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86–263 PDF 2014

S. HRG. 113–143

S. 1448, THE SPOKANE TRIBE OF INDIANS OF

THE SPOKANE RESERVATION EQUITABLE

COMPENSATION ACT; S. 1219, THE PECHANGA

BAND OF LUISENO MISSION INDIANS WATER

RIGHTS SETTLEMENT ACT; AND S. 1447, A

BILL TO MAKE TECHNICAL CORRECTIONS TO

THE NATIVE AMERICAN WATER RIGHTS

SETTLEMENTS OF THE STATE OF NEW MEXICO

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED THIRTEENTH CONGRESS

FIRST SESSION

SEPTEMBER 10, 2013

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

MARIA CANTWELL, Washington, Chairwoman 

JOHN BARRASSO, Wyoming, Vice Chairman 

TIM JOHNSON, South Dakota 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

MARK BEGICH, Alaska 

BRIAN SCHATZ, Hawaii 

HEIDI HEITKAMP, North Dakota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

DEB FISCHER, Nebraska 

MARY J. PAVEL, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on September 10, 2013 ..................................................................... 1

Statement of Senator Cantwell .............................................................................. 1 

Statement of Senator Udall .................................................................................... 3

WITNESSES

Macarro, Hon. Mark, Chairman, Pechanga Band of Luisen ̃ o Indians ................ 47

Prepared statement .......................................................................................... 49

Peone, Hon. Rudy J., Chairman, Spokane Tribe of Indians; accompanied 

by Marian Wynecoop, Tribal Elder ..................................................................... 13

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

Stone, Matthew G., General Manager, Rancho California Water District ......... 68

Prepared statement .......................................................................................... 69

Washburn, Hon. Kevin, Assistant Secretary—Indian Affairs, U.S. Department 

of the Interior ....................................................................................................... 3

Prepared statement .......................................................................................... 6

APPENDIX

Luhan, Hon. Ernesto C., Governor, Taos Pueblo, prepared statement ............... 73

Motsinger, Thomas, President/Founder, PaleoWest Archaeology, prepared 

statement .............................................................................................................. 79

Response to written questions submitted by Hon. Tom Udall to Hon. Kevin 

Washburn .............................................................................................................. 81

Shelly, Hon. Ben, President, Navajo Nation, prepared statement ...................... 78

(1)

S. 1448, THE SPOKANE TRIBE OF INDIANS OF 

THE SPOKANE RESERVATION EQUITABLE 

COMPENSATION ACT; S. 1219, THE 

PECHANGA BAND OF LUISENO MISSION

INDIANS WATER RIGHTS SETTLEMENT ACT; 

AND S. 1447, A BILL TO MAKE TECHNICAL 

CORRECTIONS TO THE NATIVE AMERICAN 

WATER RIGHTS SETTLEMENTS OF THE 

STATE OF NEW MEXICO 

TUESDAY, SEPTEMBER 10, 2013

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

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

628, Dirksen Senate Office Building, Hon. Maria Cantwell,

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. MARIA CANTWELL,

U.S. SENATOR FROM WASHINGTON 

The CHAIRWOMAN. The Senate Committee on Indian Affairs will 

come to order. 

This afternoon, the Committee had scheduled a business meeting 

for consideration of the funding resolution for the period of October 

1, 2013, through February 28, 2015. However, due to the absence 

of a quorum at this point in time, I am going to recess that part 

of today’s executive session, subject to the call of the Chair, and 

then go into our formal legislative hearing that we are also scheduled for today. 

We are honored to have the Honorable Kevin Washburn here, 

Assistant Secretary of Indian Affairs, from the U.S. Department of 

Interior. Also joining him are tribal members from three different 

tribes, the Chairman of the Spokane Tribe, Rudy Peone, and tribal 

elder Mrs. Marian Wynecoop. They are joined by the Chairman of 

the Pechanga Band of Luisen ̃ o Indians from California, Mr. Mark 

Macarro, and Mr. Matthew Stone, from the Rancho California 

Water District. 

So this is our first hearing after the summer recess. I just wanted to mention that some of you may have noticed some changes in 

the Committee room. I wanted to make sure that the Committee 

room had an opportunity to currently reflect some of the constituVerDate 0ct 09 2002 11:12 Mar 25, 2014 Jkt 086263 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\DOCS\86263.TXT JACK
2

ents of our member colleagues. That is why we have selected some 

Edward Curtis photographs. Seattle native Tim Egan recently 

wrote a book about Curtis’ journey among tribes for more than 30 

years in the 1990s. His photographs documented almost 80 tribes 

west of the Mississippi River, from Mexico to the Alaskan north. 

So these photographs represent the various regions of members of 

this Committee. 

Now to the business of the Committee today. This afternoon, the 

Committee is holding a legislative hearing on three different bills. 

The first is S. 1448, the Spokane Tribe of Indians of the Spokane 

Reservation Equitable Compensation Act. The second is S. 219, the 

Pechanga Band of Mission Indians Water Rights Settlement Act. 

And the third is S. 1447, a bill to make technical corrections to the 

Native American Water Rights Settlements of the State of New 

Mexico. 

At the core of the principles of tribal self-governance and self-determination is the ability of tribes to exercise jurisdiction over their 

lands and their resources. Often, legislation is necessary to ensure 

that tribes can exercise those rights and to bring resolution and 

certainty to decades-old disputes. 

S. 1448, the Spokane Tribe of Indians of the Spokane Reservation Equitable Compensation Act is a bill that I, along with Senator Murray, have introduced in previous sessions and introduced 

again in this Congress. We hope that this Committee will move 

this bill forward. The bill is vitally important to the Spokane Tribe. 

The bill would compensate the tribe for the past and continued use 

of tribal lands by the Federal Government. The lands were taken 

by the Federal Government to build the Grand Coulee Dam. The 

dam construction caused the flooding of over 3,000 acres of Spokane tribal lands, and those had significant economic, cultural and 

spiritual significance to the Spokane people. 

For over 60 years, the tribe has sought resolution to this issue, 

and all other means of the settlement have been exhausted. So that 

is why this bill reflects the compromise between the Spokane Tribe 

and the Administration and those in Congress. 

The bill that we will also hear about today, the second bill, is the 

Pechanga Water Settlement bill. That bill will ratify a settlement 

reached by the Pechanga Band and the United States and several 

California state water districts. This bill will bring certainty to all 

water users and end a dispute that began in 1951 over the Band’s 

water rights. The bill was introduced by our colleagues, Senators 

Boxer and Feinstein, and I look forward to working with both of 

them in bringing this legislation to a vote in the Committee. 

The final bill we will hear today is S. 1447, a technical correction 

bill that revises three prior New Mexico water rights settlements. 

These minor clarifications can only be made through Congress but 

are important to ensure that the prior water settlements are implemented as Congress intended. This bill was introduced by Senators 

Udall and Heinrich, and I look forward to working with them on 

the passage of that legislation as well. 

So I am especially pleased to have all of these individuals with 

us here today. I am now going to turn to my colleague from New 

Mexico to see if he has an opening statement. 

3

STATEMENT OF HON. TOM UDALL,

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you, Madam Chair. I very much appreciate the Chairwoman and the Ranking Member for quickly bringing S. 1447, the New Mexico Native American Water Settlements 

Technical Corrections Act, before this Committee for review. This 

bill makes technical corrections to three tribal water settlements 

that were approved by Congress in the 111th Congress. These include the Taos Pueblo Indian Water Rights Settlement, the Aamodt 

Litigation Settlement and the Navajo Water Settlement. 

All of the changes to these settlements proposed in S. 1447 are 

technical in nature and reflect the original intent of Congress and 

the parties to the settlement. Technical corrections outlined in the 

bill include correction of spelling and numerical errors, and clarification on how funding for infrastructure projects can be used and 

how long funding will be available. 

The technical corrections outlined in S. 1447 are important to 

continue to carry out the provisions of the Taos, Aamodt and Navajo water settlements. I understand the Administration supports 

the effort to make technical corrections to these settlements and is 

committed to working with me and the parties to the settlement to 

ensure that the changes are amenable to the parties. 

I would urge the Administration to work quickly with the parties 

to resolve any concerns raised today. It is important that these corrections be made in a timely manner. Again, I thank the Committee members for their attention to this bill and would urge swift 

passage. 

Thank you, Madam Chair, for acting on this so quickly. 

The CHAIRWOMAN. Thank you. 

We will now turn to our witnesses. First, I am going to have Assistant Secretary Washburn make his testimony. Thank you for 

being here today. Then maybe we will ask you questions and then 

continue down the line of our other witnesses. 

STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT

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

INTERIOR 

Mr. WASHBURN. Thank you, Madam Chairman. It is an honor to 

be here. Thank you, Senator Udall. 

Let me first testify on S. 1219, the Pechanga Water Rights Settlement Act. I want to say that the Administration remains very 

committed in the second term to getting water rights settled for Indian tribes. This is very important for the Federal trust responsibility towards tribes. We remain very committed to doing so, as I 

said in my testimony before the Committee back in May, I believe 

it was, on the Blackfeet Water Settlement. 

The Department is committed to working with the Pechanga 

Bands, the State of California, the local parties and this Committee 

in trying to get this water settlement completed. We are still in the 

process of analyzing S. 1219, and frankly, we are still negotiating 

with the tribe in some respects. So we are not stating a position 

of support at this point, but we want to congratulate the tribe and 

Chairman Maccaro for his leadership in working so well with the 

4

water districts in his neighborhood and also with the other tribes 

that are in the Santa Margarita River Watershed. 

We do have some issues that we have yet to work out with the 

Pechanga Band, and we are committed to working with Chairman 

Macarro to work through those issues. We appreciate his dialogue. 

We appreciate the Chairwoman and the Committee for moving the 

ball forward on this settlement. We have seen some progress since 

the last time this bill was filed, including, for example, just the decrease in the Federal contribution to the water rights settlement. 

So things are moving in the right direction with this settlement. 

I will be happy to answer more specific questions about any remaining concerns that we have during my question and answer period. 

Let me move on to the New Mexico Technical Amendments bill 

at this point. First of all, the Aamodt settlement, which benefitted 

the Nambe, Pojoaque, San Ildefonso and Tesuque Pueblos, I first 

would like to thank Senator Udall for his leadership in getting this 

very, very important water rights settlement through Congress and 

continuing to ensure that the settlements get attention, so that we 

can continue to make sure that they are finalized successfully and 

implemented successfully. We have been looking at these technical 

corrections and for the Aamodt litigation settlement, we see that it 

largely deals with indexing and costs for this bill. Indexing is very 

important, because the value of money changes over time, it usually lessens. And we have to make sure that the money has purchasing value, so we are able to complete these settlements. 

So we are happy to look carefully at those provisions with your 

staff, Senator Udall, and see what we can do with regard to making sure that we are doing the appropriate thing with regard to the 

Aamodt water rights settlement. 

As to the Navajo Water Settlement, Senator Udall, we are fully 

in favor of the things that you have recommended in the technical 

amendments bill for the Navajo Water Rights Settlement Act. I 

could go through them one by one, but I believe we are supportive 

of each of those changes, and happy to do that. Again, thank you 

for keeping your attention on this settlement as well, to keep it 

moving forward. 

As to the Taos Pueblo Indian Water Rights Settlement, one of 

the things that this technical amendment does is deal with socalled early money, money that we get to the tribes before the settlement is final, so that they can begin projects. One of the things 

that your technical amendments do here is to expand the purposes 

for that early money. We have negotiated the purposes for the 

early money and those were careful negotiations. We generally, the 

Administration does not like to provide early money for several reasons, not least of which because it takes some of the pressure off 

getting the thing finalized. Once people start having money to 

spend, the pressure isn’t so great to getting the settlement finalized 

and it has to go to the court and all that. 

So we don’t like to do it too much, but we are looking at your 

changes, your proposed changes, and we would be happy to talk to 

you more about those. I suspect you may have some questions, so 

let me stop there. I thank the Committee and Senator Udall for 

5

your leadership on keeping these water settlements moving forward so that they will be successful. 

Now, Chairwoman Cantwell, let me turn to S. 1448, the Spokane 

Bill. This is the bill that I am most well acquainted with, because 

I have been working on it for many months now. As you know, 

Grand Coulee Dam in the State of Washington is one of our Nation’s most important hydroelectric resources. Our Country has 

been earning revenues from hydropower there for decades, and we 

have been using land and opportunities taken from two tribes, the 

Confederated Colville Tribes and the Spokane Tribe. 

The Colville Tribes were compensated for their loss and the payments to the Colville Tribes have been a very important resource 

to the Confederated Tribes. They received $53 million back in the 

1990s, and have been receiving well over $10 million a year since 

that time, since Congress enacted their settlement act. 

The Colville Tribes obtained this settlement because they amended their Indian Claims Commission case to include a claim for lost 

hydropower revenues. They amended their claim many years after 

the date had expired to file new claims and long after the Spokane 

Tribe had already settled its claims in its own ICC, Indian Claims 

Commission case. As a result, it was not possible for the Spokane 

Tribe to then amend its case to bring these claims. 

And so in essence, the Colville Tribes got their day in court, but 

the Spokane Tribe never really did. It is thus largely an accident 

of history that one tribe was compensated and another tribe was 

not compensated for the very same loss. While this outcome can be 

explained legally and historically, it is difficult to justify morally, 

frankly. 

So for at least three reasons, the Administration is proud to announce today that it supports S. 1448. First, it is because it is the 

right thing to do. For the reasons mentioned above, the Spokane 

Tribe deserves equitable compensation for this taking of something 

from their reservation that has great value. Second, the Spokane 

Tribe has shown patience and engaged in good cooperation to try 

to reach a reasonable and just result. 

The fiscal climate is not good for these sorts of settlements, as 

everybody knows. And I congratulate Chairman Peone and the rest 

of the council, some of whom are here today, and former Chairman 

Abramson, for their leadership, but also for being reasonable and 

hoping to obtain a fair result, but also one that is achievable in the 

current fiscal climate. 

So finally, Chairwoman Cantwell, one of the other reasons I 

would add is your own persistence. You have filed a bill like this, 

this bill or one similar, in several past Congresses. I am proud to 

say, Chairwoman Cantwell, that I have personally worked on this 

issue with your very hard-working staff on a very regular basis 

since the beginning of this Congress. I congratulate you for your 

persistence. 

I am not going to thank you for your patience, because I haven’t 

seen much. 

[Laughter.] 

Mr. WASHBURN. But if there was any patience, I suspect it was 

used up with past inhabitants of my office. But I do want to thank 

your staff, because it has been an absolute joy to work with them 

6

on basically a weekly basis since this Congress has begun. They deserve a lot of credit for moving this forward. 

So on behalf of Secretary Jewell and the Administration, I am 

proud to support this bill. Thank you. 

[The prepared statement of Mr. Washburn follows:]

PREPARED STATEMENT OF HON. KEVIN WASHBURN, ASSISTANT SECRETARY—INDIAN

AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

S. 1448, SPOKANE TRIBE OF INDIANS OF THE SPOKANE RESERVATION EQUITABLE

COMPENSATION ACT

Chairwoman Cantwell, Vice-Chairman Barrasso, and Members of the Committee, 

my name is Kevin Washburn, and I am the Assistant Secretary for Indian Affairs 

at the Department of the Interior. Thank you for the opportunity to present the Department’s views on S. 1448, the Spokane Tribe of Indians of the Spokane Reservation Equitable Compensation Act. 

S. 1448 would provide a measure of justice for a historical wrong by providing equitable compensation to the Spokane Tribe for water power values from riverbed 

and upstream lands taken by the United States as part of the Grand Coulee Dam 

development in the 1930s and 1940s. The Tribe’s claim is an equitable one because 

the Tribe missed its opportunity to make a legal claim with the Indian Claims Commission. In 1994, Congress remedied similar claims by the Confederated Tribes of 

the Colville Reservation which had been pending before the Indian Claims Commission. Although the Colville Tribes received compensation for their lost water power 

values, the Spokane Tribe never received similar compensation because they were 

foreclosed from doing so. While this outcome can be explained legally, it is difficult 

to justify morally. 

S. 1448 utilizes a compensatory framework similar to the Colville settlement in 

an attempt to compensate the Spokane Tribe for the same type of damages for 

which the Colville Tribe was already compensated. Similar to the resolution 

achieved for Colville, S. 1448 would establish a Trust Fund in the Department of 

the Treasury and require the Secretary of the Interior to maintain, invest and distribute the amounts in the Trust Fund to the Spokane Tribe. S. 1448 provides a 

fair result for the Spokane Tribe. S.1448 does not set a precedent for any other Federal hydropower facilities or installations because of the unique fact set presented 

by the development of Grand Coulee Dam as explained further below. The Administration supports S. 1448. 

Background 

The Colville and Spokane Indian reservations were established in 1872 and 1877, 

respectively, on land that was later included in the state of Washington. The 

155,000 acre Spokane Reservation was created by an agreement between agents of 

the federal government and certain Spokane chiefs on August 18, 1877. That Agreement was later confirmed by President Hayes’ executive order of January 18, 1881. 

The Grand Coulee Dam was constructed on the Columbia River in northeastern 

Washington State from 1933 to 1942 and when finished, the 550-foot high dam was 

the largest concrete dam in the world. It is still the largest hydroelectric facility in 

the United States. Lake Roosevelt, the reservoir created behind the dam, extends 

over 130 miles up the Columbia River and about 30 miles east along the Spokane 

River. The reservoir covers land on the Spokane Reservation along both the Columbia and Spokane rivers. The federal government, under a 1940 act, paid $63,000 to 

the Colville Tribes, and $4,700 to the Spokane Tribe for tribal land used for the dam 

and reservoir. 

Subsequently, the Spokane Tribe and the Colville Tribes appeared before the Indian Claims Commission (ICC). The ICC was created on August 13, 1946, to adjudicate Indian claims, including ‘‘claims based upon fair and honorable dealings that 

are not recognized by any existing rule of law or equity.’’ Under section 12 of the 

Act, all claims had to be filed by August 13, 1951. Settlement awards of ICC claims 

were paid out of the U.S. Treasury. 

The Spokane Tribe filed a claim with the ICC just days before the statutory deadline. The claim sought compensation for land ceded to the United States under an 

agreement dated March 18, 1887. It also asserted a general accounting claim. Both 

claims were jointly settled in 1967 for $6.7 million and neither of the claims referenced the Grand Coulee Dam. 

The Colville Tribes’ claims with the ICC, also filed in 1951 and designated as 

Docket No. 181, included broad, general language seeking damages for unlawful 

7

trespass on reservation lands and for compensation or other benefits from the use 

of the Tribes’ land and other property. The Tribes’ original petition did not specifically mention the Grand Coulee Dam. In November 1976, over 25 years after the 

original filing of Docket No. 181, and nearly a decade after the Spokane had settled 

its claims, the ICC allowed the Colville Tribes to amend their 1951 petition to seek 

just and equitable compensation for the water power values of certain riverbed and 

upstream lands that had been taken by the United States as part of the Grand Coulee Dam development. 

In 1994, Congress recognized that the water power values were compensable and 

settled with the Colville Tribes, enacting the Confederated Tribes of the Colville 

Reservation Grand Coulee Dam Settlement Act (P.L. 103–436, Nov. 2, 1994). The 

Act settled the claims filed in 1976 by the Tribes’ amended petition. The Act provided the Colville Tribes a lump sum payment from the U.S. Treasury of $53 million 

for lost hydropower revenues and, beginning in 1996, annual payments that have 

ranged between $14 million and $21 million for their water power values claim. The 

cost of the annual payments is shared between the Bonneville Power Administration, which markets the power generated at the dam, and the Treasury. 

There is no dispute that the Spokane Tribe suffered a loss arising out of the same 

set of actions by the United States that formed the basis of the Colville Tribes’ 

amended claims filed in 1976. The Spokane Tribe had settled its ICC claim nearly 

10 years before the Colville Tribes were allowed to amend their ICC claims to include a specific water power values claim. Thus, when these water power claims 

were recognized by Congress in 1994 as valid, compensable claims, the Spokane 

Tribe’s case had long since been settled and thus there was no vehicle for the Spokane Tribes to raise a similar claim. As a result, it is partly an accident of history 

that the Colville Tribes received compensation and the Spokane Tribe did not. 

S. 1448

S. 1448, the Spokane Tribe of Indians of the Spokane Reservation Equitable Compensation Act, is designed to provide the Spokane Tribe with an equitable and comparable compensation similar to compensation the Colville Tribes received almost 

two decades ago from the federal government for the Colville Tribe’s lost water 

power values. S. 1448 establishes a Recovery Trust Fund and directs the Secretary 

for the Department of the Treasury to deposit $53 million into the fund. The Secretary of the Department of the Interior is directed to maintain, invest, and distribute the funds to the Spokane Tribe after the Spokane Tribe submits a distribution plan to the Secretary of the Department of the Interior. We note that expenditure of these funds would be subject to the Statutory Pay-As-You-Go Act of 2010. 

S. 1448 provides that the Bonneville Power Administration (Bonneville) shall pay 

to the Spokane Tribe an annual amount equal to 25 percent of the Computed Annual Payment, defined in the bill as certain payments calculated pursuant to provisions of the Coleville Settlement Agreement, for FY 2013 and provides for subsequent payments to the Spokane Tribe, from 2015 to 2023, 25 percent of the Computed Annual Payment for the preceding fiscal year, and from 2024 and each year 

thereafter, an amount equal to 32 percent of the Computed Annual Payment for the 

preceding fiscal year. The bill, starting in 2023, also provides Bonneville with $2.7 

million in interest credits from the Department of the Treasury for every year that 

Bonneville pays the Spokane Tribe pursuant to this legislation. These percentage 

payments by Bonneville and interest credits to Bonneville are the same as in the 

previous versions of the bill and therefore the Department has no concern related 

to these percentages or interest credits, nor the duration of payments to be made 

by Bonneville to the Spokane Tribe. Finally, the bill includes a provision extinguishing all monetary claims by the Spokane Tribe regarding the Grand Coulee 

Dam project. 

In the 112th Congress, the Department expressed concern with Section 9(a) of S. 

1345, which was the bill introduced during the 112th Congress to address this issue. 

While the Department supported the concept of providing a clear delegation of authority to the Tribe to achieve its law enforcement goals, the Department was concerned that the language was broad and could be construed to delegate more than 

just the authority intended by the Tribe. The Department’s concern has been addressed with the removal of former Section 9(a) of S. 1345. 

Although the Administration did not support previous legislation, in part, because 

the Tribe had not established a legal claim to settle, the Administration supports 

equitably compensating the Spokane Tribe for the losses it sustained as a result of 

the federal development of hydropower at Grand Coulee Dam. The facts and history 

show that as a matter of equity the Spokane Tribe has a moral claim to receive compensation for its loss. The compensation provided by S. 1448 is commensurate with 

8

the compensation provided to the Colville Tribes for the losses arising out of the 

same actions. The Department supports S. 1448. 

S. 1219, THE PECHANGA BAND OF LUISENO INDIANS WATER RIGHTS SETTLEMENT ACT

Good afternoon Madam Chairwoman, Vice-Chairman Barrasso, and Members of 

the Committee. My name is Kevin Washburn. I am the Assistant Secretary for Indian Affairs at the Department of the Interior (Department). I am here today to provide the Department’s views on S. 1219, the Pechanga Band of Luisen ̃ o Indians 

Water Rights Settlement Act, which would provide approval for, and authorizations 

to carry out, a settlement of all water rights claims of the Pechanga Band of Luisen ̃ o Indians (Band) in the Santa Margarita River Basin in southern California. At this 

point, we are unable to support S. 1219. However, based on the progress by the parties to date, the Administration is committed to achieving a settlement that can be 

supported by all parties. 

I. Introduction 

Negotiating settlements of Indian water rights claims has been and remains a 

high priority for this Administration. Indian water rights settlements help to ensure 

that Indian people have safe, reliable water supplies and are in keeping with the 

United States’ trust responsibility to tribes. They promote cooperation in the management of water resources and encourage communities to work together to resolve 

difficult water supply problems. The Administration’s policy on negotiated Indian 

water settlements has been set forth in detail in our support for the settlements enacted into law in the Claims Resolution Act of 2010, Pub. L. No. 111–291 (Dec. 9, 

2010), which benefitted seven tribes in three different states, and in the testimony 

I gave before this Committee in May 2013 on the proposed Blackfeet Water Rights 

Settlement Act of 2013. I will not restate this policy or the principles that underlie 

it, except to note that Secretary Jewell continues to make the negotiation and implementation of Indian water rights settlements a high priority for the Department. 

