SW1⁄4SW1 8 ⁄4,

E1⁄2SE1⁄4SE1 9 ⁄4;

(E) Section 21: N1⁄2NE1 10 ⁄4,

E1⁄2NE1⁄4NW1⁄4, SE1⁄4NW1⁄4, W1⁄2SW1⁄4NE1 11 ⁄4,

N1⁄2NE1⁄4SW1⁄4, SW1⁄4NE1⁄4SW1 12 ⁄4,

E1⁄2NW1⁄4SW1⁄4, SW1⁄4NW1⁄4SW1 13 ⁄4,

W1⁄2SW1⁄4SW1 14 ⁄4;

(F) Section 22: SW1⁄4NE1⁄4NE1 15 ⁄4,

NW1⁄4NE1⁄4, S1⁄2NE1⁄4, N1⁄2NW1 16 ⁄4,

SE1⁄4NW1⁄4, N1⁄2SW1⁄4NW1 17 ⁄4,

SE1⁄4SW1⁄4NW1⁄4, N1⁄2N1⁄2SE1 18 ⁄4,

N1⁄2NE1⁄4SW1 19 ⁄4;

(G) Section 24: N1⁄2NE1⁄4, S1⁄2SE1 20 ⁄4;

(H) Section 29: N1⁄2N1 21 ⁄2;

(I) Section 30: N1⁄2N1⁄2, N1⁄2S1⁄2NW1 22 ⁄4,

N1⁄2SW1⁄4NE1 23 ⁄4; and

(J) Section 36: SE1⁄4SE1⁄4NE1 24 ⁄4,

NE1⁄4NE1⁄4SE1 25 ⁄4.
15

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1 (3) In T. 14 N., R. 28 E., Gila and Salt River

2 Base and Meridian:

(A) Section 18: S1⁄2NE1⁄4, NE1⁄4SW1 3 ⁄4,

NE1⁄4NW1⁄4SW1⁄4, S1⁄2NW1⁄4SW1⁄4, S1⁄2SW1 4 ⁄4,

N1⁄2SE1⁄4, N1⁄2SW1⁄4SE1⁄4, SE1⁄4SE1 5 ⁄4;

(B) Section 30: S1⁄2NE1 6 ⁄4,

W1⁄2NW1⁄4NE1 7 ⁄4; and

(C) Section 32: N1⁄2NW1⁄4NE1 8 ⁄4,

SW1⁄4NE1⁄4, S1⁄2SE1⁄4NE1⁄4, NW1⁄4, SW1 9 ⁄4,

N1⁄2SE1⁄4, SW1⁄4SE1⁄4, N1⁄2SE1⁄4SE1 10 ⁄4,

SW1⁄4SE1⁄4SE1 11 ⁄4.

12 (c) NEW RESERVATION LANDS.—Upon satisfaction

13 of the conditions in paragraph 6.2 of the Settlement

14 Agreement, after the requirements of section 9(a) have

15 been met, and upon acquisition by the Zuni Tribe, the Sec16 retary shall take the legal title of the following lands in

17 Arizona into trust for the benefit of the Zuni Tribe and

18 make such lands part of the Zuni Indian Tribe Reserva19 tion in Arizona: Section 34, T. 14 N., R. 26 E., Gila and

20 Salt River Base and Meridian.

21 (d) LIMITATION ON SECRETARIAL DISCRETION.—

22 The Secretary shall have no discretion regarding the ac23 quisitions described in subsections (a), (b), and (c).

24 (e) LANDS REMAINING IN FEE STATUS.—The Zuni

25 Tribe may seek to have the legal title to additional lands
16

14

•S 2743 IS

1 in Arizona, other than the lands described in subsection

2 (a), (b), or (c), taken into trust by the United States for

3 the benefit of the Zuni Indian Tribe pursuant only to an

4 Act of Congress enacted after the date of enactment of

5 this Act specifically authorizing the transfer for the bene6 fit of the Zuni Tribe.

7 (f) FINAL AGENCY ACTION.—Any written certifi8 cation by the Secretary under subparagraph 6.2.B of the

9 Settlement Agreement constitutes final agency action

10 under the Administrative Procedure Act and is reviewable

11 as provided for under chapter 7 of title 5, United States

12 Code.

13 (g) NO FEDERAL WATER RIGHTS.—Lands taken

14 into trust pursuant to subsection (a), (b), or (c) shall not

15 have Federal reserved rights to surface water or ground16 water.

17 (h) STATE WATER RIGHTS.—The water rights and

18 uses for the lands taken into trust pursuant to subsection

19 (a) or (c) must be determined under subparagraph 4.1.A

20 and Article 5 of the Settlement Agreement. With respect

21 to the lands taken into trust pursuant to subsection (b),

22 the Zuni Tribe retains any rights or claims to water asso23 ciated with these lands under State law, subject to the

24 terms of the Settlement Agreement.
17

15

•S 2743 IS

1 (i) FORFEITURE AND ABANDONMENT.—Water rights

2 that are appurtenant to lands taken into trust pursuant

3 to subsection (a), (b), or (c) shall not be subject to forfeit4 ure and abandonment.

5 (j) AD VALOREM TAXES.—With respect to lands that

6 are taken into trust pursuant to subsection (a) or (b)—

7 (1) such lands shall not be considered lands

8 within an Indian reservation or lands owned or held

9 by any Indian for the purposes of Article 20, para10 graph 5 of the Arizona Constitution, for the purpose

11 of paying in lieu taxes pursuant to this subsection

12 and the Intergovernmental Agreement between the

13 Zuni Tribe, Apache County, Arizona and the State

14 of Arizona; and

15 (2) the Zuni Tribe shall make payments in lieu

16 of all current and future State, county, and local ad

17 valorem property taxes that would otherwise be ap18 plicable to those lands if they were not in trust.

19 (k) AUTHORITY OF TRIBE.—For purposes of comply20 ing with this section and Article 6 of the Settlement

21 Agreement, the Tribe is authorized to enter into—

22 (1) the Intergovernmental Agreement between

23 the Zuni Tribe, Apache County, Arizona, and the

24 State of Arizona; and
18

16

•S 2743 IS

1 (2) any intergovernmental agreement required

2 to be entered into by the Tribe under the terms of

3 the Intergovernmental Agreement.

4 (l) FEDERAL ACKNOWLEDGEMENT OF INTERGOV5 ERNMENTAL AGREEMENTS.—

6 (1) IN GENERAL.—The Secretary shall acknowl7 edge the terms of any intergovernmental agreement

8 entered into by the Tribe under this section.

9 (2) NO ABROGATION.—The Secretary shall not

10 seek to abrogate, in any administrative or judicial

11 action, the terms of any intergovernmental agree12 ment that are consistent with subparagraph 6.2.A of

13 the Settlement Agreement and this Act.

14 (3) NO REMOVAL.—If a judicial action is com15 menced during a dispute over any intergovernmental

16 agreement entered into under this section, and the

17 United States is allowed to intervene in such action,

18 the United States shall not remove such action to

19 the Federal courts.

20 (m) RULE OF CONSTRUCTION.—Notwithstanding

21 any other provision of this Act, nothing in this Act alters

22 the continued application of the Act of May 25, 1918 (25

23 U.S.C. 211), within the State of Arizona.

24 (n) DISCLAIMER.—Nothing in this section repeals,

25 modifies, amends, changes, or otherwise affects the Sec-
19

17

•S 2743 IS

1 retary’s obligations to the Zuni Tribe pursuant to the Act

2 entitled ‘‘An Act to convey certain lands to the Zuni In3 dian Tribe for religious purposes’’ approved August 28,

4 1984 (Public Law 98–408; 98 Stat. 1533) (and as amend5 ed by the Zuni Land Conservation Act of 1990 (Public

6 Law 101–486; 104 Stat. 1174)).

7 SEC. 6. DEVELOPMENT FUND.

8 (a) ESTABLISHMENT OF THE FUND.—

9 (1) IN GENERAL.—There is established in the

10 Treasury of the United States a fund to be known

11 as the ‘‘Zuni Indian Tribe Water Rights Develop12 ment Fund’’, to be managed and invested by the

13 Secretary, consisting of—

14 (A) the amounts authorized to be appro15 priated in section 4(b); and

16 (B) the appropriation to be contributed by

17 the State of Arizona pursuant to paragraph 7.6

18 of the Settlement Agreement.

19 (2) ADDITIONAL DEPOSITS.—The Secretary

20 shall deposit in the Fund any other monies paid to

21 the Secretary on behalf of the Zuni Tribe pursuant

22 to the Settlement Agreement.

23 (b) MANAGEMENT OF THE FUND.—The Secretary

24 shall manage the Fund, make investments from the Fund,

25 and make monies available from the Fund for distribution
20

18

•S 2743 IS

1 to the Zuni Tribe consistent with the American Indian

2 Trust Fund Management Reform Act of 1994 (25 U.S.C.

3 4001 et seq.) (referred to in this section as the ‘‘Trust

4 Fund Reform Act’’), this Act, and the Settlement Agree5 ment.

6 (c) INVESTMENT OF THE FUND.—The Secretary

7 shall invest amounts in the Fund in accordance with—

8 (1) the Act of April 1, 1880 (21 Stat. 70, ch.

9 41, 25 U.S.C. 161);

10 (2) the first section of the Act of June 24,

11 1938 (52 Stat. 1037, ch. 648, 25 U.S.C. 162a); and

12 (3) subsection (b).

