N 4 CERTAIN water right claims of the

AK- CHIN INDIAN COMMUNITY

W 29 V

GOVERNMEN'l

Storage

H E A R IN G

BEFO RE THE

U.S. SENATE 

SELECT COMMITTEE ON 

INDI AN AFFA IRS

ON

S. 1582

RELATING TO THE SETTLEMENT BETWEEN THE UNITED 

STATES AND THE AK-CHIN INDIAN COMMUNITY OF CERTAIN 

WATER RIGHT CLAIMS OF SUCH COMMUNITY AGAINST THE 

UNITED STATES

JULY 25, 1977

Printed fo r the use of the 

U.S. Senate Select Committee on Indian Affairs

95-373 O

U.S. GO VE RNME NT PR IN TI NG OF FICE 

WA SH INGT ON : 1977
SELECT COMMITTEE ON IN DI AN AF FA IR S

[Created by 8. Re s. 4, 95th Cong.]

James Abourezk, South Dakota, Chairman

HOWARD METZEBAUM, Ohio DEWEY F. BART LE TT , Oklahoma

JOHN MELCHER, Montana MARK O. HA TFIEL D, Oregon

Ernest L. Stevens, Staff Director

Alan R. Parker, Chief Council

Michael D. Cox, Minority Counsel
A 1 1 2 0 5 0 7 M 6 7 ^

CONTENTS

Bill and Departmental Report

Page

S. 1582_________________________________________________________ 3

Report of the Department of the Inter ior ________________________ 8

Office of M anag ement and Budget_____________________________ 12

Wit nes se s

Carlyle, Wilbert J., chairman, Maricopa Ak-Chin Indian Com munity___ 35

Prepared statem ent____________________________________________ 36

Clinton, Michael, Resource Planning Officer, Bureau of Reclamation,

Dep artm ent of the In terior ______________________________________ 21

DeConcini, Hon. Dennis, a U.S. Senator from the State of Arizona_____ 27

Franzoy, Gene, engineer__________________________________________ 35

Hirsch, Burton G., atto rney, Ak-Chin Council_______________________ 35

Kak ar, Leona, secretary -treasurer, Ak-Chin Council___________________ 35

Krulitz, Leo M., Solicitor, Dep artm ent of the Interior________________ 21

Membrino, Joseph R., Department of the Interior____________________ 21

Santos, Vera, vice chairperson, Ak-Chin Council______________________ 35

Smith, John E., president, Maricopa-Stanfield Irrig ation and Drainage

District, Phoenix, Arizona______________________________________ 31

P re pa re d Sta te men ts

Goldwater, Hon. Barry, a U.S. Senator from the State of Arizona______ 13

Steiner, Wesley E., State water engineer and executive director, Arizona

Water Commission_____________________________________________ 19

(in)

CERTAIN WATER RIG HTS CLAIMS OF THE AK-CHIN

IND IAN COMMUNITY

MONDAY, JULY 25, 1977

U.S. Senat e,

Select Committee on I ndian Affairs,

Washington, D.C.

Th e com mittee m et, pu rsua nt to notice, at 10:10 a.m., in room 235, 

Russell Senate Office Building, Hon. Jam es Abourezk (chairm an of 

the com mittee) presiding.

Presen t: Sen ators Abo urezk and DeConcini.

Staff present: Alan Parker, chief counsel; Kat hr yn Ha rris Tijerina, 

staff atto rn ey ; and Michael Cox, minority counsel.

Senator Abou rezk. The hearing will be in order.

Th e purpose of this he aring b efore the S ena te Comm itte e on Ind ian 

Affairs is to tak e tes tim ony on S. 1582. Th e in tent of this bill is to 

make ava ilab le a tem po rar y wa ter sup ply for the Ak-Ch in Ind ian 

com mu nity in cen tral Ariz ona, until a perm anent supply can be delivered. In exchange for the delivery of water, the Ak-Ch in Indian commun ity would waive all of its claims again st the Un ited St ates for 

past failures , as truste e, to assert and protec t their wa ter righ ts.

With in the last 25 years, the Ak-C hin T ribe has ha d to con tend with 

severe poverty. By 1964, the Ak- Chi n Indian comm unity had discon tinued the practic e of leasing its far m lan ds to no n-Ind ian s and 

had decided to farm the lands for itself. Careful planning an d financing 

enabled the commu nity to farm 4,900 acres in 1964. In t he ye ars since, 

the ir profits ha ve risen from a low of $21,353 in 1964 to over $1 million 

in 1976, while farming only 5,000 acres. Because of this amazing story 

of gro wth from Fed eral dep end ency to self-sufficiency, the Ak- Chin 

Tribe h as been able to build man y mo dern homes for its m embers and 

imp rove their q ua lit y of life.

The Ak- Chin people are now before the com mittee because the ir 

way of life m ay dry up beneath their feet. Th e issue in S. 1582 is their 

wa ter crisis—how it may be resolved and at wh at cost.

The reserv ation loca ted entirely within Pin al Co unty, Ariz., is 

appro xim ately 30 miles south of Phoenix. It consists of 21,840 acres 

of land , all of which is suitab le for agriculture , with class A -l or B -l 

soil. Allowing for roads, homes, et cetera, the Interio r Dep artm en t in 

the pa st has estim ate d the re are 19,656 practic ably irrig able acres on 

the A k-Chin rese rva tion, with Winters righ ts of a bo ut 90,000 acre-feet 

of. water.

Despite an Execu tive orde r, on M ay 28, 1912, when the U.S. filed 

notice of ap pro priat ion of 70,000 acre-feet per ye ar for the Ak-Chin 

reserv ation, none was deliv ered. To day, because of dams an d.o th er
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obstructio ns, the reserv ation has n o surfa ce wa ter sup ply from which 

to satisfy its Winters righ ts. To farm, the tribe has had to pump 

groundwa ter from the aqu ifer beneath it.

No n-I ndian s sur roundin g the reserv ation also rely on the groundwa ter and mine it by inte nsive pum ping. Th e aqu ifer has no t been 

able to recharge at th e rate of pump ed wa ter. Th e wa ter tab le at 

Ak-Chin is dro pping 20 feet each y ear. A sec ond ary effect of the drop 

is th at the la nd on th e rese rva tion h as buckled.

Th is bill is desig ned to accomplish a tem po rar y settlem ent for the 

Ak-Chin while a br oader perm anent s ett lem ent is bein g forged wi tho ut 

extensive and costly litigatio n.

S. 1582 provide s th at aft er 1 ye ar of engineering and hydrolo gical 

studies, if needed , “to in sure a reason ably stab le source of ground wa ter 

which can be take n with min imu m adverse effect on the prese nt users 

of g round water,” the Sec reta ry of In terio r is authorized to constru ct, 

ope rate, and main tai n a well field on Feder al land s. He is fu rthe r 

au thor ized . to constru ct and main tain a delivery system from the 

Fed eral lands to the Ak-Chin Reservat ion.

Th e bill specifies th at the S ecret ary will deliver, un til the p erm anen 

sup ply can be delivered, 100,000 acre -feet of Fed eral ground water. 

If th e Secre tary finds the re are adverse effects on the basin or th at it is 

dam aging oth ers, he is empo wered to reduce the am ount as low as 

70,000 acre-feet.

The wa ter will allow the Ak-Chin Tribe to farm all its practic ably 

irrigable acreage and would resolve their c ritical wa ter crisis. Fu rth er, 

it helps fulfill the U.S. obligation, with the establishm ent of the 

reserv atio n, to provide wa ter to the Ak-Chin Tribe.

There is a provision in section 2 to allow oth er wa ter users to be 

com pensate d for any losses incurred from th is act.

Fin ally , S. 1582 would waive all claims of the Ak-Chin Tribe 

aga inst t he U nited State s for past failure t o provide w ate r and for allowing ground wa ter beneath th e rese rva tion t o be mined by non-India ns.

We will insert i n the record a copy of the bill S. 1582, the r ep ort of 

the D ep artm en t of th e Inter ior , a let ter from the Office of M anage me nt 

and Bu dget, and a sta temen t by Senator B arry Goldw ater in supp ort 

of thi s bill.

Followin g th at , there will be a sta temen t by Wesley Ste ine r in 

support of th e bill. M r. Steiner is on the Arizona W ater Comm ission .

[The ma terial follows:]
3

95 th CONGR ESS 

1st Session S. 1582

IN TH E SEN ATE OF TH E UN ITED STATES

May 23 (legislative day, May 18), 1977

Mr. DeConcini introduce d the following bill ; which was read twice and refe rred 

to the Select Committee on Indian Affairs

A BILL

Relating to the settlement between the United States and the 

Ak-Chin Indian community of certain water right claims of 

such community against the United States.

2 Be it enacted by the Senate and House of Bepresenta2 tives of the United States of America in Congress assembled,

3 That (a) the Congress hereby declares that it is the policy

4 of Congress to resolve, without costly and lengthy litigation,

5 the claims of the Ak-Chin Indian community for water based

6 upon failure or alleged failure of the United States to meet

7 its trust responsibility to the Indian people provided reason8 able settlement can be reached.

9 (b) The Congress hereby finds and declares that—

1 0 (1) the Ak-Chin India n community relies for its

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economic sustenance on f anning, and that ground water, 

necessary thereto, is declining at a rate which will make 

it uneconomical to farm within the next few years;

(2) at the time of the settlement of the reservation, 

it was the obligation and intention of the United States to 

provide water to the Ak-Chin Indian Reservation, and 

such obligation remains unfulfilled this day;

(3) it is likely that the United States would be held 

liable for its failure to provide water and for allowing 

ground water beneath the reservation to be mined by 

nearby non-Indians;

(4) this Act is proposed to settle the Ak-Chin 

India n community’s claim for water by delivering water 

in exchange for a release of all claims such community 

has against the United States for failing to act consistently with its trust responsibility in the protection and 

delivery of the w ater resources of the community;

(5) there exists a critical situation at Ak-Chin in 

that there is not sufficient economically recoverable 

ground water beneath the reservation to sustain a farming operation until a permanent source of surface water 

can be delivered; and

(6) that it is the intention of this Act not to discriminate against any non-Indian landowners or other 

persons, but to fulfill the historic and legal obligation of

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1 the United States toward the Ak-Chin Indian com2 munity.

3 Sec. 2. The Secretary of the Interior (hereinafter

4 referred to as the “Secretary” ) is authorized and directed to

5 pump and deliver one hundred thousand acre-feet of ground

6 water from nearby Federal lands to the Ak-Chin Indian

7 community to enable the community to farm all its prac8 ticably irrigable acreage, except that if the Secretary detcr9 mines that pumping such an amount will (1) significantly

10 damage other interests, or (2) adversely affect ground water

11 basins, the Secretary may deliver less than such one hundred

12 thousand acre-feet but in no event less than seventy thousand

13 acre-feet. Such water shall be delivered annually until such

14 time as a permanent supply of ■surface water cun be delivered,

15 and as such permanent surface water is dedivered, the obliga16 tion to deliver ground water by this section shall be reduced

17 by a like amount to the end that the delivery of such ground

18 water shall no longer be required. The Secretary is author19 ized to receive, consider, and pay and claim received by bitn

20 arising under this section from water users other than the

21 Ak-Chin Indian community for compensation for any losses

22 or other expenses incurred by such users by reason of the

23 enactment of this Act.

24 Sec. 3. To accomplish the pumping and delivery of

25 water, the Secretary is directed to undertake such engineer95 -3 73 0 - 77 - 2
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ing and hydrological studies as may be necessary to insure a 

reasonably stable source of ground water which can be taken 

with minimum adverse effect on the present users of ground 

water in nearby areas: Provided, however, That such studies 

shall be completed within one year from the date of the 

enactment of this Act.

Sec. 4. Upon completion of the studies authorized in 

section 3, but not later than one year from the date of enactment of this Act, the Secretary shall enter into a contract or 

other agreement with the Ak-Chin Indian community pursuant to which the Secretary shall agree, on behalf of the 

United States, to take such action as may be necessary to 

drill, construct, equip, maintain, repair, reconstruct, and 

operate a well field on such Federal lands. In addition to the 

drilling, construction, equipping, maintenance, repair, and 

reconstruction of such wells, the Secretary shall agree to 

construct and maintain a distribution system, including 

canals, pumping stations, and other appurtenant works, sufficient to provide for the distribution of such water from 

such Federal lands to the lands comprising the Ak-Chin 

Indian Reservation.

Sec. 5. As consideration for the actions by the Secretary 

in section 4, the Ak-Chin Indian community would agree 

effective upon the delivery of one hundred thousand acrefeet of water annually or such amounts as the Secretary
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1 determines under section 2 to the reservation, to waive any

2 and all claims which it might have against the United

3 States for the alleged failure of the United States to protect

4 or otherwise assert the water rights of the Ak-Chin Indian

5 Reservation, including both ground water and surface w ater

6 from time immemorial to the present.

7 Sec. 6. There are hereby authorized to be appropriated

8 such sums as may be necessary to enable the Secretary to

9 carry out the provisions of this Act, and any contract or

10 agreement entered into pursuant to this Act by the Secre11 tary with the Ak-Chin India n community.
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United States Department of the Interior

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 20210

JUL ° 2 1977

Ho nor able James Abourezk 

Cha irm an, S ele ct Committee 

on In dia n A ff air s 

U ni te d S ta te s Se na te 

Wash ing ton , D. C. 20510

Dear Mr. Chairman:

Th is resp on ds to yo ur re q u est fo r th e views of th is Departme nt 

co nc er ni ng a b i l l , S. 158 2, "R ela ting to th e se tt le m en t between 

th e U ni te d S ta te s and th e Ak-C hin In dia n community o f c e rta in 

w at er rig h t claim s of suc h community ag ain st th e U ni ted S ta te s."