The Department understands that Indian water rights and related resources are 

trust assets of tribes, that water rights settlements enable the Federal government 

to protect and enhance those assets, and that when Congress enacts an Indian 

water rights settlement it is fulfilling its unique obligation to Indian tribes. The Department is committed to working with the Band, the State of California, the local 

parties, this Committee, and the sponsors of S. 1219 to craft a settlement that we 

all can support. 

The Department is still in the process of analyzing S. 1219 and is able to offer 

only preliminary comments on the bill at this time. Before I discuss the settlement 

agreement and address Federal concerns, however, I do want to recognize the significant efforts of the Band over many years to protect its water rights and to secure 

a safe and adequate supply of water for its community. These efforts have led to 

this proposed settlement, which reflects a creative and cooperative approach to solving problems of water supply and water quality on and near the Pechanga Reservation. One of the most positive features of this settlement is how it builds upon prior 

agreements to establish a long term cooperative arrangement for sustainable ground 

water management in the Santa Margarita basin. 

S. 1219 would approve a settlement negotiated among the Band and the Rancho 

California Water District (RCWD), the Eastern Municipal Water District (EMWD), 

the Metropolitan Water District (MWD), and the United States. The settlement 

would resolve water rights claims for the Band that the United States brought nearly 60 years ago in United States v. Fallbrook Public Utility District, the general 

stream adjudication of the Santa Margarita river system. The United States also 

brought water rights claims for two other Indian tribes in the same river system, 

the Cahuilla Band of Mission Indians and the Ramona Band of Cahuilla Mission 

Indians. Separate settlement discussions are underway with respect to those claims 

and our Federal Team, which has been in place since 2008, is working closely with 

each of the Bands. 

II. Federal Concerns 

We testified about the complexity of this settlement and the issues that need to 

be addressed on September 16, 2010. I won’t repeat our testimony on that earlier 

version of the legislation, H.R. 5413, other than to say that we will continue to analyze those issues as well as the related issue of non-Federal cost share. S. 1219 includes some positive changes and we appreciate that the Band is willing to work 

with the Department to address our concerns, including our concerns with Federal 

obligations, cost, cost share, water quantity, and water quality. 

The proposed legislation would recognize a Federal reserved water right in the 

Band in the amount of 4,994 acre feet, to be made up of water from various sources, 

9

including imported water and recycled water that would be furnished under contracts between the Band and the local parties. These various sources include (1) 

1,575 afy of local groundwater; (2) 525 to 700 afy of imported recycled water; and 

(3) up to 3,000 afy of imported potable water. S. 1219 calls for a Federal settlement 

contribution of $40.19 million for a number of purposes, including $12.23 million to 

assist the Band in purchasing potable water imported from MWD and $27.96 million for infrastructure that would treat and deliver imported recycled and potable 

water to the Reservation. 

Overall, the requested Federal monetary contribution in S. 1219 is down just over 

$10 million from prior versions of the legislation ($50.242 million to $40.192 million. 

Other changes in the legislation include the elimination of the demineralization and 

brine disposal facility, which had been a critical element of the settlement previously. Funding for that facility now appears to have been transferred to a general 

water quality account ‘‘to fund groundwater desalination activities’’ by the Band. 

The Department has requested that the Band provide more information about the 

rationale supporting these changes. 

In addition, the Band’s Reservation also includes a small portion of land in the 

San Luis Rey watershed. In the interest of achieving a comprehensive settlement 

of all of the Bands water rights claims, we are weighing whether principles of finality would better be achieved by including water rights for that parcel of land in the 

settlement. 

Because of scarcity and tremendous competition, water rights in southern California are extremely expensive. In these circumstances, great care must be given to 

the decision to include imported and recycled water as part of the Band’s Federal 

reserved water rights. We are continuing to examine cost and other issues associated with how the settlement treats imported water. While we are unable to support 

S. 1219, based on the progress by the parties to date, the Administration is committed to working with the Band and the local parties to achieving a settlement 

that can be supported by all parties. 

III. Conclusion 

The Pechanga Band and its neighbors are to be credited for working towards a 

negotiated settlement of their dispute over water rights. After years of litigation, 

this settlement lays out a potential framework for resolving the Band’s Federal reserved water rights claims, and achieving other goals such as managing groundwater, addressing water quality issues, and alleviating water shortages in the basin. 

We look forward to working with the Band and the local parties to finalize a settlement that appropriately secures the Band’s water rights and defines clearly the 

roles and responsibilities of each party to the settlement. 

S. 1447, NEW MEXICO NATIVE AMERICAN WATER SETTLEMENTS TECHNICAL CORRECTIONS

ACT

S. 1447, the New Mexico Native American Water Settlements Technical Corrections Act, proposes amendments to three Indian water rights settlements: the Taos 

Pueblo Indian Water Rights Settlement Act (Public Law 111–291) (Taos Settlement 

Act); the Aamodt Litigation Settlement Act (Public Law 111–291) (Aamodt Settlement Act); and the Navajo water rights settlement provision of the Omnibus Public 

Land Management Act of 2009 (Public Law 111–11) (Navajo Settlement Act). 

Some of these proposed amendments are minor, consisting of corrections in spelling and section numbering. Other amendments are more substantive and could have 

budgetary impacts. The Department of the Interior continues to be fully committed 

to implementing these Congressionally enacted water rights settlements, and we 

recognize and appreciate that the goal of this bill is to make targeted fixes to these 

statutes in order to facilitate implementation. Many of the amendments proposed 

in the bill are helpful and could make the work of the implementation teams on the 

ground much easier by eliminating unclear language in the original enacted bills. 

However, at this time the Department and its sister agencies have not yet completed a full assessment of the potential impacts of this legislation, particularly the 

budgetary and fiscal impacts. Once we complete this analysis, if there are provisions 

that the Administration does not support as currently drafted, we would welcome 

the opportunity to work with the sponsors and bill proponents to address out concerns. The changes to each settlement proposed by S. 1447 are discussed below. 

Aamodt Litigation Settlement 

The Aamodt Settlement Act provides for indexing of mandatory appropriations in 

two places, Sections 617(a) and (c). Like the provisions in the Taos Settlement Act, 

discussed below, both of these provisions would allow for multiple indexing adjustVerDate 0ct 09 2002 11:12 Mar 25, 2014 Jkt 086263 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 S:\DOCS\86263.TXT JACK
10

ments over a specified period of time—between Fiscal years 2011 and 2016. Section 

3(b)(1) of S.1447 would remove these time limitations. 

The Department believes that indexing continuing throughout the construction 

period (ending in 2024) for the municipal water system that is the center of this 

settlement could help to ensure complete implementation of this settlement. The 

current limitations on indexing could put completion of the water system and, thus, 

the settlement itself, in jeopardy. However, at the same time we believe that the 

changes in indexing will have impacts on the Treasury and could trigger mandatory 

offset requirements. As noted above, the Administration is still reviewing this legislation and therefore is not taking a position on these provisions at this time. 

The elimination of any reference to years for indexing of the Aamodt Settlement 

Pueblos’ Fund in Section 3(b)(2) of S. 1447 may have a similar effect but analysis 

of this proposed provision is complicated by virtue of other cost adjustment provisions. Additionally, we note that section 615 of the Aamodt Settlement Act provides 

that the funds appropriated under section 617(c) are to be invested by the Secretary 

of the Interior following the date the waivers become effective under section 623 of 

that Act. After section 623 is triggered, the funds would be earning interest, which 

will help maintain the purchasing power of the funds and make indexing less necessary. 

Finally, section 3(a) of the bill refers to ‘‘Section 615(c)(7)’’ of the Settlement Act. 

Because there is no section 615(c)(7) in the Act, we assume this should be a reference to ‘‘Section 615(d)(7)’’. The goal of this language seems to be to allow the 

Tribe to use its OM&R fund earlier in some situations, but always after the enforceability date. The Department has no objection to this particular provision. 

Navajo Water Settlement 

Section 4 of S. 1447 would amend the Navajo Settlement Act in several respects. 

The first two amendments are non-substantive in nature and are supported by the 

Department. 

Section 4(c) of the bill would amend section 10604(f)(1) to allow the Navajo Nation 

to begin receiving groundwater (non-project water) through Project facilities without 

triggering the 10 year operation and maintenance (O&M) payment waiver provision 

of Section 10603(c)(2)(A) of the Settlement Act. This amendment benefits the United 

States in that it would prevent the Navajo Nation from requesting O&M payment 

waivers (which would require the Department to pay O&M costs) until Project water 

from the San Juan River is delivered to the Navajo Nation. The Navajo Nation has 

the responsibility for paying O&M costs of non-Project water delivery under Section 

10602(h)(1) of the Settlement Act. 

Section 4(d)(1) of the bill would amend Section 10609 of the Settlement Act to 

allow funding identified for the Conjunctive Use Wells in the San Juan River Basin 

and in the Little Colorado and Rio Grande Basins to be used for planning and design as well as construction and rehabilitation of wells. Without the amendment 

only construction and rehabilitation are authorized uses of the funds. Because costs 

are capped, this change will have no effect on the final costs of the settlement. The 

Department believes that using this funding for planning and design is useful, since 

only a coarse level of planning, and no design work, has been done for these wells. 

Section 4(d)(2) of the bill would amend the Settlement Act by increasing the 

amount of Project funding that can be spent on cultural resources work from two 

to four percent of total project costs. The Project area is rich in cultural resources 

and significant work must be done in this area, so the proposed increase appears 

to be reasonable and appropriate. Correspondingly, section 4(d)(3) would reduce the 

percentage of funds that may be spent on fish and wildlife facilities from four percent to two percent. Based on current information, this change also appears to be 

reasonable and appropriate. Both of these proposed changes are consistent with the 

Project cost estimate included in the FEIS and, when taken together, they do not 

increase the cost of the Project. 

Finally, section 4(e) of the bill would correct language in the Settlement Act that, 

absent amendment, could be interpreted to mean that the court in the stream adjudication had jurisdiction over the Project contract between the United States and 

the Navajo Nation. The Department supports this clarification which comports with 

existing law. 

Taos Pueblo Indian Water Rights 

S. 1447 proposes to amend two provisions of the Taos Settlement Act. Section 2(a) 

of the bill would modify Section 505(f)(1) of the Taos Settlement Act by expanding 

the list of allowable purposes for which $15,000,000 in ‘‘early money’’ provided by 

Section 505(f) could be used. The Section 505(f) funding made available for immediate expenditure by Taos Pueblo represents an exception to the Department of the 

11

Interior’s general policy that all settlement benefits should flow at the same time, 

only after settlement enforceability conditions are met. 

Accordingly, the purposes for which the money could be spent under Section 505(f) 

were carefully negotiated with the Pueblo to make some funds available to the 

Pueblo for specific high priority purposes, such as protection of sacred wetlands 

known as the Buffalo Pasture and purchase of State-based water rights that are 

rapidly increasing in cost. Expanding the purposes for which ‘‘early money’’ can be 

expended removes the distinctions between Section 505(f) and Section 505(a), which 

sets forth the full list of allowable purposes for which the Taos Pueblo Water Development Fund can be expended once the settlement is final and enforceable. The Administration wishes to work with the Pueblo and the bill’s sponsors to determine 

exactly what problems the Pueblo needs to address. 

The second amendment to the Taos Settlement Act is a proposed change to the 

indexing of mandatory appropriations for settlement funding in the current version 

of the Act. Section 509(c)(1) of the Act provides that mandatory appropriations are 

subject to indexing but allows such indexing only between fiscal years 2011 and 

2016. S.1447 would remove the time limitations for indexing. 

The Administration is still analyzing this amendment but believes that the 

changes in indexing will have impacts on the Treasury and could trigger mandatory 

offset requirements. Moreover, we note that section 505 of the Taos Settlement Act 

provides that the Fund at issue is to be invested by the Secretary of the Interior 

following the enforceability date of the settlement. Therefore, the funds at issue will 

already be able to earn interest beginning not later than 2017, which will help 

maintain the purchasing power of the funds provided and make indexing less necessary. 

The final amendment to the Taos Settlement Act would remove the requirement contained in Section 509(c)(2)(A)(i) that $16,000,000 of mandatory funding for grants 

to non-Indian parties be transferred from Treasury between fiscal years 2011 and 

2016. The full $16,000,000 has already been transferred from Treasury to the Bureau of Reclamation and will be available for distribution upon the enforceability 

date of the settlement. The Department believes that the purposes of this amendment have already been achieved. 

Conclusion 

The Department agrees that technical amendments to the Taos, Aamodt and Navajo Settlement Acts should be made. We stand ready to work with the sponsors, the 

bill proponents and this Committee to craft a technical corrections bill that accomplishes the goals of the sponsors in a manner that the Administration fully supports. 

This concludes my statement and I am happy to answer any questions the Committee may have.

The CHAIRWOMAN. Thank you, Assistant Secretary Washburn, 

and thank you for your testimony today on all three bills, and for 

your hard work. Obviously, these water rights settlements are 

time-consuming. They involve a lot of history and a lot of sorting 

out of policy. We appreciate the challenges on all of them. But we 

also know that in many instances, these communities are coming 

to us with a resolution that is a much better process than legal battles over many, many decades. So thank you for your hard work. 

Thank you for your support of the Spokane bill. You are right, 

it has passed this Committee, it has passed the Senate, it has 

passed the House, it has just never passed both houses at the same 

time. So maybe this Congress will be a charm. 

I wanted to ask you about obviously the settlement issue. I think 

in your written testimony you mentioned complying with pay-go. 

What are your thoughts on the current account that Interior has 

for these funds and the compensation source? 

Mr. WASHBURN. Well, let me say, that is to the hard question. 

You put your finger on it. We are happy to work with you to try 

to find offsets. We will have to figure out how to pay for this settlement. It is the right thing to do and I hope that we can do so. I 

know that you have used different approaches over the past few 

12

Congresses to try to figure out ways to make this occur. And 

whether we do it at one-time funding or over the course of years, 

your staff and I have talked about the different approaches to try 

to pay for it. We will be looking for offsets. I am sure the CBO is 

going to score this bill and we will have to find the money where 

we can. 

But we want to have the bill in a place where, if it is possible 

to find that funding, we can get it done. That is why I thank you 

for holding this hearing today. 

The CHAIRWOMAN. With the Colville, obviously the settlement 

was both a compensation and a continued fund. That is the same 

way you would expect this to work as well? 

Mr. WASHBURN. That is the same structure, Chairwoman. It is 

very equitable, it is very similar to the structure, I think, that the 

Colvilles received. That seems like the fair way to do it. 

The CHAIRWOMAN. Okay. But you don’t see, is this an issue that 

you think can be resolved before the end of the year? 

Mr. WASHBURN. You know, I have been around long enough to 

know that a lot of these things don’t happen until the very end of 

a Congress, sometimes. Usually they don’t go alone. It is probably 

unlikely to happen with a freestanding bill. 

The CHAIRWOMAN. No, I am asking, the resolution between the 

Department of Interior and those interested in the legislation on a 

funding source, a mechanism. 

Mr. WASHBURN. Well, I think that is both a problem for us over 

at OMB, and it is a problem for the CBO and the people within 

Congress that have to finance the bill. I pledge to work with you 

on that. I don’t know what the final resolution will be, but we do 

pledge to keep the dialogue going to figure out ways to do that. 

The CHAIRWOMAN. Okay. Let me turn to my colleague from New 

Mexico for his questions. Senator Udall? 

Senator UDALL. Thank you, Madam Chair, very much. 

Assistant Secretary Washburn, I realy appreciate your willingness to work on these in a timely fashion and move through them 

quickly. In your testimony, you express a commitment to work with 

my office and the parties to the three New Mexico settlements to 

resolve any outstanding issues in S. 1447. And can I get an assurance these these discussions will be carried out in a timely fashion 

and move along so that we can get this bill marked up and going? 

Mr. WASHBURN. Absolutely, Senator Udall. I have Letty Belin, 

with the with the Secretary’s Indian Water Rights Office here, and 

I will give you her assurance as well. I will put the words in her 

mouth, as well as Fain Gildea and Pam Williams who are here 

with us. We have the whole team here and we do commit to you 

that we will be as responsive as we possibly can. We share your 

desire to see these implemented successfully. Again, thank you for 

your leadership on that. 

Senator UDALL. Thank you very much. To ask now about Taos 

and Aamodt, in your testimony you express concern about the 

changes to the dates related to mandatory funding of the Taos and 

Aamodt settlement made in S. 1447. How much of the mandatory 

funding for these settlements has already been transferred to the 

Treasury, to the Bureau of Reclamation? Specifically, how much of 

the mandatory funding for the following, for the Taos Pueblo Water 

13

Development Fund, for the regional water system associated with 

the Aamodt settlement, and for the Aamodt settlement water systems operations maintenance? 

Mr. WASHBURN. Thank you, Senator Udall. I believe that a total 

of $50 million in mandatory funds has been transferred to the BIA 

from the Treasury to be managed as that project develops. And $60 

million in mandatory funds for the Mutual Benefits Projects to the 

Bureau of Reclamation for the Taos Pueblo Water Development 

Fund. For the regional water system associated with the Aamodt 

settlement, I believe that the Bureau of Reclamation has received 

$56.4 million in mandatory funding for that regional water system. 

And finally, for the Aamodt settlement O&M, operation and maintenance funds, Reclamation has received $5 million in mandatory 

funding for those O&M costs. 

Senator UDALL. And can you describe how the indexing issue you 

outline in your testimony will continue to be an issue where the 

mandatory funding has already been transferred? 

Mr. WASHBURN. I will, Senator, as best I can. Let me say I think 

we are going to have to get back to you with some of the answers 

here. The problem for us is not unlike the one that Chairwoman 

Cantwell raised, which is that paying for these things is an issue. 

When you change the indexing for mandatory funds that have already been transferred, you may increase the costs for that money. 

So that is where we have to figure out if there need to be offsets, 

if there will be scoring for this indexing. And we are trying to identify that. 

It could very well increase the costs. So if it does that, we have 

to find the money and CBO has to find the money. We have to figure out where the money is coming from. So those are the remaining questions that we are trying to answer. 

Senator UDALL. Great. Thank you very much. We may have some 

additional technical questions to submit to you for the record, too, 

for answers. I hope you will answer those also. I am sure you will. 

Mr. WASHBURN. I would be happy to. Thank you. 

Senator UDALL. Thank you. Thank you, Madam Chair. 

The CHAIRWOMAN. Thank you. 

Now let’s turn to the rest of the witnesses. We will start with 

you, Mr. Chairman from the Spokane Tribe, Mr. Rudy Peone. I 

know that you are accompanied by Ms. Marian Wynecoop. I don’t 

know if you both are going to testify. Anyway, I will turn it over 

to you. 

STATEMENT OF HON. RUDY J. PEONE, CHAIRMAN, SPOKANE 

TRIBE OF INDIANS; ACCOMPANIED BY MARIAN WYNECOOP, 

TRIBAL ELDER 

Mr. PEONE. Thank you, Chairwoman Cantwell. I sure appreciate 

the time here today. 

I do want to echo what Assistant Secretary Kevin Washburn did 

say, you have been a champion and a stalwart for us. I really appreciate that, along with various other members of your Committee, Senator Udall, Senator Murray as well. I really appreciate 

that. And hearing that from the Assistant Secretary was great. 

14

So yes, Ms. Wynecoop and myself will both be testifying today. 

I have a whole laundry list of folks that wish they could testify. We 

understand they can’t. So we are going to do the best we can. 

We already submitted a 64-page document, recapping the history 

and justifying this equitable settlement to the tribe. I am here 

today as a leader of the Spokane Tribe, just under 3,000 members, 

not counting other tribal members that live with us, among us, 

married to us, spouses, descendants. That number grows exponentially three or four times over. And this is a decades-long issue for 

us. We are approaching a century of dealing with this now. 

What you will hear from Marian, to my left, is from an elder who 

lived on that river. She was born and raised and went from a lifestyle of using that river and everything it provided from the salmon to the orchards, everything, to where we are now. 

I also have, who is not going to be able to testify, behind me, Vy 

Seymour, another elder. She can testify to some of those same 

things if she had the chance. Here is an elder who was living on 

the property and her parents took them up on the hill, where they 

were teaching them how to swim, brought them up on the hill, and 

they actually watched the water rise and engulf their home, their 

foundation. 

So these are things that leaders before me have been coming 

back here requesting, demanding, fair, honorable dealing in a settlement to our tribe. 

I wasn’t alive, these people were. They lived it, they lived 

through it. It almost brought a tear to my eye listening to Assistant Secretary Kevin Washburn state their support. Because we 

have been so close. Ever since, I think it was the 106th Congress, 

we have been introduced every time since on the House side, on the 

Senate side. We have been approved, like you said, once on the 

House, once on the Senate, but never at the same time. We are 

hoping that the work we have been doing, the work you and your 

staff have been doing, the work that the Administration has been 

doing, the compromises that my people are making to try to get 

this bill settled. It is difficult, and it gets more and more difficult 

when I am asked by my elder members the status of this settlement. 

Time after time, that number grew smaller. Well, today, I have 

a couple of elders with me. And one of them gets to speak, hopefully after this they will get to speak with some staff or if other 

Committee members come in, we would love to pull their ear on 

that. 

I have some other folks who traveled with me. Two councilmen, 

Greg Abrahamson and Bear Hughes. I also have two other tribal 

members, Marsha Wynecoop runs our language program, and 

Cheryl Butterfly, who works in our culture program. Cheryl, for example, some of the work that they do, they are, with the fluctuation of Coulee Dam and bones are exposed, or when they have it, 

they are the ones that are down there, they are the ones that are 

repatriating our ancestors. Vy is also one of the ones, the elders 

that are there, saying prayers for these people, these tribal members, when we repatriate them. They have so much to offer, so 

much to talk about. 

15

But they are the reason we are here. I don’t come back here as 

Rudy Peone, I don’t come back here as chairman, I come back here 

for my people. That is what our leaders have been doing for years. 

The concessions we are making with the back pay, for example, 

with the jurisdiction, the land ownership, we are willing to do that 

because of the difficulty we have had to see resolution to this issue. 

We want to see it done. 

The Spokanes have waited long enough. We are not going to go 

away. I myself am a competitor, a runner. I do cross country. I always have, I love that. And that is a long race, and this has been 

a long fight that my people have been in. I am willing to see it 

through. So any extra time I have, I will allocate to my elder, Marian. I would like her to discuss a little bit about her life on the 

river. 

[The prepared statement of Mr. Peone follows:]

PREPARED STATEMENT OF HON. RUDY J. PEONE, CHAIRMAN, SPOKANE TRIBE OF

INDIANS


910a1.eps
16


910a2.eps

Spokanes lost forever a prime site on the Spokane River that it ClJuld have dwclopod for 

hydropower. Ultimately, both Tribes suffered severely. We continue to be greatly impacted by the 

operation of Grand Coulee Dam each and every year. 

Prior to its construction, during its operation and with the completion of the Third Powerplant in 

1974, the United Srates aeknowledged and supported its responsibility to fairly and honorably 

address the 105ses to be suffered by the Spokane Tribe as well as the Colville Tribes related to Grand 

Coulee. The Colvillcs sceurcdascttlcmcnt with the UnitedSratcs in 1994,whilctbc Spokane claims 

arc atill unresolved. This legi"lotion is oonsi"loot with Congressional policy towards triben 

impacted by fedornl hydro projects, as reflected in lhe. Colville Se.lllcment and legislation enacted 

between 1992 and 2000 to provide additional, equitable compensation for the Sioll)': Nations 

impacted by the Pi~k Sloan Projcel.l 

P'inalIy, I would like to thank Senator Cantwell for sponsoring our Bill. We were here during the last 

Congress 10 Icstify in support ofS. 1345, only to have the Administration raise somewhat belated 

concerns over certain provision~ of that Bill. UnderSenntorCantwell's slrong leadership, and with 

the tireless efforl.'l of her stnff, we have worked hnrd with the Administration and stnkeholder 

agencies to address those concerns. For instance, the lund andjurisdictionaltr!lflsfcr provisions of 

prior bills have been removed and the amount of back pay has been cut neurly in half. My Tribe 

mode these dimcult decisions in hope oflinally rec~iving complete compensotion for the inundolion 

of our lanus and dl!Stnlction of our salmon fishery. 

mSTORICAL CONTEXT 

From time immemorial, the Spokane River has bet:n the heart of Spokane's aboriginal territory. 