13 (d) AVAILABILITY OF AMOUNTS FROM THE FUND.—

14 The funds authorized to be appropriated pursuant to sec15 tion 4(b)(2) and funds contributed by the State of Arizona

16 pursuant to paragraph 7.6 of the Settlement Agreement

17 shall be available for expenditure or withdrawal only after

18 the requirements of section 9(a) have been met.

19 (e) EXPENDITURES AND WITHDRAWAL.—

20 (1) TRIBAL MANAGEMENT PLAN.—

21 (A) IN GENERAL.—The Zuni Tribe may

22 withdraw all or part of the Fund on approval

23 by the Secretary of a tribal management plan

24 as described in the Trust Fund Reform Act.
21

19

•S 2743 IS

1 (B) REQUIREMENTS.—In addition to the

2 requirements under the Trust Fund Reform

3 Act, the tribal management plan shall require

4 that the Zuni Tribe spend any funds in accord5 ance with the purposes described in section

6 4(b).

7 (2) ENFORCEMENT.—The Secretary may take

8 judicial or administrative action to enforce the provi9 sions of any tribal management plan to ensure that

10 any monies withdrawn from the Fund under the

11 plan are used in accordance with this Act.

12 (3) LIABILITY.—If the Zuni Tribe exercises the

13 right to withdraw monies from the Fund, neither the

14 Secretary nor the Secretary of the Treasury shall re15 tain any liability for the expenditure or investment

16 of the monies withdrawn.

17 (4) EXPENDITURE PLAN.—

18 (A) IN GENERAL.—The Zuni Tribe shall

19 submit to the Secretary for approval an expend20 iture plan for any portion of the funds made

21 available under this Act that the Zuni Tribe

22 does not withdraw under this subsection.

23 (B) DESCRIPTION.—The expenditure plan

24 shall describe the manner in which, and the
22

20

•S 2743 IS

1 purposes for which, funds of the Zuni Tribe re2 maining in the Fund will be used.

3 (C) APPROVAL.—On receipt of an expendi4 ture plan under subparagraph (A), the Sec5 retary shall approve the plan if the Secretary

6 determines that the plan is reasonable and con7 sistent with this Act.

8 (5) ANNUAL REPORT.—The Zuni Tribe shall

9 submit to the Secretary an annual report that de10 scribes all expenditures from the Fund during the

11 year covered by the report.

12 (f) FUNDS FOR ACQUISITION OF WATER RIGHTS.—

13 (1) WATER RIGHTS ACQUISITIONS.—Notwith14 standing subsection (e), the funds authorized to be

15 appropriated pursuant to section 4(b)(1)—

16 (A) shall be available upon appropriation

17 for use in accordance with section 4(b)(1); and

18 (B) shall be distributed by the Secretary to

19 the Zuni Tribe on receipt by the Secretary from

20 the Zuni Tribe of a written notice and a tribal

21 council resolution that describe the purposes for

22 which the funds will be used.

23 (2) RIGHT TO SET OFF.—In the event the re24 quirements of section 9(a) have not been met and

25 the Settlement Agreement has become null and void
23

21

•S 2743 IS

1 under section 9(b), the United States shall be enti2 tled to set off any funds expended or withdrawn

3 from the amount appropriated pursuant to section

4 4(b)(1), together with any interest accrued, against

5 any claims asserted by the Zuni Tribe against the

6 United States relating to water rights at the Zuni

7 Heaven Reservation.

8 (3) WATER RIGHTS.—Any water rights ac9 quired with funds described in paragraph (1) shall

10 be credited against any water rights secured by the

11 Zuni Tribe, or the United States on behalf of the

12 Zuni Tribe, for the Zuni Heaven Reservation in the

13 Little Colorado River General Stream Adjudication

14 or in any future settlement of claims for those water

15 rights.

16 (g) NO PER CAPITA DISTRIBUTIONS.—No part of the

17 Fund shall be distributed on a per capita basis to members

18 of the Zuni Tribe.

19 SEC. 7. CLAIMS EXTINGUISHMENT; WAIVERS AND RE20 LEASES.

21 (a) FULL SATISFACTION OF MEMBERS’ CLAIMS.—

22 (1) IN GENERAL.—The benefits realized by the

23 Tribe and its members under this Act shall con24 stitute full and complete satisfaction of all members’

25 claims for water rights or injuries to water rights
24

22

•S 2743 IS

1 under Federal, State, and other laws (including

2 claims for water rights in groundwater, surface

3 water, and effluent) for Zuni Lands from time im4 memorial to the effective date described in section

5 9(a).

6 (2) NO RECOGNITION OR ESTABLISHMENT OF

7 INDIVIDUAL WATER RIGHT.—Nothing in this Act

8 recognizes or establishes any right of a member of

9 the Tribe to water on the Reservation.

10 (b) TRIBE AND UNITED STATES AUTHORIZATION

11 AND WAIVER.—The Tribe, on behalf of itself and its mem12 bers and the Secretary on behalf of the United States in

13 its capacity as trustee for the Zuni Tribe and its members,

14 are authorized, as part of the performance of their obliga15 tions under the Settlement Agreement, to execute a waiver

16 and release, subject to paragraphs 11.4 and 11.7 of the

17 Settlement Agreement, for claims against the State of Ari18 zona, or any agency or political subdivision thereof, or any

19 other person, entity, corporation, or municipal corpora20 tion, under Federal, State, or other law for any and all—

21 (1) past, present, and future claims to water

22 rights (including water rights in groundwater, sur23 face water, and effluent) for Zuni Lands from time

24 immemorial through the effective date described in

25 section 9(a) and any time thereafter, except for
25

23

•S 2743 IS

1 claims within the Zuni Protection Area as provided

2 in Article 5 of the Settlement Agreement;

3 (2) past and present claims for injuries to

4 water rights (including water rights in groundwater,

5 surface water, and effluent and including claims for

6 damages for deprivation of water rights and any

7 claims for changes to groundwater table levels) for

8 Zuni Lands from time immemorial through the ef9 fective date described in section 9(a);

10 (3) past, present, and future claims for water

11 rights and injuries to water rights (including water

12 rights in groundwater, surface water, and effluent

13 and including any claims for damages for depriva14 tion of water rights and any claims for changes to

15 groundwater table levels) from time immemorial

16 through the effective date described in section 9(a),

17 and any time thereafter, for lands outside of Zuni

18 lands but located within the Little Colorado River

19 basin in Arizona, based upon aboriginal occupancy

20 of lands by the Zuni Tribe or its predecessors;

21 (4) past and present claims for injuries to

22 water quality accruing from time immemorial

23 through the effective date described in section 9(a)

24 for lands within the Little Colorado River basin in

25 Arizona;
26

24

•S 2743 IS

1 (5) future claims for injuries to water quality

2 accruing after the effective date described in section

3 9(a) on any lands within the Eastern LCR basin

4 caused by—

5 (A) the lawful diversion or use of surface

6 water;

7 (B) the lawful withdrawal or use of

8 groundwater, except within the Zuni Protection

9 Area as provided in Article 5 of the Settlement

10 Agreement;

11 (C) the Parties’ performance of their obli12 gations under this Settlement Agreement;

13 (D) the discharge of oil associated with

14 routine physical or mechanical maintenance of

15 wells or diversion structures;

16 (E) the discharge of oil associated with

17 routine start-up and operation of well pumps;

18 or

19 (F) any combination thereof; and

20 (6) claims for interference with the trust re21 sponsibility of the United States to the Zuni Tribe

22 arising out of the negotiation of the Settlement

23 Agreement or this Act.

24 (c) TRIBAL WAIVER AGAINST THE UNITED

25 STATES.—The Tribe is authorized, as part of the perform-
27

25

•S 2743 IS

1 ance of its obligations under the Settlement Agreement,

2 to execute a waiver and release, subject to paragraphs

3 11.4 and 11.6 of the Settlement Agreement, for claims

4 against the United States (acting in its capacity as trustee

5 for the Zuni Tribe or its members, or otherwise acting

6 on behalf of the Zuni Tribe or its members), including

7 any agencies, officials, or employees thereof, for any and

8 all—

9 (1) past, present, and future claims to water

10 rights (including water rights in groundwater, sur11 face water, and effluent) for Zuni Lands, from time

12 immemorial through the effective date described in

13 section 9(a) and any time thereafter;

14 (2) past and present claims for injuries to

15 water rights (including water rights in groundwater,

16 surface water, and effluent and any claims for dam17 ages for deprivation of water rights) for Zuni Lands

18 from time immemorial through the effective date de19 scribed in section 9(a);

20 (3) past, present, and future claims for water

21 rights and injuries to water rights (including water

22 rights in groundwater, surface water, and effluent

23 and any claims for damages for deprivation of water

24 rights) from time immemorial through the effective

25 date described in section 9(a), and any time there-
28

26

•S 2743 IS

1 after, for lands outside of Zuni Lands but located

2 within the Little Colorado River basin in Arizona,

3 based upon aboriginal occupancy of lands by the

4 Zuni Tribe or its predecessors;

5 (4) past and present claims for failure to pro6 tect, acquire, or develop water rights of, or failure

7 to protect water quality for, the Zuni Tribe within

8 the Little Colorado River basin in Arizona from time

9 immemorial through the effective date described in

10 section 9(a); and

11 (5) claims for breach of the trust responsibility

12 of the United States to the Zuni Tribe arising out

13 of the negotiation of the Settlement Agreement or

14 this Act.