We su pp or t th e pu rp os e of th e b i l l in s o fa r as i t at te m pts to 

s a tis f y th e le g it im a te w at er claim s of th e Ak-Chin community and 

to av oi d th e p o te n tia lly d is a str o u s dep le ti o n o f th e t r i b e 's 

p re sen t w at er su pp ly , which co uld oc cu r w it h in 5 bo 8 yea rs 

ac co rd in g to cu rr en t p ro je c ti o n s. We a ls o re co gn iz e th a t water 

from no n- In dia n F edera l la nds may p re sen t a v ia b le so ur ce to 

a s s is t in sa ti s fy in g th e ne ed s and rig h ts of th e Ak-Chin o r of 

o th er In dia n com munities and we th e re fo re su pp or t ex plo ri ng th a t 

re so u rc e. We do n o t, howe ver, su pp or t th e b i l l as w rit te n . We 

would su pp ort a su it a b ly m od ifie d b i l l which would not auth ori ze 

co n str u cti o n a t th is tim e b u t which would auth ori ze a f e a s ib ility 

st ud y fo r p o te n tia l w at er sy stem s. Such a stud y sh ou ld be 

auth ori zed w ith a sp e c if ic tim e li m it to as su re tim ely co mpleti on 

and w ith a re qu irem en t th a t th e stud y de velop a pla n fo r d eli v ery 

o f w at er to th e Ak-Chin. Such a st ud y sh ou ld be d ir e c te d a t 

assu ri n g , a t a minimum, su sta in in g th e cu rr en t le v e l of us ag e, 

wh ich is est im ate d a t between 25 ,000 to 30,00 0 a c re -fe e t. The 

st ud y sh ou ld als o ad dre ss p o te n tia l w at er a v a ila b ility beyond 

th a t amount from F ed er al la nds in th e re gio n. The t r i b e 's 

lo ng-t er m ne ed s a re , o f cours e, be in g co nsi der ed in co nn ec tion 

w ith S. 905.

S. 1582 wo uld d ir e c t th e S ecre ta ry o f th e In te rio r to pump and 

d e li v e r 10 0,00 0 a c re -fe e t o f ground w at er from ne ar by Fed er al 

la nds to th e Ak-Chin In dia n community to en ab le th e community 

to farm <11 p ra c ti c a b ly ir rig a b le ac re age. I f th e S ecre ta ry 

de term in ed th a t suc h pumping would sig n if ic a n tl y damage oth er 

in te r e s ts or adver se ly a ff e c t gro und w at er b a sin s, he co ul d

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deliver less than 100,000 acre-feet but not less than 70,000 

acre-feet. Water would have to be delivered annually until a 

permanent supply of surface water could be provided and the amount 

of ground water to be delivered would be reduced by the amount of 

surface water supplied. Claims from other water users could be 

paid for losses or expenses incurred by reason of this bill. In 

addition, the Secretary would be directed to undertake and complete 

within one year, engineering and hydrological studies needed to 

insure a stable source of ground water which can be taken with 

minimum adverse impact on present water users. Upon completion 

of the studies the Secretary would enter into an agreement with 

the Ak-Chin to take action needed to drill, construct, maintain 

and operate a well field on such Federal lands, and a distribution 

system to serve the lands comprising the Ak-Chin Reservation. In 

consideration therefor, and for delivery of water annually as 

prescribed by the bill, the Ak-Chin would waive all claims against 

the United States for failure to protect Ak-Chin water rights, 

including ground water and surface water.

The Ak-Chin community is a small Indian community located due 

south of Phoenix, Arizona, which exists on agriculture and which, 

to date, has been highly successful both agriculturally and 

financially. In fact they could be considered a model of Indian 

independence and self-sufficiency. Their farming is entirely 

dependent upon pumping of ground water. They are already pumping 

at depths of up to 600 feet. They currently have no natural sources 

of surface water. For many years now the lands surrounding the 

reservation have been heavily farmed by non-Indian farmers who have 

also relied on punping of ground water for irrigation. The non-Indian 

lands form a far larger area than the Ak-Chin lands and have been 

more intensely farmed. Consequently the aquifer underlying the 

reservation have been constantly overdrawn and according to estimates 

from reliable sources the Indians' sole source of water could 

disappear within 5 to 8 years. The intensive ground pumping has 

also dried up surface water sources that once existed in the area 

and upon which the Ak-Chin once expected to rely.

The Department fully appreciates the prospective plight of the 

Ak-Chin community and we believe that given the time it takes to 

plan and develop Federal water supply systems, now is the time to 

begin planning. We do not, however, have sufficient information 

upon which to support authorization for construction, as is provided 

by S. 1582. The specific Federal lands from which water would be 

taken have not been identified. We do not know hew much water is 

available from the potential Federal lands or if it is adequate for 

the purpose. We do not know the costs involved in punping and

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d e li v e ry , and ca nn ot know u n ti l more sp e c if ic opti ons ar e 

id e n tif ie d . F u rt h er, we ca nn ot he su re i f w at er fro m F edera l la nd s 

i s th e b e st or th e on ly p o te n tia l so ur ce from which to su pp ly th e 

Ak-Chin. (For in sta n c e , an option th a t sh ou ld he co nsi der ed is 

sim ply to di g de ep er w ells a t th e cu rr en t lo c a ti o n s. Th is may, 

how ever, cause un ac ce pta ble su bsi den ce ). En vironm en tal and oth er 

im pa cts als o ne ed to be co ns id er ed .

Th ere is c le a rly a ne ed to de velop more ad eq ua te d ata bef ore 

making a decis io n on how to so lv e th e Ak-Chin w at er pro ble m or 

on sp e c if ic f a c i l i t i e s th a t sh ou ld be con st ru cte d .

In co n st ru cti n g p ro je c ts of th e so rt pr op os ed by S. 1582 under 

Fed er al Re cla mati on law , th e S ecre ta ry i s re q u ir ed by law to un de rtak e 

f e a s ib ility stu d ie s. Dep artm en tal p o li c y and sou nd p ra c tic e , as 

w ell , d ic ta te th a t suc h a st ud y sh ou ld be co nd uc ted. A f e a s ib ility 

stud y would exam ine in de pt h th e en gin eeri ng, en vi ro nm en ta l, and 

co st asp ects of pr op os ed p ro je c t develop me nt, and would pr ov id e a 

soun de r b a sis fo r d ecis io n . A f e a s ib ility - le v e l stud y sh ou ld be 

co mp let ed ex p ed it io u sly . We would su pp ort e a rl y ap p ro p ri ati o n of 

th e nece ss ar y fund s to cond uc t th e st ud y. A tim e dea dline fo r th e 

st ud y, suc h as one or two yea rs fo llow in g ap p ro p ri ati o n of fun ds 

wou ld als o be d e sir a b le . I t would be p o ssib le to co nd uc t a stud y 

w it hin a ye ar al th ou gh a q u a li ty stud y would pro ba bl y ta ke two years . 

This would s t i l l allo w fo r a tim el y so lu ti o n to th e Ak-Chin pro blem .

We th e re fo re f u lly su pp or t a u th o ri zati o n o f a f e a s ib ility st ud y but 

do not su pp or t a u th o riz a ti o n o f co n st ru cti o n .

In ad d it io n to th e is su e of th e a v ail ab le F ed er al w at er su p p li es, 

th e re rem ain s to be co nsi de re d th e c ru c ia l m att er o f th e amount of 

w at er th a t th e Ak-Chin may be le g a ll y e n title d to . The b i l l c a ll s 

fo r d eli v ery o f up to 10 0,0 00 a c re -fe e t, w ith a minimum 01’ 70 ,00 0 

a c re -fe e t.

At th e tim e th e re se rv a ti o n was e sta b li sh e d in 1912 , th e U nited 

S ta te s f i le d n o ti c e s o f app ro p ri ati o n o f 70 ,00 0 a c re -fe e t an nual ly 

of su rf ace and gro un d w at er fo r th e us e of th e tr ib e . Althou gh 

st ora ge impoundments and oth er measu res were pr op os ed by Fed er al 

o f f ic ia ls to in su re a w at er su pp ly , no fu rth e r ac ti o n was ta ken.

Si nc e th a t tim e th ose w at er s hav e been deple te d. The Ak-Chin 

a s s e rt th a t un de r th e ru le of th e W inters case , and by v ir tu e of 

ha ving ap pr ox im at ely 20 ,000 ir rig a b le acre s of la n d on th e ir 

re se rv a ti o n , th ey ar e e n title d to between 90 ,000 and 100,0 00 

a c re -fe e t o f w at er fo r us e on th e re se rv a ti o n . At th e pre sen t 

tim e th ey are farm ing on ly 5,0 00 ac re s, usi ng ab ou t 25 ,000 to 

30 ,00 0 a c re -fe e t. The Departme nt is o f th e view th a t th e Ak-Chin 

can lik e ly e s ta b li s h a rig h t in th e rang e o f 70 ,000 a c re -fe e t,

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al th ou gh we have not a t th is tim e d e fin it iv e ly q u a n ti fi e d th e 

w at er rig h ts o f th is o r any o th er c e n tr a l Ariz on a tr ib e . The 

a ll o c a ti o n to th e tr ib e un de r th e C en tr al Ariz on a P ro je c t is 

58 ,00 0 a c re -fe e t annual ly th ro ug h th e yea r 2005, b u t th a t is 

not ex pe ct ed to be a v a il a b le u n ti l ab ou t 198 9.

Altho ug h we re co gn iz e th a t th e Ak-C hin may be e n title d to

s u b s ta n ti a ll y more w at er th an th ey ar e now usi ng, we recommend 

th a t , i f le g is la tio n is de ve lope d fo r a f e a s ib il it y st udy, th e 

b i l l sh ou ld not re q u ir e an amount o f w at er th a t would s a tis f y 

a cl ai m o f rig h t and sh ou ld no t pro vi de fo r a sett le m en t.

The Departm ent t e s t i f i e d re c e n tl y b efo re th e S ele ct Commit t . e e on 

In dia n A ff a ir s co nc er ni ng S. 905> a b i l l to s e ttle th e w at er claims 

o f fi v e C entr al A riz on a tr ib e s , in clu din g th e Ak-Ch in. Altho ug h we 

opposed th e b i l l as w rit te n , we su ppor te d th e co nc ep t o f a le g is la tiv e 

se tt le m en t o f th e claims o f th e 5 tr ib e s and prop os ed to de ve lop 

w it h in th e Dep artm en t, and in c o n su lt a ti o n w ith th e Committ e e and 

in te re s te d p a r tie s , a su b s ti tu te sett le m en t b i l l . We have been 

wo rking d il ig e n tly on th is e ff o rt si nce th a t tim e. We b eli ev e th a t 

th e sett le m en t o f Ak-C hin claim s sh ou ld be worked out i f p o ssib le 

in th e conte xt o f th is e f f o r t.

We su pp or t se p ara te le g is la tio n fo r th e Ak-Chin to st ud y a d d it io n a l 

w at er re so urc es be ca us e of th e ir sp e c ia l p li g h t o f a near- te rm 

th r e a t o f comp let e lo s s of th e ir c u rr e n t w at er re so u rc es. The stud y 

o f p o te n tia l F edera l o r o th er w at er so urc es co ul d c o n tr ib u te to 

sett le m en t o f th e ir cla im s, but more im port antl y we view i t as an 

e f f o r t to av oi d a c r i s is and to pro vi de a t le a s t a s u ffic ie n t 

amount o f w at er to m ai nta in th e i r cu rr en t le v e l of us ag e; i f more 

can be pr ovid ed from th e so ur ce s st u d ie d in s a tis f a c ti o n of th e ir 

r ig h ts , we would do so ; however, th e se tt le m en t o f claim s or rig h ts 

sh ou ld be de ve lope d in th e conte xt o f th e o th er b i l l .

As we hav e in d ic a te d , we do not su pp or t S. 1582 as w ri tt e n b u t we do 

su pp or t a u th o riz a ti o n o f a f e a s ib il it y st ud y.

We would be p le ased to pr ovid e a ssis ta n c e to mo dify S. 1582 or 

de ve lop s u b s ti tu te p ro v is io n s to pro vi de fo r an appro pri ate 

f e a s ib il it y st udy.

The O ff ic e o f Management and Bud get ha s ad vi se d th a t th e re is no 

o b je cti o n to th e p re se n ta ti o n of th is re p o rt fro m th e st andpoin t 

o f th e A d m in is tr ati o n 's program .

SOLICITOR
12

EXECUTIVE OFFICE OF THE PRESIDENT 

OF FIC E OF MANAG EM EN T AND BU DG ET 

W ASHIN G TON. D.C. 20503

ML 2 6 W 7

H o n o ra b le Ja m es A bo ure zk 

C hai rm an , S e le c t C om m itte e 

on In d ia n A f f a ir s 

U n it ed S ta te s S e n a te 

5331 New S e n a te O ffic e B u il d in g 

W ash in gto n, D.C. 205 10

D ea r Mr . C ha irm an :

T his i s in re s p o n s e to y o u r r e q u e s t f o r th e vi ew s 

o f tn e O ffic e o f man ag em en t an d B udget or: S . 15 82 , 

a b i l l , " R e la ti n g to th e s e ttle m e n t betw een th e 

U n it ed S ta te s an d th e A k- C hi n In d ia n commun ity o f 

c e r t a i n w a te r r i g h t c la im s o f su ch co mmun ity a g a in s t 

th e U n it ed S t a t e s ."

F o r re a s o n s s t a t e d i n th e r e p o r t s e n t to yo u by th e 

D epart m ent o f th e I n t e r i o r , th e O ffic e o f Managem ent 

an d B udget rec om me nds a g a in s t en actm en t o f S . 15 82 , 

a s c u r r e n tly w r i t t e n . How ev er, we wou ld s u p p o rt a 

s u i t a b l y m o d if ie d b i l l w hi ch w ou ld n o t a u th o r iz e 

c o n s tr u c tio n a t t h i s ti m e , b u t w hi ch w ou ld a u th o r iz e 

a f e a s i b i l i t y stu d y f o r p o t e n t i a l w a te r sy ste m s.

S in c e r e ly ,

Jaass H

Ja mes M. F re y 

A s s is ta n t D ir e c to r fo r 

L e g is la tiv e R efe re n ce
13

STATEMENT OF SENATOR BARRY GOLDWATER OF ARIZONA 

FOR THE SENATE SELECT COMMITTEE ON INDIAN AFFAIRS 

Ju ly 25, 1977

Ak Ch in In d ia n W ater Needs

Mr. C ha irm an , i t is my p le a s u re to su p p o rt th e b i l l 

in tr o d u c ed by my c o ll e a g u e from A riz o n a, S e n a to r D eC on ci ni , 

on b e h a lf of th e Ak Ch in In d ia n s .

My en dors em en t o f th e b i l l is c o n d it io n e d upo n accep ta n ce 

o f two am end ments wh ich I s h a ll d e sc rib e in j u s t a mom ent.