[n 1877, an ngreement was negotinted between the United Stntes nnd the Spokane to reserve forthe 

Tribe n portion of its aboriginal Innds approximating the boundnries oftile present Spokane Indian 

Reservation. 

On January 18, 1881, President Rutherford B. Hayes issued an Executive Order confirming the 

Agreement, and with exacting language, expressly included the Spokane and Collimbia Rivers 

within th~ Spokane [ndian Reservation 

Section 10(e)oftheFedernl Power Act (16 U.S.C. 8D3(e)) requires that when licenses an: is~-ued for 

a hydropower project involving tribal land within a~ Indian reservation, a reasonable annual eharg~ 

shall be fixed forthe use ofthe land, subject 10 the ~pproval of the Indian tribe havingjurisdiction 

over the land. Had a state or a private entity developed the site as originally contemplated, the 

Spokane Tribe would have been entitled to a reasoMble annual charge for the use of its land. The 

Federal Government is not subject to licensing under the Federal Power Act. 

I Sec Attachment 1 (July 22, 2013 Letter r,em ehairm." Peone to Sel1lltor CMtwell)and Attachment lA, a 

spreadsheet sho,,;ng legislation providing equit.bte "oomp"l!llon tbrthe Coly!!lo Tribe. "nn tno Pick Slol111 Triba, 

for /looding to reie",_!io" llllKli; rrom Peden.! Hydro Projocli. 
17


910a3.eps

Num~rous slat~m~nts mad~ by fed~ral officials acknowledged the n~ed for the Spokane Tribe (0 

=cive fair compensation forthe usc OfilS land and water. In one example, William Zimmermoo, 

AssisLont Commissioner ofindian AlTairs, wrote: 

"the matter o/protecting thes~ valuable Indimt !1g/t!s will receive ((clive aUentio!! 111 

conner:tiC)I1 with opplicotionsjfled by the inleresfed parties before lhe Federal Power 

CommissIon/or the power developmenl."2 

A letter approved by Secretary Ickes, from Assislant Commissioner Zimmennarr to Dr. Elwood 

Mead, Commissioner of Reclamation, slated in conneclion with the "rights oftheSpokanc Indians," 

that the Grand Coulce project, as proposed: 

''shmm the oosl ofil1.~tol/ed hors~power 10 b~ reasonable and ane that could bear a 

reasonable annllal relltal in addition theret%r the Indians' land andwaler rlghls 

involved. "~ 

The United States Department of Justice has recognized these pr(lmiscs !l8 an undertaking Qf a 

fcdernl (lbligation, which promiscs were made to both the C(l)ville and Spoknne Tribes. 

"The govenmwnl began building th~ dam ill Ihe mid_1930's. A lettcr dated 

Decemha 3, 1933, tt) the Supervi.lillg Engineer regarding tile GrandCoulee cwdille 

pow~r irllere.st.~ oflhe Tribe.., wilh Ih~ approval slgnatun o/Secl'elary of the Interial' 

Ickes slales: 

11!ls report should lake (nlo con51derallon Ihe mast valuable pUJ'pose 10 whicll the 

Indiolls'interests could be placed, including the developm{mr of hy(/ro-eleclric 

power. 

We cannot loa strongly impress upon YOlllhc impal'rallCC of this matter 10!he Indian! 

and there/ore to request thar fI beglvel! care/IIi andprompl allenlion so as /0 avoid 

any U/1necessary delay. 

Alro, fI leller dOled December J, 1933, Ie Ihe Commi~':{ioner of lhe Bureau of 

ReGlflmfllio/1 and endorsed by Interior Sc.crelQ1Y Ickes, :(lfll~d Ihal 'it i$ neces.mry 10 

&e~llre addilional dfllfl before we can O(/vise yau whol would cOl1:{litute a reasonable 

revenue to Ihe Indirmsfor the use of their lands wilhin rhe [Grand COlllee) power 

and resel'V()ir sils nrSflS. ' AmI a leller ooled June 4, 1935 from the Commissinller 0/ 

tila Bura"" o/RaalQlnation I'aqua.,Md that additi"Ha/ d"ta he .<ea"pad to determine 'a 

reasollable rewnue 10 rhe Indians for tile lISe o/Ihell' lallds !plIhln Ihr: power and 

• Loller from William Zimmerman to HONe)' Meyer, Col viII. Agonoy Superinlendent, d~1ed S~ptelnb.r S, 1933. 

, Loltcr from William Zimmorrnan to Elwood Mead, d.tcd Doc. 5, 1933. 
18


910a4.eps

resar-voir site ar~a~. "" 

As Slal.C<l i" the testimony of the AssistnntSe~retnlyfm Indian Affairs,con~cming!hc 1994 CalvillO' 

Seltlem~nt l~gi5Iation, approved in P.L, 103-436: "Over the next several years the Federal 

Government movlld ahead with the construction of the Grund Coulee Dam, but somehow the 

promise that the Tribe would share in the bencfitl; produced by it was not fulfilled." 

Pursuant to the Act of June 29, 1940 (16 U.S.C. 835d et seq,), the Secretary paid to th~ Spokane 

Tribe $4,700, Thnt is the total compensation paid bylhe United States to the Spokane Tribe forthe 

use of our triballand~ for the pasl ~eventy-fiw years, 

When the woters behind the Grnnd Coulee Dam b~ga.n to rise, the Spokane people were among the 

most isolated lndian tribes in the country. The Tribc's completc reliance on the Spoknne and 

Columbia Riversystcm had remained largely intact since contactwilh non-rndians. That, howev~r, 

would be eompktelyand irreversibly changed forever. The baekwaterofthe dam, Luke Roosevelt, 

flaads significant areas ofthe Tribe's Reservation, including the Columbi~ and Spokane boundary 

rivers within the Reservation. A 1980TaskForce Report to Congress "-,,plains thehb10rical conlMt 

of the Tribe in relation to the Grand Coulee Dam: 

"Th~ project wa~first authorized by th~ Rivers mid Harbor.! Act of 1935 (49 Stal. 

]()28, ]()39), In spile oJtheftlellha/lh", ACI m./horized Ihe projeclfor Ihe purpa:le, 

among olher'o·, of 'reclomotioll of public lands olld Indioll reservalions . , , .. ' 110 

hydroelectric or reclamallon benefitsflow 10 Ihe IndiollS. IIardly Il!U'werc employed or Ih" projccl .. ile. Indeed, Ih" Y,'ibes hen", py"sanr"d ""id".,,,,, that e,,,,n 1IJlokill~d 

workers were recmitedFan! non-Indian lowmIor (lWoy. The irrigalion benefits of 

the project alljlowed soulh .. 

Furthermore, Ihe 1935 enoctmenl made JfO provision for the comperuOlion of the 

[Spokane and CoMlle) Trlbcs. 11 was not unllithe Act of June 29, 1940 (54 Stat. 

703) - seven )l8ors after com/ruction hod begu., - IMI Congress mllhorized the 

takillg of all)' Colville and Spokane lands . ... Saction 2 {of thai Ad} raquired the 

Secretary 10 deterllline the amount to be paid to tha Indians as/ust a.,d equitable 

compemotirm. Pursuant /0 lhis Qlltharizalion th~ Secr"tary condemned thousandsof 

Ilrr,,;,· of Indian land;,; primarily jor prorpD5e5 Djimondalion by Ih" planned ri!l;~,-vair. 

Apart /rom Ihe ()nmpenS(1/ion for Iho.>" lamis, which {He Tribe.~ claIm wa.~ lnadequale, 

.,a fUrther b~nafitwr campen.sation were j!aid /0 the /.,dians. No/hlngwas provided 

for relocaliem oJlhoSB Indialls /ivingon the condemned lands; and tribal lands on 

the bed of the original Columbia River wcre not condemncd at all. Worsl of all, 

4 Slalomenl of Peter R, SI"enland, Appell'1e $OOIlon Chler, tlnvlronrnenland Nanornl R.,onr= Div .. D"pl. ofJ",I;"" 

(Joinl Hoaring On S.22.'i9 borore IhcS"boomrn. on Waletancl Powotoflhc Comm. on Energy and Notural Resou'tcs Md 

Ill. Comm. on Indian Atro;,., S. Hrg. l03_943.Aul\. 4, 199f. at 16). 
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Grand Coulee Dam deslro)lf!d Ih~ salmon fishery from whkh the Tribes had 

sllstained Ihernsdves for centuries. 111e salmon run played a central role il1 (he 

sodal, religious and cultural lives of the Tribes. The greot mojority of the 

population oflhe Tribes lived mmr lire Columbia a/l(l ils Iribll/ories, and many w ..... e 

driwnfrom Iheir homes wh,m the area wasflooded. WM/e Interior Departrnenl 

o/fldals were aware thallhefishelywould be dcstro)lf!d, the technology of the time 

did no/ p(!!"mi/ constrae/irm of afish ladder of sufficient height/a allow the .~almon 10 

bypass towering Grand Coulee Dam. 

111" project also resulted in the influx oft/i<lusands ofl/ll/l-Indran workers 11110 the 

(Ire(/. Prior 10 ,"Ontempfation of the project wry few lion-Indians liwd ill/he region. 

Indeed, anthropologist V~rne F. Ray, who began hi~·field slrlf{ies in 1928, reports 

that there were //0 more than a handful of white families in the Vicinity oftheflllure 

sile of Ihe Grand CC!!II!<e Dam, and Ihat in 1930 Ihe Colville and Spokane were 

among the most Isolated Indian grOllpS tn lire United States. Their aboriginal culiure 

aHd economywere largely intact up M rho/lime, lillIe rdiance having be.en pJaced on 

white lradingpwls. The Suvsislence e'"Ol1GmYO/lhe India!!s hnd continued M/OCUS 

on the salmon. 

Ana/her principal aborIginal pursuIt of the Colville and Spokane Indians Involved 

the gathering u/ruuls <mel berries on Illnd~· south o/Ihe rivers. Thar activiry WrlS 

lllrg .. ly curilliled <ifler lhe construelion o/Ihe projecl because o/Ihe influ.~ o[nonIndians on to those sOllthern lands alld because the rive!" was widened /0 such an 

extent Ihat crwsing it became very difficult. Before the reservoir there were many 

plaC!!.\· where the river could be/ordlf". Similarly, hlln/ing south o/Ihe river wrlsalso 

curtafIed. ThIlS, the Grand COlllee project JuJd II del'l1Slaiing effect on their economy 

and Ihair mlwre. uS 

The salman runs were entirely and forever lost to the upstream Spokane Tribe. Furthermore, th~re 

existed on the Spokllne River - within the Spokane Reservation - two prime dam sites the Spokane 

Tribe could have used Cor generaLing hydroelectric pm.ver. Like the Spokanes' salmon runs, these 

sitcs w\:rc lostlowver to Grand Coulee. 

In the J 940 Act, Congress also directed the Secretary of the [nterior to "set aside approximately onequarter of the entire reservoir area for the pnrnmount usc of the Indians of the Spokane and Colville 

Reservations for hunting, lishing, and boating purpo~~s, which rights shall be subject only to su\:h 

rea~onable regulations as the Seoretnry nlay prescribe for the protection nnd conservation offish and 

wildlife." 16 U.S.C. § 835(d). 

In an extraordinary move, the Tribe in December, 1941, sent adelegation cross-country to meet on 

the issues with Commissioner John Collier. Unfortunately, the meeting took place on December 10 

'Finol Rcporl, ColvilklSpoknncT"sk Foroo,Direo::tcd by the Senme Commlnee on Approprimion5 In its 1976 

Roport on th~ Water and Po,,""r Public Works Approprioljon, am, S.Rep.94_5D.'i. (Scpl"mbL:!", (980). 
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- just three days following the bombing of Pearl Harbor. The Commissioner llnd his 

representatives committed to the Tribal delegation they would do all they could in aid ofthe Tribe, 

but that the national priorities of war meant that redress would have to wait until its conclusion. 

In 1946, the Interior Secretary designated areas within Lake Roosevelt as "[ndian Zones" to fulfill 

the requirements of the 1940 Act's ''paramount use~ provisions in recognition of tribal lands 

inundated by Lake Roosevelt. The "Spokane Indian Zone" and the "Colville Indian Zone" were 

located generally within the reservations of those Tri~s. The Spokanc Zone also extended up the 

inundated Spokane River, within the Spokane Reservation, which today is known as the "Spokane 

Arm" of Lake Roosevelt. 

INDIAN CLAIMS COMMISSION FELINGS 

In 1946, Congress ~nactcd the Indian Claims Commi~sion Act. Act of Augu~t 13, 1946 (60 Stal. 

104-9). Pursuant to that Act, there WlIS II five-ye.f statute of limitations to file claims before the 

Commission which expired August 13, 1951. It was undcrthc [ndian Claims Commission Act that 

theColvilles were able to settle their claims in 1994. And itWlls due to aquirkofcircumstancesthat 

the Spokanes were not. 

In 1951, both the Spokane Tribe lind the Colville Tribes filed land clllims with the Indian Claims 

Commission priorlo IheAugu~tI3, 1951 Statute of Limitations deadline. N~ith~r lrib~ filed daims 

seekin!! compensation for the use of their [lInds fo: the production of hydropower ot Grand Coulee 

before the dcarllinc. Ncithertribe understood, nor were they advised, that there would be a need to 

even file such claims. After all, beginning in the 19305 and then resuming through the 19705, the 

historical and legal record is replete with high level agency correspondence, Solicitor's Opinions, 

inter.agency propoSllIsfmemorandn, Congressional findings and directives and on-going negotiations 

with thc aficcted Tribes to come to agreements upon the share of rcVCD(le generated by Orand Coulee 

which should go to the Tribes fer the use oftheir respective lands. The Tribes had every reason to 

belleve Ihot its Trustee, the United SIDles, wns, although belatedly, going 10 lICt In good thllil to 

provide fair and honorable compensation 10 (he T r!bes for the United States' proportionate usc or Ollr 

Tribal resources for revenue generated by the Grand Coulee Dam. 

The ICC Act imposed a duty on the Bureau of Indian Affairs to apprise the wrious tribes of the 

provisions of the Act and the need to filc ciaims bdore the Commission. While the BIA WIIS well 

aware of the potential claims of the Spokane Tribe to a portion of the hydropower revenues 

generated by Grand Coulee, there is nocvidencethat the B[A ever advised the Tribe ofsnch claims. 

As the Tribe's long-time attorney explained in 1981; 

"11m W/'i!er wasemployad in 1955 a.lthe Tribe'sfirst Genaral CounseL 1118 tribal 

leaders oj 1951 were ,,·tiff in offiCI!. Whl!" mkedwhy they had lWtfiled cl(jim~'Jor Ihe 

building of Grand Coulec, the deslfllelion ofthcirfisMryand 10M of their lmltis, Ihcy 

were thundcrstruek. They had no knowledge al all Ihal they might havefilcd.!Ueh 

claims. They told Ihe wri{er {h<11 no Om! hild alerred them 10 Ihl! possibilily oJsu~·h 

claims. Thcy did not know that these pOiential claillls might be governed by Ihe 
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Claims Commission Act. They assum~d that tileir rights were still alive, and well 

they IIlIl)' be. The Superintendent had approached th~m in aOOll11949 with the Tripm-lUe agreement between the IlL!, IlureauofReciamation, andtheNatio!1a/ Parks 

Service Jor rhe e~·t(/blishmem of and adlllini.lfrarion of the Indlon ZOlles pursHant to 

Ihe Act of 1940. While he gOI rhem /() .'l(~n pr!!-wrilten resolu/ions approving thIs 

agreement [so] vital /0 fhef,· riwr and lake rights, not a word was spaken of/he 

passlbili/yofthe tribeftlingciaims. The d~(ldlil!e of Auglls/B, 1951 w(/8Ih~refore 

allowad to pass without the daims having haa/lftlad.'" 

·nlUS, the Spokane Tribe in 1 %7 settled its lCCA cJaim~, while the expectation offairtreatment for 

Grand Coule~'s impacls continued. Ironically, lhe Spokanc Tribe's willinGness to resolve its 

diffrmmces with the United Slates would later be used asjllstiUcalion farthe United States' refusal to 

deal fuirly and honombly with the Tribe. 

Meanwhile, theColvilles, who had notsetlled their lCCA claim, continued that litigation against the 

United States. In 1975, the Indian Claims Commission rukd for the firsllirnc ever that it had 

jurisdiction over ongoing claims as long as they wer~ part ora continuing wrong which began before 

the [CCA's enaetmcnt and continued thereafter. NavaJa Tribe v. UnltedSlale.~, 36 Ind. CI. Comm. 

433,434--35 (1975). Over objections by the Uniied StaI;.;.S, the Colvilles sought, and in 1976 

obtained, permission from the Commission to am~ld their complaint 10 include for the first time 

their Grand Couloo claims. With new life breathed bto lheir claims, tho Colvillcs pursued litigation 

oftheir amended claims to the Federal Circuit Court of Appeals, which held that the ICCA's "fuir 

and honorable dealings" standard may serve to defeat the United States' "navigational ~~rvitude" 

defense.' Inlightofthis ruling, the United Stotes negotiated with theColvillesto reso]vethatTribe's 

Grand Coulee-related claims. Unfortunately, however, becanse the Spokane Tribe inl 967 had Dcted 

in cooperation with the Unit~d Statcs to settle itll ICCA case, it lackWlhe Icgalleverage to force 

settlement 

In 1967, construction of 8i:-: new generating units began on the Grand Coulee Dmn. That 

construction prompted a thirteen-year flurry of activity by the Unil~d States to addwss the claims of 

Lho tribe, lu a ~h~n:: urlhe benefiL. urLh" Grund C,,~k~ Pr"j~"L. 

NEGOTIATIONS WITH BOTH TRIBES CONTLt'lUE 

In 1972, thB SCGretaryoftho Interior's Task Fowe began negotialion wilh thetribcsthrough multiple 

policy, legal and technical committees to address the tribes' claims. The "Secr~tarics Task Force" 

engaged the tribes on a full range of issues, including compensation, ri,·erbed OVYTIllfShip and lribal 

jurisdiction overthe inundated Indian Zones. !n 1974the Solicitor of the Dcpartmentofthe lnterior 

issued an Opinion, which concluded, among other tHngs, that the Spokane and Colville Tribes each 

r;:tained ownership ofthe lands underlying the Columbia River and, in the case ofthe Spokane Tribe, 

"Momaraodom ofJ.no,ry 12, 1981 with Final R,port, Colv;lldSpokanoTask Faro. (S'plember 1980). 

, C"Mlle Confoc/milet/ Tribes~. Uniled81"les, %4 F.2d 1102 (Fed. eir. 1992). 
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the lands underlying the Spokane River. The SolinilOr found the United States intent to reserve those 

riverbeds in the Spokane Tribe clear. The Opinion suggested that the resource interests of the Tribt:~ 

were being utilized in the production ofhydroeleclrk pO\ver at Grand Coulee. 

In DlX:ember 1975,Ihe Congress directed the Secretaries oflnteriorand theAIDlyto eslablisha Task 

Farce and to open discussions with the tribes: 

"10 delermlnewhal, ifany, interests fire Tribe have ilH71chprmiuclionofpowera! 

Chief Joseph and Grand Coulee Dam.~, and to i2Xplore ways II! which the Tribe 

mighl ben(jjitfrmn ally in/eresl so determined. '" 

While these higb-Ievel negotiations were laking pbcc, construction of~lethird powerplant at Grand 

Coulee continued. The first ~nerating unit ofsi:-: came into service in 1974. 

fn May of 1979, following two years of negotiations Onlong federal agencies and the tribes, the 

Solicitor for Interior proposed La the Secretary oflmeriofa legislative settlement of the claims ofthe 

Colville Tribe and Lhe Spokane Tribe, stating 

"ljirmly believe that a sell/emenf ill thI.? range Is a rcaltstto and/airway o/rerolving 

this controversy. 1'h~ representatives o/Ihe Departments o/Energyand Armywha 

partieipaled on Ih~ Federal Negotiating Task Force conCIII'. It adequately reflects 

the relatIvely weak legal posillon oJlhe trives. (Iflhe tribes could gt<1 ul'armd the 

Government '.1 defenses they concc/vablycGuld establish a casl!fm:from ]5% la 25% 

of the poweroJlhe GrandCoulee arJdChlel Joseph dams.) In addition/o the threat 

of (egal liability to lire federal government, there Is Ihe Imdell/able fact Ihal the 

Colville and Spakone people have been treatc:d shabbily throughout thll 40-yew' 

history of this dispUlI!. To this day tllfry hmte recct.·ed lillie bl!nejit from thll~e 

projects on their lands which totally dl!Mroyed tlwirflshery mo /ish ladders were 

include.d) and Inaltel'ahly changed their 11'11)' ollife. It has been tire nan-Indian 

communities and irrigation dIstricts who have bcnefitcdfrom thl!se projects. Much 

reservatfon land remains desert, whIle across the river irrigated non-Indian lands 

bioolll. 

I am also Iwpefid that this is one ''pro-Indian'' bill thai fhe Washington Slate 

congressional delegation will support as afair rosalulian of a sorry ehapJeI' oj aul' 

hisfolY. The II'ibes have tried recelltly 10 ClIltivatB support for such a seltlement 

proPQsal among key ml!miJers "f the delegalion. My understanding is Ihat the 

delegation's concerns hm'!! focused on the size of a ~'elllemeni Ul'\'ord (Jribal de.mands 

have referred to humlreds of millions of dollol's) (lIId a tribal proposalfor allocatioll 

ofafirmpowll)' SIIpplyin th~ 1980's all allocution whio'hmight be seen asa threat/a 

domestic users in limes ofsTwrtagf!." 0 

'S. R.p, 94-505, Dec. 4, 1975, at 19. 

, LellfslatiwProposal on SIlMlem"nl oflh" Claims of Ute Colvf1le and Spokane l'rlb .. , Momo","dum DfL:c M. KrulilZ 

[0 Elio[ Culler, May 1, 1979. 
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Wr" do not know what happened to this Interior Solicitor proposal to settle the claims of both tribes. 

We do know that the sixth and (inal unit oflhe third power plant was completed in 1980. In that 

same year, the congressional Task Fo\·re completed its work. In spite of Congresses' direction, 

rathcrthan determine the tribal interests involved in Grnnd Coulee IUld dIe benefits theymightdetive 

from (hose intcrests, (Of the first time in ncarly 50 years of promises and negotiations with both 

tribes, the Task Foree asserted legal arguments which the UnitedStntes might use to defend against 

or forestall any tribal claims fora share of the hydropower generated by orthe revenues derived from 

the Grand Coulcc Project. The report concluded the United States may not be required by law to 

provide compensation at the same lime lhat the Project's ability to provide Ix:ndits to the United 

States and the region was taking n quuntunl leap. 

The tbird powedlousc alone provides enough electricity to meet the combined power d~mand of the 

oities of PortlWld, Oregan and Seattle, WashingtOn. However, its contribution to the Feder~1 

Columbio RiVer Power System and the inter-connected electric systems serving the western United 

State.~ goes far beyond the amount ofhydropm.ver that is generated. 

With completion of tile th ird powerhouse, the Grand Coulee Project was positioned to playa pivotal 

role in the creation ofdownstrenm hydropower benefits ITom releases from large Canadian storage 

reservoirs. GrlUld Coulee became the critical link between water stomge facilities in the upper 

reaches of tlu: Columbia River Basin and downstream generating assets. Rated at 6,809,000 

kilowatts capacity, the power_genemting eomplex at Grand Coulee beclll11e the largest electric plant 

in the United States, third largest in the world. It now produces about 21 billion kilowatt hours 

Ilnnunlly, fourtirnes more electricity than Hoover Dam on the Colorado River, and is the least-cost 

power source in the region's resource stack. 

In addition to power production, Grand Coulee is th", ktly to maintaining opctaling flexibility and, 

most important, the reliability of the Federal Columbia River Power System and inler-connccted 

systems. 