15 SEC. 8. MISCELLANEOUS PROVISIONS.

16 (a) WAIVER OF SOVEREIGN IMMUNITY.—If any party

17 to the Settlement Agreement, an agreement described in

18 paragraph (1), (2), or (3) of section 4(c), a Pumping Pro19 tection Agreement, or a landowner or water user in the

20 Little Colorado River basin in Arizona, files a lawsuit only

21 relating directly to the interpretation or enforcement of

22 this Act, the Settlement Agreement, an agreement de23 scribed in paragraph (1), (2), or (3) of section 4(c), or

24 a Pumping Protection Agreement, naming the United

25 States or the Tribe as a party—
29

27

•S 2743 IS

1 (1) the United States, the Tribe, or both may

2 be added as a party to any such litigation, and any

3 claim by the United States or the Tribe to sovereign

4 immunity from such suit is hereby waived, other

5 than with respect to claims for monetary awards ex6 cept as specifically provided for in the Settlement

7 Agreement; and

8 (2) the Tribe may waive its sovereign immunity

9 from suit in the Superior Court of Apache County,

10 Arizona for the limited purposes of enforcing the

11 terms of the Intergovernmental Agreement, and any

12 intergovernmental agreement required to be entered

13 into by the Tribe under the terms of the Intergov14 ernmental Agreement, other than with respect to

15 claims for monetary awards except as specifically

16 provided in the Intergovernmental Agreement.

17 (b) TRIBAL USE OF WATER.—

18 (1) IN GENERAL.—With respect to water rights

19 made available under the Settlement Agreement and

20 used on the Zuni Heaven Reservation—

21 (A) such water rights shall be held in trust

22 by the United States in perpetuity, and shall

23 not be subject to forfeiture or abandonment;

24 (B) State law shall not apply to water uses

25 on the Reservation;
30

28

•S 2743 IS

1 (C) the State of Arizona may not regulate

2 or tax such water rights or uses (except that

3 the court with jurisdiction over the decree en4 tered pursuant to the Settlement Agreement or

5 the Norviel Decree Court may assess adminis6 trative fees for delivery of this water);

7 (D) subject to paragraph 7.7 of the Settle8 ment Agreement, the Zuni Tribe shall use

9 water made available to the Zuni Tribe under

10 the Settlement Agreement on the Zuni Heaven

11 Reservation for any use it deems advisable;

12 (E) water use by the Zuni Tribe or the

13 United States on behalf of the Zuni Tribe for

14 wildlife or instream flow use, or for irrigation to

15 establish or maintain wetland on the Reserva16 tion, shall be considered to be consistent with

17 the purposes of the Reservation; and

18 (F)(i) not later than 3 years after the

19 deadline described in section 9(b), the Zuni

20 Tribe shall adopt a water code for regulation of

21 water use on the lands identified in subsections

22 (a) and (b) of section 5 that is reasonably

23 equivalent to State water law (including stat24 utes relating to dam safety and groundwater

25 management); and
31

29

•S 2743 IS

1 (ii) until such date as the Zuni Tribe

2 adopts a water code described in clause (i), the

3 Secretary, in consultation with the State of Ari4 zona, shall administer water use and water reg5 ulation on lands described in that clause in a

6 manner that is reasonably equivalent to State

7 law.

8 (2) LIMITATION.—

9 (A) IN GENERAL.—Except as provided in

10 subparagraph (B), the Zuni Tribe or the United

11 States shall not sell, lease, transfer, or trans12 port water made available for use on the Zuni

13 Heaven Reservation to any other place.

14 (B) EXCEPTION.—Water made available to

15 the Zuni Tribe or the United States for use on

16 the Zuni Heaven Reservation may be severed

17 and transferred from the Reservation to other

18 Zuni Lands if the severance and transfer is ac19 complished in accordance with State law (and

20 once transferred to any lands held in fee, such

21 water shall be subject to State law).

22 (c) RIGHTS-OF-WAY.—Federal laws (including regu23 lations) concerning the granting of easements and rights24 of-way shall apply to the lands identified in subsections

25 (a) and (b) of section 5, but the United States and the
32

30

•S 2743 IS

1 Zuni Tribe shall not unreasonably withhold consent for

2 easements and rights-of-way for roads, utilities, and other

3 necessary accommodations for adjoining landowners

4 across the lands identified in subsection (a) or (b) of sec5 tion 5 unless such easements and rights-of-way will cause

6 significant and substantial harm to the Tribe’s wetland

7 restoration project or religious practices. If such harm is

8 anticipated, the Zuni Tribe shall negotiate in good faith

9 with the entity seeking the easements or rights-of-way for

10 a reasonable accommodation of their mutual interests.

11 (d) CERTAIN CLAIMS PROHIBITED.—The United

12 States shall make no claims for reimbursement of costs

13 arising out of the implementation of this Act or the Settle14 ment Agreement against any Indian-owned land within the

15 Tribe’s Reservation, and no assessment shall be made in

16 regard to such costs against such lands.

17 (e) VESTED RIGHTS.—Except as described in para18 graph 5.3 of the Settlement Agreement (recognizing the

19 Zuni Tribe’s use of 1,500 acre-feet per annum of ground20 water) this Act and the Settlement Agreement do not cre21 ate any vested right to groundwater under Federal or

22 State law, or any priority to the use of groundwater that

23 would be superior to any other right or use of groundwater

24 under Federal or State law, whether through this Act, the

25 Settlement Agreement, or by incorporation of any ab-
33

31

•S 2743 IS

1 stract, agreement, or stipulation prepared under the Set2 tlement Agreement. Notwithstanding the preceding sen3 tence, the rights of parties to the agreements referred to

4 in paragraph (1), (2), or (3) of section 4(c) and paragraph

5 5.8 of the Settlement Agreement, as among themselves,

6 shall be as stated in those agreements.

7 (f) OTHER CLAIMS.—Nothing in the Settlement

8 Agreement or this Act quantifies or otherwise affects the

9 water rights, claims, or entitlements to water of any In10 dian tribe, band, or community, other than the Zuni In11 dian Tribe.

12 (g) NO MAJOR FEDERAL ACTION.—Execution of the

13 Settlement Agreement by the Secretary as provided for in

14 section 4(a) shall not constitute major Federal action

15 under the National Environmental Policy Act (42 U.S.C.

16 4321 et seq.). The Secretary shall comply with that Act

17 and shall carry out any other necessary environmental

18 compliance during the implementation phase of this settle19 ment.

20 SEC. 9. EFFECTIVE DATE FOR WAIVER AND RELEASE AU21 THORIZATIONS.

22 (a) IN GENERAL.—The waiver and release authoriza23 tions contained in subsections (b) and (c) of section 7 shall

24 become effective as of the date the Secretary causes to
34

32

•S 2743 IS

1 be published in the Federal Register a statement of all

2 the following findings:

3 (1) This Act has been enacted in a form ap4 proved by the parties in paragraph 3.1.A of the Set5 tlement Agreement.

6 (2) The funds authorized by section 4(b) have

7 been appropriated and deposited into the Fund.

8 (3) The State of Arizona has appropriated and

9 deposited into the Fund the amount required by

10 paragraph 7.6 of the Settlement Agreement.

11 (4) The Zuni Indian Tribe has either purchased

12 or acquired the right to purchase at least 2,350

13 acre-feet per annum of surface water rights, or

14 waived this condition as provided in paragraph 3.2

15 of the Settlement Agreement.

16 (5) Pursuant to subparagraph 3.1.D of the Set17 tlement Agreement, the severance and transfer of

18 surface water rights that the Tribe owns or has the

19 right to purchase have been conditionally approved,

20 or the Tribe has waived this condition as provided

21 in paragraph 3.2 of the Settlement Agreement.

22 (6) Pursuant to subparagraph 3.1.E of the Set23 tlement Agreement, the Tribe and Lyman Water

24 Company have executed an agreement relating to

25 the process of the severance and transfer of surface
35

33

•S 2743 IS

1 water rights acquired by the Zuni Tribe or the

2 United States, the pass-through, use, or storage of

3 the Tribe’s surface water rights in Lyman Lake, and

4 the operation of Lyman Dam.

5 (7) Pursuant to subparagraph 3.1.F of the Set6 tlement Agreement, all the parties to the Settlement

7 Agreement have agreed and stipulated to certain Ar8 izona Game and Fish abstracts of water uses.

9 (8) Pursuant to subparagraph 3.1.G of the Set10 tlement Agreement, all parties to the Settlement

11 Agreement have agreed to the location of an obser12 vation well and that well has been installed.

13 (9) Pursuant to subparagraph 3.1.H of the Set14 tlement Agreement, the Zuni Tribe, Apache County,

15 Arizona and the State of Arizona have executed an

16 Intergovernmental Agreement that satisfies all of

17 the conditions in paragraph 6.2 of the Settlement

18 Agreement.

19 (10) The Zuni Tribe has acquired title to the

20 section of land adjacent to the Zuni Heaven Res21 ervation described as Section 34, Township 14

22 North, Range 26 East, Gila and Salt River Base

23 and Meridian.