B ut, f i r s t , Mr. Cha irm an , l e t me t e l l you why I s tro n g ly su p p o rt 

th e g e n e ra l p ro v is io n s of th e b i l l and urg e th a t you a c t fa v o ra b ly 

upon th e Ak C h in 's re q u e st fo r a s s is ta n c e in o b ta in in g an imm ed ia te w ate r su pply to meet t h e i r e s s e n t ia l n eed s.

Mr. Cha irm an , th e Ak Ch in In d ia n s d ese rv e th e h ig h e s t comm en dat io n we ca n giv e them fo r th e g re a t s e lf - h e lp e f f o r t s th ey 

have made to m ain ta in t h e i r econ om ic in dependence. The Ak Ch in 

people have be en ver y su c c e s s fu l in s ta y in g o f f o f go ve rn men t 

w e lf a re r o l l s and in sta n d in g on t h e i r own f e e t .

Fo r ex am ple , th e T rib a l C ounci l ha s done i t s b e s t to pro v id e 

re g u la r gover nm en ta l s e rv ic e s to members o f th e In d ia n Com munity . 

I t o f f e r s fre e tr a n s p o r ta tio n to h o s p ita ls and c l i n i c s , p ro v id es 

p o li c e p r o te c tio n , and ev en p ro v id es s t r e e t lig h t s and e l e c t r i c a l 

po wer , e n ti r e l y o u t of fa rm in g re v en u es.

Th es e r e s u l ts have o ccu rr ed under an u n h e ra ld e d , but tr em en ­

d ousl y s u c c e ss fu l farm e n te r p r is e o p e ra te d by th e In d ia n p e o p le .

I am r e f e r r in g to th e Ak Ch in Fa rm s, which p ro v id e s th e o v e r a ll 

manag ement d ir e c tio n fo r t h e i r co m m un ity' s fa rm in g o p e ra tio n s .

95 -3 73 0 - 77 - 3
14

Pag e 2

T his I n d i a n - i n i ti a t e d e f f o r t h a s:

--P ro v id e d em plo ym ent fo r 80 i o f th e t r i b a l work fo rc e .

-- E n ab le d th e c o n s tru c tio n o f new homes fo r In d ia n Comm unity 

Me mb ers.

- - B u ilt a Comm unity C ente r whi ch o f f e r s an im p re ssiv e ra ng e 

o f h e a lth , e d u ca ti o n and o th e r comm unity s e r v ic e s .

-- P u rc h ased s p e c ia l m ob ile homes f o r th e handic ap ped and 

th e e ld e r ly .

-- A cq u ir ed and o p e rate d a su perm ark et to p ro v id e fo od to th e 

Community p eo p le a t c o s t, h e lp in g to im prov e t h e i r n u t r it i o n a l 

i n ta k e .

In o th e r w ord s, Mr. Cha irm an , th anks to t h is s e l f - i n i t i a t e d 

and managed fa rm in g o p e ra tio n , th e In d ia n Comm unity ha s be en a b le 

to pr om ote th e w e ll -b e in g o f i t s me mb ers , and unem plo ym ent ha s 

becom e v i r t u a l l y n o n -e x is ta n t among th e p e o p le .

A ll o f t h is su c c e s s , and th e g re a t se nse o f p rid e th a t i t 

ha s bro ught to th e In d ia n p e o p le , are th re a te n e d w it h d e s tr u c tio n , 

ho wev er , bec ause o f th e p re c ip it o u s f a l l in th e gr ou nd w ate r 

le v e l b en eath th e R e se rv a ti o n . In f a c t , th e In d ia n s cla im th a t 

t h e i r gr ou nd w ate r is dro ppin g a t th e ala rm in g r a te o f 20 f e e t 

p er y e a r.

As a r e s u l t , th ey can far m only 5,0 00 a c re s o f t h e i r la n d , 

whe re as th e re is an u n q u est io n ed p o te n t i a l fo r fa rm in g in ex cess 

o f 10 ,000 a c r e s .

The q u e sti o n i s , how lo ng ca n t h i s s i t u a t i o n co n ti n u e and 

s t i l l p erm it th e Ak Chin to farm ? At b e s t, th e In d ia n s e sti m a te 

th a t th ey ca n lo ok fo rw ar d to no more th an fiv e to se ven y e a rs 

o f p r o f ita b le fa rm in g due to th e ra p id ly d e te r io r a tin g gr ou nd 

w ate r s i t u a t i o n . In any e v e n t, th e ou tco me is c e r t a i n ; t h is
15

Page 3

proud and self-reliant Indian people will be forced to abandon

their traditional livelihood and many of the members of the

Community may be forced onto the welfare rolls, unless corrective 

steps are taken.

Therefore, Mr. Chai rman, I believe it is most important 

that we find a way to assist the Indians in helping themselves.

And, if we can do this without forcing recourse to very expensive 

and time-consuming legal suits which the Indians could bring in 

pursuit of their water rights claims, we will have eliminated a 

serious legal cloud from Indians and non-Indians in Arizona.

To this end, I support legislation which provides for 

geologic and geophysical studies, and the drilling and testing 

of test wells, leading to the location of ground water supplies 

which could provide a source of water to meet the needs of the 

Ak Chin Community until additional waters, most likely from the 

Central Arizona Project, become available to the Indians.

Such studies and drilling is provided for in the bill at 

government expense, and I believe it is both appropriate and 

necessary in order to fulfill the obligations of the United States 

toward the Ak Chin Indian Community.

Another provision of the bill would authorize an appropriation 

of funds to construct a canal (probably closed pipes),pumping 

stations, and accompanying facilities to deliver the water to 

Ak Chin for farming purposes. This is an essential part of the 

legislation, but I believe the provision should be changed to 

represent the actual hydrological facts, whatever they may be.
16

Page 4

As i t sta n d s, s e c ti o n 2 o f th e b i l l m an da te s th a t th e S e c re ta ry 

o f th e I n t e r i o r pump and d e liv e r from 70 ,0 00 to 10 0, 00 0 a c re fe e t 

o f gr ou nd w ate r fro m th e d is c o v ere d so u rc es to th e Ak Ch in In d ia n 

R e se rv a ti o n , ev en i f " th e S e c re ta ry d ete rm in es th a t pum ping such 

an amo unt w ill (1 ) s i g n i f ic a n tl y damage o th e r i n t e r e s t s , o r (2) 

a d v e rse ly a f f e c t gr ou nd w ate r b a s in s ."

S e c ti o n 2 re q u ir e s th e S e c re ta ry to make a d e te rm in a ti o n 

o f th e im pa ct of th e pro pose d pum ping upon o th e r w ate r u se rs and 

a d ja c e n t w ate r b a s in s , but i t s p e c if i c a l ly p ro v id es th a t no m a tt e r 

wh at h is co n clu sio n s a r e , in no ev en t s h a ll le s s th an 70 ,0 00 acre

f e e t be d e li v e re d .

Whil e I am to ld th a t mo st in te r e s te d p a r ti e s who have cons id e re d th e l e g i s l a ti o n ass um e some w ate r ca n be dev el oped in 

near by a r e a s , I ha ve d i f f i c u l t y u n d e rsta n d in g th e p ro p o sa l to 

d ir e c t th e S e c re ta ry to pump and d e liv e r a minimum amo unt of 

gr ou nd w ate r b e fo re su ch an o p e ra ti o n is foun d to be f e a s ib le .

How ca n C on gr es s d ir e c t so m et hi ng th a t m ig ht n o t be h y d r o lo g ic a lly , 

o r ev en e co n o m ic a ll y , f e a s ib le ?

A cco rd in g ly , I su p p o rt amend ments which o th e rs have pro pose d 

to th e Co mm ittee d ir e c tin g th e S e c re ta ry to pump and d e liv e r 

su ch q u a n titie s o f w ate r "a s he fin d s f e a s ib le " as a r e s u l t of 

th e s tu d ie s c a lle d fo r in s e c ti o n 3 o f th e b i l l . U n ti l th e s tu d ie s 

are co m p le te d , I do n o t b e li e v e th a t th e l e g i s l a ti o n sh ould in clu d e 

a minimum acre fo o t d e li v e ry f ig u r e .

Sec on d, I su p p o rt ame ndm ents whi ch o th e rs w ill pro pose to 

th e Co mm ittee to wai ve a l l cla im s t h a t th e Ak Ch in In d ia n Comm unity 

may have a g a in s t p r iv a te and S ta te i n t e r e s t s as w ell as a g a in s t 

th e U nit ed S t a te s , f o r both p a st an d c u rre n t da mag es.
17

Page 5

A m aj or f e a tu re o f th e b i l l is i t s purp ose o f so lv in g th e 

le g a l pro ble m s in a n e g o tia te d , l e g i s l a t i v e m an ne r, r a th e r th an 

le a v in g th e se is s u e s fo r lit a g a t i o n ; an d I b e li e v e lo g ic and e q u it y 

both demand th a t a l l le g a l cla im s be s p e c if i c a l ly re so lv e d th a t 

a r is e out of th e d e c li n e in th e Ak C h in 's gr ou nd w ate r w heth er 

t h is in v o lv e s th e U nit ed S ta te s as t r u s t e e ,o r p r iv a te or S ta te 

p a r ti e s as w ate r u s e r s .

In t h is c o n n e c ti o n , I wo uld a ls o r a is e th e q u e sti o n o f 

w het her o r not s e c ti o n S sh ould be re v is e d so as to c l a r i f y th a t 

th e se le g a l pro ble m s w ill be s e t t l e d ev en i f th e pro pose d minimum 

o f 70 ,0 00 a c re f e e t is not fo un d to be a v a ila b le fo r d e li v e ry to 

th e R e se rv a ti o n . I am not ma kin g a re co m m en da tio n as to how to 

an sw er t h is q u e s tio n , but do wish to p o in t out th a t a s e rio u s 

pr ob le m do es o ccur under s e c ti o n 5 r e la ti v e to wh at th e le g a l 

s it u a t i o n w ill be i f le s s th an 70 ,0 00 a c re fe e t of w a te r is 

pumped and d e li v e re d under th e b i l l to th e Ak Ch in In d ia n Comm un ity .

Let us assume th a t a f t e r th e e x p e n d it u re of se v e ra l m il lio n s 

o f d o lla r s on w e lls , i t is d is c o v e re d th a t 60 ,0 00 a cre f e e t o f 

gr ou nd w a te r ca n be pumped and d e li v e re d a n n u a ll y to th e R e se rv a ti o n , o r ev en 6 5 ,0 0 0 ,b ut th a t th e re is no way 70 ,0 00 a cre f e e t 

ca n be so d e li v e re d . What ha pp en s under s e c ti o n 5? Is th e 

In d ia n Comm unity re q u ir e d to wai ve any o f i t s p o s s ib le cla im s a t 

a l l o r ca n i t re c e iv e th e 6 0 -o r 65 ,0 00 a c re f e e t w it h o u t any 

o b lig a tio n to waive any of i t s c la im s as to w a te r r ig h ts ? C le a rly 

t h i s q u e s ti o n sh ould be an sw er ed in th e b i l l w it h o u t b ein g l e f t

fo r fu tu re i n te r p r e t a ti o n .
18

Page 6

Another question arises out of section 2 of the bill. A 

part of this section requires that when "a permanent supply of 

surface water can be delivered" to the Reservation, the obligation 

to deliver ground water under the bill shall be reduced by a 

like amount. Just making the assumption that this contingency 

should happen, and further assuming that ground water still 

remains available in the discovered sites for delivery,what happens 

to that water and the pumping and delivery system?

If it is no longer required for delivery to the Ak Chin 

Reservation, do the rights revert to the United States for use 

as it determines? Again, I do not propose to suggest an answer, 

but merely to request that the Committee address the issue and 

settle it before the contingency may arise.

Mr. Chairman, in conclusion, I commend you on holding the 

hearing and I urge your speedy and favorable action on the 

propos al.
19

K tk FOX. CH.

JOHN L. LCIBER. V. CH.

WESLEY E. STEINER

BXKCUTIVR DIRECTOR

VIC KIE MOONEY

SECRETARY

RAUL H. CASTRO. GOVERNOR

(Arizon a JH aler (Com mission

aaa north central avcnue. su its roo

^ h jo tn ix , (A riz o n a 8 5 0 0 4

tel eph one <«oa» aaa-Taai

J u ly 12, 19 77

t

\ i 

' / *

1 1 • •

PETER F. BIANCO

GLEN O. CURTIS

W. N. JACK SHAWVER

J. C. WETXLER

WILLIAM H. WHEELER

ANDREW L. BETTWY

MARSHALL HUMPHREY

H o n o ra b le J a m e s A b o u re z k 

C h a ir m a n , S en a te C o m m it te e on 

In d ia n A f f a ir s

11 05 D ir k s e n O ff ic e B ld g . 

W a sh in g to n , DC 20 51 0

R E: S. 1582

D e a r S e n a to r A b o u re z k :

I r e g r e t th a t p r io r c o m m it m e n ts p r e v e n t a p e r s o n a l a p p e a ra n c e to te s tif y 

in s u p p o rt of S. 15 82, le g is la tio n in te n d e d to p ro v id e s u p p le m e n ta l w a te r s u p p li e s 

to th e A k C h in In d ia n C o m m u n it y an d to s e ttle th e ir w a te r r ig h ts c la im s .

In its s ta te m e n t to th e S en ate C o m m it te e on In d ia n A f f a ir s on M ay 24 ,

19 77, th e A r iz o n a W a te r C o m m is sio n to o k th e p o s it io n th a t th e le g is la tiv e so lu ti o n 

to th e w a te r rig h ts c la im s of th e fi v e c e n tr a l A riz o n a t r i b e s " s h o u ld be b u il t a ro u n d 

th e S e c r e t a r y 's C A P a ll o c a ti o n s to th e fi ve t r i b e s an d sh o u ld se e k m e a n s of 

m a in ta in in g th e le v e l of th o se a ll o c a tio n s a f te r y e a r 20 05 th ro u g h s u p p le m e n ta ry w o r k s .' 