Without the third power plant in particular, and Ihe Grand CoulC\: Project in general, the 

GOnfiguration and operation oflhe Federnl Columbi3 River Power System would bc very difTerenL 

The electric systems serving the Pacific Northwest (and weslcm United States) would be less 

efficient, have much higher averdge system wsw and be far less reliable. 

In a sad twistofhistoriClil events, two tribes -each feeling the irreversible pain of Grand Coulce's 

dev~station-found themselves on ooparate paths. The Colville Tribes were ableto continue their 

legal battles with the Unitr"d SI~t<lS through sr"ulr"ment in tbemid-1990s, while the SpokWleTribe's 

unifommd willingness 10 sellie in the 1960'8 cost it substantial legal WId political leverage in future 

deulings with the United SlUles. 

The Tribe notes here that this legislation i~ not a settlement of legal claims. Rather, it is "to provide 

for equitable compensation ... for the usc of tribal lands for the production of hydropower by the 

Grand Coulee Dam ... " Congress has an established policy of providing subsequent equitable 
24


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compensation for tribes impacted by federal hydroelectric projects. III the case of Pi~k-Sloan. 

Congress passed five acts between 1992 and 2000 that acknowledged decades-prior federal 

eomp~nsation as inadequate and established trust funds fur nffected tribes ~eeded by Pick-Slo~n 

revenues. In determining fund amount'l. Congress endeavored to employ the same methooolo~ to 

ensure thaL LribES afl'ceted by Pick-Sloan received similar compensation. In the case orpick-Sloan, 

th<lre was no pending litigation that spurred Congress to not: the relevant statutes ofiimitation had 

long since run. 

Similar to Piek-Sloon equitabic compensation nets. the Colville settlement was also nota settlement 

of legal claims. TIl<l Departmenl of Justice took the express position before Congress that the 

Colville also had no l<lgal claim; onlya "morn! claim". Thesettlementv,'llS based on the history and 

record of dGalings with the Trib<l. This history and record includes the repented promises made by 

the U.S. to provide compensation to both tribes. 

"Whil~ plain/if! had no {~gal and equitable claim based on the n(1vigaliolUll 

servimde. limy did have a vi(1ble moral claim based on the ''fair ana honorable 

dealings" prol'isioll of/he indian Claim,.; Commission Act ()j 1946. 

Tire re;'Ofulion reuched in 11m proposed sel/lemenl does not wnslilute an admission 

ojliabilily .•. . Bul. we ((I'll pJ'l!ptll-ed to recognize Ihol Ihe record. in this limelyftled 

claim. can be read 10 roflec1 an under/airing by Ihe United Sioies wilh respecl 10 

power vallies. Bccau;'(! ojlh(ll we Ihillk il is fail' andjust 10 fashion a complete 

r!.!So/rllion of tlris lon~·tamlingd(/im. "" 

CONTINUING RECOGNITrON OF THE TRIBE'S INTERESTS 

In 1990, the federal government Hnd the Tribes entered into the Lake Roosevelt Cooperative 

Management Agreement, which statc3that "[t]he Spokane Tribe shall manage, plan and regulate all 

activitic~, development, and uses that take place within that portion ofthe Reservation Zone within 

the Spokane Re~en'ation in accordance with applicable provisions of federal and tribal law, and 

subject to the statutory authorities of Reclamation ... to carry out the purposes of the Columbia 

Basin Project." 

Litigation over the ownership of the original Spokane Riverbed ICsulted in a sl,.jJurute rederal court 

opinion (Washing/Oil Water Power '1'. F.E.R.C., 775 r.2d 305, 312 n. 5 (D.C. Cif. 1985)). a oourt 

order (Spokane Tribe of Indian!! v. State J and 

Uniloo Siaies of Amerir:a, No. n 

Quieting Title to Property (U.D. Dist. Ct., a scparnle 

settlement agreement (Spokane Tribe of Indians ~. ,No. C-B2-

" SWen,ent ofP,rer R. Ste.,~and. AppeU.te S,etioll C],ief, Environment and Natural R';<Iu",es Div .• D.pt. of 

Ju<tio. (Joint H .. ,in£ M S. 2259 beth'" th' Subcomm.on W.te, nnd ['owe, of the Comm. on ErtClgJI ond N.turnl 

Resout<:e, and theComm. on Indian Affai .. , S. Hrg. 103-94J,Aug. 4. 19~. ",17). 
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MM.~ (U.S. Dis!. Ct. E.D. Wash., Marei13, 1995)): all of which provide and affirm lhm 

the Spokane Tribe holds full equitable title to the original Spokane Riverbed. 

In 1994 Congre~s passed the Confederated 'l'rlbesofthe Colville Reservation Grand Coulee DIUll 

Settlement Act (p.L. 103-436; 108 Stat. 4577, 103d Congress, November 2, 1994) to provide 

compensation to the Colville Tribes for the past nnd future use of reservation land in the generation 

of electric pawer at Grand Coulee Dam. 

A. For prust use of the Colville Tribcs' land, a payment of$53,OOO,OOO. 

B. Forcontinued use of the Colville Tribes' Innd, annual payments of$15.250,000, adjusted 

annually based on revenues from the~aJe of electric power from the Grand Coulee Dam 

project and transmission ofthat power by the Bonneville PO,",'Cf Adminisl.rntion. 

[n t 994 Congress also directed the Bonneville Power Administration, Dcpanmcnt of/merlor and the 

relevant federal agencies, under the "fuir and honomble dealings" standard, to enter into negotiation 

with the Spokane Tribe to addre~~ the Tribe's comparable and equitable claims for the construction 

nnd operation of Grand Coulee Dnm. 

During the hearing on the Colville Settl~menl bill, the Spokane Tribe sought an amendment tlmt 

would have waived the Indinn Claims Commi~sionAet's statute oflimitations to enabl~ the Spokane 

to pursoe its Grand Coulee claims through litigation. In the words of then Tribal Chairman Warren 

Seylel', "We believe itwould be unprecedented for Congress to only provide roliefto one tribe and 

not the other wh~n both tribes were similarly impacted." Hearing Record, Colville Tribes Grand 

Coulee Settlement, H.R. 4757, pp. 56-61 (August2, 1994). 

Colville Tribal leaders and the bill's Congrcssional sponsors asked the Spokane to withdraw the 

request for an amendment to waive the statute of limitations. The Spokane complied, with the 

understanding that good faIth negotiations to rcac~. a fair and honorable settlement with the United 

States would be imminenL. As a result, the following statements were made in a colloquy 

accompanying the Colville Tribes' Grand Coule~ Scttlement legislation:lt 

Senator Bradley stated: 

"S. 2159 seillelilhe claims oJthe COruederaJed Tribes oJthe. Colville /W;ervalioll, yel 

the claims oflhe Spokane Tribe which are nearly identical in/heir subslance, remain 

1Il$ellied The hislOricflShing silc:l and rhe land~ oJrhe two tribes were Inundaled by 

tile Gralld Coulee Project. It ill clear 11101 h)'!h-opower production and water 

tkvelopment a.!.mclatedwllh tlJe Project were made possible by tile con/riel/lions oj 

bolh l';b8s. ThUll, 1 believe il ill incumhent that the United Stales address ils 

obligalions ullder tbe FederalPawer Ac{ to both 1i'fb8S. " 

"Colloquy to A>xompany S. 2259. A B!1l Provtdins for to"SettI.mon{ofto" Claim' oftho Confcdmt<d Tribcsof 

{he Cotville Res"rv.tion Conooming Th,ir Contribution to the Prod"otion of Hydropower by the Grand Cout,e Dam. 

"nd for Othor Purposes. 
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Senator Murray stated: 

"The selilemeni oflhe claimsofthe Colvi,'le Tribes is kmcoverdue. The claim,first 

filed by the Colville Tribes over forty years ago, is based upan the authority the 

Congre~·'i vesfed in the Indian Claims Commission, which provided a fiw.-Jiilor period 

durIng wl!fclt Indian tribes could bring l/;eir claims against the Uniled Slates. 

UriforlUllarely, the Spokane Tribe did 1101 organize ils gOW!1"I1ment in time to 

porticipaM in Ihe clailny poce.!s. 

The fair and honorable dealings standard established in tftc [ndran Claims 

Commission ACI should clmrlyaoplv to llie Ulliled Stales' r:DlldllCI ,/rid relationship 

wilh bOlh the Colville and Spo/wne Tribes. I would urge, in the strangest possible 

lerm~·, 11I"'llie Dep"rlme/1/ oflhe Inlerior(lnd olher re.lwomfederal agencies enter 

into newlin/ions with {he Spom Tribe Iha{ might lend /0 a fair am/muilable 

.w!tlermml afOre tribus claims . .. 

Senator Inouye stated: 

"I tidlvslIOPort {h~ no{ion {hal/he Uniled SlaleS hasa moral oblir:qlion 10 addre.~y 

the claims of/he Spokal1e Tribe, wul I would be pll!(l!f!!.d 10 join you in a leiter to 

Inlerior Department Secretwy Babbill urgim! thm mlwlialioll< be unde,·taken by lire 

Departmenl. " 

S~nator Bradley added: 

,. Under the Federal Water Power Act, which fs !IOW reforred 10 as the Federal Powcr 

Acl, where an Indian Tribe's land contributes to puwer production, the lir!f!mee Im<~1 

/JOV an annual ("e 10 Ihe Indian Tribe which rel!re.~enls Ihe frille 's ermlribulian 10 

/lOwer produclion. I lao, would be pleased tojoin Senator Murray Gild Chairman 

Inouye in "'xing/he In/erior De/mr/wen' and {he Bqnneville PowerAdminis/rulion 

10 elller 'ilIa uegqllallol1s with the Sooktme Tribe 10 address the Irlbe 's c/alms. " 

Senator McCain stated: 

I also want tojoin my calleagues in urging Ihe Dermrlmenl o{the ll11erlor 10 .~elze 

Ihi.~ o{1p0riUnilv la addres.v Ihe S(!(}kane Tribe:v comparah/e aml equitable claims (or 

damages Gri~·ing 0111 of {he inul1rialiOIi of their la"d~· for Ihe conslruc/ioll and 

operalion of Grand Coulee Dam." 

Thus, as the Colville Tribes' claims were being addressed, the United States Congress Illude cle!ll its 

intent that the Spokane Tribc be treatcd fairly and honorably in connection with its claims for Grnnd 

Coulee damages through prompt, good f~ith negoti~tions with the Administration. 
27


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The Spokane Tribe adhered \0 the spirit of good faith negotiations overthe next several yean;. While 

the Administration in general continued its refusal to take Congress' direction to negotiate fully a fair 

and honorable settlement with the Spokane Tribe. the Administrntion lead shifted rrom the 

Department of the interior to the Bonnevllle Power Administration. 

For the next six years, from 1998 to 2004, the Tribe engaged in very difficult negotiations with BP A. 

Finally, in 2004, the provisions of a settlement bill were arrived at in which BP A had no objections. 

LEGISLATIVE HISTORY 

Spokane Tribe settlementlegislntion has been introduced in the 106"', 107111, 108'\, 109'\ llO~', I I I d" 

112c, aod lIds 113'10 Congress. In the 108'\ Congress, hearings on H.R. 1197 were held before the 

I-louse Resources Subcommittoo on Water an<J Power on October 2, 2003. 

Hearings were also heW on the Senate bill S. 1433, on Olllober 2, 2003, before the Indian Affairs 

Committee. Th~ bill was approved by the United States Senate on November 19, 2004. The House 

ofRepresent:ltives adjourned late on November 20, 2004 without time to consider the Sennte-passed 

bill. 

A Spokane Settlement Bill was introduced in the 109011 Congress. The 1·louse bill, H.R. 1797, was 

approved by the House of Representatives on July25, 200S. In the second s.:ssion of I 09'" Congress, 

in 2006, subsequent objections to S. 1438 by the State of W~shington Department of Fish and 

Wil<Jlife,. 3S w<lll as the Lincoln County Commissioners, stnIled eonsiderntion of the settlement in 

the Senate. The Senate adjourned "Without vote on the settlement bill, 

AMENDMENTS AND SUPPORT 

The Spokane Tribe thereafter agreed to modifY the proposed legislation to address various <loncerns 

related 10 the relurn 10 Tribal ownership of lands taken forthe Grand Coulee Project. 

Spokane Tribal acreage taken by the United St:ltes for the construction of Grund Couloo Dam 

equoled approximately 39 percent of Colville acreage taken for construction of the dam. The 

Spokone settlement previously was based on 39 percent of the Colville scttlmlcnt. At the request of 

members of Congress, the payment provisions for the Spokane settlement bill were reduced to 29 

percent of the Colville settlement in exchange fOf return of the Tribe's lnnds tnken for the Grand 

Coulee Project. 
28


910b7.eps

In 2007, the Spokane Tribe met with Ihe Slme ofWnshington DepnrtmentofF'ish and Wildlife and 

the Washington Office ofthe Governor to address their concerns with the settlement bill. The Tribe 

and Slate entered into an "Agreem~nt In Principle on May I, 200T' to resolve those concerns. 

The Tribe and the Lincoln County Commissioners held meetings to address the concerns ofthc 

Commissioners with provisions ofthe bill afftx:ting the Spokane River. The Tribe agreed to amend 

the bill to address these concerns. In 2007, Section 9(a)(2) was removed, thereby excluding transfer 

to the Tribe of the south bank of Ihe Spokane RiVer, which is located ontside Reservation 

bonndaries. Section 9(3) confined the land to be restored to the Tribe to "land acquired by the United 

States .•• tha.l is localoo within the exterior boundaries of the Spokane Indian Reservntion.~ On June 

4,2007, the CommissionCIS endorsed by lelter, "strong support" for the settlement legi~lation as 

amended. Sec Attachment 2. 

The Stevens County Commissioners in lellers ofDcx:cmber 18, 2007, cxpn:ssed "renewed support" 

ofthe Tribe ~nd for the settlement: ~PI3ase continue in your elTorts to get legislation passed which 

finally settles this debt owed to tho Spokane Tribe." &c Attachment 3, The Trib~ also met with 

Inndowners eoneC:l11ed about this provision in the bill. 1110 above amendment regarding Section 

9(a)(2) resolved their stated eon~ern5, 

The EllStern Washington Council of Governments, pursuant to lelters of Innuary 23, 2008, by 

Chairman Ken Oliver provide: "We urge your slrongest ~upporl and consideration for this issue." 

See AttIlchment4. 

The Governoroflhe StaleofWa~hingLOn, Christine Gregoire, by lettcr datoo December 14,2007, to 

Senator Cantwell and Congre.~!lman Dicks, also voiced strong support for the settlement legislation, 

stDling thut it is "olearly appropriate" and "long overdue". See Attachment 5. By letter dated June 

29, 2009 to President Obama, GovcrnorGregoire explained tlmt "t]his legislation [then S. 1388] will 

correct a longstanding wrong" and "request[ed] the support of yo Ill' administration in righting this 

injwlI:ice and securing enactment of the legislation." rd. 

The Mayor o[ the City of Spokane, Mary Verner, by letter to the Washington Congre:;.~ionnl 

delegation on August 25. 2009, stated "strong support for the Spokane Tribe" settlement legislation, 

finding that the Tribe had "slifferoo devllStating impacts" while rocognizing the Tribe's "generous 

efforts to address ... the previously stated concerns ofaffcctcd State and loeol governments, Indian 

tribes and individual landowners as _11 as federal agencies." &e Attachment 6. 

The Spokane Tribe also reached an agreement with the Colville Tribe dated May 22, 2009, providing 

fOf a disclaimer proviSion in the prior bill (S.1388) regarding adjoining Reservation boundaries. See 

AttDchment 7. 

[n light of the [Qregaing support, Section 9 oflhe prior2009 bill (S. I 388) provided forthe return to 

Tribal ownership of lands within the Spokane Iksorvation taken by the Unitcd Stalc3 forthe Grund 

Coulee Project. DOl's Bureau of Reclamation (BOR) thereafter expressed concerns about the extent 
29


910b8.eps

of continuing federal liability under that return of ownership provi~ion, citing potential liability for 

erosion and landslides. A!lr.:r extensive Tribal-BOR discussions, the Tribe agreed to remove 

language in Section 9 providing for the return of taken Reservation lands to Tribaltrusl smtus. In 

e)(ch~nge, BOR agreed to a new Section 9(a) of Bill S. 1345 that would have confirmed the 

delegation to the Spok,me Tribe of Secretarial authority as set forth in the 1990 DOl-Tribal 

Agreement (appended hereto as AtI:lchment 8). 

The Spokane Tribe has made numerous and significant concession~ over the course of negotiations 

on the provisions of the Dill. When mmlber~ of Congress so requested, the Tribe agreed that 

compensation to the Spokane Tribe could be reduced to 29% of the Colville settlement even though 

Spokane lands taken for Grand Coulee amounted to about 39% of Colville lands 00 taken. That 

significant payment reduction was in exchange forthe return to Spokane Tribal trust ownersbip of 

taken lands. Thereafter, at BOR's request, the Tribe relinquished its demand that the BOR land 

within the Spoknne ReservationZone betransferred to the BlA to be plac~d in trustforthcbenefitof 

th~ Tribe, in exch~ngc for Congressional confirmation ofthe delegation of authority bylhe Secretary 

of the Interior to th~ Spokane Tribe under the 1990 DOl-Tribal Agreement (Attaohment 8). In 

testimony before this Committee on S. 1345, the Administration expres~~d concern over the 

delegation provided for in S~ction 9(<'1). In response to that concern, the Tribehns rcluctantlyagreed 

to rmlov~ any reference to feder-dl delegation or alilhority ovcr tbose Reservation lands in the current 

Bill. 

Addition~lly, the curront Bill reflects a substantial reduction in hack pay compensation: from over 

$100 million to $53 million. The current Bill also reflects the Tribe's hard work with Bonnevi11e 

Power Administration to modify the payment provisions to be consistent with the Z004llgreement 

between the Spokane Trihe and the Bonneville Power Administration regarding such payments and 

thereby render the payments rcvenue neutral. 

The Trihe has reached agreement with members of Congress, federal agencies, the State and county 

governments, tho Colville Tribe, as well as private individuals, to resolve their Goneems or 

objtlCtion~ to the bill. We again wish to acknowledge Senator Cantwell's strong leadership and the 

considerable efforts of her staff in bringing the stakeholders together between the 112'" and 113~l 

Congress' to resolve any remaining concerns. 

CONCLUSION 

The Tribe has exerted significnnt efforts to retnin its homelands, to roceive the benefit or the 

promise~ made by the United States 10 reserve our IHnds, and to foirly eompensote us for the use of 

our lands ["or the production ofhy<!ropower. Our people hove endured enormous past and present 

impacts to their resources, theirwayoflife and their culture dlle to operation of the Project. Gmnd 

Coulee delivers enormous benefits to the United States and the region. The Colville Tribes, similarly 

siulatcd directly across the Columbia River, share in the benefits of the Project. Spokane deserves 

the same fairand honorable treatment Congress has provided to Colvi lie und to the tribes affected by 

Pick Sloan. 
30


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ATIACHMENT1 

July 22, 2013 lattar from Chairman Paone to Senator Maria cantwell 

July 22, 2013 

The Ho~omble Moria Cantwell 

311 Hart Senatc Office Bnilding 

Washinglon, D.C. 205]0 

SPOKANE TRIBE OF INDIANS 

P.O. EOX lao Wellp;~it, WA 99040 

(509) 458·6500 FAX (509) 458·6575 

Re: The Spokane Tribe ofIndions ofthc Spokane Reservation Eqnitablc Compensation Act 

and the Nced for Consistc~t Application ofCongres.~ional Policy Towards Tribes 

impacted by Federal Hydropower Projects. 

Dear Senalor Canlwell, 

I write to request your assistance in passing "The Spokane Tribe of Indians of thc 

Spokan~ Reservation Equitable Compell5ation Act." As sot forth herein, this legislation is 

ccnsistent with established Congressional policies governing fair cornpen~atio!l far tribes who 

have lost reservation lands to federal water storage and hydropower gcncrotion projects. In Lbc 

case of the Pick-Sloan Program, Congress passed five acts between 1992 and 2000 that 

acknowledgcd dC\:adcs-prior federal compensation as inndequate and established trust funds fnr 

the eigbt affected tribes seeded by Pick-Sloan !Cvenues. In determining fund amollnts, Congress 

endeavored to tmlploy lhe ~am~ methodology to ensure lhe effeCled lnoes received similar 

comperu:aLion. Notably, there was 00 pending litigation spurring Congress lO act. Consistent 

with ils tre:Jhnent of tribcs affected by Pick_Sloan, in 1994 Congress determioed that initial 

fedeml compensation to the Confederated Tribes of the Colville Reservation for land lost \0 

Grand CoulC\: was inadequate and provided slIbstantial additional eOlllpensation, includi~g 

ongoing lIIlIIual payments seeded from Grand CoulC\: hydropower !CVCllUCS, I While Grand 

COlllee also inundated Spokanc reserY'dtion lands, Cangro~ ha~ yello provide compensation to 

Spokane beyond the meager $4,700 initial compensation provided in 1940. Thi~ result caDDol be 

squared with the sound Congressional policy that produced legislation to fairly compensate 

Colville and the eighl tribes aITocled by Pick-Sloan. 

Ti-m PICK-SLOAN EQmTABLE COMPENSATION ACTS 

Under the Flood Control Act of 1944 (33 U.S.C. 701 ct seq.), Congress authorized 

eonstmction of five massive dam projC\:ts on the Missmlri River as part of the Pick_Sloan 

Program, the primary pnrpose of which was to provide flood control downstream, as welJ as 

improved navigation, hydro-power generation, improved wd!l.:r supplies, and enhanced 

recreation. The U.S. Anny Corps of Engineers, which constructed and operates Lbe d,lms, 

• Pub. L. lD3-436, tOS St"L 4517 (Nov. 2, 1994). 
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estimated in 2000 thai the projeots' ovcmll onnUllI contlibution to the national economy avcr3ges 

$1,9 billion. However, for several tribes along the Missouri, the human and economic costs of the 

projeels have far outweighed rmy benefits reroived, since the lands affected by Piek-Slol!ll were, 

by lind large, Indian lands, und entire tribal oommunities and their economies were destroyed, 

Affected tribes received initial s~tlemenl~ from Congress that included paymenl forllircct 

properly damages, severance damages (including the cost of relocation and reestablishment of 

atTected lribal mcmbers) and rehabilitation for the entire reservation. In providing fund~ for 

rehabilitation, Congress recognized that the Inoes as II whole, and not ju~l the tribal members 

within the taking areas, were affected negatively by the loss of the bottomland environmcnl und 

re.~ervation infrastructure. Accordingly, the settlements provided compensation fur severnnee 

damages and rehabilitation that averaged four ~nd a half times more than was paid for direct 

damageS.l 

In 1952, the U.S. District Court awarded the Yankton Sioux $12,120 or about $42 an acre, 

for tho apprnisoo value ofinundatcd lauds in condemnation proceeding in which neither the Tribe 

norils affected mcmb~ were Iepre~ntcd by private counsel, In 1954, the Congress Ilppropriatcd 

SI06,500 fOI seVCI~ncc damages for Yanklon Sioux tribal members. In JonUllty 1958, the U.S. 

Districl Court awarded the Santee Sioux $52,000, or $87.67 on acre, for the appmised value of 

inundated lauds pUI~wut 10 a 1955 agreement belwecu tho Tribo nnd the Corps ofEnginerm;. 

In 1984, a joint Fedeml-Tribnl odvisory committee concluded that the compensation the 

U.S. provided to tribes impacted by Piek-Slollfl greatly undefVlllued their losses. Between 1992 

~nd 2000 Congress enacted legislotion 10 provide more just compensation. First, Congress enacted 

the Three Affiliated Tribes and Standing Rock Sioux Tribe Equitable Compensation Act, P.L. 102_ 

575, 106 Stat. 4731 (Oct. 30, 1992), which established a trust fund 0[$149,200,000 for the Three 

Affiliated Trihes of the Fort Berthold Reservatioll related to the loss of 176,000 oeres to the 

Gamson Dam project" ~nd a tru~t fund 0[$90,600,000 for Iho Standing Rock SioIl)( Tribe related 

to the loss of56,000 acres to the Gaile Dam Project. The truSI funds were seeded with re~eipts of 

deposits from the Pick-Sloan program. CompCllsalion amounts wcre based on Fedeml_TribaI 

advisory commiUw recommendations. 