24 (11) The Settlement Agreement has been modi25 fied if and to the extent it is in conflict with this Act
36

34

•S 2743 IS

1 and such modification has been agreed to by all the

2 parties to the Settlement Agreement.

3 (12) A court of competent jurisdiction has ap4 proved the Settlement Agreement by a final judg5 ment and decree.

6 (b) DEADLINE FOR EFFECTIVE DATE.—If the publi7 cation in the Federal Register required under subsection

8 (a) has not occurred by December 31, 2005, sections 4

9 and 5, and any agreements entered into pursuant to sec10 tions 4 and 5 (including the Settlement Agreement and

11 the Intergovernmental Agreement) shall not thereafter be

12 effective and shall be null and void. Any funds and the

13 interest accrued thereon appropriated pursuant to section

14 4(b)(2) shall revert to the Treasury, and any funds and

15 the interest accrued thereon appropriated pursuant to

16 paragraph 7.6 of the Settlement Agreement shall revert

17 to the State of Arizona.

Æ
37

The CHAIRMAN. Our first witness, we have the most distinguished senator from the State of Arizona, the Honorable Jon Kyl.

Senator Kyl, it is a pleasure to have you here, sir.

STATEMENT OF HON. JON KYL, U.S. SENATOR FROM ARIZONA

Senator KYL. Thank you very much, Mr. Chairman and Senator

Campbell. Mr. Chairman, you have just described the settlement.

Let me put my statement in the record and really summarize it.

You correctly noted that the purpose of this settlement is to provide a wetlands area for the Zuni to come to Arizona as part of

their reservation there and engage in religious practices. They need

water in order to recreate this wetlands area, and the settlement

provides financial support for them to buy the water rights and settles any claims between the other water users in the area and the

Zuni with respect to those water rights. It is agreed to by all of the

parties, and I believe it will have the support of the U.S. Government, and therefore I would ask for the committee’s favorable consideration.

I have one statement in the nature of an apology to make. All

of the parties are most anxious to move on this as quickly as possible. As a result, we put a great deal of pressure on your staff, Mr.

Chairman, and they have been wonderful in responding very quickly to the need to have the hearing, to reviewing the legislation,

which they didn’t receive until just very recently, even though the

general outlines were well known. But I want to thank you and

thank your staff especially for getting on this immediately to try

to help the parties move this forward just as quickly as possible.

I appreciate that very, very much.

[Prepared statement of Senator Kyl appears in appendix.]

The CHAIRMAN. Senator Campbell and I are most grateful to you

for acknowledging the great work of the staff. We have known that

for a long time. In fact, it may interest you to know that this committee has had more hearings and has reported out more measures

than any other committee in the Congress of the United States.

Senator KYL. Mr. Chairman, if I could indulge the committee,

would it be permissible for me to sit at the dias to hear the testimony of other witnesses? I’d very much like to do that. This settlement means a lot to me, and I want to make sure that——

The CHAIRMAN. You are always welcome, sir.

Senator KYL. All right. Thank you very much, Mr. Chairman.

The CHAIRMAN. And without objection your full statement is

made part of the record.

Now may I call upon the Assistant Secretary for Indian Affairs,

Department of the Interior, Neal McCaleb.

STATEMENT OF HON. NEAL A. MCCALEB, ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Mr. MCCALEB. Thank you very much, Mr. Chairman, Senator

Campbell. I very much appreciate the opportunity to appear before

the committee to discuss S. 2743, which is, as previously stated, a

bill to authorize a water rights settlement for the Zuni Heaven

Reservation.
38

The Administration supports the bill. There are some provisions

in the bill that will probably require some further discussion because of the unique circumstances of this Zuni land. There are

three reasons that this settlement unique. First of all, the tribal

lands will be used almost exclusively for ceremonial and religious

purposes and will not be used as a homeland to accommodate tribal

members. Second, the water rights and land area involved are relatively small. Finally, the settlement provides a benefit by allowing

additional lands to be taken into trust and providing the accompanying water rights.

I’m not going to read my entire testimony. It has been submitted

for the record. I would comment that there are four other tribal nations in the Little Colorado Basin: The Hopi Tribe, the Navajo Nation, the Southern Paiute Tribe, and the White Mountain Apache.

I would also note that this particular land involved in this water

settlement is very sacred to the Zunis, and it had to do with the

water that was there and the lake that was there that has been

dried up over a period of time. The thrust of this water settlement

is to restore these water rights and to restore these wetlands for

their religious purposes.

This reservation was established by Congress in 1984 and was

expanded in 1990. Since 1979, the water rights in the Little Colorado have been a subject of adjudication with the State of Arizona.

I would also point out that this bill authorizes Federal participation in the main settlement agreement, which includes three subsidiary agreements with the individual parties, and that the settlement constitutes a final settlement of water rights claims with the

Zuni Tribe and is designed to release the United States from any

potential claims that might be asserted by the tribe relative to the

agreement that is reached here.

The financial partners in this settlement involve the State of Arizona, who is participating on the order of $6 million, and the Federal contribution will be about $19,250,000.

I think that I will stop with those remarks and try to answer any

questions that the committee might have.

The CHAIRMAN. I thank you very much, Mr. Secretary.

[Prepared statement of Mr. McCaleb appears in appendix.]

The CHAIRMAN. I am certain you are aware that this is not the

only pending settlement before us relating to Arizona Indian

Tribes. There is one involving the water rights of Navajo Nation,

and the Hopi Tribe. There have been some who have suggested

that once this matter is resolved for the Zunis that the Government

might not be too anxious to resolve the others. I am certain that

is not the case.

Mr. MCCALEB. No, Mr. Chairman; as a matter of fact, I met as

recently as July 2 in Albuquerque with a negotiating team from

both the Navajo Nation and the Hopi Tribe in furtherance of our

discussions of the settlement agreement. There was some discussion relative to this proposed settlement with the Zuni at that

meeting. But we are doing everything we can to advance and expedite a settlement agreement with both the Navajo and Hopi.

The CHAIRMAN. I would like to congratulate you for the expeditious manner in which you have been handling the Gila River In-
39

dian Community and the Tohono O’odham Nation settlement negotiations.

Mr. MCCALEB. Thank you very much, largely due to the very

beneficial influence of Senator Kyl.

The CHAIRMAN. Mr. Vice Chairman.

Senator CAMPBELL. Thank you, Mr. Chairman.

You mentioned the uniqueness of this bill. I guess the uniqueness really is that the land base of the tribe in question is in one

State and the settlement deals with areas in another State, but if

you look at some of the recent history of Colorado tribes, Wyoming

tribes, I, frankly, think these negotiated settlements are the way

to go. Protracted litigation in the past between tribes and States

and the Federal Government has been expensive and contentious

and just simply doesn’t solve the problem to the satisfaction of everybody, as these new ways of negotiating settlements for water

goes.

There are a few problems, I guess. You mentioned years of negotiations between the tribe, and your testimony indicates—it doesn’t

reflect the United States position on several issues. Do you believe

those issues can be worked out to the satisfaction of the parties?

Mr. MCCALEB. Yes; I do. I think there are tangential issues that

can be resolved. I’d call them maybe more than technical, but they

are tangential issues. There is a great deal of effort that has been

put into this settlement effort.

Senator CAMPBELL. You’re willing to work with the tribes and

the States involved in that?

Mr. MCCALEB. Yes.

Senator CAMPBELL. Okay. Thank you.

Senator Domenici has introduced legislation which I cosponsored,

as well as several other members of the committee, entitled, ‘‘The

Federal Integrity in Indian Claims Settlement Act.’’ It is S. 1186,

if you are interested in looking at that. It provides a budgetary

mechanism to ensure the funds will be there to satisfy the Federal

Government’s responsibilities with respect to negotiated settlements and disputes related to Indian water rights.

Have you had a chance to look at that? I was going to ask if you

support that measure.

Mr. MCCALEB. Senator, I have not seen the bill. I will take a look

at it. I just jotted the number down and I will take a look at it immediately and respond to you on that.

Senator CAMPBELL. I would appreciate it if you would respond to

the committee.

Thank you, Mr. Chairman.

The CHAIRMAN. I thank you very much.

I have several questions, if I may, I would like to submit to you

and your office. They are all technical questions relating to liability

and waivers of rights and such, and I look forward to receiving

your responses.

Mr. MCCALEB. We’ll do it with utmost dispatch, Mr. Chairman.

The CHAIRMAN. Thank you, sir.

Now may I recognize Senator Kyl.

Senator KYL. Thank you, Mr. Chairman. Just two quick points.

I very much appreciate your testimony and pledge to work with

you. As a matter of fact, I know that one of the things that you
40

have pointed out as a potential deficiency I think you are absolutely correct on and ready to make the change right now, so I

think we’ll have no trouble making modifications that might be

called for.

Second, I would like to reiterate, Mr. Chairman, that I am fully

committed and everybody in the State of Arizona that has anything

to do with these subjects is absolutely fully committed to, as quickly as possible, bringing to the Congress a Hopi/Navajo and other

parties’ settlement of their claims. As a matter of fact, we’re going

to be bothering you a lot. Right after Zuni we will have the Gila

River and Tohono O’odham settlement, and hopefully not too long

after that the Hopi/Navajo settlement, and that will resolve almost

all of the issues in Arizona. We just can’t do everything all at once,

but both the Hopi and Navajo leaders have my solemn commitment—and I know that Senator McCain feels exactly the same

way—that we will work very hard to get their issues resolved very

quickly and be bringing a settlement to you reflecting their views,

as well.