In th is r e g a r d we a d v o c a te d , a m o n g st o th e r p r o g r a m s , th a t th e C o n g re s s e n a c t 

le g is la tio n an d a p p r o p r ia te fu nds to d ev e lo p th e g ro u n d w a te r s u p p li e s a v a il a b le to 

th e r e s e r v a tio n s an d d ir e c ti n g "th e S e c r e t a r y to in v e s tig a te w ay s o f d ev elo p in g new 

s u p p li e s to m a in ta in C A P a ll o c a ti o n s to th e r e s e r v a tio n s fo ll o w in g y e a r 20 05 a t th e 

le v e ls th a t w il l p r e v a il d u rin g th e f i r s t 20 y e a r s . "

In f u r th e ra n c e of th is a p p ro a c h , w e s p e c if ic a lly u rg e d th a t th e C o n g re s s 

p a s s th e le g is la tio n th a t S e n a to r D eC o n cin i in tro d u c e d th a t sam e day in b e h a lf of 

th e A k C h in R e s e r v a tio n , a u th o riz in g an d d ir e c ti n g th e S e c r e t a r y of th e I n te r io r 

to in v e s tig a te a n d d e v e lo p w h ere f e a s ib le w e ll f ie ld s on n e ig h b o rin g p u b li c la n d s fo r 

th e b e n e fit of th e r e s e r v a tio n .

We ta k e th is o p p o rtu n it y to r e i te r a t e th a t s u p p o rt fo r th e A kC hin 

le g is la tio n .
H o n o ra b le J a m e s A b o u re z k - 2 -

J u ly 12, 19 77

We w ou ld s u g g e s t tw o a m e n d m e n ts to S. 15 82 - F i r s t , r e v is io n of 

se c ti o n 2 to d ir e c t th e S e c r e ta r y to p u m p an d d e liv e r s u ch q u a n tit ie s of w a te r 

a s he fi nds fe a s ib le a s a r e s u lt of th e s tu d ie s c a ll e d fo r in S e c ti o n 3, b u t li m it e d 

to a m a x im u m of 10 0, 0 00 a c r e - f e e t p e r y e a r. The am o u n t of w a te r th a t ca n be 

re a s o n a b ly d e liv e re d to th e A k C h in R e s e rv a tio n fro m p u b li c la n d s w it h in a 

p ra c tic a b le d is ta n c e of th e r e s e r v a tio n is un kn ow n a t th is p o in t in ti m e an d th e 

p r o g r a m sh o u ld n o t be in v a li d a te d in th e e v e n t th a t th e S e c r e ta r y fin d s th a t a 

q u an ti ty le s s th a n 7 0 ,0 0 0 a c r e - f e e t p e r an n u m but s til l of b e n e fic ia l m a g n it u d e 

is a ll th a t ca n be d ev e lo p ed .

+

. * AS

,

e ^ v n d 'n m a y W e

,

8 u g 8

e s t t h a t S e c ti o n 4 be a m e n d e d to w aiv e a ll c la im s 

th a t th e A k C h in R e s e rv a tio n m ig h t have a g a in s t p riv a te in t e r e s ts a s w e ll as 

a g a in s t th e U n it ed S ta te s .

T h an k yo u f o r th e o p p o rtu n it y to c o m m e n t in s u p p o rt of S. 158 2. I w ould 

re s p e c tfu ll y re q u e s t th a t th is le tte r be m ad e a p a r t o f th e o ffic ia l r e c o r d of th e 

h e a rin g s .

S in ce re ly ,

W e sle y E y S te in e r 

S ta te W a te r E n g in e e r & E x e c u ti v e 

D ir e c to r

A riz o n a W a te r C o m m is sio n

cc : G ov. C a s tr o

S en . D en n is D eC o n cin i 

S en . B a r r y G o ld w a te r 

C ong. M o r r is U d all 

B u rto n H ir s c h
21

Senator Abourezk. Our first witness this morning will be Mr. Leo 

Krulitz, Solicitor for the Department of the Interior.

STATEMENT OF LEO M. K RULITZ, SOLICITOR, DEPAR TMENT OF TH E

INTERIOR , ACCOMPANIED BY JOSEPH R. MEMBRINO AND

MIC HAEL CLINTON, RESOURCE PLANNIN G OFFICER, BUREAU OF

RECLAMATION

Mr. Krulitz. Mr. Chairman, I am pleased to appear before you 

today to discuss S. 1582, “Relating to the settlement between the 

United States and the Ak-Chin Indian community of certain water 

right claims of such community against the United States.”

We support the purpose of the bill insofar as it attem pts to satisfy 

the legitimate water claims of the Ak-Chin community and to avoid 

the potentially disastrous depletion of the trib e’s present water supply, 

which could occur within 5 to 8 years according to current projections. 

We also recognize tha t water from non-Indian Federal lands may 

present a viable source to assist in satisfying the needs and rights of 

the Ak-Chin or of other Indian communities, and we therefore support 

exploring tha t resource.

We do not, however, support the bill as written. We would support 

a suitably modified bill which would not authorize construction at this 

time but which would authorize a feasibility study for potential water 

systems. Such a study should be authorized with a specific time limit 

to assure timely completion and with a requirement tha t the study 

develop a plan for delivery of water to the Ak-Chin.

Such a study should be directed at assuring, at a minimum, sustaining the current level of usage, which is estimated at between 

25,000 to 30,000 acre-feet. The study should also address potential 

water availability beyond tha t amount from Federal lands in the 

region. The longer range water problems of the Ak-Chin are, of course, 

being considered in connection with work on S. 905.

The Ak-Chin community is a small Indian community located due 

south of Phoenix, Ariz., which exists on agriculture and which, to date, 

has been highly successful both agriculturally and financially. In fact, 

they could be considered a model of Indian independence and selfsufficiency. Their farming is entirely dependent upon pumping of 

ground water. They are already pumping at depths of up to 600 feet.

They currently have no natural sources of surface water. For many 

years now the lands surrounding the reservation have been heavily 

farmed by non-Indian farmers who have also relied on pumping of 

ground water for irrigation. The non-Indian lands form a far larger 

area than the Ak-Chin lands and have been more intensely farmed. 

Consequently, the aquifer underlying the reservation has been constantly overdrawn and, according to estimates from reliable sources, 

the Indians’ sole source of water could disappear within 5 to 8 years.

The intensive ground pumping has also dried up surface water 

sources tha t once existed in tne area and upon which the Ak-Chin 

once expected to rely.

The Department fully appreciates the prospective plight of the 

Ak-Chin community, and we believe that, given the time it takes to 

plan and develop Federal water supply systems, now is the time to 

begin planning. We do not, however, have sufficient information

95 -3 73 0 - 77 - 4
22

upo n which to support autho rization for con struct ion as is provide d 

by S. 1582.

The specific Fed eral lands from which wa ter would be tak en have 

no t been identified. We do no t know how much wa ter is available 

from the po ten tial Fed eral land s or if it is adequate for the purp ose. 

We do no t know the costs involved in pump ing and delivery , and 

cannot know until more specific options are identified. Fu rth er, we 

cannot be sure if wa ter from Fed eral lands is the best or the only 

po ten tia l source from which to sup ply the Ak-Chin. En vironme nta l 

and oth er impacts also need to be considered.

The re is clea rly a need to develop more adequate da ta before 

ma kin g a decision on how to solve the Ak- Chin wa ter prob lem or on 

specific facilities th at sh ould be construc ted .

A feasibility study would examine in d ep th the engin eering, environme nta l, and cost aspects of proposed pro jec t dev elopment, and would 

provide a sou nde r basis for decision. A feasibility-level stu dy should 

be com pleted expeditiously. We would su pp ort early appro priat ion 

of the necessary fun ds to con duc t the stu dy. A time deadline for the 

stu dy , such as 1 or 2 yea rs following appro priat ion of fun ds would 

also be desirable. It would be. possible to con duct a stu dy within 

1 year although a qu ali ty stu dy would probably tak e 2 years. This 

would still allow for a timely solu tion to the Ak-Chin prob lem.

In addition to the issue of the availab le Feder al wa ter supplies, 

the re rem ains to be considered the crucial m at te r of the am ou nt of 

wa ter th at the Ak- Chi n ma y be legally entitl ed to. The bill calls for 

delivery of up to 100,000 acre-feet, with a min imu m of 70,000 

acre-feet.

At the time the reserv ation was establis hed in 1912, the United 

State s filed notices of appro pri ation of 70,000 acre-feet ann ually 

of su rface and ground wa ter for the use of the trib e. Althou gh stor age 

impoundm ent s and othe r measures were proposed by Fed eral officials 

to insure a w ate r supp ly, no furth er a ctio n was tak en. Since th at time, 

those wa ters have been depleted.

The Ak-Chin ass ert th at , under the rule of the Winters case, and 

by virtu e of havin g app rox imately 20,000 irrigable acres of lan d on 

the ir reserv ation, they are entitled to betw een 90,000 and 100,000 

acre-feet of wa ter for use on the reservation . At the pre sen t time, the y 

are farming only 5,000 acres, using ab ou t 25,000 to 30,000 acre-feet.

The Dep artm en t is of the view th at the Ak- Chin can likely establish a rig ht in the ran ge of 70,000 acre-feet, alth ough we hav e no t 

at this time definitively quantified the wate r rights of this o r any othe r 

cen tral Arizona trib e. Th e allocation to the tribe under the cen tral 

Arizona pro jec t is 58,300 acre-feet ann ually thr ough the year 2005, 

bu t th at is no t expected to be availab le until ab ou t 1989.

Although we recog nize th at the Ak-Ch in may be entitl ed to substa ntial ly more water th an the y are now using, we recommend th at , 

if legislation is developed for a feasibility stu dy , the bill should no t 

require an am ou nt of wa ter th at would satisfy a claim of rig ht and 

should no t pro vide for a set tleme nt.

The Dep artm en t testified rec ently before the Select Comm itte e on 

Indian Affairs concern ing S. 905, a bill to set tle the wa ter claim s of 

five cen tral Arizona trib es, including the Ak-Chin. Although we 

opposed the bill as written, we support ed the concept of a legislative
23

se ttlem ent of the claim s of the five tribes and proposed to deve lop 

within the De pa rtm en t, and in con sultation with the com mittee and 

inter ested partie s, a su bs titute settlem en t bill.

We hav e been working d iligently on thi s effort since th at time. We 

believe th at the settlem en t of Ak- Chin claim s should be worked ou t 

if possible in the conte xt of this effort.

We supp ort s ep arate legislatio n for the Ak-Ch in to stu dy a dditio nal 

wa ter resources because of the ir special plight of a near- ter m th re at 

of com plete loss of their curre nt wa ter resources. Th e stu dy of poten tia l Fed eral or othe r wa ter sources could contr ibute to settlem ent 

of the ir claims, but more im po rta ntly we view it as an effort to avoid 

a crisis and to provide at lea st a sufficient am ou nt of wa ter to main ­

tain their curre nt level of usage. If more can be provided from the 

sources s tud ied in s atisfa ction of th eir rights, we would do so. H owe ver, 

the s ett lem en t of claim s or rig hts should be deve loped in the c ontex t of 

the other bill.

We would be pleased to work with the com mittee to mo dify S. 

1582 or deve lop su bs tit ut e prov isions to provide for an approp ria te 

feasibility stu dy .

Th is concludes m y form al testim ony. I would be pleased to answer 

any que stio ns th at you or Senator D eCo ncin i m igh t h ave .

Senator Abou rezk. Tha nk you, Mr. Krulitz.

You are asking for a feas ilbility stu dy in advance of autho riz ati on 

or do you think the proje ct oug ht to be autho rized in the same legislatio n th at a fea sibility stu dy is authorized?

Mr. Krul itz. Mr. Ch airma n, I believe generally th at a fea sibility 

stud y would normally prec ede the autho riz ati on appro priation . Un til 

we are able to ide ntify t he Fede ral land w here wa ter ma y be ava ilab le 

and sat isfy ourselves th at the qu ali ty of the wa ter is satisfac tor y to 

me et the tri be ’s needs, it is difficult to know the param ete rs of the 

pro ject. All of th at would be developed in the fea sibility stu dy .

Senator Abou rezk. If you are recommending a feasibility stu dy , 

there is obviously a que stio n in the min ds of the Dep ar tm en t of the 

In terior as to wh eth er any water can be found. T hat is the pur pose 

of the feas ibility stu dy .

Is th at corr ect?

Mr. Krul itz. A feasibility st ud y would ide nti fy the w ater resourc es 

availab le, bu t would also deal with the economics of the pro ject.

Senator Abou rezk. Once again, by definition, a fea sibility stud y 

is to det erm ine wh eth er such a proje ct is feasible, economically and 

physically.

Mr. Krulitz. Right.

Senator Abou rezk. If you find, throug h such feasibility stu dy , 

th at , through some formula th at you might use, it is no t economically 

feasible, wh at alter nativ es do you have pre pared ?

Mr. Krulitz. If it were to tu rn out there was no feasible way to 

do this, the re would be two altern ati ves. One would be to proceed 

with the litig ation which is now conte mp lated again st the surr ounding 

users.

A second alt erna tiv e would be in the conte xt of S. 905, by which 

we are try ing to come to a final and pe rm an en t solution to the trib e’s 

wa ter rig hts . If it is no t feasible to tak e wa ter from Federal lan ds, 

there ma y be other way s to deliv er the wa ter to the tribe, which we 

believe they are en titled to.
Senator Abourezk. To give the tribe some reassurance: Could you 

not include in this bill a feasibility study with an alternative course 

of action in the event the project was found not to be feasible?

I think it would concern the tribe if you left tha t sort of question 

mark hanging in this legislation. I cannot say tha t I have talked to 

the tribe about it. I am just saying how I would feel if I were the 

tribal official involved.

Mr. Krulitz. Mr. Chairman, we are committed to helping the tribe 

find a short-term solution to a very critical problem.

Senator Abourezk. An emergency water supply.

Mr. Krulitz. Yes, sir.

Senator Abourezk. Where do you plan to bring tha t from?

Mr. Krulitz. We will be looking at ground water in the Federal 

lands to the west of the reservation. There are indications tha t there 

is water in the area of Waterman Wash. There may be waters on the 

gunnery range out there. How we are going to deal with that, I am 

not sure.

We were trying to find out this morning the extent to which the 

Geological Survey has data on the gunnery range. It turns out tha t 

the data is less adequate for the gunnery range than anywhere else, 

but tha t is understandable.