Second, Congre~s ena~ted the Crow Crock Sionx Tribe Infrastructure OC'\'elopment Trust 

FUlId Act of 1996, P.L. 104-223, 110 Stat. 3026 (Oct. 1, 1996), which estobIished a $27.5 million 

Recovery Food related to Ihe lo~s of 15,693 acres to the Fort Randall Datil Project, funded with 

receipls ofd",pO!o-it~ from thePick-Sloan program. As with the Three AffiliatedandStandingRock 

Sioux tribes, Congress fmmd that the initiol ~ompensntion payments and mitigation fund~ thal 

were expended on lhdr hel13lfwcre significontly less than the wlue efthe aetual damages suffered 

hythc tribes. 

1 S"", "-J; Forth Borthold G...ruon Aot, Pub. L No. &1-437, 63 Slat. 1026 (1949); Chcj'\'uno Rj"orQahe Acl.Pub. 

L. No. 33-776, 68 SI.t 1191 (1954); SI.nding Rgok Oahc Act, Pub. r... No. 85_915, n St~l. 1762 (l958); fort 

R:lnd~U (Crow Croo~) Act, Pu\!. L. No. 85-916, 12 Slat. t766 (1958); Big Bcnd(Luw<,Brulo) Act, Pub. L No. 87-

734,76 Slat. 698 (J962); ond BigEend (Crow Creek) A~l, Pub. L. 1\'0. 87_135, 76 St;U. 704 (1%2). 
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Third, Congro.~~ enacted the Lower BruJ~ Sioux Tribe Infrastructure Development Trust 

Fund Act, P.L. 105-132, III Stal2563 (Dcc. 2, 1997), which established a$39.9 million Recovery 

Fund mInted to the los.<; of22,296 acres ofland to the Big Bend Dam Projecl AglIin, the fund was 

seeded with reccipts of deposits from Pick-Stonn. 

Fourth, Congress enacted the Che)'(,lnne River Sioux Tribe Equitable Compensation Act, 

P.L. 106·511. 114 Stat. 2365 (Nov. 13, 2000). which established a S290,723,000 trust fund (the 

Cheyenne River Sioux Tribal Rocovery Tnlst Fund) to compensate [or the loss of 104,492 acres 

to the Oahe Dam Project. Again, the fuml was s~ded with receipts of deposits !Tom Pick_S[onn. 

Finally, Congress enacted the Yankton Sioux and Sautee Sioux Tribes Equitab[e 

Compensation Act, P.L. 107-331, 116 Stat. 2839 (2002). The Act established the Ynnkton Sioux 

Tribe Development nust Fund in the amount of $23,023,743 for the loss or2,851.40 acrcs. The 

Act also established the Santee Sioux Tribe Development Trust Fund in the amountof$4,789,010 

for the loss of 593.1 acres. Congress determined th3t the Fedcral Government did not give the 

Yankton Sioux Tribe and the Santoo Sioux Tribe an opportunity to receive compensation for direct 

damages from the Pick-Slo~n program consistent with the opportunitics provided to other 

impacted tribes. Congress ~cknowledgcd that the yaukton and Santee were previously 

compen~~tcd pursuant to condemnation proceedingjudgDlcnts, but d(:(ennincd that the tribes did 

notreceive "just compen~ation for tire taking of productive agricu[Dlmllndian lands" throngb those 

proceedings. Again, the trust li.1llds were seeded with receipts of deposits from Pick-Sloan. 

A review of the Pick-S[oau Equitablc Compensation Acts reveals tbat Congress 

consistently applied importnnt po[icics. First, Congress determined that original federal 

compensation, provided deendes earlier, W3S substantially inadequate. Sccond, litigation between 

the tribes and the United States did not drive the legislation: at the time of enactment, rckv~nl 

statutes of limitations would likely have barred any claims arising from the initial inundation, 

which ocenrred d~ades earlier. Instead, Congress took eme to eharo(:(erize the legislation as 

providing ucquitablc" compensation. Third, Congress dctcnnincd that the economic and social 

development and cullum! preservation ofthe impncted tribes would he enbanced by participation 

in Pick-Sloon hydl"Opower gcncmtion and watcr starnge fees. Consequently, Congress established 

funds [or each tribe seeded by receipts from Pick-Sloan revenue.~. Annually, the DOl Secretary 

withdraws interests from the fund to distribute pursuant to a plan submittoo by each tribe that 

allocates the funds to: 1) economic dC\'elopmont; 2) infrastructure development; or the educational, 

health, recreational nnd social welfare objectives oftbe Tribe and its mcmbc,s. Finally, Congress 

strove for consistcncy by employing thc methodology recommended by the Advi~Qry Committee 

wben determining the trust fund amounts, to ensure that ~imilarly impacted tribes were similarly 

compensated. 

GRAl\'D COULEE 

As with Piek-S[oan, Grand Coulce brought enormous benefits 10 thc Northwest Dnd thc 

Uniwd States, including; hydropower; off·system power sa[c~ rovCJlncs; flood control; irrigation; 

transportation; and water ~upply for endangered and protected species. As with Pick_Sloan, 

resident tribes were S<lvercly impacted. The Confedcrntcd Tribes orthe Colviile Reservation lost 
33


910b12.eps

approximately7,SOO acres to inundation, while the Spok<lne Triblliostapproximately3,OOO acres. 

As with tribnllands inundated by Pick Sloan, thesll wcrevaluablc "low lying" lands used primarily 

for agrieultUltl. 

When the Grand Coule~ project was federalized in 1933, federnl officials contemplated 

that "a reasonable annual rental" would be provided to Colville ami Spokane "for the Indinns' land 

and water tights involvcd."] Thc project received cxpress Congression~1 ~ulhori2.ation under the 

Rivers and Harbors Act of 1935 (49 Stat. 1028, 1039). In spite oftha filct thnt the Act authorized 

the project for the purpmn, among others, of "red am at ion ofpubUc lands and Indian reservntions 

..• " no hydroelectric or reelamation benefits flowed to the tribes. Ovcr the next several years the 

Federnl Government moved nhend with the ennstructinnnfth~ Grand Coulee Dam, ''but somclJ.ow 

the prnmise that the [Spokane 1 Tribe would share in the benefils produced by it was not fulfilled.'" 

In the Act nfJune 29, 1940 (16 U.S.C. 835d etseq.), Congress granted 10 the United Stutes 

"in aid oflhe construction, operation, and maintenance ofthe Columbia Ba~in Projecl, alllhc right, 

tilie, and interest of the Spokane Tribe and Colville Tribes in and to the tribal and alloUcd laml 

within the Spokane ami Colville Reservations, as designated by the SC(;retary of Interinr from time 

to time." Pursuant to the Act, the Secretary paid $4,700 to the Spokane Tribe and $63,000 tn the 

Colville Confedemted Tribes. The tribes received no further benefits or compensation: nothing 

wos provided for relocation oftribnl members living on the cond=ned lands; and tribal lands on 

the bed ofth~ original Columbia llivcr were not condemned al all. 

Grund Coulee: Dam dc~troycd all but nne salmon run for Cnlville, while the Spokane 

salmon ushery was lost entirely. As explained in 1980 by a Senate·directed task foroe: 

Wornt of all, Grand Coulee Dam destroyed tbe salmon fishery from Wllioh the 

Trib~ hnd sustained themselves forccnturies. The:salmonrun played a central role 

in the social, religious and eulturnllives of the Tribes. The great majority of the 

populatinn ofthe Tribe::; lived near the Colwubia and its tributaries, and many were 

driven frnm their homes when the area was flooded. While Interior Department 

offieialswerc aWllrc thai the fishery would be (icSlroycd, the technology ofthe time 

did not pennit constructinn nfa fish ladder of sufficient heighlto allow the salmon 

to bypass towering Grand Cnulee: Dam. 4 

In 1994, Congress enacted the Confederated Tribes of the Colville Reservatinn Grand 

Cnulee Dam Settlement Act. Puh. L. 103-436, lOS Stat. 4571 (Nov. 2, 1994). Congress 

detennined that the Act and the settlement agreement which it approved "will provide mutually 

agreeable compensation for the past usc ofrescf':ation land in ennnectinn with the generation of 

eleclric power and Gmnd Coulee Dam, and will establish a method to ensure that the Tribe will bo 

, Th;ccrnbcr S, 1933 I'liot rrom BOR A!lSistwl1 Cot"",;';,io" ... Willim)) Zimmcnllan to BOR Commissioner Dr. 

Ehl'OodMend. 

, Toslimony or A"i,lan! SccrOI.ry rar Indian AlTai,.. ill support o[th, 1994 Colville Scntcm"!ll Jogisl.tion. 

approV<:d in P.L. 103-436, 10& St.!. 4577 (Nov. 2, 19~41 . 

• Fin~l Re~ort, CotviUclSpokmlo T~slI FOT<o. DiroclOd by the S,nmc Comrn;lIoo on Aprrorriution>, S. Rep. 94·505 

(S"I'tombor, (980). 
34


910b13.eps 910c1.eps

compen~ated for the fulure usc of reservation land in th" gcneTlltion of electric power at Grand 

Coulee Dam ... ". The Aet provides n one-tim" payment of353,000,000 as back pay and an initial 

annual payment of approximately $15,000,000 with ongoing annual payments adjusted for power 

generation and price. As with the Pick_Sloan legislation, Ihe Grand COlllcD Settlement Act reflects 

Congress' determination that the dec:ades old, initial, federal compensation to Colville was 

substantially inadcquatl1. 

CONCLUSION 

Spokane has failed to secure legislation compamble to the Colville R=rvation Grand 

Coulee Dam Settlement Act. Some argue that this disparity is warranted bccam>c the Colville 

legislation settled Colville's pending litigatiQn against the United States, wlwroas Spokane hns lost 

its ability to bring similar claims. The argumCIlt is that, unlike Colville, Spokane docs not have a 

legal claim 10 suUle. However, compensation to Colville nnd Spoknne fortrilmllands lost to Grand 

Coulee should be placed within the broader conlext of Pick-Sloan, in which pending litigation 

against the United States was not a precondition for Congress to provide fair compensation to 

nffected tribes. Wc appreciate your nssistanee in pas.~ing the Spokane Tribe of Indians of the 

Spol..'nne Reservation Equitable Compensation Act, which will maintain consisteney with tho 

policies that guided Congress' treatment of tribes affected by Pick-Sloan by compensating 

Spokane based on the methodology employed in the Colville Act withont regard to the Ia"k of 

litigation between the Tribe alld the United Stat-cs. 

~tf~i!IY, 

-~:~c&-- Chairman 

Spokane Tribal Bnsinc~s Conncil 

ATTACHMENT 1A 

A spreadsheet showing legislation providing equitable compensation for the 

Colville Tribes and the Pick Sloan Tribes for flooding to reservation lands 

from Federal Hydro Projects 

TOTAL 

TRIBE DAMS ACERAGE LOST COMPENSATION 

$53,OQO,OOOin b.,k 

payment. Annual 

payments 

thereafter lIIl,ed on 

percentase nydro 

Colville Confederated Grand Coutee 21,000 production. 

ThrEe Affiliated 

Tribe. Ga""ton 152,350 $151,BOS,52.5 

Stonding Rook Sioux 

ND&50 Oahe 55,99~ $102,946,553 

Fort Randall 

C,ow CreekS;o"", SO Eend " 15,587 $3S,~37,G14 

fortR.nd.1I 

lower Brute Stoux, SD Bend '" 22,296 $43,G45,988 

Cheyenne Rive, 

Sioux, SD Oohe 104,420 $301,3E6,972 

Yankton SiOUX, SD Fort Randall Z,a51 $23,2S1,25B 

S.ntcoSloux, NE Govlnl point ;~ $~,!!41,OlO 
35


910c2.eps 910c3.eps

ATTACHMENT 2 

June 4, 2007 Letter from Lincoln County Commissioners 10 Chairman, 

Spokane Tribe of Indians 

8a=OF 

'J' 

:JGllln 

.lii"ouuly 

!.n<rrurCwJrm, w~ 

F!lIm fffi' ilw../i!'!I!I'I, WASlIlll(il'il!I!f.lI2:l 

GFflOj f'lU:!o:\5lE! '125.3\]~ , l?L~ I5JSJ 7~4 

WommlsslnnerS ========="'==============="."~ 

Richard L. Sherwood, ClIainnm 

Spokaue 'trib" I)fTndians 

P.O. B<.lxHlQ 

Wellpinit, WA 99040 

R.'R: Settl~mlOllt aill 

JUne4,2001 

T'hank yoo fur Froviding Lillc<>m DlUllty an a~ copy of lIle pIO~ federal 

lcglslatloo for the SpakBDe 'Trlbr; of Indiana. As JIPU ere aware,. lw;~ year we took 

e;weption to the propos<:tl legidatklll becallse it iu~lltded iii provision whicb would 

lramfer the routh sbore nflhe SpokluJe River, up to the 1290 elevation, 10 (he mbe. We 

~t1y ;<ppreci~!e that to til" cummt hlgls1ation lOU Mv'" eliminated that prOVlslOlllI:ld 

lhtt th!: South slIore of the Sp"ka;:;e RiVl:r will remain IIli it !las sir.eo;, the ine<;ption of!.h~ 

Collloo Dam Projeet. 

The BOlIl'd of Cl'llUllIissio= has a very WOOf OQ= wIth the agreernent that wa.; 

em;:red lnk:J with-.Il\(: Wasbiogt\lJl State Dep!\l1TIlent or Fish and W:i\d!if\:, However, the 

COII~ is oflillOh 11 mioornatu,e thmwe would not wi:;]] to hold up yt>\lr ll'ettlemelli hUi 

over a!l iSSlle !hat we fu~l certrun ean be worke-:! out between ourse,ves, 

Baseq an our IUlders!anding that !h~ legisi9.ti(Ju yropn,ired by llle Spok~l1e T.ube oftndil!Jt'< 

would officioUy tlansffI administnl.live juris~ic[ion tlf Iilm portion of Lmd tllat inclndeli 

'fue sonth b~ of the Spok,!lnll·ruver 3l! it .,llistr:.d befute Grand Coume DllIJ\ WIlS 

=~ted;'and \U)deIlitl!J.ding tbat the ~xa"t location of the Qriginal south !Jack cannot 

be atxUratcly !!ctermhu:d;, nul further wdMl!mcmg that it does not :reach to the 5OU1b 

b3ilk oflb,e corwntbody di":wlI.ter, tbe }3:mmiufUnctlm, COl1ntyCcmmigsiOTh1tl! fully I!lld. 

ttrangly !ItlppGl1S 1l!.e leglslatlo::l bcing pW¥lsed Ii> settie the tribe's lomE :rtl'.nding -claim 

<l.llairc!lt Ihe :fio;d"VJ.t govemmomt. Onr suppllrt is 'ba-"I.lil on thl'! proposeri legi@1iItll1.'l ilia! bilS 

bc"n prO"l'ided by the tnoe und iftb~t J.,.gislatioD ehanlill:S dwing!hlt lo:gislative proce!i!!., 

we wauld Ies<ilIVe the rl,llht to ~aJume the impact on Gllr citil':m~ !.Ll\d our 5Upport for 

thebilL 

We want to thank. !be Ccuncil of the Spokane Trib", nflndi;:ms for their efforts to r::ach 

out to Lincoln County in a positive manner 10 resolve an issue th!!.t was 'Potentially 

divisive to the region. 

JbspcclfuUy, 

~""U'~i DennisD.l3ly 

C",/mmn 
36


910c4.eps

ATTACHMENT 3 

December 18, 2007 Letters from Stevens County Commissioners to 

Senators Cantwell and Murray 

ste\/el1~ CQI.mty CcmmfssiDner'$ 

Malafun Ft'J&rrur.'J 

PIlIMet No. i< 

11!1 Sauth oak ~" RI'XlIlI8'a14, Colv!Ul!, WA 'W11N~61 

Phone: SQ!I·6a<1-31!i1 fIlll:1 ~1I9"MH310 n'f: eo(H~:\:i.·~3U 

Em;l!IJ o.'N\l!$$lcn~,,(>,n..ft!l!;.wa,\1>: 

S~ fifurla ClmwreTI 

U,S. SQUatelUn 717 

HIIrl: Buildl'tlg 

Wa~hl.n.'!;to)J., l;l,C., 20510 

Dellt S-l$llahR Cmfw~lfr 

W'J: ore wrln-ug.lnp:q1llS~~ Sllppmtfu< ~~t<!p:Mrh'1on ~~s Iq ~ 

SFl~ 'Lithe -VfIml'~, The Gt!md Cmlle D6rn'B:T!$I)J'\W, l,ake .:R~~ immd&,.,d 

thWtrnditiOWll.laOO;; =uy ~ ~ and ilirollgb a sv.!..;:s of ~ l:t'"..rts ~ 

ci-routl.'l.sltm.(:es, we Spokime Tn"bfl;!m Y~l to Tcccive repamicn p,tYlnljUts, 

Irooica,Uy~ (he Eastem Weshingl:lln Ctlnn~il ofGovemme~lsl ofwhh;:hSleverJs Count)' i~ 

amemhw, nwt recently .. It was OD. D~(jQm."ber 7 -1h~ 66'h annivN:G!It)· of Pearl Harborand :it"'';l~ \bo!}, in 1?41, in Was-hil1gtofl, D,C. that a bill Wl\~ bmng: lI.\lll~idered to grant thll 

n:parar.icu 11aym~nts 1>:1 the lril:re, tn n n;m.t grallio'Ul;. andpalrlotk f;1Wlou-. tile SJlok;me 

1'n'M didnot pW.:.\o"e. '!he p~~'lhe bill,gmnilng r~!lS, but m,,-t~ stood 1lSi&: 

to mm1 &00 by sid~;rift. :ill1hc Anlr:ril>mSto <mgag~ m :Ore WWJI ronflict. 

"They eo:."lful;.\.e. W i9a!:l by example. ~d we 'l!X'I'l ilonoI:OO tc ~<J. tlwm tmrncighiroP.; and 

;frie:t1;lg, Plrm;~ cODtmue in )'t'urefftlt:ts tc getleguii"ool1 paS'$td whicb tinallY.llcttlcs thl~ 

debt OWOO 00 ~ht: SpoJ.."lDle 'Tribe. .. 
37


910c5.eps

~~;'1;)tt 

;:;;,trjtt!~,l 

ffraic!llmM~ 

PI'tJkt~ •• l 

Sl:natot Ptt.uy lJumy 

SteV1;!tll County CCmmi55!Il!'leh: 

115 ~~"th Cl~~ ~t, RQIlm 1/214, WllYille, WA ~9114,~5~' 

Pll<lne: !"OHS4~~1~\ f~:<: ~'-41!4'8Jl0 m, 8oo·II~Ni3a~ 

~mll!;: CCP'll1liiif<"9!,,®CIt •• te""n .. "'!.~! 

B'34 Ditb\':l~ SOOll-\('I Building 

Wasliingt!lll,D.C. 20510 

P;,lly Cc!t..'llo!l l:k!<'<~'~"'~o<i!d 

W"l!f-<"~"'Nql!llst~ll1Xj>p(Il.trorll.~rin:g~b~!sotQ nm~'rr'b(l' 

cf'h-~ 'tw Goorl~Dw.~~t;J4-eRW!!~J;im~ fucir"ttM~...illmll~ 

n=y ~~, ;;md !:h:utiga 'a ~ W~,Haru. =d "~~/lllt<S, the Sl,N1<;aoo 'Iribe-i.1W:;cl 

ro=I:i<$~n llll}'llle!lts. 

Ironi~~1ly. 'tlI",,:r.1Wcrn Washington C:tI\Il'I~Ji IlfGQv~mments, ofwhillh .!l!ev~M County is li mamb!):!', 

metr"",mel)l. Xl WIi'll onDeccmber7 _tht.M'b !!lUllvers1llY ofPenrl Har\:lt).-IlfJ,d!t was tben, Il1. 

1941, ill WQ$biJ:t~n. D,C that a bill WiI.!} hill!! tOllliiuered to gl"Mttbll repmoti01l paynren1l> to tI1~ 

tribe. "In a mont l),nOOim111 Blld plltricticl.i\'$.lti.()rt.. ilill Spokam: Trim. did ~VJt 1l'11;SUC the pii!S5~ge cf 1\\11 

biilgomfu!8~1'!Ili<Pl$, trut iu.sl~ild. w:!od asii.lem rum!!. ~de hy skli'l "JIIJJ al.l11l1:A:rr&ri~l!'ID1 to 

~ in tht:: v.'WT1 ecn:f1id 

They~ tr. n.d by ~lt; Md Wl!L"l' hn-:torOO V:l-~ tt:tl.n ;J1tr'1liighOOr.:> &lil frilll1tio!. 

P:elISe- e>:Jnt'.ru:~ in y= eff&rts to~.::t leat'.laUI)l\ pa~d wblch hlllly ~!'I;t1I~s lhi!: debt Q'mcl. ttl full 

SpokBne lrlb~ 

Sim:erol:v. 

~L ~llfth~~ 

Cum.rnl:sstQ'®t 
38


910c6.eps

ATTACHMENT 4 

January 23, 2008 Letters from Eastern Washington Council of 

Governments to Senators Murray and Cantwell and Representative 

McMorris-Rodgers 

Eastern WashmglQU 

Couno11ofOoverD:me.uts 

Chairman Ken Oli'ver, Pend On:iJIe CO\ltdy 

yk:e CIrn-inmm .R(wy PJager~ Aaams COUDt}' 

Secretary Merrill Ott, Stev~ns County 

Treasurer Teel Hop:b .. ins" Lincoln COU11ly 

Reprel'lcotative Cathy McMOIl'i.rRodgrn 

1 '108 LolIgworth Eous~ Office Building: 

WOIShingtOIl, D.C., :ZUS15 

DI:8l' RepreseutELlive Mt::Morrls·Rodgers, 

21S S. O~1: St,C~h·l1\:. WA 9~1 14 

3C~.~84.~7!i1 

Jm:! 23, 200l!! 

The :e:~~rn W IIShington ClllmCil. ofGovmmtCl:lu. (l3WCOG} continues 10 fully support 

eff'oits by the Spobne 7rib\i:oIrndiiln6 W RIlin rl;;p'l1lltWn pay.mCllts fOl'the Columbia 

ltivm-'a inumlatioo of their l<m.d& when the Gra1:'Lcl CoUleePllIP. W<lS ['.(IIlS1Iuc~d many 

decades ago. To thh lime,the United States hils yet to fuJ,fi11 th.I'Ii.rPlQ~ ofIeparatiOll 

payml!ll1~ am11hougbl~gialation was introduocci.1ast ~ar" ihe autbori~ou h'3ti ~t10 

~riafu:c. 

The county tOnuDi95ioil~ oftbe EWCQG CO:tltml,'" tQm~"m varlPU51ssuB!. pfc.l)ll.C= 

bere in thenortlleast p.ort:ion of this great mIe, Our cOrtee:tt\i:tbx developing ahl"-<!.llhy 

ee~y, p!'O\.eI;ting OUI'mloure=a, and. engaging Q\U'.!ila~ mil fedcn!l rcp~.ati.,.cs 

reml'.instrong. Your v.ints. to our ngion have beet- (>;(lCOntaging to''\lB an, 

We ursa yow atrongesl: !mpport~ consideration for 1hls Wue. N wemQYe Mead in 

outrcg)orud iSfll~ Qur£r;md.o; and neigbbors ill the'Sllokan: Tribe nave and continU!;; (0 

be au integral foJ;U ilelpbg us an. 