The CHAIRMAN. We are prepared to be of assistance.

Senator KYL. Thank you.

The CHAIRMAN. Any further questions?

[No response.]

The CHAIRMAN. If not, I thank you very much, Mr. Secretary.

Mr. MCCALEB. Thank you, Mr. Chairman.

The CHAIRMAN. Our next panel consists of the Governor of the

Pueblo of Zuni, Zuni, NM, Malcolm B. Bowekaty, and the vice

chairman of the Arizona Game and Fish Commission, Joe Carter.

The CHAIRMAN. Governor, it is always good to see you, sir.

Mr. BOWEKATY. I appreciate that.

STATEMENT OF MALCOLM B. BOWEKATY, GOVERNOR, PUEBLO OF ZUNI, ZUNI, NM, ACCOMPANIED BY EDISON VICENTI,

SR., HEAD KATCHINA LEADER; PABLO PADILLA, SPECIAL ASSISTANT TO ZUNI TRIBAL COUNCIL; JANE MARX, ZUNI

TRIBE ATTORNEY; AND OLIVER PAGE, HYDROLOGIST

Mr. BOWEKATY. Good morning. On behalf of my Zuni people I

come here before you to present a water rights settlement that satisfactorily requires and meets the water needs for Zuni Heaven’s

area. It is also here for restoration project that has been before my

tribe for over a century now. As this esteemed committee knows,

we have seen the merits of a lot of our requests before this body

by my former governors, as well as my colleagues, the tribal councils to establish the Zuni Heavens Reservation and also the amendments to include those areas that were inadvertently excluded in

1990.

Given that, we have also been working a lot with the different

parties—the State parties, the Federal parties, as well as the private ranchers and the cities of St. John, Show Low, and

Springerville. We believe that, as the Zuni Tribe, that this is the

best that we can do, rather than going into protracted litigation.

I also have with me a delegation of our top religious leaders that

I wish to acknowledge and beg the committee’s indulgence to recognize two of those individuals. One of those is Edward Vicenti, Sr.,
41

our top religious leader. If I can beg the committee’s indulgence, I’d

like for him to say 30 seconds worth of statements.

The CHAIRMAN. Please.

Mr. VICENTI. Good morning, Mr. Chairman, Vice Chairman, and

members of the committee. Today I greet you all with a very happy

heart. You know, this is something that has been dear to me because it really directly affects me as a leader of the Katchina

group.

I am directly affected because this is a very sacred place that we

make a pilgrimage to on foot, and it is a place that in years past,

over the centuries, back when my great-great-grandfathers were in

this position, they told me about stories of how the place used to

be like marshlands where they used to do their prayers, especially

at night when we finally reached the point of our destinations. We

have a prayer meeting at night. My great-grandparents always told

me about the stories of how they used to do their prayers right

where the springs used to exist, which is right now just a piece of

dried land right now, and there was some wildlife in there like

ducks and other frogs. When they did their prayers, it was like

their spirits—well, they were in a spiritual form. They were being

answered as their prayers were being recited.

Today we get there. We have to make arrangements with a

rancher to provide water for us so we can share the water with

their stocks where the stocks are grazing, and we have to share

that, and that’s where we have to fetch our water because there is

no place where we can fetch water.

In years past, when the place still had some vegetation, there

was a collection of seeds that we do, and also some of the willows

that we do gather in the area. There is no longer existing.

I’m very glad and happy today. My heart is happy. I’m pretty

sure my ancestors before time also feel that way, too, because this

is what I was told by my grandfather, who held this position before

me—that he hoped some day maybe, if we are fortunate enough,

that this will get restored to the place and condition it was at one

time, with a lot of vegetation and wildlife, and also a place where

we can officially do our religious thing. Right now we have to use

sort of makeshift ponds where we have to collect our water, and

also we have to go off-site to gather some of the sacred things that

we have to go collect. We have to do that off-site from where we

do our religious things.

I am very glad today that we have come a long way, because I

was part of the negotiation team early on as part of this group, to

carry this ball forth. I, myself, it’s very important to me and to our

people, because it is a place that, after we, in this lifetime—that

is a place that we all go to reside in spiritual form.

I thank everybody for my opportunity.

The CHAIRMAN. Your approval and your blessings are most appreciated by this committee.

Mr. BOWEKATY. As Mr. Vicenti had highlighted for us, Zuni

Heavens and what we call Koluwala:wa is a hallowed ground, a

sanctuary for our people. We make a lot of pilgrimages for that,

and this settlement, negotiated settlement, has allowed us to judiciously as well as serendipitously allowed us to restore a significant

portion of our original land base around the Zuni Heavens from
42

willing sellers of private ranchers in the area, so that has been an

added blessing for our tribe.

We also look at Koluwalawa as a spiritual place for the genesis

of our tribe for the future. Our tribe will always look at that. It has

been a century-long struggle among other former governors. We

have former Governor Henry Gasper back in the 1930’s that formally requested the restoration of Zuni Heavens, as well as the

restoration of the wetlands. We also have former Governor Robert

E. Lewis, who trailblazed a lot of ways to allow the tribe to secure

land and resources to purchase the land claims area, as well as the

former aboriginal areas. We also have former Governor Edison

Laselute, who actually testified before this exact same committee

for the successful passage of the Zuni Heavens Act. We also have

our former Governor Donald Eriacho, who also maintained the

fight and the momentum for establishing the riparian restoration

program.

The settlement actually allows the tribe to look at reestablishment of several critical springs within the area. One is called

Hadinkya’a. It is the most sacred springs that we have.

Our Zuni Tribe deems the entire tributary at the Little Colorado

River, as well as the Zuni River Basin, from the headwaters of the

Zuni Mountains, where we have the first formal village near the

reservation, Nutria, all the way down to the Zuni Heavens area, as

well as the waters going into the Grand Canyon area as a sacred

area. We offer our food offerings, our prayers, as well as our tobacco offerings along the river banks in any of those areas. So, consequently, the confluence of the Little Colorado and the Zuni River

Basin is the nexus for our pilgrimages. That has actually allowed

us to secure the pilgrimage trail by getting the lands that have actually been offered to the tribe for purchase, since we have willingly taken that.

We have also several other projects that would attempt to restore

the wetlands. That is the reason why the bulk of the funds are

being requested. The Zuni Tribe has invested a little bit over $5

million to purchase the lands, not just necessary for the lands but

also to secure the most senior water rights relative to the establishment of the reservation in 1984. Ironically, that means that the

Zuni who considered that as their aboriginal territory are now the

junior water rights holders within the area. So, consequently, the

settlement negotiation is probably the best way we can settle our

water needs, as well as keep the rest of our neighbors whole.

Again, the Zuni Tribal Council has been hard pressed to make

a lot of soul-searching decisions. One is the water quality waivers

that we have encountered. The other one is the taking of the lands

into trust with certain sanctions.

The Zuni Tribal Council spent a lot of time and a lot of hours,

as well as consulted with our religious fathers to get the blessings,

and they have made a very tough decision. Consequently, we are

bound by their direction to approve this compact, and therefore we

are here to present this information for you.

Esteemed Senators, we have only two remaining governors in the

history of our tribe left alive. I would like to share the peace and

serenity that will be on their faces when we announce to them the

successful package and the successful acceptance of the package to
43

the entire Congressional process. I would love for this committee

to recommend The Honorable Jon Kyl’s recommendation that this

committee give due passage to that.

On behalf of our Zuni Tribe, I would like to take this last step

to introduce the main person that has been the guiding force and

the binding spirit between this negotiating team, Wilfred Eriacho,

and I also have in the audience my Lieutenant Governor, Barton

Martza. But I would like to call on Wilfred Eriacho to do our concluding remarks.

I would be happy to answer any questions that the committee

may have.

Mr. Wilfred Eriacho.

STATEMENT OF WILFRED ERIACHO, CHAIRMAN OF THE ZUNI

WATER RIGHTS NEGOTIATION TEAM

Mr. ERIACHO. [Native words.] Good morning. How are all of you?

Senator Inouye, Senator Kyl, Senator Campbell, and the staff that

have worked so hard with them to have this negotiated settlement

come to fruition, [Native word], thank you.

I share the happiness and joy from the heart that Brother Edison

Vicenti expressed in his talking to you.

My name is Wilfred Eriacho. I am the chairman of the Zuni

Water Rights Negotiation Team. I am of the Badger Clan and child

of the Dogwood Clan. I have both traditional and formal education.

My Zuni tribal traditional education started from birth until now.

My Americanized education started from seven years of age until

now. I am an administrator with the Zuni Public School District in

our community and have participated in both traditional life and

the modern life of our community.

I took on the leadership in the Zuni Water Rights Negotiation

Team because I have personal knowledge that the Koluwala:wa

area is the most sacred geographic area in Zuni Country. This is

not only of modern vintage, it is a tradition that has been handed

down to generations of Zuni people for at least 2,000 years. We

know for a fact that the Koluwala:wa pilgrimage that both the governor and Mr. Vicenti referred to was practiced when the Spanish

first came into this area on July 7, 1540. So this area has been extremely important to the Zuni people for centuries, generations of

Zuni people.