Senator Abourezk. Would you object to a bill tha t would provide 

tha t kind of an alternative that would authorize: (1) a feasibility 

study, (2) would authorize a project, depending on the outcome of the 

feasibility study, and (3) an alternative in the event the original 

does not work according to the feasibility study?

Mr. Krulitz. I believe tha t would be satisfactory, Mr. Chairman.

We really do want to explore other alternatives here. It may be 

possible, for example, by increasing the number of wells on the reservation itself, as an interim aid, to tap more of the water there. Tha t 

may turn out to be a more feasible way of solving the short-term 

problem.

Senator Abourezk. I think your objective of furnishing around 

100,000 acre-feet ought to be the clear principle stated in the bill. How 

tha t is done ought to be a secondary matter. I think you ought to be 

entitled to some discretion.

Mr. Krulitz. One of our concerns, Mr. Chairman, is that. The 

reason we have talked in terms of maintaining their existing supply, 

as compared to developing ground water for up to 70,000 or 100,000 

acre-feet, is tha t it does not make sense to us to build a temporary 

water delivery system of tha t magnitude—if it is only going to be 

temporary—when, a t the same time, we are trying to find a long-term 

solution which presumably will be a combination of surface water 

and perhaps ground water as well.

In other words, i t does not make economic sense, on the face of it, 

to build a system to solve the total problem when the system is only 

temporary. We might have to build something else to satisfy the longterm needs.

Senator Abourezk. D o you have a figure available to you now as to 

the cost of water tha t would be economically feasible in this kind of a 

project? Or would you have to develop tha t with the Bureau of 

Reclamation?

Mr. Krulitz. We would have to develop that, Mr. Chairman.
25

Senator Abourezk. Mike Clinton is here. Would he be able to tell 

us whether tha t is feasible, to give us a figure on what the cost would 

be now, as to how you determine the feasibility?

Mr. Clinton. 1 am Michael Clinton. I am Resource Planning 

Officer for the Bureau of Reclamation.

Senator Abourezk. Mr. Clinton, how are we going to know before 

you do your study what figure you are going to have to arrive at 

Before you determine whether this project would be economically 

feasible or not? Do you have a figure that you can give us on how 

much on.an acre-foot you would spend before you would-----

Mr. Clinton. I do not have a figure I can give you off the top of 

my head. I can describe the procedure we would use. Generally, when 

the Bureau of Reclamation goes in to plan a project, we do an evaluation of the benefits and costs associated therewith.

Senator Abourezk. What discount rate do you use?

Mr. Clinton. Under our present procedures it is 6% percent.

What we do is look at the net farm income. That is the measure of 

benefits that we use to offset the costs.

In Indian projects, there are certain additional benefits tha t accrue 

to Indian reservations. Under Reclamation’s procedures, we are not 

allowed to use those, particularly the Levitt Act writeoff, which 

allows the tribes to plow back a certain amount of their revenues into 

the project rather than retain them. Also, the unemployed and 

underemployed labor resources in Indian tribes provide substantial 

additional benefits.

The Bureau of Indian Affairs has those authorities. They could 

allow us to use those additional benefits in justifying our project.

Senator Abourezk. We could also put those in this legislation; 

couldn’t we?

Mr. Krulitz. Yes, sir.

Senator Abourezk. It would be in addition to a lower discount 

rate.

Mr. Clinton. Yes.

Mr. Krulitz. Yes.

Senator Abourezk. So, you do not really have a figure you can 

give. You have to go through the procedure, depending upon what 

variables you use in your formula. Is that essentially correct?

Mr. Clinton. Tha t is true. Also, should we find a project infeasible 

because of economic reasons, there have been times in the past when 

the Department recommended authorization of “infeasible projects” 

because of other extenuating circumstances.

Once the findings are made, then it could be referred to Congress for 

a decision.

Senator Abourezk. You are preparing litigation against non-Indian 

water users in the area at this time. Is tha t correct, Mr. Krulitz?

Mr. Krulitz. Yes; Mr. Chairman.

Senator Abourezk. What is the status of those lawsuits now?

Mr. Krulitz. As you know, there is litigation now pending in the 

Tucson area. Litigation is in prparation with regard to the Ak-Chin.

Joe Membrino may know what the status of the case is.

Mr. Membrino. The Department is recommending to the Justice 

Department tha t litigation be brought on behalf of the Ak-Chin 

Indian community to curtail the pumping of the farmers adjacent to 

the reservation.
26

The litiga tion repo rt is in the Justice Dep artm en t now. We are 

developing a service lis t th at will be su bm itted to the Justice De ­

partm en t.

Senator Abourezk. Wh en do you expect the lawsuits to be served 

and filed?

Mr. M embrino. I am told by our field office t hat the dev elopment 

of the list is nearly com pleted, bu t I am ju st no t sure. It must be 

within the n ext couple of months. It is a very long process.

Senator Abourezk. So, within 2 m on ths y ou expect to hav e it filed 

and served?

Mr. M embrino. I would like to think so.

Senator Abou rezk. Th is bill calls for delivery of 100,000 acre-feet, 

bu t no less th an 70,000. Wou ld you agree th at , as a settlem ent figure, 

the trib e has a legal en titlem ent to wa ter in th at range from 70,000 

to 100,000 acre-feet?

Mr. Krul itz. M r. Chairma n, we have done a considerable am ount 

of work on the tri be ’s righ ts. The co nsult ant th at was retain ed, I 

believe, estim ate d the virgin flows, bo th surface and ground water, 

for the Ak-Chins at ab ou t 78,000 acre-feet. Th ere are some complexities with reg ard to their wa ter rig hts to the exten t th at it relies on 

ground water.

I do no t think th at the cou rts have definitively or au thorita tiv ely 

applied the Winters rig hts doc trin e to ground wat er. But we are 

confident t hat t hat makes sense. Additionally , the ri ver th at origin ally 

went through the reserv ation is a riv er th at flows in some places and 

does no t flow in oth er places. T hat com plicates the ir rig ht to surface 

water.

We hav e said in the testimony , and I think it is correct, th at somewhere in the 70,00 0-plus range is whe re it is. Th ey do hav e irrig able 

lan d th at can su pp ort up to 100,000. So, 70,000 to 100,000 I think is 

the rig ht range of their legal entitl em ent. At least, th at is wh at we 

would be asse rting in court.

Senator Abourezk. You have s tated th at the re is a need to develop 

add itional wa ter supplies for the Ak- Chi n com munity , and sooner 

th an the CA P can be expected to deliver any water. Would it be fair 

to say th at the adminis tration is com mitted to deve loping a wa ter 

supply system for Ak- Chin rega rdless of wh eth er this bill or similar 

legislation is ena cted by Congress?

Mr. Krul itz. Well, Mr. Ch airma n, 0M B cleared my rep ort. It 

cer tainly is the Dep ar tm en t’s position and , we would hope, the 

ad minist ratio n’s po sition as well.

Senator A bou rezk. Un derstandin g th at passage of any legislation, 

includin g thi s legislation, is sometim es uncertain, in view of your 

ack now ledg ment of the need s for the Ak- Chin com mu nity for wa ter: 

Does the a dm ini str ati on ha ve any p lan s to seek an early appro priat ion 

for the necessary feasibility stud ies?

Mr. Krulitz. We are pre pared to proceed with a req uest for an 

appro pri ation for the feasibility stu dy . We estim ate the p otentia l cost 

at somewhere betw een $500,000 and $800,000. It depend s a little bit 

upo n the da ta th at we have available.

Senator Abourezk. Can you ap prop ria te wi thou t addit ion al 

autho rization? Do you have wh ate ver autho riz ati on you need?
27

Mr. Krulitz. Mr. Chairman, I really do not know the answer to 

tha t question. I would have to find out.

We will check and find out whether or not we need a separate 

authorization.

[Subsequent to the hearing the following information was received.]

It is our opinion th at there is sufficient existing autho rity upon which to base 

such a request.

The Snyder Act, 25 U.S.C. § 13 authorizes the Bureau of Indian Affairs, under 

the supervision of the Secretary of the Interior to expend moneys of for the benefit, 

care and assistance of Indians thro ugh out the United States “[f]or the extension, 

improvement, operation, and maintenance of existing irrigation systems and for 

the development of water supplies.”

The au tho rity to seek appropriation s is coextensive with § 13 authorization to 

expend moneys. Since t he development of water supplies is an expressly author ­

ized activity under the Snyder Act, we do not feel tha t further authorization is 

needed to supp ort a requ est for funds to do a feasibility study for Ak-Chin.

Senator DeConcini. Excuse me, Mr. Chairman.

You do not mean authorization, do you, Mr. Krulitz? You mean 

appropriations?

Mr. Krulitz. An appropriation for the feasibility study; right.

My guess is tha t it might be possible to include it in the supplemental at some point.

Senator Abourezk. In your opinion, would passage of S. 1582 and 

its enactment interfere with or otherwise disrupt the work on an 

alternative to S. 905?

Mr. Krulitz. The present bill calls for the Secretary to enter into 

an agreement with the tribe, which would extinguish their claims. It 

may be possible to dovetail the two.

The enactment of this bill, to the extent tha t it provides for the extinguishment of those claims, would need to be carefully looked at. 

Until we identified how we are going to satisfy the tribe’s water rights, 

I am sure they would not want to relinquish their claims.

This bill does obligate the Government to provide tha t amount of 

water. The two could probably be made consistent. As we look a t it, 

each one has a different purpose.

Senator Abourezk. I do not have any more questions.

I want to thank you very much for your appearance and your 

testimony in favor of the proposal as modified.

Mr. Krulitz. Thank you, Mr. Chairman.

Senator Abourezk. Senator DeConcini is our next witness. He 

is the sponsor and author of this bill.

STATEMEN T OF HON. DENNIS DeCONCINI, A U.S. SENATOR FROM 

TH E STATE OF ARIZONA

Senator DeConcini. Mr. Chairman, thank you very much.

First let me comment on Mr. Krulitz’ participation in these very, 

very critical problems we are facing in Arizona in the non-Indian 

as well as the Indian spheres. I cannot compliment him enough for 

giving it his personal attention and the time tha t he has spent in 

Arizona talking to Indian agricultural interests and non-Indian 

agricultural interests.

It is a pleasure to find a department tha t is indeed willing to 

attempt to understand both sides—if you must use tha t particular 

phrase—of the water problem involved in Arizona.
28

I wa nt to than k you, Mr. Chairma n, for con ductin g hearing s on 

S. 1582 in such a tim ely fashion. Acting in such a responsive ma nner 

to the wa ter crisis faced by the Ak-Chin Indian com mu nity and the 

effec t th is crisis will have on the non -In dia n f arm ers in the surroundin g 

are a is to the comm itte e’s credit indeed.

This bill, which I introd uce d, proposes to resolve— wi tho ut protra cte d, costly, and socially disrup tive liti gatio n— the Ak- Chi n 

In dian co mm unity’s wate r claims which a re based upon th e conte ntion 

th at the Un ited State s failed to meet its trus t res ponsibility to these 

In dian people.

Specifically, this would be accomplished by m anda tin g the Secre tary 

of the Inter ior to pum p and deliver at least 70 ,00 0 acre -feet of wa ter, 

and as much as 100,0 00 acre-feet annuall y from nearby Federal 

lands to the Ak-Ch in In dian Reservat ion , where the comm unity is 

located .

Such wa ter w ould be deliv ered until a perm anent sup ply of surface 

wa ter is made available to the com munity , at which tim e the community would agree th at the obligation to deliver water by this act 

shall be redu ced pro portionate ly as the perm anent surface source of 

wa ter is provide d to the end th at the wa ter autho rized pu rsu an t to 

thi s act is no long er required.

The bill fu rth er directs the Sec retary of the Inter ior, within 1 year 

from the date of enactm ent of this act , to un derta ke the necessary 

engineering and hydrological studies to insure th at a stable source of 

gro undw ate r is availab le in nearb y area s, and th at such wa ter can be 

pumped and delivered to the com mu nity with min imu m adve rse 

effects on pre sen t users of th at w ater.

Following com pletion of the foregoing stud ies, the Sec retary is 

dire cted to en ter into a co ntr act or approp ria te agreem ent with the 

Ak-C hin Indian comm unity in which the Secre tary would agree, on 

behalf of the United State s, to drill the necessa ry numb er of wells to 

meet the wa ter comm itm ent in this act; and to constru ct a dis tributio n 

system to insure delivery of the wa ter from the Federal lan ds to the 

lands comprising the Ak- Chin Ind ian Reservat ion.

In consideration for the effective delive ry of a t least 70,00 0 acre-feet 

of water a nnually to the reservation, my bill provide s th at the Ak-Chin 

Indian comm unity will agree to waive all claims again st the Un ited 

State s based upo n the con ten tion th at the tru ste es failed to pro tec t 

or a ssert the w ate r righ ts of the Ak-Chin Indian Reservation, i nclu ding 

both groundwa ter and surface wa ter from time immemorial to the 

present.

Finally , the proposed measure autho rizes the appro priation of such 

sums as may be necessa ry to pe rm it the Secre tary to car ry ou t the 

prov isions of this act.

It is an establis hed fac t th at the res erv ation ’s groundwa ter is 

declining at an alarming rate. There is also no -question th at the 

continu ed via bil ity of farming on the Ak-Ch in Reservat ion is limited 

by usable available water. The position of the com mu nity is th at the 

dim inution of its gro undw ate r and the failure of the Un ited State s to 

pro tec t the tribal wa ter resou rces hav e given rise to five sep ara te 

causes of action as follows:

Fi rst—an action by the com mu nity again st the Uni ted State s for 

pa st, d amage to the com munity res ulting from the failu re of .the
29

United States to protect water resources and to make them available 

to the community;

Second—an action by the community against the United States for* 

failing to currently provide water to the reservation;

Third—an action by the United States, as trustee on behalf of the 

community, against individuals pumping groundwater in surrounding 

areas, including the Maricopa-Stanfield Irrigation District, for past 

damages resulting from their pumping which caused outflow of water 

from beneath the reservation;

Fourth—an action by the United States, as trustee for the community, against individuals pumping groundwater in the aquifer to 

cause them to stop pumping water which affects groundwater beneath 

the reservation; and

Fifth—an action by the United States, as trustee for the community, 

to quantify the water resources to which the community is entitled 

as a result of the Winters case, Arizona v. California, and the Cappaert case.