1b3Dk you for your sel"fiee tQ oUf grtIll.t ~Iilt~ OfWaeJUngtPlI, 

3m...,.-"ly, 

~~~ Oliver. e::::::::=-

J:'end Oreille Ccnm:ty CommissioneD 

ChoWman., EIISNm W:I5hingtPtt Council o.fqover;om,mts 

cg!lU!ljs~gpers@p§j!lr1Pnlil1B.Org 

t:;ommJsmoru;rs@co.stmns.waus 
39


910c7.eps

EaMem Washington 

Couneil ofGovemm::.nts 

Chairman Ken Oliver, Pend 01'cille County 

Vice Glain'Dart Rudy Plager, Adam;; CoUUty 

Sccretal)' Ml;iJ'l'ill ~ Stevens County 

Tr~a!Wrer Too Hop1.1US, Lincoln C.ounty 

S«\ator Maria Cmntwell, 

511 :O~k,1:1l. Swl\1:e Office Buitding 

Weshington;D.C .• 20510 

Dear Senator cautwe1t, 

Z!s S. 0al:St, Cuhi11~. WA 99114 

':;(l\I-s..~<1.l7:'1 

Jan23,2008 

The EasV:rn W.a3hi.DiIDIl COllllcil of~mrumtB (EWCOG) continues '00 Iullysu:;pport 

e.f:fv:tuI byUtii: Spl:I~e Ttibe ofIndian& to galu ~~ti¢ll payments for the Columbia 

River's inund!ltion of their lands when thE': Gftnd Coulee Dam was constructed lll.B.IlY 

dec_ ago. To thi!l date. 1h~ United States hasytlt to fulfill their:p~o.t:lli$'" Qf~&nI.tiOl;l 

pa.)'ml!rlta.1lIld tbrJugh le.gislatiOJJ. walImtrodueed laetyear, tb lLutllOrization has yct:to 

mat::rialize. 

ThOll c'OUll,ly IXImmissioners ofi3:l~ EWCOGcontW.uC 10 m~et 011 variousj55l,les Qf.;:oncern 

h!\IJ:e.ir:l tllh nWiheilst plIriion Qf ~s grCllt Bta.~ Our eonc(I(I13 for developing all.ea.1thy 

I:OQIIomj', prot«:OOSOtll" l'CSOUJ"ClIlI!:, and :mgugillg OUr &l!i.IlIll!ld federal n:pm~;ltiYes 

~strong. YOl1l''I'lslls to our region have beenencouraginz to usBiL 

Well!&~ jo'(lur strc.ngeat suppOt1 and COl1sidctation fur this issue. As WI;! move ahll9.d in 

ou<repional issue.5-, Q\U mClds iIl1d llc:iihbors.in the Spome 'nibil have aud con';inue 10 

be ~ integral fo~ bclpmg us iIll. 

11lMk you f01' your servil:e to our great 5tal~ QfW~Il. 

~~Y. 

Jtgf,~ ::;:, 

Fwd Onille County Commissioners 

ChairmaIl, Eastern washingtO/J (ATJllcll ofOo~~ts 

SOmmis5ioners@pendmlle on! 

commiss{olJt":rs@!:o,§lev~n5.wa,n 
40


910d1.eps

Eastern WashingtQD 

CounCIl of Governments 

Chairman Ken Oliver, P~nd OrelHe County 

Viee C'ha:in:rum Rudy.Plnger= AdatU.!l County 

Sc.,""l"elal'Y M1Mrili Ott, Stevens County 

'I1easurer Ted H-opkins, LincQin County 

Senlltor Petty ~UI1ay 

t 7,3 RU$~wt Senate! Offioo :sulldittg WBShiJ:~D.C.,1.05lQ 

Deat' SU.Jl.tor:Ml1:o;iiy~ 

;ms.Oul::S1.C~i ... m".WA 9PlJ4 

SCt9.1)H·;'151 

'!he ~ W~ Ccu:I':il. tJrGC"reml1t~ts (EWCOG) e')~u;:sw fuUytu.PP~ 

-efi'bmI 'py tM Spclme TrlbeQf:l:o.~ to gain repllt.ltioO;PlI)'m.nb j'c>r th~ Coll1ll).bie. 

Ri"illJ',l"'s inundatlon of their laIld$. Wl,l.eJ11b!: Grand Coole<:! Dam WI1:j IlQnsUulrted many 

1!6C3tIIlS illgo. To tbla-da1c. the United State5 has ylOtte fulfiU tb~(r promise ofreparatiim 

paym,®.m,. and thougb,legislation Watl i.mrod\lC~ last year, '!he lflrtborllilatl;Oll, ~ ~ to 

IDat.ml'lli~ 

1M ~ oommiss.!:Ol1et8 orb awcoo conUnut: lQ mocl; -em. varll.1'J.~ lwws- c:F:ane=:n 

~mtlt:.'lWrtbea.!l:~t'}!lhls~state. Our{:~!Qrd:¥~a~ 

@CItlC:r\}'J ~tingour-~~:md ¢;\I..~ !JU!"mt:e am\ rulm! ~tivell 

wmm strong. Yottr"isits W onrregkin h.wc boou m;olll'llgixl& to us;ill. -

w~ urg~ yollt 6trongertsup]K'rt <d oonsi(leratiou for thi! iSHue, All W~ mo)Vl: ahnd m 

outuglOl.lal iSSllOS, our fti~ mid nllishbora in the Sp~ Tribe have andoontlnuEl 'to ~e an iutep fol.'Ce h.:lplng u! all, 

1'ha:tik ~.:'lu i(n- your ~C-I::t'\o 0'W' p~t stallo. ofWash:mgton. 

~!:ItYt ~ Iiu 

_~ 1i~ tf!/.:~G"'-- ..... 

Pend Ort;UIo Coumy Commissicnen!. 

CbldmlOlfl, Ea!rt~ Washlnglon CQUl)ci1 DfGovemm-=bt~ 

~,~iQn~@;pengoroil!e'9fg 

Wlt\!l:iiS~j<We&®COt!!!9Ven5. WEI.!llJ, 
41


910d2.eps

December 14, 2007 Letter from Governor Christine O. Gregoire to Senator 

Cantwell and Congressman Dicks and June 29, 2009 Letter from 

Governor Gregoire to President Obama •

.. "" 

; -'. : 1 

.~~. 

December 14, 2007 STATE Of W.\SHINCTON 

OFFICE OFTHE GOVERNOR 

The Honorable Maria Camwell 

United States Senate 

511 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Senator Cantwell and Congressman Dicks: 

The Bonomble Norm Dicks 

U.S. House ofRepresentatiws 

2467 Rayburn House Office Bldg. 

Washington, D.C.20S1S 

Today I write in support oflhe SpolmneTribe of Indians Grand Coulee D~m Equitabl~ 

Compc!lsation SettlementAcl', a biJIlo provide monetary compensation and return of the lands to the 

people of the Spokaoo Tribe lhat were taken, dlUll<lged, or used for the construction and opcrelion of 

the Grand Coulee Dam. I also offerthe fuji assi~tanceofmy office in your efforts to p>1£S Illis 

legislation as it is cleurly nppropri.re that this sctllement be approved and compensation pa!d. 

FOI"many yearn, the people of the Spokane Tribe were joined wilh the Columbia ond Spokane River" 

in 0 relationship that ddined Ihe Tribe's culture, e<;onomy, and way of life. The rivers wercthdr 

prim.ny souroe of food, trade and spirltuality, and played a cclltml role in shaping tribal identity. To 

be II Spokane tribal membar was to beli~ve in and rely upon the abundance Rnd permanence of the 

river's bounty. 1be Spokane People rofcm:d to the Spokane Riveras the "Path of Life." It is 

difficult for most people living in Washington to comprehend Ihe profound and devastatinij impacts 

and effects forced upon tribal members during CO!!structionand sub:oequent operation of the d!Ul1. 

As a result of your efToru in Congress. the people of the United States no1" have an opportunity to 

redress, inp!lrt, the damage inflicted on the Tribe. [nm committed to work with you In secure some 

measure offair and equitable compensation fertile P35t and continued usc of Spokane Tn"balland ror 

the pmduction ofhydropowcr at Gratld Coulee Dam. 

The state ofWarninBtun, the Pacific Northwest, Rnd the United Stales receive Imonnous benefits 

from the low-cogt power, flood protection, wat<:r SUp'ply, and other value provided by the Grand 

Coulee Dam. Indeed, the very competitiveness of the regional economy is founded in large moasurc 

upon these benefits. The Spokane Tribe hIlS long walted to receive fair and honorable compensation 

for the use of their lands by Grand Coulee. It should be obvious to all that fulfillment of thaI 

obligation is longovcrdue. 

I look forward to ..... orkingwith you to enact this importantlegisI"lion. 

Sincerely, 

Cw....;, ftcr;u ' 

Christine O. Gregoire 

Governor 
42


910d3.eps

CHRISm.! O. GREGOrR! ,-- STATE OF WASHINGTON 

OFFICE OF THE GOVEI~NOR 

The Honorable Bamck Oharm 

President oftbe United Stat'.ls 

The White Homre 

1600 Pennsylvania Avenue 

Wnshington, DC 20500 

lune 29, 2009 

RE: Spokane Tribe ofIndiuns' Gmnd Coulee Dam Equitable Compen~otion Settlement Act 

Dear Mr . .President: 

I write to you on bellOlf of the Spokane Tribe of Indians to request your support for tbe Tribes' 

Grand Coulce Settlement Icgi31ation soon to be introdm:cd in Congress. This legislation will 

help correct a longstanding wrong against this Washington State tribe. The legislation is 

expected to be introduced soon, nod will be spon30roo in the Senate by Senators Patty MurrdY 

and Marin CnotwelJ of Washington and by Senator Inouye. In the House ofRepresentativ(lS the 

bill will be sponsored by Congressmnn lay Inslee and others. 

The Spokooc Indian RCScTVation is located at thccor.flucnce of the Columbia and Spokane 

Rivers in the eastern part of the slate of Was bing ton. The construe lion oftbe Grand Coulee Dum 

in the 1930's (:rc~tcd" rcaervQif whichh"d aignificrmt odvcJ;1;e affects on the Tribe. It out off 

critical salmon runs, inundated boundary rivera and flooded thousands of acres of the 

Reservation. Thu Tribe rer:civnd one payment of$4,700 for this damagu. 

Since that lime the Tribe hEl:> been trying to sceure a settlement with tile United States. 

Negotiations with the Departments of Interior and Justice failed and legislation hos been 

introdllccd in Congress ovc:r the past several years, passing one bouse orlhe Otllet but never both. 

Most recently the Tribe hns worked to resolve concerns about the legislation raised by stole and 

locru governments. The unnual settlement pO}mentsunrlcrthe bm would be paid to the Tribe 

from the BOIUlevillc Pov.'Cr Administration Hud derived from agency costsovings rather than 

ratepayers. The bill does not require any direct federal spending. 

I respectfully request the support OfYOIlf adminislrolion inrigbting this injustice and secnring 

enactment of the legislation to provide for eqnlta.blecompensation to the Spokane Tribe of 

Indians of the ~kane Reservation for the use of tribal land for the production of hydro pOweI" 

by the Gnmd Coulee- Dam. Thank you for your coruideration. 

Sincerely, 

~ 

~ 

. Christine O. G goire 

Governor 
43


910d4.eps 910d5.eps

ATTACHMENT 6 

August 25, 2009 Letter from Mary R Verner, Mayor of Spoksf'le to 

Senators Cantwell and Murray and Representatives Dicks and Inslee 

Th~. HOllCtabl.e Maria Cantw;i1 

United s~ S=lc 

City of Spokane 

SD"Sll Dlrben Se.UaW Office BulliUng 

Wasbing:;o;:, DC 205 H.\·41OS 

August25,2{l{l9 

T \\onto rt "{cice ~trong$'Jpp()rt fur IieSppkan~ Tribe oflndium;' Grund O:rulee Dam Equiwble 

Cmnpell!!rrlkm SetUmttellt M ~ S. 13Sg mtd H.R. )097. The legis:auol1 h:uI the eadetaemoot of 

Governof Gregoire, all oftJ:re ncighOOring County Commmioner5 art.<i me Natiooe1 Congress of 

Am;:ricaL:.lmlia'.s. 1 am fumilinr with !he "vani history of the Trlb!: <md th::: ;r.cposOO: 

legislmioo c® J !'t!ldorna this bill !Illd !his long uvemue st:tUmnent. 

tm. Gtmtd Coulee Drut:.Mbtought tm:n!:'1ciQUS ber:ciils tu OUl' rogien. tv the West, ind"r:<J to t.'ul 

e:dTf country, Rt!gre'!t!lJ}', iliose t~ come at tlwe:q:;entll oflbeSpokanc Tlibe 1100 the 

CclvUic Cnnfud=.!ed T:ibes. Bath Tribes r.ave S'~ o:vas~ impncts (0 thcir G'Jlturc, 

cemlomy aud wny of lite. Yenhe CoI¥lliel $eGun:d a wttl(lClei1.l with to UnitIW SIa!e!dn 1994, 

while lhe an::rdillmpacUl :0 1h~ Bpoi::ru:w: eootinue num'iligtU:¢d, and their historic claim::: ate still 

WlMoh'til. "''hen the i»lville blll ~"t:I ammdered :n 1994, the Spokmru.s were promised a 

simllatsettlementby Ccngrers. The Spck«..,rJllegl!I!!lioo is based Cit the 1994 CcM1le 

.w.t!eme;t, The prop~ legisLation rcPfC<!Cnill 8 finnl se1£ement of!he Spokal:.e Tribe's clain:f;. 

Sl:nIhtr SpokMesettlemaot ful1s wmupproved by the Uci,od Sif"ct\ Senate d\l!!r1g the 10Sih 

Ccnfp'MiI In 20(;4 end theHo:JSt! tlfR~:ctaIlw! ill the l09t~Coogretll ill 2005. lapplauci:he 

Tr.x in their su¢cessfui t.."lIl genel\'):l~ efftr.ts to address in :his bi~ the prcvioU!ily simed OOIlC!mS 

Maffeocoo State.:nd lneal gnl'e::nm!mts.Jndilln Tcibl>Smd iwliV:;doo! laodownersc:o well as 

!l:rim:lIl egenciCli. [.also oola tlmt too an.nucl compec5aOOc pil)'me.1'.s pmvldtld fur in:lID biJl!ro 

oottfJ b¢ ftooyerod from !he mp,ion'sl'lltepayew, but from e()~t reC~Ji:klDS in ~s by 

Bonneville }>n~ Adn6iitmlioll. 

The SP(Jkene Tribe 15 00" good migbboz. Tk: T rib", hilS fwght Jang and hru-d in num,wUll 

wgioua! fonns to protect nnd e:n1wnce 'fue "Illh~~ and ~!s as,o;;il!lw with 1t.e Spokane Rl¥ev 

audCoJum.bla Rlvl3t tWV>'ell ru! l.ak¢ Roowvelt. Coogresskmal approval ofthls prop::.sed 

=tlenw:x legimJ;ln will ri(thl a lon~&ig '''Tongimposcd on fr& Spok1ili\l7ribe, iOstct 

p:>'litive 1nt<llgC'il:nlIIleIIlru relations, 1I8 w.:U ~ provlde rtUtt1etous ether benef:s both 10 tiw Tt.Oe 

nndnllTregion. 

A fair and honorable ~ettlement with !btl Spokane Tribtl, for the past and oontinued use of th.6ir 

lo:nds forthe production ofbydropower, is long overdue. I urge Congresa to enact tlili! important 

legislation. 

Sincerely, 

/lII...,.., 

MaryB. Verner 

Mayor 
44


910d6.eps

ATTACHMENT 7 

May 22, 2009 Letter from Chairmen, Spokane Tribe of Indians and 

Confederated Tribes of the Colville Reservation, to Congressman Ins lee 

and Senator Cantwell with orooGSe9 c~an!les to ~ction 8 of S. 

1388 (1 page) and proposed report language' 

OFFICE OF TIIE RESERVATION ATTORNEY 

Confederated Tribes ofth., ColVIlle Reservatiao 

. P. O. Box 150 

Neopelem, WA 99155 

Telephone: (509) G34-2381 Fax, (509) 634-2387 

Via T01,.opi"· ill 20a-6(i7-<1Q.J5, 

F<>I!~wed br Fir.!-CIo..- U.S. Muil 

How.ro F,,,,k,, AttOllley AI bw 

Howard FtnJl," & Assooi.lIls, P.C. 

424 8berru,n Av •. , Suite 308 

P.O.Bol<9G9 

Cl>em:.d'NOfle,ro B3a!G..Q~6' 

Junen,:wm 

R~: Di""OIimCT la"guago frIr Colvme-S~,",,,,,, Re'WI~tiOQ boun"~ry in 

Spok;l"" nrbe C"'~l"" D= S,~lom""t Bill 

De", Mr. Flmire: 

In a lotiorO.lcd Ma>eh 21, 2007, t proposed dmfr disobimw lMgtlasdor 8eotirnl 

9 of tho SjH>I«Ul" Trrbe O"",d Coul"" n;un Settlement bili, r~ the bou,,-,",'Y betwoon tho 

Colville and S~okaoo Ri=rv,tions. W~ >llb"'luBll'ly dl"u,sed thi, and on April ~S, 

2007, Rt" meeting In SpOk01le. you p<ovid.rl mo with modifio.!;"", tI) my ptOJl{}.!cd 

18DflI1"1l". This lotter is to ailme iliot )'flU, modilioaliOilS ore "",,"pt,),l. to tho Colville 

Tribe,. Tbo lall$la&C in q=ti"", iuol"dlng your modifioatim:" "' ,. follow;;: 

Nothin~ in !his "",non oh.U bo (.'U)l!;\nled"" =b:islling or offect:ng ti,""","'"" 1DC.1~Oa ~f!he bmmd""" bel:\'ieOn me SpokmoIi>llion R.s",".~o, ;md ~. 

Colville Rruc"",tiDll .kmg lb. C~l"mbia Rh"", 

To;, JOllguag" is found at Seotion 9 (0) oflhe[ull ""'ll bill a~)'Ou provided itto 

:me"" email on May 10, 2007. Yon "ave indi'"lCd tIlat tbe bill may b~ intIoduood soon. 

Pie .... ovi," mo i" til. "'1ont S""ti'ln 9 !S rnodifiod in any way. Pl."e no(O, too, ~l>t !he 

Colvillo "Tribes' '"'"plan"" ofth;" bmlnd.ry c!i,elnimer 1'llSI'age to not inrend,d to 

indio,., ""Y po,;tio~ on !he morit!> of!he bill or whether;! .bauld be ",,""t,d. 

I Ea""'pp',,-""'id y"", 00"_:'- nnd F",fes,io~,'ism irr wotking wl:b me to 

prodnco Iang.:oge tlJot is Qoc<"tabie to both Ito Sp~k~, "od o.,l"lIio Tribe,. i'I",," d" 

not bes",* to conmct me 'fyoa ".ve ""y furl"r <!U"so""" "' con='. 
45


910d7.eps

SEC. 8. TRANSFER OF ADMINISTRATIVE JURISDICTION AND RESTORATION OF 

OW"''ERSmp OF LAi'lD. 

(a) Traru;f~r of Jurisdiction - The Secretary shalltrnnsfer administrotivejurisdiction from the 

Bureau ofReclamalion to Ihe Bureau of Indian Affairs over all Jnnd acquired by tbe United 

States under the Act of June 29, 1940 (16 U.S.C. 835d), that is located within the exterior 

boundaries oftbe Spokane Indian Reservation eslabli~hell pursuant to the Executive Order of 

January 18, 1881. Such transfer shall be subject to tbe provisions ofsub~eetion e. 

(b) Restoration of Ownership in Trust_ 

(I) IN GENERAL - All land transferred under this section-

(A) shall be held in trust forthe bcnclil and use o['the Spokane Tribe; and 

(B) shall remain part of the Spokane Indian Reservation. 

(2) FEDERAL TRUST RESPONSIBIUTY- The Federal trust responsibility for all land 

transferred under Ihis section shall be the same as the respol\sibility for other trihalland held in 

trust within the Spokane Indian Re~~rv~lion. 

(e) Colville-Spokane Reservation Boundary - Nothing in this seI;tion e~tablishcs or affects the 

predse location of the boundary between the Spokane (ndian Re~ervation and lh~ Colville 

Reservntion along the Columbia River or the agreement between the Colville and Spokane 

Tribes that the common boundnry of the Spokane and Colville Indian zones establish~lI under the 

Act of Jun~ 29, 1940 (16 U.S.C. 835d) shall follow the center line of Lake Roosevelt without 

reference to the course of the subm~rb<ed Columbia River. Fnrther, nothing in this section affects 

either Tribe's rights to the use oftha! Tribe'~ respective pOrlion orthe Indian zone as provided 

by the Act of June 29, 1940 (16 U.S.C. 835d). 
46

Attachment 8—the 1990 Lake Roosevelt Cooperative Management Agreement 

has been retained in Committee files and can be found at http://www.nps.gov/history/history/online—books/laro/adhi/adhiae.htm.

Mrs. WYNECOOP. First, I didn’t know that they wouldn’t back up 

the water. I wasn’t there when all that happened. I was going to 

school in Chamala, Oregon, near Salem, an all-Indian school, when 

all that happened, I didn’t know anything about it. When I got 

home, all my mom and dad got was $1,300. Besides, they built a 

new home for them, which was right above where we lived. 

But they lost everything. We had a big farm. We had horses and 

cows and a big garden. We lost our orchard. They had nothing 

when they moved up to the new house that they were supposed to 

build, I don’t know whether they used the money to build that 

house. But they had a house to live in, but they didn’t have anything. My mom tried to plant a garden, but that didn’t work. 

They had a hard life after that. When I got home and all that 

happened, that my mom tried to make a garden for themselves. 


910d8.eps
47

But that wasn’t working. My mom and dad had nothing. They lost 

everything. 

The CHAIRWOMAN. Mrs. Wynecoop, thank you so much for being 

here today and for your testimony. Oftentimes, these water settlement issues are before this Committee in legal terms, in lawyerese, 

and all of the technical issues. And to have a human face put on 

what these settlement issues are all about is very moving. So 

thank you for traveling here and sharing that with the Committee. 

Next we will turn to the Honorable Mark Macarro, Chairman of 

the Pechanga Band, to give his testimony. 

STATEMENT OF HON. MARK MACARRO, CHAIRMAN, 

PECHANGA BAND OF LUISENO INDIANS 

Mr. MACARRO. [Greeting in native language.] Good afternoon, 

Chairwoman Cantwell. It is good to be here, it is an honor to be 

here. My name is Mark Macarro, and I am the Tribal Chairman 

of the Pechanga Band of Luisen ̃ o Indians in Temecula, California. 

I represent the Pechanga people. I am their voice. 

I am honored to be here to discuss the Pechanga Water Settlement Act of 2013. I have been intimately involved with Pechanga’s 

struggles over our water rights for the past three decades. I know 

firsthand what this settlement means to the Pechnaga people. I 

want to give a special thank you to Senator Boxer and Senator 

Feinstein for their strong support of Pechanga and our efforts to 

introduce and move our water settlement bill during the last Congress, and also to their continued efforts during this Congress. 

Frankly, we would not be here today without their staunch support 

and commitment to the Band’s efforts to settle our water claims. 

Thank you as well to our negotiating partners, Rancho California 

Water District, Eastern Municipal Water District and Metropolitan 

Water District. We have been working with them for a number of 

years now to resolve our claims through negotiation rather than 

litigation. 

Then last but not least, thank you to the Administration for their 

active participation throughout the settlement process. In particular, the Secretary’s Office of Indian Water Rights and the counselor to the Deputy Secretary have been instrumental in moving 

forward our efforts to fairly and equitably settle our claims for 

water rights and obtain the long-term water supplies we need to 

guarantee water for the future generations of our people. 

We have continued to meet with the Administration over the 

past few months. Pechanga is dedicated to continuing to work with 

the Administration to resolve any potential outstanding issues they 

may have in order to gain the Administration’s support of our bill. 

Water is central to who we are as a people. The name Pechanga 

means at Pechaa’a, at the place where water drips. It is a spring 

on our reservation. Our tribal government is committed to protecting our surface and groundwater resources and the availability 

of water for our community to ensure that we can provide water 

to our tribal members for the next 100 years. As the tribal chairman and as a father, I am committed to making sure that my generation guarantees a reliable water supply for the future of our 

people. 

48

This settlement has been decades in the making and stems from 

a 1951 Federal District Court case known as United States of 

America v. Fallbrook, involving Pechanga and two other reservations in which the court determined that each of the tribes has a 

federally-reserved water right in the Santa Margarita River Basin 

for its respective reservation. The court also established a prima 

facie quantity for these federally reserved water rights in the Santa 

Margarita River watershed. But it did not formally and finally 

specify the actual amount of water to which each tribe is entitled. 

This unfinished business resulting from the Fallbrook decree has 

left our tribe in the unenviable position of owning a right that we 

cannot actually use. Over the past few years, we have worked with 

those entities around Pechanga to develop agreements for cooperatively managing the limited water resources in the Santa Margarita Basin. These efforts of negotiated management of water resources were successful and resulted in a groundwater management agreement with RCWD in 2006 and a recycled water agreement with Eastern Municipal Water District in 2007. 

While both of these agreements have been successfully implemented and are in fact in effect today, neither of these agreements 

address the fundamental question of the quantity of water to which 

we are entitled for the Santa Margarita River system. Nor do they 

address the question of the infrastructure necessary to put those 

rights to use on tribal lands or the claims we may have against 

others, including the United States, for others’ unauthorized use of 

our water in years gone by. 

The bill before you today is a result of hard work and compromise by all the parties involved. Our written testimony provides 

an in-depth description of the Pechanga settlement. Today I will 

briefly outline the provisions of the settlement that are particularly 

important to Pechanga. 

First, the settlement agreement recognizes and quantifies 

Pechanga’s federally-reserved right to water in the Santa Margarita River Basin, an essential element for the Band’s future in 

this arid part of the Country. 

Second, through the settlement agreement, the Band is able to 

extend Metropolitan’s existing service area on the reservation to a 

greater portion of the reservation, so that Pechanga becomes an 

MWD customer, with the ability to receive imported water to fulfill 

the Band’s future water needs that will undoubtedly exceed the 

water available today in our portion of the Basin. This component 

of the settlement is critically important, because it allows Pechanga 

to get the necessary imported water from Metropolitan that we will 

need in the long term to supplement our groundwater supply. 

Finally, the settlement provides funding for necessary infrastructure for Pechanga to receive Metropolitan water, to pay connection 

fees to Metropolitan and to Eastern and provides a subsidy to bring 

down the cost of the extremely expensive Metropolitan water that 

we are accepting in lieu of our unfulfilled claims to the waters of 

the Santa Margarita Basin. 