It is the geographic area where past generations of Zuni people

have gone to live in a spiritual life. We believe that when I and

the Zuni people that are in this audience end our daylight life path,

Koluwala:wa area is where we are going to end up as spirit life

forms. This is the reason why the Zuni people are extremely anxious to return this geographic area into the condition that it was

when it was created in ancient times and designated as the homeland of the spirit life of the Ashuwe. I think we owe them, past

generation of Zuni people who have passed on into the spirit life

form and to the future generations that will assume this life form,

I think we owe them the responsibility to get these lands back into

the condition that they were when they were first created.

According to the Zuni stories, Zuni knowledge, cultural knowledge that has been handed down to us, when that area was created

for that purpose, the river was running swift and deep. There was
44

wetland conditions all around. A sacred lake was a lake that was

waist deep, and all the springs were active from the Zuni villages

in New Mexico to Koluwala:wa. These springs are very important,

because they are the conduits through which we communicate with

the spirits that live under these springs.

So I guess I could go on and on, but I think this is the information that all of us wanted to share with you. The governor mentioned past tribal council members. I am mentioning that past religious leaders—I am one of those religious leaders—will be most

happy, you know, that this is getting accomplished. The present

leaders that we have met with on several occasions are going to be

extremely happy and extremely proud that we are going to finally

see some results of our attempts at restoring the wetland conditions and the environment that would be very conducive to sustaining our spirit life forms in that area.

Again, I appreciate the work that all of us did: the Zuni people,

the committee members that served with me on this, the directors

of the program—Dorothy Firecloud and also Joan Sandee. They

were tireless in their efforts—the State parties, Senator Kyl, and

everybody.

Again, thank you very much. [Native words.]

Mr. BOWEKATY. Senator Inouye and committee, [Native words].

Thank you.

[Prepared statement of Mr. Bowekaty appears in appendix.]

The CHAIRMAN. The committee is most pleased that we were

made part of the process to bring about happiness in the Zuni

Tribe.

Governor, are you finished?

Mr. BOWEKATY. Yes; I am.

The CHAIRMAN. Mr. Carter?.

STATEMENT OF JOE CARTER, VICE CHAIRMAN, ARIZONA

GAME AND FISH COMMISSION, SAFFORD, AZ, ACCOMPANIED

BY JAMES ODENKIRK, ASSISTANT ATTORNEY GENERAL

Mr. CARTER. Good morning, Mr. Chairman, Mr. Vice Chairman,

Senator Kyl from Arizona—a person I have great admiration for in

his total commitment to all the people of Arizona. My name is Joe

Carter. I am the vice chairman of the Arizona Game and Fish Commission. My written testimony has been submitted previously. I

would ask that it be entered in the record.

The CHAIRMAN. Without objection.

Mr. CARTER. I would like to summarize it today, If I may, please.

First, I want to thank the committee for this opportunity to

make this statement in support of this legislation. The Arizona

Game and Fish Commission has worked tirelessly, along with

many others represented here today, to achieve a historic agreement that we believe will be the foundation for the Zuni Indian

Tribal Settlement Act of this year.

In authorizing the settlement agreement and making an appropriation to carryout the provisions of the agreement, this legislation, in our view, builds on the success that has already been

achieved, and in particular will allow the Game and Fish and the

Zuni Tribe to realize their mutual beneficial goals of restoring an
45

ecologically important section of the Little Colorado River in eastern Arizona.

Game and Fish enthusiastically participated in the settlement

negotiations that have led to this agreement. The process was an

opportunity to build on our existing efforts and relationships in the

region to restore and maintain riparian habitat that are of critical

importance to wildlife and fish.

Game and Fish and the Zuni Tribe have worked cooperatively,

shared resources to improve the conditions of a large portion of the

river. For over 10 years the Arizona Game and Fish has been active in acquiring riparian habitats and water rights within the Little Colorado River drainage. Our objective has been to use these

water rights to protect minimum flows in the river, to encourage

the reestablishment of native vegetation, and to return the channel, along with eroded banks, to a more natural condition, all with

the eventual goals of protecting sensitive wildlife species.

We have found that diverse populations of wildlife have come

back to these areas of the river because the flows have become

more predictable.

It is our hope that these efforts will eventually lead to a recovery

of listing of native fishes that historically were found throughout

the Little Colorado River watershed. It is our opinion that the recovery of these species depends upon restoring additional portions

of the river to help increase perennial flows and to restore the natural hydrograph.

The Settlement Act will provided a needed support toward this

effort. It will authorize significant funding for the tribe to accomplish similar restoration projects on this property. The funding will

be used for the Zuni Tribe to redevelop and maintain wetlands,

conditions that previously existed within its natural Zuni Heaven

Reservation. The Zuni restoration project at its sacred lake will include rebuilding the channel of the Little Colorado River, enhancing river flows, and reintroducing native wildlife and plant species

which are essential to the tribe’s religious and sustenance activities.

Game and Fish looks forward to a cooperative relationship with

the tribe and assisting the tribe in its endeavor.

Under the settlement agreement, Arizona Game and Fish agrees

as part of its continuing stream rehabilitation project to an expend

over $6 million over the next 15 years and to acquire additional

land and water rights with the express commitment to transfer as

much as 1,000 acre feet of water to the Zuni Tribe for its wetland

restoration project.

Game and Fish will also work cooperatively and share information so that the Zuni Tribe can be assured that any proposed acquisition that Game and Fish makes under the settlement agreement

will likely result in excess water that can be used at the Zuni’s

wetland project, and that the water quality in the Little Colorado

River remains in the acceptable standard.

Our anticipated funding source for the settlement agreement is

the Arizona Heritage Fund, which is a dedicated source of money

that is administered by the Arizona Game and Fish and is used for

property acquisition and projects that are intended to benefit sensitive wildlife and their habitats.
46

In addition to the conservation agreements, Game and Fish will

receive some measure of security in settling claims adversely affecting Game and Fish water rights. The parties have agreed under

the agreement not to object to current attributes of the Game and

Fish water rights, which includes rights in various recreational

lakes in the region. This is important for many people to enjoy

sports fishing in Arizona’s White Mountains and for the local

economies to benefit from the increasing number of recreationists.

The passage of this legislation, in our view, is important to the

Arizona Game and Fish. We believe it is the catalyst that is necessary to allow the important work within the settlement agreement to proceed. Mr. Chairman, we believe that it represents the

common goals to preserve our collective traditions, our values, and

our heritages, and for this I urge passage of this legislation.

Again, Mr. Chairman, I want to thank Senator Kyl for his hard

work in this endeavor and your committee members.

We would be happy to answer any questions you may have.

The CHAIRMAN. I thank you very much, Mr. Carter.

[Pepared statement of Mr. Carter appears in appendix.]

The CHAIRMAN. Right now we have a vote pending, so if I may

I would like to call a recess for ten minutes.

[Recess.]

The CHAIRMAN. May we resume the hearings.

I have a question for the governor. Section 8C of the agreement

states as follows:

The Zuni Tribe shall not unreasonably withhold consent for easements and rightsof-way for roads, utilities, and other necessary accommodations for adjoining landowners across the lands unless such easements and rights-of-way will cause significant and substantial harm to the tribe’s wetland restoration project or religious

practices.

Can you tell us what sort of circumstances could the tribe or

would the tribe reasonably decline to grant such easements and

rights-of-way?

Mr. BOWEKATY. I’ll use a couple of examples that actually highlight why we are very amenable to that.

On our current existing reservation in New Mexico, there is a

private non-Indian person from the community of Raima. His land

borders our reservation, and on the north, the east, and the south

side of his property he has about a 200-foot-high mesa. The only

way he can access his property is either building a road, maybe

borrow the tramway from Albuquerque, or build a tunnel. The Zuni

Tribe has given his access to his property through our reservation

land. He has a 50-year-and-renewable lease up to 99 years of access and egress along our reservation side for at least 50 years, as

well as up to 99 years, so he actually has used that for over five

years now, and he has been a good neighbor. We have had no problems.

A similar situation exists on some property that has been purchased on the south side of our current reservation. The property

is called ‘‘Mazone Ranch.’’ We have been working very closely with

the New Mexico State Game and Fish Department, as well as our

tribe, as well as our game and fish officers, where we jointly work

whenever there’s—there are a couple of sections of State grazing

lands, as well as State leased lands, that border some of our checkerboard area. We work very closely. There is a country road that
47

bisects that portion of the reservation. We direct all State-licensed

hunters to the proper locations and vice versa. The State Game and

Fish direct our tribal members to the proper sections of the tribe.

We have that relationship.

In this situation, that is a fair and equitable situation with the

lands that we already have in the Zuni Heavens area, the State

lands that have been purchased.

We also currently lease some of those properties to the non-Indian ranchers in that area. We have been leasing those properties

out for over 3 years now. We have had no problem. As most of the

next panel will attest, we have a very good relationship. Consequently, I don’t anticipate any situation where there is a rightof-way or an easement that will harm our neighbors or let alone

the neighbors will harm us.

The CHAIRMAN. Thank you very much.

Mr. Carter, this bill waives sovereign immunity as far as the

Federal Government and the tribe is concerned, but as a result of

the Supreme Court decision in the Seminole case, waive the sovereign immunity of the States. In this case, the State has not

waived sovereign immunity.

My question is: What remedies are available to the tribe if the

tribe feels that it needs to enforce its rights against the State? And

in what forum could it bring suit to enforce its rights?