If this measure is enacted into law, it would preclude action by the 

United States against non-Indian farmers surrounding the reservation 

to force them to cease pumping; and i t would also preclude claims by 

the Ak-Chin people against the United States for failing to currently 

provide water. The delivery of water would obviate the possibility of 

successfully maintaining either type of litigation.

In addition, the legislation specifically releases the United States 

from any claims which may be asserted by Ak-Chin against the 

United States for past damages.

If the legislation becomes a reality, the subject of quantification of 

water rights will have also been settled. Thus, of the five causes of 

action, only one remains; tha t is, litigation by the United States as 

trustee against non-Indian farmers for past damages.

This cause of action is not released by the legislation as presently 

proposed. However, the community has assured me that, for what it 

conceives to be adequate consideration, such as S. 1582 or similar 

legislation, an amendment tha t would release the one remaining 

claim would be in order.

The Federal Government, as trustee for the Indians, has only limited 

alternatives at its disposal in addressing the Ak-Chin Reservation’s 

water crisis. In my view, the only viable alternative is a negotiated 

legislative settlement. This approach presents an opportunity for all 

parties—Federal Government, Indians, and non-Indians-—to fashion 

a solution based on concessions.

I believe there are persuasive legal and moral arguments to support 

my decision to opt for the negotiated legislative settlerfient. The 

increasing number of ancient Indian claims relating to land and other 

natural resources being advanced by the Indian community are 

creating serious conflicts between Indians and their non-Indian 

neighbors.

Given the Federal Government’s role in the area of Federal/Indian 

relations, the Congress has an obligation to fulfill its responsibility, 

and where the circumstances warrant, resolve such conflicts through 

legislation rather than disruptive litigation. I am hopeful that the 

Ak-Chin issue might well serve as a model for others to follow when 

faced with similar circumstances.
30

Mr. Chairma n, the re are ma ny ram ificatio ns to Arizon a’s wa ter 

problems, ram ific atio ns th at threaten the future dev elopm ent of our 

State . Fo r exam ple, I rec ently received a letter from the executive 

vice pre sid ent of the Co nti nenta l Ba nk in Pho enix which clea rly 

shows th at we mus t resolve our wa ter prob lems.

The Philadelph ia Savings Fu nd Society, the larges t savings bank 

in the world, has inv ested in excess of $100 million in Arizona. The 

. Co nti nenta l Ba nk in Phoenix was advised by the Philadelph ia group 

th at it would no longer consider loans in Arizon a because of the 

ma ny uncertaint ies sur rou nding our wa ter prob lems.

The Williamsburgh Savings Bank, a $2 billion org anization he ad ­

qu art ere d in Brook lyn, N.Y., which has inv ested more th an $50 

million in our State , has ind icated th at it is in the process of reevalu ating its loan policies as well. Th ey recognize th at wa ter is 

critica l to the St at e’s fut ure. Not only is wa ter in short sup ply , but 

the re is t he t hre at of continu ous dis ruptive litigatio n between Ind ian a 

and non-Ind ian s over water. In such an envir onme nt of un ce rta in ty , 

investm ent decisions are difficult to mak e.

The legislation being discussed toda y will no t solve Arizo na's 

prob lems. Bu t, if passed, it will move in th at direction. And it is 

pa rticular ly im po rta nt th at the resolu tion be prima rily wi thin the 

legislative are na and no t the courts.

In conclusion, I believe the hea ring process will clarify the issuea 

and possible problem s con tain ed in this bill so corrective am endm ents 

can b e considered during ma rku p.

Mr. Ch airma n, I will be glad to answer any questio ns you or yo ur 

staff might have.

Senator Abou rez k. Th an k you very much, Sen ator.

I wan t to make a little response to yo ur open ing sta temen t with 

regard to the Solicito r for the Inter ior De pa rtm en t. I am pa rti cu larly 

ha pp y to see a Solicitor who finally tak es his respon sibility serio usly.

While he is in the room , we ou gh t to com plim ent him. I really 

mean th at .

I hav e b attle d for over 4% ye ars now with Solicitors for the Dep ar tment of In terio r on various issues. I am pa rticularly pleased th at 

Mr. Kr uli tz has seen fit to tak e his resp onsibilities at their utmos t 

in seriousness.

I am also pleased to see a Senator from a State th at has an In dian 

population , tak ing th at India n po pulat ion serio usly and no t dem agoguing on the issue as ma ny politicians are wo nt to do.

So, I appre cia te the work th at you have done, Senator DeCon cini, 

and the interest y ou hav e tak en.

I do no t have an y questions. Man y things were str aig hten ed ou t 

while Mr. Kr ulitz was testifying. I am ha pp y th at you were here to 

hear th at .

Feel free to comm ent on the modifications he has proposed and 

agreed to.

Senat or D eConcin i. Mr. Ch airma n, I am glad you mentioned 

th at . I will tak e ju st a minute.

I can app rec iate the position of the Solicitor and the Dep artm en t 

because, obviously, you would like to be certain th at the avail ability 

is there. W ha t does concern me is this. I am very concerned wi th the 

problem of liti gatio n and the no ndisc rim ina tor y effects or lessening
31

effects th at legislatio n would hav e, adverse to wh at m igh t come forth 

from litigat ion. I am very, very conc erned th at the no n-Ind ian 

agricultura l int ere sts might be seve rely legally discriminat ed again st 

thr ough litigation.

Some agr icu ltural int ere sts will no t su pp ort even my proposal.

The reason the bill is dra wn in such a manner to man da te the 

Dep artm en t to move forw ard is to place on the record th at it is the 

responsibility of the Dep artm en t to find the w ate r supply and deliver 

it to this parti cu lar India n res erv ation, as it ma y be to ma ny oth ers.

When we s tarted working on this bill, the Ak-Ch in were very pos itive 

in their position legally and as to the am ount of wa ter. Th ey believe 

th at 100,000 acre-feet is the min ima l am ount. Th ey now pump betwe en 25,000 and 30,000. Th ey hav e been allo cated some 58,000 

acre -feet. This is a min imu m of 70,000— perhap s as mu ch as 100,000.

It shows a spirit on their pa rt. Th ey are willing to modify their 

dem and s to resolve the litig able actions th at ma y be pen din g from 

the stan dp oint of some of the no n-Indian agr icu ltural com mu nity. 

Th ey certainl y see the bene fit of thi s ra th er th an thes e po ten tia l five 

causes of action going to c ourt, maybe wi nning a nd maybe no t winning .

It is tim e, in my opinion, for the Dep artm en t to bit e th at bulle t of 

the lon gstandin g obligation and tak e it upo n themse lves to find th at 

wa ter resource.

I think it is the re. I wish I could say th at it was simp le and th at 

you cou ld ju st go ou t and p oin t t o thi s v alley or to th at a rea a nd come 

up with th at am ount of water. I believe th at if the Dep artm en t was 

directed and told th at they had to do it, they could find a minim um of 

70,000 acre-feet and perha ps more.

Senator Abou rez k. I hav e n o othe r questions.

I wa nt to express my t ha nk s for yo ur testimony.

Senator D eCon cin i. Th an k you , Mr. Ch airma n.

Senator Abourezk. Our next witness is Mr. John E. Sm ith, president of t he Marico pa-Stanfield Irr iga tio n and Drain age Di str ict .

Mr. Smith, I would like to welcome y ou to the com mittee hea rings.

STATEMENT OF JOHN E. SMITH, PRESIDENT, MARICOPA-STANFIELD 

IRRIG ATION AND DRAINAGE DISTRICT, PHOENIX, ARIZ.

Mr. Smith . Mr. Chairma n, my n ame is J oh n Smith. I am a farme r. 

I live in Arizona.

I am the pre sid ent of the Marico pa-Stanfield Irriga tio n Di str ict .

You have before you for con sideration Sen ate bill 1582 introd uced 

by Senator Den nis DeConcini of the St ate of Arizona. Th e boa rd of 

directors of Marico pa-Stanfield Irriga tio n and Drainage Dist ric t has 

been reques ted to give you its views upon thi s legislation.

The Marico pa-Stanfield Irriga tio n and Dra inage Di str ict is an 

irrigat ion distr ict form ed in 1962 un de r the laws of the St ate of 

Arizona. This distr ict was essentially form ed for the purpose of bein g 

able to co ntr act with the Secre tary of In terio r for Colorad o River 

wa ter delivered int o cen tral Arizona by the central Arizona pro ject. 

Th is distr ict is located in Pin al Co unty, Ariz., south of the Gila River 

and the Gila River Reservat ion. The no rth ern bo un dary of the distri ct is app rox imately 35 miles south of the Phoenix area and ab ou t 

5 miles south of the Gila Riv er.
32

The district contains 147,655 total acres, of which 137,175 acres 

are patented—in private ownership—and 10,490 acres belong to the 

State of Arizona. Of these lands, 116,195 acres have a recent history 

of irrigation as tha t is defined in the Central Arizona Project Act, 

being 108,475 acres of patented land and 6,720 acres of State land.

Within the exterior boundaries of the district, but not included 

within the district, is the Maricopa Ak-Chin Indian Reservation. 

This reservation contains 21,840 acres and was created by an Executive 

order dated May 28, 1912. Of the 21,840 acres within the reservation, 

approximately 5,000 acres are presently being farmed.

Neither the district, its non-Indian farmer members, nor the AkChins, receive any surface water other than infrequent flood flows 

of the normally dry Santa Cruz River, Santa Rosa and Vekol Washes 

which are of very little, if any, economic value.

All farming, both within the boundaries of the district and on the 

Indian reservation, is done by pumping the underground percolating 

water by means of deep wells. The static water level in these wells 

has been falling, thereby increasing the costs of obtaining water. 

In some instances, this increased cost has led some of the non-Indian 

farms to go out of cultivation. This prospect still remains for those 

currently in business unless some relief is found.

Insofar as the district is concerned, the only alternative source of 

water available to the district is water to be delivered through the 

central Arizona project. The district has previously filed a letter of 

intent to contract for water with the Secretary of Interior. It is 

presently pursuing this letter of intent with the proper authorities. 

The Secretary of Interior has not announced any allocation of central 

Arizona project agricultural water for non-Indian applicants.

The Secretary of Interior, however, has made an allocation to the 

Maricopa Ak-Chin Indian Reservation. His allocation amounts to 

58,300 acre-feet per year. In addition to that, the Maricopa Ak-Chin 

Indian Reservation is to receive water if the Kennedy bill is enacted 

into law. If the Kennedy bill is enacted into law and the Ak-Chin 

receive their allocation of central Arizona project water, the Ak-Chin 

would receive over 100,000 acre-feet of surface water per year, or 

roughly 5 acre-feet for each acre of the reservation.

There is no question that the underground percolating water which 

is relied upon by both the Ak-Chin and the non-Indian farmers is not 

sufficient to sustain the existing rate of pumping for an indefinite 

period. In recent years, litigation has been threatened between the 

Indians and the non-Indian farmers as to the law governing underground percolating water.

These th reats have been given more impetus by virtue of the decision of the U.S. Supreme Court in United States v. Cappaert. Further, 

while the deadline for filing claims by Indian tribes is being extended, 

the district and its representatives have been informed tha t the 

Ak-Chin do intend to file such a lawsuit.

I think tha t should have said the Department of Justice instead of 

the Ak-Chin.

The Indians base their claim upon a filing by the Secretary of 

Interior of a “Notice of Appropriation of Surface and Underground 

Water from the Santa Cruz River and Santa Rosa Wash” in the 

amount of 60,000 acre-feet per year and from the Vekol Wash in the
38

amount of 10,000 acre-feet per year. Th is notice was filed within 

10 day s aft er creatio n of the res erv ation in 1912.

How ever, since 1907, it has been the law of the St ate of Arizona 

th at under gro und percol atin g wa ter is no t subje ct to appro priat ion 

and th at such wa ter belon gs to the owner of the overlying land . 

Howa rd v. Per rin, 8 Ariz. 342, affirmed 26 U.S. 195. Fur ther , it should 

be pointed ou t th at at the time the Secre tary filed his “notic e of ap ­

prop ria tio n,” the re were nume rou s appro priation s of record on the 

Sa nta Cru z Riv er, includin g, bu t no t lim ited to, the following filings 

in Pin al Co un ty, Arizon a:

Black M ou nta in Res ervoir, March 16, 1910, 3,000 sec. fee t; Sa nta 

Cruz Res ervoir, Ju ne 3, 1909, 3,000 sec. fee t; Sa nta Cru z Reservo ir, 

Oct obe r 14, 1909, 3,000 sec. fee t; and Sa nt a Cru z Res ervo ir, Ju ne 3, 

1909, 3,000 sec. fee t; and prior appro pri ations in Pima and Sa nta 

Cru z Co un ty of a minim um of 10,000 acre-feeL

Th e source for th at d at a is “ Re po rt Upo n the Sa nta Cru z Reservo ir 

Pr ojec t” , by P. E. Fuller, con sulting electrical, mechanical and 

hydraulic engineer, Ju ne 11, 1913.

In addition to thes e prior appro pri ations, the re is also pen ding in 

the U.S. Di str ict Co urt for the Dist ric t of Arizona a law suit brought 

by or on behalf of the Papag o Indian Tribe to wa ters of the Sa nta 

Cruz River as well as underground wa ter.

It could be argu ed th at the claim s of the Papago Tribe will hav e a 

significant im pact upo n any claim of the Ak-Chin Tribe . Th e same 

could hold tru e if the Gila Indian River com munity brings a similar 

law suit, since bo th reser vat ions were established prior to the establishmen t of the Ak-Chin Reservat ion.

Th e distr ict does no t agree th at the Ak-Chins have a valid claim to 

the underground wa ter oth er th an wh at the ir rig hts would be under 

Arizona law. However, the distr ict recognizes th at , if the claims of 

the A k-Chin to underground w ate r are to be upheld, i t will tak e costly 

and tim e consuming litigat ion which would be a bu rden to all and 

leave bo th pa rties in do ub t as to the ir respective r igh ts to the underground wa ter until a final decision was reached.

Fu rth er, it is obvious th at the Secre tary of Inter ior did no t follow 

thr ough on the filing of the “ Notice of a pp ropriatio n” for the Ak-C hin. 