All of these elements were carefully constructed to create a settlement that is beneficial to all the parties involved, while recognizing the U.S. must fulfill its trust responsibilities to Pechanga. 

This is a fair and cost-effective water settlement. We believe that 

49

the Federal contribution of approximately $40 million is justified 

by Pechanga’s waivers of its substantial claims against the U.S. 

and recognizes the United States’ programmatic responsibility to 

the Band. 

In closing, I cannot emphasize enough how important it is that 

this settlement will provide a wet water settlement to Pechanga, 

and not a useless water right. I would like to thank you, Chairwoman Cantwell, for moving this bill along and hearing this today. 

Thank you. 

[The prepared statement of Mr. Macarro follows:]

PREPARED STATEMENT OF HON. MARK MACARRO, CHAIRMAN, PECHANGA BAND OF

LUISEN ̃ O INDIANS


910e1.eps
50


910e2.eps

(from pechaq = to drip). This spring is the namcsa:{e for Pcchnn'angn or Pechnanga, which 

means "at Pcchaa'a, at the place where wntel.· drips." 

On June 27, \882, 8eVCll years after being evicted, the President of the United States 

issued an Executive Order estnblishinJ' the Pechanga Indian Reservation.l Severdl suooequent 

trust ncqulsitions were rnnde in 1893, 1907,' 1931,' 1971,'1988," and 200g: mu.oh UIll: 

increasing Ihe size of the reservation. At present, the lotalland area oflhe Pechanga Reservotion 

is 6,724 acres. 

Waler is central to who we are as a people. '[ada)', our tribal governmcnt operntions, such 

as Olll" environmental moniloring and natural resource management programs, exist to fully 

honor and protect the land and our culture upon it. In particular, weare concerned about 

watershed and wellhead protection for our surface md ground water resouIWS and the 

availability of water for our community. Accordingly, it is of utmost importance to the Band that 

our waler right.s are federally recognized in order to protect our water in the basin and ensure that 

the basin will continue to provide for generations ofPechanga people in the future. 

B. Hidory ofPechaoga's Efforts to Protect its Watcr Rigll!!; 

The Band has been engaged in a struggle forrceognition and protemion of OUT federally 

reserved water rights for deencles. In 1951, the United Slates initiated litigation over water right.s 

in the Santa Margmita River Watershed known as United Srates v. FallblVoe The Fallbrcmk 

litigation evcntually c;o;panded to include all water users within the Santa Margaritu Watershed, 

including three Indian Tribcs- Peehanga, RamonaBand ofCllhuiIla Indians ("Ramona"), and 

Cahnilla Band of Indians (,'Cahuilla''). 

The United States, as tnlstcx:, represented all thrce TIibes before the FaliblUok Court. In 

a series oflnterloeuto,?, Judgments that were eventually wIapped into the Court'~ Modified Pinn! 

Judgment and Decree, the Court examined and e~lablished water rights for various Wl1.ter users 

im'olved in the case. In Interlocutory Judgment 41 ("TJ 41"), the Court concluded tlJat each of 

the thrt:~ Tribe>; has a r~cO!,'lIiz~d federally reserved water right without specifying the amount of 

each of the Tribe's water right. Although the Court did examine some fuclli in U 41 and 

developed ''prima facie" fmdingli withrellpcct 10 each ofthc Tribes' quantifiable water ri(',llls, 

, D:eculive Order (June 27, I E~2). 

'Trust Potent (Aug. 29, 1893). 

) Deemlve Order(1""_ 9. 1901) ond UltleTern.euh G"'n~ LOLE (Mill". 11, 1901)(cornmonly referred to"' 

tl,. Kelsey Tmct). 

'TrustPatomt (May23, 193 I). 

'TrustPOlcllt(Aug.12,1971). 

o Southern California Indi"" L.ndTrnn.fcr Act, P.l~ I 10-581 (Nov. I, 1<)3~). 

, Poob0l18' Btmd of Lui.ono Mission indion, Lond "j""""fer Ac~ P .L. 1 10-383 (Oct. 10, 2(08). 

'UNilF«iSlall!.l·v. raIlWa.k!'!,b/ic u/ilityDi,·rT.-or.r w., Civ. No. ~:jl·cv_Ol247 (S.D.C.A.). 

'Modified Fin.l Judgment .nd Dccrec, UnlredSll1lliSv, Fallbrook Puhlic UlililJ'Dislricl~1 uL, Civ. No. 

3;jj·cv-UI247 (S.D.C.A.)(Apr. 5. 1951.i). 
51


910e3.eps

filial quantified righl!; were never established as a malter of law. As a result ofU 41, all three 

Tribes hrrve "Decreed" but "ttnquantified" federally reserved water rights. to 

In 1974, Pechanga filed a motion with the Fallbrook Court to intelYCne as a plailltiffintervenor and a party to fhe proceeding on its 0"""11. behalf. In 1975 the Court granted 

P~changa's Motion and Pechanga filed a complaint to enjoin cerlain defendants from using more 

than their re~pective entitlements WIder the FuUbrook Decree. This complaint was subsequClltly 

resolved and the Band has remained a party to the Fallbrook proceedings ever since. Pechanga 

has not filed a motion to finally quantify its federally reserved waler rights. 

Until recently, we sought to avoid litigation and instead work with those eatities around 

Pcehanga 10 d(welop mutual private a&rcoments for sharing the limited water reseurees in our 

basin. Specifically, in an effort to collaboratively develop a means of providing assured water 

supplies and cooperative management oIa common wator basin, the Band adopted !Ill approach 

ofnegetiation and reconciliation with the primary wa.ter users in its portion of the Santa 

Margarita RiverWatershed, primarily the Rancho California Water District ("RCWD") and the 

Eastern MWlieipai Water District ("EMWD"). 

These efforts at negotiated management of water resource~ were successful and resulted 

in the GroWldwater ManagemenlAgreement between the Band and RCWD in 2006, and a 

Recycled Woter Agreement bet"<>.'een EMWD and the Band in 2007, \',11h the recycled water 

being delivered to the Band by RCVID. Both of these aJ,'Teemenls have been successfully 

implemented and are in effect today. Significantly, though successful, neither ofthcse 

agreements songht to address the scope oflhe Band's overall water rights to the Santa Margarita 

River Watershed or settle its various claims related to the Fallbrook Decree. 

Beginning in 2006 and continuing throughout 2007, the other two tribes in the Santn 

Marg!\l"ita River Watershed, RamOlla Band of Calm ilia Indians ffild Crumilln Band ofIndinns 

sought to intervene in the Fallbrook case to, among other things, quantity their respective water 

rights to the Santa Margarita River Watershed.!! These cfIOrts intersected the Band's otherwise 

successful efforts at negotiated management of joint water supplies and forced the Band to 

addre!).~ in Fal/hI'O(Jkthe scope of its own claims to water or risk being injured by the aetiam; of 

the other two Tribes.!I 

In addition to participating as a litigant in the proeeedi~ initiated by Ramona and 

Cahuilla, the Band also immediately slarted efforts to reach a settlement oC its claims to water 

and claims for injuries to water rights relating to the Santa Margarita River Watershed. As part 

I~ 111" Court In Fallbrook H""d Ihe qu.ntlty ofPeob.nga '< fMernlly re<erved rlghl at 4.994 AI'Y, on a 

prima rucie i>nsis. 

11 Ramono m,d Cahuilla nrc loonted will,in (he An"".Cahuili. Sub.Basi" ortlle s.m'. Margar~a River 

Watorsll.d whlle PechlltlgJI is locmed within tI,. Wolf Volley SuJ>.Bnsin ofthe Santa M'rgarita River Watershed. 

Il Ped""ga periodioally filed slIltus reporl< with (he Fallbrook oourt apprising the COUrt of its progress 

toward! re.cbing ,.Ulement. Pechanga al,o filed nocumem, wilh the Court reque,ting thaI i'cchanga bo oflbnled 

tho opportunity to weigh in when the Court con"ider~d i,,"u~, orlaw and legal inl"rpM"tio'" 0[11 41 with '''-'peet to 

Ramooaond Cahuilla. 
52


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of its efforts to seek settlement ofits elaims to water, on March 13, 2008, Pechanga requested 

that the Secretary of the Interior seek seLtiement of the water rights claims involving Pechanga, 

the United States, and non-Federal thh:d parties through the ronnation ora Federal Negotiation 

Tcrun lmder the Criteria and Procedures for Participation oftlie Federal Government in 

Negotiations for the Settlement of Indian Water Rights Claims.)J The Secretary ngreed to fonn a 

Federal Negotiation Team onAugust 1,2008. 

Since thal time l'echang'dhas been working closely with the Federal Negotiation Team to 

effectively negotiate the tenus of the settlemenl wilh the other parties and \0 resolve its claims 

ogoinst the United States in eotllloetion with the development ruid protection ofPcchanga's water 

rights. Pechonga and the Federal Negotiation Team carefull)' examined the overarching 

Settlement Agreement, clong with the exhibits, ond 110ve continued to have 0 productive dialogue 

to resolve questions and concerns that the Federal Negotiotion Team raised. The Fcdeml 

Negotiation Team has presented its assessment report to the Administration Working Gronp, 

comprised of policy members from the Administration. Pechanga has also met with members of 

the Administration Working Group to discuss the Administration'S outstanding concerns. In 

Pcchanga's perspective,. al! of these meetings with the Fcder.d Negotiation Team and the 

Administration Working Group have been extremely productive. 

Pechanga has continued to meet with theAdminislrution to discuss and address their 

outstanding eoncerns with the legislation and settlement, which will be iocluded in their 

testimony before the Committee today. While Pecitangll recognizes that we have come a long 

way towards meeting the Administration's concern in order to gamer thelr support v.-'C know that 

there are still remaining issucs that must be addrcs,ed bdorc wc can gain full Administration 

support. Pechanga remains committed to continuing these discussions "'~th theAdministnrtion to 

resolve ~xpediliom>ly uny of their remuining concerns. 

Pechangahas also continued to work with tile other settling parties, including RCWD and 

EMWD, to ensnre thot the parties rue still Oll the same page with respect to the legislation. Since 

the bill's original introdnction in the I 11th Congress and now with the current bill pending before 

the Committee, the parties have communicated and discussed ways in which the legislation could 

even be;mprovcd. Thus, lhere may b"" few ,evi"ions to the bill Ihallhe parlie" may ~uggesl i" 

order to fully cfi'cctuato the intent of the partics an':: resolve any technical issues wilh the 

legislation that can be resolved between the hearing of this bill and mark-up ont of the 

Committee for full Senate consideration. 

C. Leg;slativB Hidor)' 

1. l11 tl 'Cangress 

The Pcchanga Water Righls Settlement Act was first introduced in the lll'h Congres:>. 

On December II, 2009, Congresswoman Bono Mack, along with co-sponsors Congressman 

Cah'ert, Congressman Issa, Congrcsswollirul Richardson, Congressman Grijalva and 

Congressman Baca introduced H.R. 4285 in the House. On Jonuary 26, 2010, Senator Boxer, 

1) 55 Fed. Reg. nn. 
53


910e5.eps

along with co-sponsor Senator Feinstein introduced an identical bill in the Senate, S, 2956. 

Subsequently, the bill was reintroduced in the House by Congressman Boca, along with cosponsors Congressman Boren, Congressman Grijalva. Con&rcssman Honda, Congressman 

Kildcx:, Congressman Lujan and Congresswoman Richardson in an effort to resolve some ofthe 

issues that the Administration rnised with tbe legislation. 

The Senate Committee on IndianAITairs held ohenring on S. 2956 on July 22, 2010 and 

ordered the bill 10 be reported favorably out of committee with amendments on November 18, 

2010. The House Natural Resources Subconunittee on Wnter and Power held n hearing on J-I.R. 

5413 on September 16, 201 O. 

At the close orlha 111" Congress, the Band chose to pull back from secking 

Congressional enactment ofthc bill in order to answer questions that tribnl members and 

allottees had raised during the legislative process. It was critical to the Band that its membership 

and allottees be fully informed ofrhe aspeds and delails orthe legislation and settlement 

agreement. Thus, over the past three ycms the Band held a nnmber oftrlbalmember meetings to 

more fully discuss and explain the Peehangn Wnter Scltlement nnd the benefits afforded under 

the legislation. The Band held a tribal membership vote on March 24, 2013, in which tribal 

membeno voted overwhelmingly in support of the proposed waler ~e!llement ~U!TenUy pending 

before the Committee. The Band felL thi~ was II necessary and imporlant step and as a r~s\llt is 

now prepared to move forward to enact this legislation as cKpeditiously as possible. 

2. 113'h Congress 

On Jlme 25, 2D13, Scnntor Boxer, with Senator Feinsteinjoining as a co-sponsor, 

introduced S. 1219. On Junc 26, 2013, Congressman Colvert,joined by twelve co-sponsors, 

Congressman Tony Cardenas, Congressman Tom Cole. Congressman Paul Cook, Congre;;sman 

JoIfDcnhnm. Congressman Raul Grijalva, Congressman Duncan Hunter, Congressman Dnrell 

lssn, Congressman Daniel Kildec, Cougressman Doug LaMalfu, Congresswoman Betty 

McCollum, Congressman Rlml Ruiz, and Congressman David Valadno, introduced H.R. 2508, 

the companion measure to S. 1219. 

II, STRUCTURE OF SETTLEMENT 

The Pechanga Settlement Agreement is a comprehensive settlement agreement among 

Pechanga, the United States, RCWD and EMWD, that ineorporate.'i II number of agreements as 

exhibits to the overarehing settlemcntagrcement. The Peehanga SettlemcntAgrcement includes 

the fo11o\>'1ng agreements as exhibits: 

A Amended and Restated Groundwater MauagementAgreement ("'Amended GMA"); 

B. Recycled WmcL" Agreement IlndAruolldment No.1 to the Recycled Wmer Agreement; 

C. Recycled Watcr Trnnsfer Agreement; 

D. Recycled Wmer Scheduling Agreement; 

E. Recyclcd WmeL" In:fi:astrueture Agreement; 
54


910e6.eps

F. Extension ofScrviceArcaAgreement; 

O. ESAA Capacity Agrc[;fficnt; and 

H. ESAA Water Delivcry Agrecmcnt. 

Together. the Pechanga SettlernentAgroomcnt and corresponding exhibits provide the 

nccessary agrc[;fficnts to resolve Pcchanga's longstanding claims to Wllter rights in the Santa 

Margarita Rh'er Watershed, seclIre necessary waler supplie~ to meet Pechanga's current and 

future water needs and provide sufficient terms to make the settlement work for RCWD and its 

cuslomers. S. 1219 approves the Pechanga SettlementAgi'cement. includulg all its e:.:hibits. 

A. Recognition ofTribll1 Watcr Right 

A critical element of the settlement is recognition ofthe Band's federal re.5erved right to 

water (the "Tribal Water Right"). Both the Pechanga Settlement Agreement and this feder.ll 

legislation recogni?.e the Band's Tribnl Water Right as heing the same as it was eSlablished 011 a 

"prima facie" basis in the original Fallbrook Decree in 1965. 

The United Slates has anai)"'.<.ed the water rights forthe Pcehanga Reservation 011 at least 

two occasions. First, in 1958, the Bureau oflndiallAffairs provided a water rights study ofthe 

Pcthnnga Indian Rcacrvation within the Santa Margarita River Watt:rshed. Second, in 1997, \h() 

United States' hydrological expert provided a r~porL slIIJIIJ1arizmg rus fmdings of a Practicably 

IrrigableAcreage ("PIA") study (irrigation water claim) for the Pechangn Reservation. Both 

reports support a prima facie claim of4,994Al;Y for the Peehnngn Reservation and further 

support the need for supplementary water slipplies in nddition to grOllndl','ater on the Pechanga 

Reservation. 14 

The Tribal Woter Right will also be adopted and confirmed by decree by the F"l/brorJk 

federal district court. This is especially important for the Band as it conslill.llcs the (lin 

recognition ofits water entitlements under the Fallbrook Decree. 

ll. l'roteclion ofAlIottoo Rights 

PeciJanga has worked closely with the Federal NeguliaLion Team to ensure that the 

alloltt:e rigbt:; on the Pechanga Reservation were adequately protected ill S. 1219. First, pllrsuant 

to Section 5(a) Drs. 1219, allottces will rec()ivc beucfits that arc equivalent to or exceed the 

benefits they currently possess.IS Furthermore, ill accordnuee with Section 5(d) ofS. 1219.25 

U.S.C. 381 (goveruiug use of water for irrigation purposes) shall specifically apply to the 

.. The B~nd'5 analysis revealed th~t Its WM~r right c131m. [Or its exisling re,.,rvalion exceed 4,994 acreroot. analy.i. ch~llongoo by RCWD. among other •. The Bond's settlement Ii"". its Water rights cmltlcmcnts in tho 

S!tllia Marg.rila River nasin "I 4,994 acre-f •• 1 per year in rm;Ob'l1ilion orthc fact that this amount is judio1nlly 

o.labti.hod on • prima r""io basi. and th<.:reI"", a nUmb'r that oould fon" the ha.is for ready ag=mcnl by all 

partie. 10 the settlement. 

IS Soc Se". 5(~). 
55


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nlloltees'rights. Under S. 1219, the Tribal Water Code to be adopted by the Band mu~tproyide 

explicit protections for allottees-the Tribal Water Code must provide that: 

tribal allocations of water to allottees shall be satisfied with water from the Trib3l Water 

Right; 

charges for delivery ofwater for irrigation purposes for allottees be assessed on ajust and 

equitable basis; 

there is a process for an allottee to request that the Band provide water for irrigation use 

to the allottee; 

there is a duc preeess systcm for the Band to consider n reqnest by an allottec (appeal and 

ndjudication of any denied or disputed distribution of water nnd resolution ofony 

contested m!ministr.ltive decision).16 

'The inclusiou ofthesc provisious rdkx:ts the United States' most reccnt allottee language 

os was included in other recent Indian water settlements. As a result, the allottee language is 

consistent with other Indian water settlements pending before Congress, and provides allottee, 

with the same protections provided to other tribal allottees, 

C. Contractual Acceptance of Guaranteed Water Sources to Fulfill the Tribal 

WatcrRight 

Unforttlllately, the.e is insufficienl grotllldwater within the Santa Margarita River 

Watershed to fulfill the Band's claiUls to watcr.17 To account for the limited water sourecs within 

the Santa Mnrgnrita River Watershed, additional water sources are needed to fnlfill the Band's 

entitlement to water, Accordingly, purstwnt to the PecluUlga Settlement Agreement and the 

corresponding exhibits, in nddition to the groundwnter supply avnilable from the bllSin itself, the 

Band's entillement to waler will be fullilled through a number of conlraclu~l agreemenll;. 

There are three major components of the ~eltlemenl: 

1. Amended Groundwffter Managcment Agreemcnt ("Amended GMA") 

The Amended GMA, between Peehanga and RCWD, is an integral part of the PechMga 

ScttlemcntAgrccmcnt, as it sets forth the terms and conditions governing the parties' joint 

management ofgrollndwatcr pwuping from the WolfVallcy Basin and establishes an allocrrtion 

of the safe yield oflhe basin. As part oft11e Amended GMA, the parties estnblished, through 

technical review, that the safe yield of the WolfVnlley Basin is 2,100 AFY, The parties agreed 

"s •• Soc. :;(1), 

11 The need to import water to the R .... "",tion i, a fatt that has been reoosniz<d by til. fed.ral team fer a 

long period oftlme_ OYer pumpIng in the bo;;n ba, <ignifiollntly reduoed Wolter level, over tin,", whkh I, one tau<. 

forth. in<ufficiem groundw.OOfID ,1lIi,fythe Boud', !i:demllyre,erved watcrri~hl>. One important aspect ofthe 

senlemcnt is the c3lllb!ishmcnl Ofb'l'OUnuw"l"rpumping limitsto prot"ol tnc b.,in now "nd in til" fUI"'~, 
56


910e8.eps

that Peehanga is entitled to 75% (1575 AFY) ofth. basin and RCWD;s enLitied \0 25% (525 

AFY) oflhe ba.~in, Additionally, in an effort to ra;,e the level of water in the Wolf Valley Basin 

and provide storage water in years of water shortage, the Amended GMAcstablishcs a Carryover 

Account between Pechanga and RCWD that provides for use of the Wolf Valley llasin as a 

storage aquifer for a defmed amoWlt of water to be used in shortage yearn, Thus, the ArnemJed 

OMA 1101 ooly satis!ies 1575 aCIe [eel of water per year of the Band's entitlement \0 water, it also 

provides bonofits to tho entire region by improving the water levels in the WolfYalley Basin, 

2. Recycled WaterAgreements 

Another essenti,,! element of the Peeh"ngn Settlement Agreement is RCWD's "bi!ity to 

use Pechanga's recycled Waler in partial con~ideraLion for their surrender ofa portion of their 

current potable water supply as pumped from the WolfYalley Basin. fn pankular, Amendm~nt 

No. I \0 Pecbanga's Recycled Water Agreement" allows RCWD to utilize the unused portion of 

the entitlement Pcehanga currently has pursuant lu the Recycled Water Agreement and provides 

on eldension of the term ofilie Recycled Water Agreement lor 50 years with 2 additional 20 year 

extensions. 

in conjunction withArnendmentNo. I, the Peehanga SettiemcntAgreement incorporates 

lbe Reej'<lled Water Transfer Agreement, the Recycled Water Scheduling Agreement and the 

Recycled Water InfruSlructure A!,'Teement. Together, the:;e three agreements provide fortile 

mechanisms and infrastructure necessary to provide RCWD with the ability to utilize Pechnnga'S 

W1used portion of recycled water. More specifically, the Recycled WarerTransfur Agreement 

provides that Peehanga agrees \0 transier 10 RCWD a portion (not less Ihan 300AFY, and not 

more thnn 475 AFY) of the EMWD recycled wa\:erto which Pcchanga is entitled pursuant to that 

agreement The Recycled Water InfrostructlifeAglcement provides for the development mu:l 

construction of facilities necessnry for RCWD to u:.ilize the recycled water nHocnted to it 

pursuant to the settlement. Lastly, the Recycled Water Scheduling Agreement provides the 

prolocol for ordering and delivering the portion ofPcchang3's allocution ofEMWD recycled 

waler to RCWD. 

3, Imported Water Allreements 

Because the water ~upplies in the Band's ponion of the Santa Margarita Basin are either 

too depicted to fulfill the Band's entire waler needs in the medium 10 long term or are bcing USBd 

by other porties (primarily RCWD), the Band has agrced to usc replaccmenl watcr for the 

majority ofits water uses in future. Accordingly, n,10ther significant component of the Pechnngn 

Settlement Agreement is eompris<:d of the agreements necc;ssary to provide MWD importcd 

potable water to Pechanga to provide for the Bnnd's wilter needs on n permnnent bnsis. The 

Extension ofServiceAreaJ\greement ("ESAA"), is the primary agreement far providing MWD 

waler lu be used OIl the ReserV'dtion. The ESAA is a CDntraetual agreement among Pechanga, 

EMWD and MWD that extends MWD's existing service area within the Band's Reservation to a 

"TIlo Rocyo1cd W.ter Agreetn<nt, belwee" Pechanga and EMWD, "as executed on Jannary S, 2007 .1Id 

providc.s Pcch"nJ;~ with 1,000 AI'Y ofrecycled ...... ter from EMWD. 
57


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larger portion of the Reservation. sueh that Pccll!lllga will receive MWD wnter to augment its 

locn! pwnpcd supplies. 

In order to implement the P..BAA, two additional agreements were ne~essary-the ESAA 