Mr. CARTER. Mr. Chairman, with your indulgence, I would like

to refer that question to James Odenkirk, who is with me. He is

the assistant attorney general that represents the Game and Fish

Commission.

The CHAIRMAN. All right.

Mr. CARTER. Thank you, sir.

Mr. ODENKIRK. Thank you, Senator. My name is Jim Odenkirk.

I am an assistant attorney general with the State of Arizona. I represent the Game and Fish Commission.

My view is that, under the settlement agreement, the tribe would

have access to State courts to resolve conflicts resulting from some

issue arising from the settlement agreement.

The Seminole case I am familiar with, and I believe that refers

to sovereign immunity in suits in Federal court. Most of the issues

that would arise would be involving water right issues, and the

State court would have primary jurisdiction over those matters.

The CHAIRMAN. And the State courts are available to the tribe?

Mr. ODENKIRK. Certainly.

The CHAIRMAN. I thank you very much, sir.

Do you have any questions?

Senator CAMPBELL. Thank you, Mr. Chairman.

I had the opportunity to walk over to vote with Senator Kyl, and

I can tell you those who know him know he does not get involved

with a bill unless he researches it completely and really knows the

insides and outsides of a bill.

I had some questions dealing with priority water rights and restoration of the ground vegetation and so on, but he answered them

completely for me, so maybe just only let me make a short comment on this business of easements and rights-of-way.

I certainly understand the tribe’s concern when it comes to an

area that is a religious area. I was thinking, when the governor
48

was talking, about a mountain in South Dakota that is used for

spiritual purposes by a number of Northern Plains tribes. It is

called ‘‘Bear Butte.’’ One-half of that mountain is actually owned

by the Cheyenne Tribe. The other one-half is owned by the State

of South Dakota. There is a State visitors’ center on their one-half

of the mountain.

It is not uncommon, when Indians are there on the Indian side

praying, for people with binoculars and cameras and actually leading tour groups to the other side so they can watch the Indians

praying. I mean, that’s almost sacrilegious. How would you like, if

you were a Catholic or a protestant, to have somebody come in

while you’re praying and take pictures of you in church or record

what you’re saying when you’re making your prayers?

That’s what Indians actually face sometimes, Mr. Chairman. I

know that there’s a very big concern on the part of many tribal

people, particularly spiritual leaders, about who is going to be on

there and under what conditions, particularly when they are trying

to do ceremonies.

Thank you. I have no questions.

Thank you for appearing, Governor.

The CHAIRMAN. Thank you very much.

Just for clarification, may I ask the deputy attorney general

more specifically: As you know, there is no reciprocal provision that

waives the sovereign immunity of the State of Arizona. The tribes’ immunity is waived and the Federal Government’s immunity is

waived to allow the tribe to enforce its rights.

Now, by your statement this morning, are you saying that the

State of Arizona is waiving its sovereign immunity to permit to

tribe to enforce its rights in court?

Mr. ODENKIRK. Mr. Senator, I am certainly not in a position to

state that the State of Arizona has waived its sovereign immunity.

There are certainly occasions where the State has waived its sovereign immunity to allow suit in State and Federal court, but only

the State legislature would be authorized to waive sovereign immunity in a manner further than what has already occurred.

The CHAIRMAN. When can the tribe sue the State, under what

circumstances?

Mr. ODENKIRK. Senator, there would be a number of situations

where the tribe could sue a State, especially if it was under a Federal law that Congress has expressly provided for the State’s waiver of sovereign immunity, or in State court could certainly enforce

provisions of the settlement agreement. The State has waived its

sovereign immunity to jurisdiction under State court.

The CHAIRMAN. Well, under section 8(a)(1), the sovereign immunity of the United States and the tribe are waived, but not the

State of Arizona, and so, under your interpretation, the State has

not waived its sovereign immunity under this settlement, or has it?

Mr. ODENKIRK. Senator, I don’t believe the State has waived its

sovereign immunity. The parties have not been able—the parties

are not in a position. The State agency parties are not in a position

to waive sovereign immunity without authorization of the State

legislature, just as the agencies of the United States would not be

in a position to waive sovereign immunity without the authority of

Congress.
49

The CHAIRMAN. So if the Zuni Tribe wants to sue the State of

Arizona under the provisions of the agreement, it will have to go

to the legislature to get approval first?

Mr. ODENKIRK. Senator, I believe if they wanted to sue in Federal court they would need to do so, but there is State court available for them to enforce the terms of the settlement agreement.

This is an issue that I would need to look at and further review,

but I don’t believe that the parties to the settlement agreement

have the authority to waive sovereign immunity as to suit in Federal court.

The CHAIRMAN. Is the Zuni Tribe concerned about this provision?

Mr. BOWEKATY. We have thought long and hard, and I’m going

to defer to my attorney, Jane Marx, for the technical issues, but we

have looked at the implications and the potential liabilities in situations where we may need to look at that.

Ms. MARX. Thank you, Mr. Chairman.

The State of Arizona has no immunity from suit for enforcement

of contracts. That’s State law as I understand it from the early

1960’s that has made that point clear. We’re not concerned.

The CHAIRMAN. Thank you very much.

Do you have any further questions?

Senator CAMPBELL. No further questions, Mr. Chairman.

The CHAIRMAN. I thank the panel very much.

Mr. BOWEKATY. Thank you.

The CHAIRMAN. now may I call upon Norman Ray Brown of

Lyman Water Company of St. Johns, Arizona, accompanied by

David Brown of Brown and Brown Law Offices of Arizona; David

Roberts, manager, water rights and contracts, Salt River Project of

Phoenix, accompanied by John Weldon, Jr. of Salmon, Lewis and

Weldon of Phoenix, AZ.

Mr. Brown.

STATEMENT OF NORMAN RAY BROWN, LYMAN WATER COMPANY, ST. JOHNS, AZ, ACCOMPANIED BY DAVID BROWN,

BROWN AND BROWN LAW OFFICES, PINETOP, AZ

Mr. NORMAN BROWN. Thank you, Mr. Chairman, Mr. Vice Chairman, and Senator Kyl. I appreciate being able to be here today. I

am Norman Brown. I live in St. Johns, which is in Apache County

in Arizona. I’m a member and represent the board of directors of

the Lyman Water Company, which is one of the largest water users

on the river there. I have lived there and am doing a fairly good

job of attempting to provide for my family with seven children. My

wife, Karen—I’m a fifth generation farmer/rancher there. We have

an alfalfa farm to help us provide feed for our cattle operation.

With me today is my brother, David, who is an attorney with the

law firm of Brown and Brown. He is also a supervisor on the

Apache County Board of Supervisors.

A portion of our cattle ranch is located adjacent to the Zuni

Heaven portion of the reservation in Arizona there, and for many

years we have been neighbors with that property there, and I have

never had any problems with the previous owners or the current

owners, the Zuni Tribe.

As my responsibilities as a member of the board of directors, we

have for several years now been negotiating under this situation,
50

and, because we control a large area in the St. Johns area, approximately 2,500 acres of farm when we have sufficient water—as everybody knows, the last several years we have had a dearth of that

water. I represent approximately 200 shareholders that use the

water in our little valley there.

In the late 1800’s, early settlers started using the water for the

farms in the St. Johns area and also in Eager and Springerville,

and developed those farms. In the early 1900’s we had an adjudication process that resulted in the Norvell Decree.

I’m just making a few brief comments from the written comments, and I request that the committee receive my written testimony that I submitted earlier.

The Norvell Decree spells out who has water rights up and down

the river since the late 1800’s. At that time the decree did not include or address any claims to water rights by the Zuni Tribe;

therefore, we have been in settlement negotiations with the tribe

during the last several years.

I am here today to tell the committee that Lyman Water Company and also the small towns of St. Johns and Springerville and

Eager, who are upstream from St. Johns, endorse the proposed settlement and agree that in this situation it would be the best.

I believe personally that the Lyman Water Company—on behalf

of Lyman Water Company, this settlement is good for the whole

situation because it recognizes the Norvell Decree, still recognizes

the water rights we have there, helps us settle as neighbors and,

on another hand, for our small company there it helps to maybe

quit paying the attorneys that are involved.

Lyman Water Company controls Lyman Lake, and we have

agreed to use that resource to help control water flows for all the

parties involved.

I would like to thank the committee for the work that they have

been doing in hearing this bill. I appreciate Senator Kyl and all the

leadership he has shown in bringing this to this point.

One of the last requests I have is, if the committee has any authority, we need more rain in the whole area. [Laughter.]

That would help solve a lot of things.

That’s all I have today. Thank you.

The CHAIRMAN. I thank you very much, Mr. Brown.

[Prepared statement of Mr. Norman Brown appears in appendix.]

The CHAIRMAN. Mr. Roberts.

STATEMENT OF DAVID ROBERTS, MANAGER, WATER RIGHTS

AND CONTRACTS, SALT RIVER PROJECT, PHOENIX, AZ, ACCOMPANIED BY JOHN B. WELDON, JR., SALMON, LEWIS AND

WELDON, PHOENIX, AZ

Mr. ROBERTS. Thank you, Mr. Chairman and Mr. Vice Chairman

Campbell, members of the committee, as well as Senator Kyl—and

I appreciate Senator Kyl very much in his, as you mentioned earlier, ability to work with these Indian water rights settlements. He

has had a lot of experience. He really works on them well with us,

and we really appreciate the opportunity to work with Senator Kyl

on this particular settlement.