If this is a vio lati on of his trus t obligation —up on which the di strict 

expresses no opinion— the n it is the position of the distr ict th at the 

Ak- Chin should be mad e whole and th at the obligation to do so is the 

obliga tion of the Fed eral Go vernm ent and no t the obligation of the 

parti es in the immediate area who have built, thr ough blood, swe at 

and tears, this de sert land into a highly pro ductive farmin g co mm unity.

Fo r thes e reasons we supp ort a legislative solu tion to this matter 

and we supp ort the principles con tain ed in the DeC oncini bill.

It is our understandin g th at the prop osed well field aut horized by 

the DeC oncini bill will be loca ted on Federal land to the wes t of the 

Ak-Chin Reservat ion, either in the vicinity of Vekol Valley or at the 

headwa ters of W ate rm an AV ash. Th e distr ict expresses no opin ion as 

to the availabi lity of 70,000 to 100,000 ac re-feet of wate r p er ye ar fro m 

these sources.

The distr ict fu rth er expresses no opinion as to wh eth er or no t the 

pump ing of this qu an tit y of wa ter from these sources could be done 

“w ith ou t significant dam age to o ther interests” or “adverse effect upon
34

oth er gro undw ate r basin s.” It is the position of Marico pa-Stanfield 

Irr iga tio n and Drain age Di str ict th at , if other int ere sts are significa ntly dam aged or there is subs tan tia l adverse effect upo n oth er

g

rou ndwater basins as a r esu lt of the pum p fields, the pum p field will 

e opera ted only if the ot her in ter ests so affec ted are fully compens ated 

for any damages .

If this can be done, then the bringing of this wa ter to the Ak- Chi n

Reser vation w ould be, in the o pinion of the d istric t, full com pen sation 

to the Ak-Ch in India ns for the claim ed neg lect of the Secre tar y of 

Interio r to preserve the valu e of an y rig hts created at the tim e of the 

establishm ent of th e reservation.

This shou ld, tog eth er with wa ter alloc ated to the re servation by the

Secre tary from the cen tral Arizona pro jec t, be amp le to place in 

cultivatio n all rea son ably irrig able land on the rese rva tion and should 

insu re to the Ak-Ch in India n comm unity and the ir desce ndants an 

ab un da nt and secure su pply.

Fo r thi s re ason , it is the p osition of the d ist ric t th at se ctio n 5 of the 

bill s hould be amende d so as to make it clear th at th e d eliver y of w ate r 

to the Ak-Ch in Indian com munity under thi s bill would result in a 

full and com plete settlem ent of an y and all rights, claim s or causes of 

act ion n ot o nly again st the Secre tary of the Int eri or, but also again st 

the non-Ind ian farme rs and oth er wa ter users off the r ese rvation as a 

result of their havin g pum ped and used the under gro und wa ter u nderlying t heir la nds and continuing to do so in the future .

With such an am end me nt, and subject to the res erv ations above 

pointed out, the Mari copa-Stan fie ld'Irrig ati on and Drain age Dist ric t 

whole hea rtedly support s Senat e bill 1582 and reco mm end s its 

enact me nt.

Th an k you for the op po rtu nity to ap pe ar today and testify . I hope 

the com ments of my distr ict will be of assistance to the com mittee. 

To fu rth er assist the com mittee concern ing the waiver provision of 

section 5 of t he bill, we have d rafte d a prop osed am endm ent which we 

offer to you now. Th e am endm ent would make it clear th at delivery 

of wa ter u nder the bill would re sult in a full and complete s ettle men t of 

all claim s of the A k-C hin community . We feel th at such a provision is 

vital.

I will be ha pp y to answer any question s you may have or sup ply 

you with add itio nal inf orm ation if th at becomes necessary.

Mr. Ch airma n, we talk ed this over w ith the legal counsel of the AkChin com munity .

Senator Abourezk. Did the y concur with that?

Mr. Smith. Yes. He is here. I think he can sp eak fo r h imself be tte r 

th an I can.

Senator Abourezk. Mr. Sm ith, we are very gra teful for your appea rance and yo ur testim ony . It is a valuab le contr ibuti on because 

we want to know how people feel abo ut legislatio n in the local area.

I think, wi thou t questio n, you rep res ent people living in th at surrou nding area t hat are n on -In dian; is t hat correct?

Mr. Smit h. Yes; the Ak- Chi n Tribe and the farmers in the area 

have a long histo ry of coopeiatio n. We ge t along very well. Our kids 

all go to the sam e school and p lay on the sam e ball clubs. We get along 

well with each oth er.

I would like to mak e a com me nt or two, if I may, Senator, on the 

adminis tra tio n position .
35

Senator Abourezk. Certainly.

Mr. Smith. With respect to them, I do not feel that their position 

is the solution to the problem.

1. They propose a legal solution, perhaps, which, if the Ak-Chin 

lost, would certainly leave them in a weaker position concerning their 

rights.

2. They propose a lesser amount of water—20,000 or 30,000 acrefeet—which would not settle the Ak-Chin’s claims. It would not 

settle their legal position. So, it would not settle the problem at all.

Senator Abourezk. You think it ought to be a full 100,000?

Mr. Smith. Well, something in the neighborhood of the 70,000. They 

claim that, if they are going to do anything at all, they should do it 

properly and settle the problem. Otherwise, the problem is like it is.

They also propose, perhaps, as I understood them, more wells. That 

is just like throwing gasoline on a fire. You have got a problem, so, 

to solve it, you create more of the problem by putting more wells 

there and putting them in deeper. Then we put in more wells and put 

them in deeper. That does not solve the problem at all.

Senator Abourezk. Thank you very much.

Mr. Smith. Thank you, Senator.

Senator Abourezk. We appreciate your appearance, Mr. Smith.

The next witness is Mr. Wilbert J. Carlyle, chairman of the Maricopa Ak-Chin Indian Community.

Mr. Carlyle, I would like to welcome you to the hearings. If you 

have somebody with you who you would like to introduce, please go 

ahead.

STATEMENT OF WILBERT J. CARLYLE, CHAIRMAN, MARICOPA

AK-CHIN INDIAN COMMUNITY, ACCOMPANIED BY LEONA KAKAR,

AK-CHIN COUNCIL SECRETARY-TREASURER; VERA SANTOS, VICE

CHAIRPERSON; GENE FRANZ0Y, ENG INEER; AND BURTON G.

HIRSCH, ATTORNEY

Mr. Carlyle. Thank you, Mr. Chairman, staff, and guests. My 

name is Wilbert Carlyle.

Let me first introduce the members of the council th at aie here with 

me. Vera Santos is vice chairperson, and Leona Kakar is Ak-Cini 

Council secretary-treasurer. We also have several students from the 

reservation we have brought here as a high school graduation gift.

In addition, we have with us Mr. Gene Franzoy, an engineer specializing in irrigation, and our attorney, Mr. Burton G. Hirsch. We 

are, I believe, prepared to answer your questions.

I should like to take this opportunity to thank Senator DeConcini 

for his active support of this bill and to thank this committee and its 

staff for the excellent cooperation we have received.

Mr. Chairman, it is my intention to make my testimony as brief 

as possible and to answer questions the committee may have. To 

accomplish this, I would ask that my testimony before this committee, given during the hearings on Senate bill 905, be made a p art 

of this record or placed in the official files of the committee for these 

proceedings.

Senator Abourezk. Both tha t and your prepared statement will be 

made a part of the record.

[Th e m at er ia l follows:]
36

S T A T E M E N T

0 F

A K - C H I N I N D I A N C O M M U N IT Y

Before the Senate Select Committee 

on Indian A ff air s

Hearings on S.B. 1582

Ju ly 25, 1977

Presented By:

W ilb er t J. Car lyle , Chairman

Assisted By:

Burton G, Hirsc h, Atto rn ey -a t-law
37

Mr. Chairman, Members and Guests:

Let me f ir s t introduce the members of the Council of the Ak-Chin 

Indian Community who are present fo r these hearings.

Leona Kakar

Vera Santos

We also have several students from the reservation we have brought here as 

a high school graduation g ift. In ad diti on, we have with us Mr. Gene Franzoy 

an engineer sp ecializ ing in ir rig a ti o n , and our attorn ey , Mr. Burton G. 

Hirsch. We are , I be lie ve , prepared to answer your questions.

I should li k e to take th is op po rtu nity to thank Senator DeConcini 

fo r his ac tiv e support of th is b ill and to thank th is Corrnittee and it s 

s ta ff fo r the ex ce lle nt cooperation we have received.

Mr. Chairman, i t is my in te ntio n to make my testim ony as b ri e f as 

possible and to answer questions the Committee may have. To accomplish 

th is , I would ask th at my testimony before th is Coirmittee given during 

the hearings on Senate B il l 905 be made a pa rt of th is record or placed 

in the o ffic ia l fil e s of the Committee fo r these proceedings.

The hi sto ry of Ak-Chin is well documented in that rec ord , as is 

the nature of our water problem. I do not inte nd to burden th is record 

with re petition. Through our own e ff o rts , we have achieved a small measure 

of success and independence. Last year alone, farming only 5,000 of the 

over 20,000 farmable acres on our rese rvation, we earned over $1 m illio n .

Due to the de clining ground water ta ble , two c rit ic a l things have occurred: 

pump costs have skyrocketed, cuttin g in to p ro fi ts severely, and ground water 

which used to flow under the reservation from the South is now flowing

out from under the reservation to the South.
38

Ten days a ft e r the res ervation was created in 1912, the United 

States cle arly expressed it s inte ntio n to provide us with at leas t 70,000 

acre feet of water annually from sources which no long er exis t. Our 

situation is so desperate 63 years la te r th at unless we have water we 

cannot continue to liv e as we have learned to li v e . We, as well as the 

United State s, can f ile law suits to get th is water and damages as w ell, 

but fran kly we feel a le gis la tive settle me nt be ne fits a ll partie s; our 

Indian Community, the United Sta tes , and nearby non-Indians.

The Comnunity be ne fits because a le g is la tive so lutio n can be 

implemented and water delivere d long before cost ly and disru ptiv e laws uits 

can be resolved, and because we value high ly the re la tio ns hi p we now enjoy 

with our non-Indian neighbors.

The United States be ne fits because i t w il l not have to prosecute 

a co st ly and complicated lawsu it on our be ha lf; because i t w il l not be 

exposed to the payment of past and futu re damages fo r what we believ e to 

be a breach of it s tr u s t re sponsib ility; and most important, because the 

government w il l have sig n ific a n tly co ntributed to the continued economic 

independence and pride of our Indian Community.

The non-Indians be ne fit because implementation of the b ill would 

bring new water in to the general area, and would eliminate the necessity 

of Ak-Chin's present pumping. In ad diti on, continued pumping by non-Indians 

could not le gally co nst itu te an infringement on our water supply i f we 

are ge tting water from an altern ative source.

With a ll these be ne fits there must be some detrim ents; there are! 

Ground water is a lim ited resource. To the extent 1t is mined from any 

aq uifer already being overdrafted i t is not re adily replaced. We would

-2-
39

be consuming a resource, as opposed to merely using i t . While th is re sult 

is not one we fee l desireable , we do feel i t is necessary. There is also 

the question of cost. As you w il l see, our estimated cost of the implementation 

of th is le gis la tio n is sig n ific a n tly less than the amount of damages the 

United States would li k e ly have to pay to the Ak-Chin people fo r breach 

of it s tr u s t re sponsib ility. Ignoring fo r the moment that fa ct, we w il l 

show you th at the to ta l cost of acqu irin g the water in th is b ill can be 

less per acre fo ot of water than our present cost per acre fo ot. F in a lly, 

although the re w il l be some eff ect on fanners presently mining water in 

aq uifers where a well fi e ld is established , our hydrolog ists te ll us the 

eff ect on them w il l be so minimal as to be in sig n ific a n t.

To farm our farmable acres we need 100,000 acre fe et of water 

de livered annually. La ter, as the b ill proposes, we would hope to have 

th at water from some surface supply. In the meantime our need is so immediate 

and urgent th at only pumped ground water can reach us in time to save our 

econorny and our way of life . In return fo r th at water, we would glad ly 

give up any and a ll claim s we have again st the United States fo r a ll 

it s past acts and more important, it s omissions.

Mr. Chairman, as you can see, we have brought some graphs to 

de pict what we hope th is b ill w il l accomplish, as well as some inform ation 

of our present situation. I would lik e to ask our attorney to expla in 

these graphs to you. I f you or oth er Members of the Committee have any 

questions, I feel co nfide nt th at we can either answer them or provide 

answers to you in a short period of time.

-3-


• urc /ti

4^

tc
A K CHIN WELL FIELD

COST SUMMARY
44

s. 1582

Add endum to Repo rt Ans wering 

Questio ns Pro posed b y Sena tor Abo ure zk

in July 11 Lett er

1. Wo ul d 100,000 acre-feet be enough for the Ak- Chin tribe to 

continue, as Senator DeCo ncini stated, thei r h ighly successf ul 

farm ing enterprises?

Re sp on se : In terms of curren t usage, est imated at b etwee n 

25, 000 and 30,000 acre -fee t annua lly, it is clear that 

100 ,000 acre-fe et w ould be more than adequate.

2. Is there suffi cien t gro und wat er ''under near by Fed eral lands 

to supply that amount?

Re sp on se : We are not aware of studies whi ch w ould q uan tify the 

the amoun t of ground wate r available u nder near by Federal lands, 

and thus do not know ho w much water annually can be obtain ed 

fro m tha t source.

3. Wi ll t here be enough time for an adequate feasibility study to 

pro vid e an effi cien t del ive ry sys tem for the water?

Re sp on se : See report.

U. Wo ul d the eliminatio n of any pos sib le liability for brea ch of 

the trust relatio nshi p out wei gh p oss ibl e costs in terms of 

com pen sation to non- Indian wat er users incurred by the 

ena ctment o f this Act?

Re sp on se : We canno t esti mate p oss ibl e exposure of the Uni ted 

States for po tential Ak -Ch in claims. Nor do we yet hav e any 

careful estim ates of the costs o f the bil l in terms of 

com pen sation or otherwise. These cou ld not be obtained, of 

course, unt il more specific plan s are developed. Indian 

inte rests have sugg ested as an ini tial e stim ate that the 

bi ll might cost $1+5 million.

5. In Sec tion 2 of the Act, the Secret ary is requir ed to deter mine 

whe ther he should deliver less wate r on the b asis of two factors, 

one of w hic h is wheth er, "such an amount wil l sign ificantly 

dama ge othe r interest s." Is such a factor too vagu e or othe rwis e inap propriate?

Respo nse: We have rec omm end ed tha t this bil l not undertake 

sett lement o f the A k-C hin wat er rights claims in l igh t of
45

Consequently we would recommend deletion of section 2. We do 

believe, however, that the term "significantly damage" is very 

subjective and vague and would undoubtedly lead to questions 

when determining the amount of water to provide to the Ak-Chin 

tribe.
46

M r.'Carlyl e. T wo que stio ns were asked by the com mittee on July 

11, 1977.

1. Is t he am ou nt of wat er defined and i ts m ethod of delivery adequate 

for the needs of the Ak- Chi n Comm unity?

To farm our farm able acres, we need 100 ,00 0 acre -feet of wa ter 

ann ual ly. T hat is the am ou nt we seek. There is no existing del ivery 

system for th at water. Our need is so imme dia te and urge nt th at only 

pum ped groundwa ter can reach us in time to save our economy and 

our w ay of life. La ter , since groundwa ter will eventua lly be exhau sted 

or unec onom ical, we seek th at wa ter from a pe rm an ent surf ace supply.

2. In re turn , is the tribe willing to w aive all claim s agains t the U nited 

State s for failure of its fidu ciary obligation to pr otec t and ass ert all 

wa ter r igh ts from time imm emo rial to the present?

Th e answer to th at, simply, is yes.

Mr. Ch airma n, as you can see, we have brou gh t some graphs to 

show w ha t we hope this bill will accomplish, as well as some info rmation 

of our present situation. I would like to ask our attorn ey to explain 

thes e graphs to you.

If you or other mem bers of the c om mittee hav e any q uestion s, I feel 

confide nt th at we can either answer the m or provide answers to you 

in a short period of time.

Mr. Chairma n, I think we can clear up a lot of these que stions th at 

you have during the course of the presentat ion of these gra phs and 

oth er ma ter ial s we might hav e.

Senator A bourezk. Le t me ask one question before I forget it.

Th e prop osed am endm ent by Mr. Sm ith of the irriga tio n distr ict 

down the re— either you or yo ur attorn ey can answer this—hav e you 

discussed th at am endm ent with him, and do you agree with th at 

am end me nt?

Mr. H irsch. Mr. Chairma n, if I may respond, we have discussed it 

with him. We agree with the wo rdin g of the ame ndme nt. It s insertion 

would be, we feel, conti ngent upo n passage of the bill as pre sen tly 

proposed.

It ther e is to be oth er am endm ents dur ing mark up, we wo uld reserve 

the rig ht to neg otiate th at provision.

We have m ade a statem en t to Senator D eConc ini and assu red him, 

as he alluded to in his testim ony, th at, under approp ria te circ umstance s for wha t we conceive to be adequate con sideration , we would 

be willing to waive those claims.

Senator Abourezk. I thi nk , for yo ur prote ction, you would hav e 

to have th at lang uage in the bill in add itio n to langua ge saying th at 

this will take effect when the irriga tion proje ct is com pleted.

I do no t think a prom ise of a proje ct is sufficient. I think th at the 

com pletion of the proje ct shou ld ac tiv ate the lang uage.

Mr. Sm ith, if you are still here , would you agree with that?

Mr. Smith. Yes.

Mr. Hirs ch. Sen ator, I think the bill as draft ed con tem pla tes a 

co ntr act betw een the Secre tary and the trib e. .Of course, any relinqui shm ent of claims would be contingent upon fruition of the contr act. 

Tha t would resolve th at issue.

Senator Abourezk. Plea se proceed.

Mr. Hirsch. I thi nk you are generally orie nted on this ch art I show 

you as to where the reserv ation is. The city of Phoenix would be off 

the top of the map —jus t about dir ectly above the reservatio n.
We have identified on the res erv ation fou r differen t kin ds of land. 

The green cross-h atch ed area is the land th at is pre sen tly being irriga ted as of 1976. Fo r the most pa rt, it is wh at we refe r to as the 

sou the rn section of the reservatio n, with the exception of one small 

piece.

Th e brown area w ith lines across i t is the a rea that could be irrig ate d 

virtu all y ove rnight. It is level. It might need a little bit of tou cliu p 

work, bu t it has been irriga ted and aba ndoned only because of the 

lack of water.

The land with dots on it and the brown ha tch on the no rth section 

of the reserv ation is lan d th at has been historically irriga ted and 

aba ndo ned due to lack of water, bu t which lan d would req uire more 

than ju st a minimal t ouchu p to rea cti vate it. Fo r ex ample, field d itch es 

in th at area have deterior ate d with tim e and would need to be either 

reworked or poured.

The white are a is area conducive to sub jug ation. It has no t been 

subju gated . We are tal kin g about some where in the neighborhood of 

12,000 to 13,000 acres of land with the colored areas which can be pu t 

in with very min imal effort or a little more effort in some cases.

In the whi te areas, we are tal kin g about lan ds th at could be pu t 

under cultiv ati on by simply pu tti ng in wa ter and wor king on the 

ditche s and a little bit of field effort.

This first overlay shows the exis ting wells and ditch sys tem curren tly exis ting on the reserv atio n. Th e flow of the wa ter in those 

ditc hes generally star ts at the south east corner and moves in a no rthwest direction. The d itch es going a lmost du e west carry the w ate r west. 

The ditche s hea ding no rth carry the wa ter no rth .

The wells are ind ica ted on the re in ter ms of both gallons per m inu te 

of ou tput and by color, in terms of their anticipa ted useful life. I 

cou nted them before. If I rem ember correctly, I think the re are five or 

six wells in the entire reserv ation th at have an anticipa ted useful life 

in excess of 10 years. Most of the wells on the reserv ation will be out 

long before th at time.

The second overlay shows the proposed sys tem th at we would use 

to deliver wa ter from bo th Wate rm an Wa sh and Bosque Valley. We 

hav e done as mu ch homework as we can, Mr. Ch airma n, and I think 

th at we can assure this com mittee th at the re is sufficient water, wi thout an y que stio n, in Wate rm an Wash and Bosque Valley.

Mr. Fra nzo y, in preparing his inf orm ation, relied on rep orts from 

USG S. Th ey are prese ntly com pleting a stud y on Bos que Valley and 

did no t feel at liberty to give him a copy of th at . Fran kly , I did no t g et 

the re in time to rem ind him of the avail ability of th at . Th ey gave him 

an oral repo rt ind ica tin g th at the re is very su bs tantial am ounts of 

wa ter in Bosque Valley.

In Wate rm an Wa sh, the re are com pleted USGS rep orts th at are 

available. Based upon a readin g and interp retatio n of those rep ort s, 

there is, in h is mind and mine, and I th ink in the min ds of the com muni ty and the general farmers in the are a as well, little que stio n th at 

adequate wa ter can be developed from those sources.

W ha t we show on thi s m ap is a proposed well field. I should say two: 

One at W aterman Wa sh and one at Bosque Valley. Th ey are shown 

Arith majo r pipeline system s coming into the come r of t he rese rva tion.

Tha t wo uld be, in essence, w hat this bill will bui ld.
48

Ce rta in questio ns have been raised regard ing some pa rts of the bill. 

I think it would be appro pri ate to add ress those.

Th e vertica l scale on this graph means millions of dollars. Th e cost of 

the Bosqu e Valley well sy stem a nd d eliv ery system togeth er is a pprox ­

imate ly $15 million.

Th e cost of the Wate rm an Wash well and delivery sys tem is ab ou t 

$11.5 million. T he cost of the common de livery system— th at would be 

from the p oint where those tw o pipelines on the other map join togethe r 

and delive r to Ak-Ch in—is $7.5 to $8 million.

We pu t in a contingency f und for engineering and other expenses of 

th at na ture, including a feasibility stu dy . It would app rox imate $3.7 

million.

I should mention to you also th at Mr. Franzoy felt th at a total 

feasibility stu dy for the entire proje ct should no t exceed $250,000, 

co ntrary to the estim ates of th e B ure au of Reclamation .

A couple of test wells d rilled at each of thes e areas— and I will concede to this com mittee tha t, with all the studies t hat you can do in t he 

world, no one know s for su re—bu t, a c ouple of test wells in each of the 

area s would be the feasibility stud y in ter ms of the substan tia l ou tla y 

of m oney. The rest of it would be somebody sittin g down and figurin g 

ou t dollarwise wh at i t would cost.

Senat or Abour ezk. We always pu t in a “go ver nm ent factor.”

Mr. H irsc h. I am aware of th at , and I think we can do it a lot 

chea per.

Th e hor izo nta l line here repres ent s the annual cost pro jec ted for a 

20-year p eriod. The big yellow line in the middle is p ower costs. T hat 

was assumed at a 1%-cents cost per kilow att hour of power. T hat is 

probably a lit tle high, b ut pro bably rea listic in ter ms of what the fu ture 

portends.

Th e total cost of the proje ct in ter ms of its capital exp end iture 

would be app rox imately $40 million. Th e O. & M. ann ual cost would 

be, at its in itia l point, I think , about $3.7 million. It slowly would rise 

as power costs and the O. & M. on the wells and the conv eyan ce 

system s increase. The rep ayme nt would rem ain constan t.

I would point ou t to the com mittee th at pre sen tly Ak-Chin is 

pay ing on a p er-acre basis in the n eighborhood of $32 to $34 per acrefoot dep end ing upo n fluctu ating circ umstance s of wa ter for delivery 

pre sen tly. If the initial cost of thi s bill were amortized over 50 yea rs 

at no interest— and I recognize the problem s with such a long am ortizatio n— the total cost of the wa ter delivered under this bill, including 

the O. & M. charges, incl uding power, would be significantly less. 

It would be in the range of $29 to $30 p er acre-foot of w ate r deliv ered 

to Ak-Chin.

I think it is fai r also to tell the com mittee th at , if we collapse th at 

am ou nt down to 20 years, where we are then. Well, frankly, including 

O. & M, power, includin g repa ym ent of the total cost of the proje ct 

of $40 million at a 20-year period of am ortization, we would be looking 

at s om eth ing in the neighborho od of ab ou t $40 p er acre -foot; possibly 

a few dollars more than th at . Fran kly , th at is no t out of the ball park. 

There are a lot of farm ers in th at area th at are payin g th at much for 

water. I think it is an acceptable am ount to pay.

So, if you tak e the cost of t his bill and rea son ably amo rtiz e it over 

20 yea rs, the n you are getting w ate r for a relativ ely economical rate.
49

We have done, on our own, the cost benefit studies, the economic 

studies, the feasibility studies, the water studies. We think we have 

done the things tha t have to be done to be able to make an intelligent 

presentation to this committee and to answer any questions tha t you 

or the administration or anyone else may have.

Thank you.

Senator Abourezk. Thank you. Tha t was a good presentation.

If this legislation is not passed, would you find it necessary to 

bring suit against the United States for breach of tr ust and against 

the surrounding non-Indian water users in an effort to bring a halt to 

the depletion of your groundwater basin?

Mr. Hirsch. With reference to the second part of your question 

first, as you are aware, the United States is preparing a suit against 

non-Indian water users. It is anticipated to be filed, I think the 

Department testified a few minutes ago, within 30 to 60 days, something like that.

Senator Abourezk. So, tha t would obviate your suit against the 

Government?

Mr. Hirsch. I doubt that it would, Senator. I do not think tha t 

we could get a bill passed and signed by the President before tha t 

suit was filed. It would, in effect,' wind up dismissing tha t suit if 

the legislation subsequently went through.

With reference to a suit against the United States, we are not 

pressured by a statute of limitations.

Specifically answering your question, there is no question tha t the 

tribe would in fact sue the United States for these damages.

If I might add in tha t connection, the tribe is presently making an 

average of $200 per acre net profit on each acre of land tha t it farms. 

If you deduct from that our expenses of present water costs, it comes 

out to about a little over $250 per acre of net profit.

If you multiply tha t figure simply by the number of acres available 

to us, we wind up with very substantial prospective damages for 

each year the Government does nothing. Jus t as an exercise, I projected those damages 20 years in the future and wound up showing 

potential damages against the United States in excess of $100 million, 

today to 20 years from today. Going backward of course, the damages 

would be also very significant. They go back some 63 years.

Senator Abourezk. What kind of crops are grown on the reservation?

Mr. Hirsch. The principal crop is cotton; there are some grains that 

are grown. There is some hay occasionally as a rotating crop. But the 

big moneymaker is the cotton crop.

Senator Abourezk. Would you find acceptable an amendment to 

this bill to require a successful feasibility study prior to construction 

authorization?

Mr. Hirsch. No; I do not think we would.

A successful feasibility study could be defined in too many different 

ways. It could be defined as the one th at the Bureau of Reclamation 

uses. It could be defined as one tha t other departm ents within 

Government use.

I frankly cannot tell you, without looking at the exact requirements 

of such a feasibility study, whether or not we would be willing to 

accept it.
50

Senator Abourezk. How soon could you begin farming the addition al acreage need ed to use the wa ter this bill would bring?

Mr. H irsch. We are prese ntly farming 5,000. We could farm an 

add itio nal 8,000 within, at the most, 8 to 12 mo nth s after receiving 

wa ter a nd could subju gate and f arm the r est of t he rese rvation w ithin 

2 to 3 years.

Senator Abour ezk. If we, for some reason, decided to specify 

a specific am ount of m oney ra th er th an an open-en ded autho rization, 

wh at figure would you recommen d be inse rted ?

Mr. H irsch. There is only one are a of the bill th at we are unable 

to make a cos t est imate for. T hat is the provision th at non-I ndian s 

would be com pen sated for an y dam age s due to pum ping.

Based upo n our studies, we feel th at those dam ages would be very 

insignificant.

Assuming th at those studie s are correct and we pu t a small reserve 

aside, I think th at a reas ona ble ceiling for this bill would be $45 

million, in toda y’s dollars.

Senator Abourezk. Tho se are all the questio ns we hav e. We wa nt 

to th an k bo th of you for yo ur appeara nce and y ou r testim ony.

M r H irs ch. Th an k you , Mr. Chairma n.

Mr. Carl yle. Th an k you , Mr. Chairma n.

Senator Abou rezk. Th e hearing is adjourned .

[Whereu pon, at 11.30 a.m., the h ear ing was adjourned.]

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