I am the manager of the Water Rights and Contracts Department at Salt River Projects. I am here to present testimony in sup-
51

port of this legislation. I have submitted written testimony, and I

would just like to highlight some of the major parts of that testimony that I provided for the record.

The CHAIRMAN. Your full statement is part of the record now.

Mr. ROBERTS. Thank you.

SRP is a large, multi-purpose reclamation project authorized pursuant to the Reclamation Act and constructed in central Arizona.

Pursuant to various contracts with the United States and the Reclamation Act, SRP operates six large storage reservoirs in central

Arizona and is the largest water supplier in the Phoenix metropolitan area.

SRP also operates several large power plants throughout Arizona

and distributes electricity from those power plants to more than

three-quarters of a million customers in central Arizona.

You have heard quite a bit of testimony this morning about the

history of the Zuni Indian Reservation. You’ve also heard testimony

about the many benefits the settlement agreement will provide the

Zuni Tribe, the State of Arizona, the cities and towns in the Upper

Little Colorado River Basin, as well as the irrigators from the Little Colorado River Basin.

This morning I would like to just highlight a few of the important parts of the settlement that we think are critical in settling

this claim, the claim by the Zuni Indian Tribe.

First, SRP’s interest in the settlement, why the settlement is important to SRP; second, a short history regarding what led to the

negotiations of the water rights claim by the Zuni Tribe; and, third,

the importance of this settlement with respect to the settling parties, including the United States.

As I mentioned earlier, one of the major responsibilities of SRP

is to produce and distribute electricity in central Arizona. SRP has

a significant interest in the water issues in the Upper Little Colorado River Basin because one of the power plants owned and operated by SRP is the Coronado Generating Station located near St.

Johns about 15 miles upstream from the Zuni Indian Reservation.

About 20 percent of the power generation owned by SRP comes

from CGS. CGS was constructed in the mid 1970’s and employs

about 20 percent of the workforce in the area. Water for CGS is

supplied by two well fields located near the plant, and SRP has

pumped about 10,500 acre feet each year to supply the Coronado

Generating Station.

With respect to how the settlement negotiations began, as you

heard earlier, the Zuni Heaven Reservation is a fairly new reservation, having been created by Congress in 1984. For many years,

this was not much of a concern to the area water users because

most of the current uses of groundwater and surface water from

the Little Colorado, including SRP’s use of groundwater for CGS,

predated Congress’ creation of the Zuni Heaven Reservation and

arguably would have priority over the tribe’s use of water in times

of shortage.

However, the arguable seniority of these upstream water rights

to those of the Zuni Tribe was called into question in 1994 when

the Justice Department asserted a claim in the Little Colorado

River adjudication based on the tribe’s use of water since time immemorial. This filing brought into focus a potential conflict be-
52

tween the tribe’s water uses on the reservation as well as those of

the surrounding communities.

In 1997, representatives of the tribe, the United States, SRP, and

other local parties began negotiating a settlement of the tribe’s

claims.

Last, with respect to the importance of this settlement, as with

the other Arizona Indian water rights settlements that have been

submitted to and approved by Congress, there are three important

characteristics of this settlement that warrant its approval.

First and foremost, the settlement resolves all outstanding

water-related litigation between the Zuni Tribe and the other settling parties and settles once and for all the water rights of the

tribe to surface water and groundwater in the Little Colorado River

Basin in Arizona.

Second, the settlement provides the tribe with essential resources to restore and maintain the religiously significant riparian

areas on its reservation. SRP will participate in that restoration

process by providing the tribe with $1 million to be used toward

developing a water supply to restore the tribe’s sacred lake.

Third, the settlement provides certainty for the water users and

the tribe with respect to current and future water uses in the

basin. The settlement permits the continuation of existing surface

water and groundwater uses in the basin. This is critical to the

local economy of the Upper Little Colorado River area.

Additionally, as part of the settlement SRP and the tribe will

enter into a separate supplemental agreement that will address the

terms and conditions that apply to future pumping by SRP and the

tribe. Under this agreement, SRP has agreed to refrain from drilling new wells or replacement wells within a specific area between

the reservation and the existing well fields utilized by CGS in

order to minimize the effects of SRP’s wells on water supplies for

the reservation. The tribe has also agreed to restrict its pumping

of groundwater in an area surrounding SRP’s well fields in order

to minimize impacts on water supplies for CGS.

SRP will also undertake a groundwater quality monitoring program in an effort to identify future water quality changes in the

area near the Zuni Heaven Reservation lands.

In conclusion, the Zuni Indian Tribe and the other parties to this

settlement have worked diligently and will continue to do so to

achieve the numerous compromises and contributions necessary for

settlement of the tribe’s water rights claims. The legislation before

the committee embodies the hard work of those parties to achieve

a result that is beneficial to both the tribe and the local water

users, enabling them to use the scarce resource cooperatively with

consideration for the needs of both sides.

SRP and the other settlement parties urge this committee to

bring the settlement one step closer to completion by approving S.

2743.

Thank you for your time. I would be happy to answer any questions.

The CHAIRMAN. I thank you very much, Mr. Roberts.

[Prepared statement of Mr. Roberts appears in appendix.]

The CHAIRMAN. If I may ask a question of Mr. Brown, section 9

of the bill states that certain agreements among the parties shall
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become null and void if certain prerequisites are not met by December 31, 2005. Among these prerequisites is the tribe’s ability to

purchase certain surface water rights and the severance and transfer of those water rights. Do you foresee that the tribe may have

some difficulty in complying with these conditions?

Mr. NORMAN BROWN. I see that the tribe could very easily purchase some of those water rights up and down the river. It is a long

way up and down there. It has been not feasible for them to try

to acquire those rights up until now since they haven’t had the resources to do so or the agreement to transfer those rights.

The CHAIRMAN. So you see no problems now?

Mr. NORMAN BROWN. No.

The CHAIRMAN. Thank you. And, for Mr. Roberts, is your organization committed to move forward expeditiously to reach similar

settlements addressing the water rights of other tribes in Arizona?

Mr. ROBERTS. Yes, Mr. Chairman; we very much are. We have

been involved in a number of settlements in Arizona, currently

working on several right now, and certainly will work diligently towards that.

The CHAIRMAN. I want to commend both of your organizations for

the expeditious manner in which you have resolved the Zuni water

rights case. We look forward to further legislation to bring about

settlements for other tribes.

Mr. Vice Chairman.

Senator CAMPBELL. Mr. Chairman, I have no questions. They all

seem to support the bill, so I don’t have to light into anybody. I’m

just very happy they do.

Let me just tell Mr. Brown how much I admire your raising

seven children on a ranch. We have a small ranch in Colorado. We

only had to feed two, and we still had to have outside jobs, which

meant I was either a bad rancher or they ate too much. [Laughter.]

Congratulations.

Mr. NORMAN BROWN. Thank you.

Senator CAMPBELL. Thank you, Mr. Chairman.

The CHAIRMAN. Senator Kyl.

Senator KYL. Mr. Chairman, I just thank you very much for

holding this hearing. I thank the witnesses. They have worked

very, very hard. They have done all the work. They have expressed

appreciation to me, but, frankly, they are the ones who have done

the hard work. It just demonstrates what happens when everybody

has a desire to sit down and resolve their differences and stop paying lawyers, so in that regard this is a very successful conclusion.

[Laughter.]

The CHAIRMAN. That is why they call you a miracle worker, don’t

they.

With that, and with the gratitude of this committee, the hearing

is adjourned.

Mr. NORMAN BROWN. Thank you.

Mr. ROBERTS. Thank you.

[Whereupon, at 11:35 a.m., the committee proceeded to further

business.]

(55)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. JON KYL, U.S. SENATOR FROM ARIZONA

Mr. President, on behalf of Senator McCain and myself I am introducing legislation today that would codify the settlement of the Zuni Indian Tribe’s water rights

for its religious lands in northeastern Arizona. Congress first recognized the importance of these lands in 1984 when it created the Zuni Heaven Reservation (Pub. L.

No. 98–498, as amended by Pub. L. No. 101–486 (1990)). The small communities upstream from this Reservation have been fully appropriated—they have had more

would-be water users than water—for nearly a century. The prospect of dividing

this limited water with yet another user created great uncertainty. To resolve that

uncertainty and to avoid expensive and protracted litigation, the Zuni Tribe, the

United States on behalf of the Zuni Tribe, the State of Arizona (including the Arizona Game and Fish Commission, the Arizona State Land Department, and the Arizona State Parks Board) and the major water users in this area of Arizona negotiated for many years to produce a settlement that is acceptable to all parties.

This bill would provide the Zuni Tribe with the resources and protections necessary to acquire water rights from willing sellers and to restore and protect the

wetland environment that previously existed on the Reservation. In return, the Zuni

Tribe would waive its claims in the Little Colorado River Adjudication. In addition,

the Zuni Tribe would, among other things, grandfather existing water uses and

waive claims against many future water uses in the Little Colorado River basin. In

summary, with this bill, the Zuni Tribe can achieve its needs for the Zuni Heaven

Reservation while avoiding a disruption to local water users and industry. Furthermore, the United States can avoid litigating water rights and damage claims and

satisfy its trust responsibilities to the Tribe regarding water for the Reservation.

The parties have worked many years to reach consensus and I believe this bill

would produce a fair result to all.
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