Capacity Agreement and the ESAA Wster Delivery Agreement. The ESAA Capacity A~ement 

establishes the tenns and conditions fur RCWD to provide water deli"ery capacity of the 133AA 

water to Pechanga. The ESAA Water Delivery Agreemelll addresses ~ervice iSliue~ and billing 

issues related La lbe delivery ofESAA water to Pcchanga. 

m. JUSTIFICATION OF FEDERAL CONTRmUTION 

Pecbanga recognizes that the United States is always concerned in Indian water 

scltlcments with the overall cost ofan Indian water rights settlement, and more specifically, the 

Federn! contribution to such settlements. The Band further recognizes that Federal funds are 

limited and lhat we are living in extremely difficult economic times. Accordingly, Pech~nga has 

worked vm-y hard. to ensure that the Federal contribution to the Pechanga SettlementAgrooment 

is justified and properly reflects the United States' liability and programmatic responsibility to 

the Band. 

A. Federal Prograrnrn~tic Resp~nsibmfy to the Band 

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

Negotiations lor the SeUlement oi"lndian Water Rights Claims ("Crileria ~nd Procedures~) 

provides that Federal contributions to a settlement may include costs related 10 the Federal trust 

Or programmati~ responsibiliti~s.19 The United States argued in the Fallbrookproceedings that 

Pechanga has an entitlement to 4,994 acre feet pef year in the Snnta Margorito River Watershed, 

and the court adopted the United States' position on a prima facie b3.~is. Moreover, a.o; recognized 

by the United Slates, local water supplies, both on the Reservation and in adjac~nt arellS were 

adequate and capable of being developed in an economically feasible manner to fulfill at least 

the 4,994 ~cre-feet per year that the United States had argued for in the Fallbrook proceedings in 

1958. 

As discussed above, the Band must obtain some imported water from MWD as a 

replocement for its entitlement to local water from the Snllta Mnrgaritn River Wotershed. In 

accordance with the Criteria !lnd Procedures the United States has a programmatic responsibility 

to ensure that the Band's water right entitlement is fulfilled through replacement water if existing 

wlltcr on orneal the PcchangaRcservation is not currently available. The United Statcs must 

also Cllsure that there is sufficient infrastructure for the Band to receivo the replacement water. 

The primnry source ofreplacclIlcnt water in thls case is water from MWD pursuWlt to the ESAA. 

In order for the Band to receive replncement water, the parties must enhance the capacity 

for delivery ofESAA Water (water from MWD) thro·ugh infrasll:\lcture development as necessary 

.. See WorkIng Group in Indinn Water S<:!Ilentent<; Criteria and Procedure. Yo, the Pnrtlclpntlon of the 

Feder.l Go"ernment in Ne8Dti"liDnS fur ~,e Senleme"l oflndi.n WnterRigl,ts Claims. 55 Fed. Reg. 9223 (Mar. 12. 

IQ90). 
58


910e10.eps

to allow fordeliveries to the Band. Tbe parties negotiated a number of agreements, the various 

components of which achieve this goal. 

Aceonlingly, the Peehunga Water SettlcmcntAet provides funding for the necessary 

infrastructure to fulfill the United States' trust and programmatic responsibility io deliver 

adequate replacement \Vater to the Band to fulfill its entitlement. The Peehnnga Water 

SeltlementAcL also provides for a subsidy fund lha! will bring down somewhat the cost of the 

expensive ESAA Waler, which is an element that is consistent with the United States' 

contribution to most other Indian water rigbts settlements?D 

B. Potential Federal Liability to the Band 

In addition to its programmatic responsibilities, the federal government has an obligation 

to C"l'cry federally recognized Indian tribe to protect iis land and \Vater resources. Indeed, a core 

principle of Federal Indian law is that when the United St!l!es sets aside and l"Cserves land for 

Indian tribes, sL!Ch reservation includes all the water necessary to make thcu: reservations livable 

as permanCllt homelands.2l Tbe United States in turn bolds these l"Csorvcd water rights in trust 

for an Indian Tribe.22 

Congress has expressly found thai "the Federal Government recognizes its mISt 

responsibilities to protect Indian water rights and assist Tribes in the wise use of those 

resourees.',23 The Departmentoflnterior has similarly found Ihat "Indian """dler rights are vested 

property righl.'l for which the United States has a trust responsibility, with the United States 

holding legal title to sueh water in trust for the benefit of the Indians.,,24 Courts have also 

recognized the federal trust responsibility for Indian water rights.1S 

Ac~ordingly, a tribe may recover b"Ubstantial monetary dama~es from tho United Slates if 

it can be shown thaI the tribl) suffered a loss of water or water rights. ~ 

"80. eg., AriZ<lna Water Settlements ACt, Pub.L. 108-45t, § 107; Clafml Relolutlon act of20tO, Title 

IV, CrowTribo Water Rights S"tll.men~ Pub.l. 111-291, §§411(c)(3) &(4). 

" 80. g."..,."IIy, Wi/1M, v. Uniled SlOIes, :<07 U.s. :;64 (1908); in re General Adj"dioalion 0/,111 Rigllts 10 

U~. Waler inlhe GiI~ River System ""dSource ("·GiI" Jf':;, 35 P.3d 68 (A'ir_ 2001). 

121d. 

" So. ego RoelamatiQn I'rojoct. A1l!h",i~tiQII andAdju,lmont Aot of 1992, Pub. L. NQ. 102-575, § 

3002(9), 106 Stat. 4600, 469:; (codified by reference at 43 U.S.C. § 371 (2000)). 

" So. WQrking Group in Jndi"" Water Sottlo"'CIlIS; Criteria ""d Prooed""," for the Participation of the 

federat GoYem",em in Neg.:,ti;l!i<m! for the Settlenlentoftndlan WatorRlghts Claims, 53 Foo. Reg. 9223 (Ma,. t2, 

1990). 

"Seo !'ymmid LaJ;c Paiute rrl~ qflndiansv. Morrall, 354 F.Supp. 252 (D.D.G. t912). 

"s .... g. No P~iUleNarfon v. UllilodS/al ... , 30 Ind. CI. Comm'n. 210, 215-217 (1973); /')'I"all/lillakc 

Pa/Ille Trrbev. UnlredStatiM, 36 Ind. Cl. Comm'n. 256 (1975);seea/rn, Cohon', Handbuok ofFoo0I1l1ltHlian Law 

§ 19.06, at 1225 n. 400. For In,l,n"", in Pytt1lJI/d Lrom Pnillto Tribe, tim COUrt held that the Sec",tary of lnlenor wa. 

Obligated til Futfill irs tru,t rO'PQn,fuility '0 ~lC tribe in .!loo.tinll tho o~.el' wntcrl oflho Truck"" RIver betw • .,. th. 

federal reclamation project and the r~!"rv.rtion and not to ",conoile oompeting claim, to w.te,. In Gila River PimaMa";c"pa illdiall Commullity v. [mired State~, lho rrlbe WM :ilite tn ",,"bUsh its right to rcliofbased on the federnl 

governmem's faiture to lake action wl,e" up,lteam diversions inle,rered ",ilh the ",aler supply to ~'C Gil. Riv'lr 
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Since establishing tbe Pechangn Reservation, the United Stmes has systematically failed 

to protect and adequately mannge the Band's water resources. This failure hllil resulted in the 

loss ofTJibnl water use and other Reservation resources, and has prevented the Band from 

fulfilling the putposes ofilie Re~ervation, In addition to this general overarching claim, which 

has the potential on its own, of roaching into the lens of millions ofrlDllars, the Band also has 

numerous, very specific daims thal it is waiving, with an estimated potential value fur each, that, 

in combination with the United States' programmatic responsibility to the TJibc as outlined 

above. provides substantial justification for the overall Federal contribution, 

We diseuss these elaim~ and lhe potential illollelary liability oCthe Federal Government 

below, 

I, The Band's daims for mismanagement and failure to protect and promote 

the Band's water resources 

In Fallbrook, the court held in II 41, that lhe United Slales "intended to reservo, and did 

reserve rights to the waters ofthe Santa Margarita River stream system which under natural 

conditions would be physically available on the Pechangn Indian Reservation, including rigllts to 

the use of ground waters sufficient for the present and future needs of the Indians residing 

thereon with priority dates of June 27, 1882, for those lands established by the Exe~utive Order 

of that date; January 9, 1907 for those lands transferred by the Executive Order of that date; 

Augusl29, 1893 for those lands added to the Reservation by Patent on that dale; and May 25, 

1931, for those lands added to the l{csCJ'vation by Paten! of thaI date.,,27 Based on IJ 41, the 

United States recognized reserved water rights for the Pccbanga, Similar to tbe Gila River 

case,z:J the federal government bas a compensable fiduciary duty to Pecbanga with respect to the 

Band's water rights. 

Indeed, although the government has failed to sati~ly this obligation, its aetiollS indica.l.e 

thnt it has recognizcd this dUly, For instance, the United Slates through the Bureau orIndian 

Affairs ("BIN') rccognh:cd tllat Pechanga had a paramount right to water which impacted BIA's 

actions on behalf of the BUnd,1!l Further, as part ofthi8 special relationship, Peehangarcq1.1cstcd 

Re,orvntion. Tho CI~im' Court :specifically held that "the ",lion, tlken by the United Slalcs in e,lablishing Iho 

re""rv.l\on in 1859 and in enl""ging it th~realllll', (oll'o'ther "ilh rep.aliXl rec<Ig!lition of the need to pre""rve or re,tore the waler supply utlHzcd by the Pimas and Ma[kopas in maintaining their commendable selr-sul1icieht 

status, oro oon,i,tent only with the ,,,<i'tonec of a 'peo;al relationship bOLweo" Lt,ese Indians and dIe United StoleS 

conooming tho protootion orllleir iand, and the water ,upply they utili""d OIl the"" bnd,." 

,., Slipranot. 11 ot 13-14. 

'" ,. See Pcclumga 811mmmy oHI (Letter from BlA Sao::ram~nto Area Direclor to Region.l Direclor which 

proto,lod that th. R.gional Director', Report on the Santa M.tgorita Project of 1970 «did not [ocognize the right, of 

lndbn re,ervation. to underground wal<!r suppties that had b.on ",labti,h.d in Winters v. Unil<!d States, 1908,207 

US ~M and confinned in severnt subsequent cases .... and that the IndIans had .paramount rlght,n). 
60


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011 numerous occasions for the BIA to conduct wat~r supply studies and take other action in order 

to protect the Bnnd's water rights and water supply?O 

III the face of the Band's rC<]ucsts however, the United States Government took no action 

to protect the Bnnd's \',ater rights or if they did finally take action, it was ddayt:d to the point 

wh~re the action was ineITeetive. For instance, in respon~e 10 th~ Band's resolution with respect 

\0 RCWD's pwnping activilie~, the Interior DeparLment oUicially requested the Justice 

Department to advise RCWD that its pumping activities were in violation ofa 1940 Stipulated 

Agreemcnt.ll The Justice Department however dedined to advise Rancho Cnlifornin of its 

llnla-wfulaction beeallse of an objection by the United States Navy. Furthermore, the Bureau of 

Reclamation's plans for construction of the Santa Margarita Project on Ihe Santa Margarita River 

to benefit the Fallbrook Publi~ Utility Distri~tand Camp Pendleton included an allowance of 

only 1,000 acre feel ofwaler from the Murriela-Te:necula groundwal.t:r basin for Pechanga 

Reservation, despite the BIA's estimation that the reservation would need 5,000 acro fcc\.32 

In I<!Sporuie to the Santa Marg~rita Project'~ failure to ad~quately account for the 

Pcehanga'g water rights, the Band passed t",,"O resolutions with respect to their \Vlller supply. The 

fir~t requested thnt tho Secretary ofInterior "withhold approval of tile Snuta Margarita Project 

unlil adequate provision has been made for protection and development ofthe Pechanga Band's 

Winler;> Doctrine righlls."lJ The second resolulion a:;ked the United State~ Attorney General to 

reopen Um·led Siules v. Fullbrovk "to restructure the decree in accordance with the instructions 

from tlte Ninth Circuit of Appeal to the end that the decree may become, as it was intended, an 

instrument for the protection of the Winters Doctrine rights oftlie Pechanga Band.,,)4 

The BIA Sacramento Area Director agreed with the Band.:;~ He rerommended that Lhe 

Secrctary demand Justice to stop all pumping ofth·~ groundwalcr now in violation of tho existing 

decree nnd stipulation until such time as the Pcehanga Band and the Secretary have doeumcntnry 

evidence that th~ pumping by Rancho California is not affecting the groundwaler rights ofthe 

I'echanga Band. The United States as trustee for these water rights has no a!ternative!"l6 In 

'" for c,amplc, nn Nowmbor 15, I 969, I~e Pc,~ans" Band p","ed " resolution cotting UpOn Ihe BlA to 

conduot an economic development and land use sludy oftll~ r>!Servalion, to inform RCWO tII~t it was not permitted, 

und.,. tile t.rm, oftll~ 1940 Stipulal<!d Agrcem""t to ptll11p .... lIter iTtlm tile TemMula Murrieta ground wate, ba,;n, 

~nd 0,., ,h. D<>nd W<luld oppose ony modification oro,., Jud~mCIlt until tho nand's W<lter riSh'" and W"tet .upply 

WCr" at 10 ... 1 ... welt proteeled !IS ,mdo, th"tjudb'll1""t and the B,nd ""'" provided with tho mOanS lU make beneficial 

USc orthe watcrneedod to fulfilt its <canom;c and land "segoals. See Pecrumga Sl,mma1)' "t 3&-39. 

)1 On December 26, 1940, aJudgment was rendered In the Superior Court ofthe State ofCalllllmia on a case between Ranoho Sam. Mnrgorita, a corporntion, Plllinlif{ v. N.R. V~il el aL (Voil fWllily de,ocndmu,), 

Dorerodants, with Guy SOgo1l1 et nl, (illdivlo1u"is Wl1h ripariuu rights 10 S.uta Morgarit. River woters). OS 1010"'.000'<. 

The court foulld tlrol JerCtiOOtlts, plninliITs, find inte",enors h.J right. 10 Ihe , ... ntcr9 oftllc Temooulo_Sonm Mnrgarila 

3nd its I,)but.rio,. II ,pelted out the rights of eaoh, .nd provid,d thaI" n!lmb.,. ofg.ging stations .nd mele,"" J:>., ""I 

up 10 men"UrO lhe flow of "'ater. Soe Peohapg. Water SUlllm.ry a129. 

,., Ii at~S. 

"u ",. 

:0< ld nL47 ("Wc"r~ in complew Hgro<Jmenl Wilh lh' Band."). 

" Id 
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910f3.eps

response to the BIA Area Dir~ctor's r!!COmmendation, the Solicitor's Office ~tated thaI "[IJhc 

Department of 1115tice points out that where the Department of Defense is the benelicial holder of 

the right and refuses to have that right inlerfered with that the Untied States can bring the action 

only lfwe can demonstrate Iballbe reserved right of me lndlans Is belngJcopardlzcd."ll Again, 

the Sacramento Area Directorrecommended that the Secretary oflnterior demand that the 

lu:>tice Department stop groUIldwaterpumpin~ until it was proved !hat the pumping had nol 

affecled the groundl'.'Il.ter rights of the Indians. 8 It was not until January 26, 1973 that funds 

were finally made available for United Stales Geological ServiC\:s 10 undertake a water resourees 

study ofPeehnngll Reservntion.3~ 

Given this clear history ofthc U.s. Govenment'g failure to fll"Otect the Band's water 

rights, the Pecllllllga Bond, and several other California tribes in similar circuJlllltanecs, 

snccessfully S\1ed the fedeml government in the Indian ClaiJllll Commission for, nrnong other 

things, its failure to protect and preserve tbe plallltiffs' reserved water rights from non-Indian 

interference, failure to provide 01· maintain necessary reservation irrigation systems, and the 

improper loking of aboriginol water rights. The casewfls settled in 1993 when six oflhe Tribes, 

including Pechango, occepted $7,500,000.00 in settlement oftlle pending claims. 

Notwithstnnding Ihe payment of this clnim in satisfaction of these breaches oftrust, since 1993, 

the government has continued to breach its trust obligation to the Band by foiling to protect and 

preserve the plaintiffs' reserved water rights f'romnon-Indian interference and by failing to 

provide nece",;~ry water to the Pechanga Reservation. In other word~ the government has not 

protected the Band's water rights despite its admitted failure to do so. 

This foilure hos now been eompouuded by the fact that since 1993, there has been 

tremendous population grol'.1h in the area. Accordingly, significant additional non-Indian 

diven;ion~ and groundwater pumping from thc Iknd's watcr resources has damaged the primary 

aquifer that would otherwise help s~rve the water needs of the Reservation. In partieolar, 

continuous over-pumping beyond the yearly ~are yidd by non_Indian parties hEllS damaged the 

aquifer and severely limited the amount of water :he Band C3n now pump itself to serve the 

purposes of the Reservation. A:; a result, the Band has had to entcr into a series of agreements on 

its 0\\'11, without the ru;~i~lanee of the United States, to secure an adequate water sU,fply for the 

Pcchanga homeland bUl is still short of fullllling lhe pUIpos~s of the Rcl;erv~tion.4 

The aggregate sum of the potential exposure and liability of the United Sloles stretches 

into the hundreds of millions for these claims. Nevertheless, the B~nd conserv~tively estimates 

that these claims could resulL in a potential recovery in e;<eeS5 of$72 million. 

" Id. 

"Jd. "149 ("Why docs ~'O burd.n ofproofr<S! with Ih. l"dim, 1'001'10 whon il is tho trustee's obligatiou to 

protoot thes. rights?"). 

,., Jd. at 52 • 

.., For in,lnno., in20D6, tho Bnlld elllcrod jnlo the Ground", .. t., Managemonl Agrecn,.nl Wilh RCWD 10 

provide for m"nO~emCnl ofthe Wolf Valley Water Ba,in and in 2007 the Bond enterod into the Recyoled W.tor 

Agreement ",ith Eastern Municipal Water Dlstriot to provide for 1,000 AFY ofrecyclcd water 10 the [Jand. 
62


910f4.eps

2. Aclaim for the water the Band is givinc up under the Fallbrook 

adjudication decree 

Despite the govemment'~ failure to adequately roprescllt the Bond's interest in the 

Fallbrook adjudication nnd its failure to fully quantify and deliver water to the Pechanga 

Reservation, the Bnnd has "paper" water rights under the final FallblVok Decree. In JJ 41 

(November, 8 1962), which became part ofthe final decree, the court held that Pechang!l, and 

other nearby Tribcs, bad a federally reserved water right on their respective reservations. 

Specifically, the Court decreed thnt Pechangn had a "prima facie" entitlement to approximately 

4,994 acre-feet of water per year for the Pechanga Reservation. Despite this legal entitlement. 

the Band has not received their entitlement in the form ofactual waler. 

Under the proposed settlement, the Baud will be waiving all ofthe claims described 

above against the United States to the lands described in TJ 41. The Band is also waiving claims 

for additional acre-dge that Wall uot paIl aflhe Reservatiou at the time of JJ 41. As a result, the 

Band is giviug up the right to adjudicate ils water rights for the additionall~ud, rights that would 

equate to a similar ''prima facie" entitlement as lJ 41. Accordingly, the Tribal Water Right could 

potentially be more than twice the 4,994 AT!Y for which the Band is oouliug under the proposed 

selllement. The Band e:;timaleS Ihat Ihe value oflhese elaims to water rights for the additioual 

land being included in the Settlement is S45-50 million. 

C. The Hand's Waivers ~g~inst tbe United States 

As part of the settlement, and subject to the retention of claims, the P~changa Settlement 

Agreerrtent and tIle legislation provide that thepames agree to waive their respective claims to 

water rights, claims to injuries 10 water righls, and claims to subsidence damage. 

TIw Pcchanga Sctticmel)tAgrcclllCllt fnrther provides tlm! the Band will not seek 

enforcement of the Tribal Water Rightas Inng as the Pecbanga Settlement Agreement, including 

any ofils Exhibits, remains in force and effect. With re~pect \0 its claims against the United 

St~tcs, subjcct to the retention of rights, the Band is \\-aiving thc following claims; 

(I) all claiIrus agairust the United States, its agencies, or employees relating to 

claims for water rights in or water of the Santa Margarita Rlvcr Watershed 

or any other river systems outside of tile Santa Margarita River Watershed 

that the United Slales acting in its capacity as trustee for the Band 

assened, or could have asserted, in any proceeding, induding but not 

limited to Fallbrouk: 

(2) all c1ailll3 against the United States, its agencies, or emplnyecs relating 10 

damages, losses, or injuries to water, water rights, land, or natural 

resources due to loss of water or water rights (including but not limited to 

dumages, losscs or injuries to hunting, fishing, guthering or culturul rights 

due to lo~~ o[waler or Ivater rights; claims relating to interference with, 

diversion or taking of water or water rights; or claims relnting to fnilure to 

protect, acquire, replace, or develop water, watcr rights or water 
63


910f5.eps

in!'raslrLlclure) in the Santa Margarita River Watershed that firs! !tecnled nt 

any time up to and including June 30, 2009; 

(3) all claims against the United States, its agencies, or employees relating to 

the pending litigation of claims relating to the Band's ",,'ate!' rights in 

Fallbrook; and 

(4) all claims against the United States, its agencies, or employees relating to 

the negotiation, cKccutlon or the adoption of the Peclmngn Settlement 

Agrccmcnt, exhibits thereto, or the Act. 

Thus, in eKchange for the benefits received in the Pechanga Settlement Agreement and 

the Pecbanga Water Rights SeltlemenlAet, the Pcehanga SeUlemcnl Agreement represents a 

complete replacement of, substitution for, and full satisfaction of, all the claims by Pwhanga and 

the United States on behalfofPechanga and allotees as set forth above. 

D, Brellkdown or Federal Contribution 

In eKchange for the Band's ..... '!Iivers against the United States aud inrccognition oflhe 

Unitcd States programmatic responsibility to the Band, the total Federal contribution as 

authorized by tbe S, 1219 is $40,192,000. The Federal contribution is comprised of4 major 

components: 

1. Pechanga Recvcled Water Infrastructure-·!:2,SOO,000. 

Section ll(a)(l) and Section 8(c) provide that funds from the Pechanga Recycled Water 

Infrastructure Account will be used to pay for the Storage Pond ($2,500,000), as are necessary 

under the Recycled Wnter InfrllstructureAgreement 10 fulfill Pechanga's obligations to provide 

RCWD with a share ofPechnnga's recycled water which Pechanga receives pursuant to the 

Recycled Water Agreement with EM\VD. 

TIle vcrnion ofthc bill that WlIS iatroduced in the III [h Congress provid~d for 36,960,000 

for the Pechanga Recycled Water Infrastructure Account, which induded $2,500,000 to pay for 

the storage ponds and $4,460,000 to pay for the Demineralization and Brine Disposall'rojcc1. 

Based on further discussions with thcAdministratioll however, the Band agreed to revise the 

structure of the settlement accounts sueh Ihnt there is n separate occount for recycled water 

infrru;tructure (the stor<lge ponds) und a sepamte account forw<lter quality (groundwater 

desalination activities) whereby ilie funds arc distributed to the BMd who then provides 

appropriate funds to RCWD in connection with their contribution to bolh of these efforts, 

2. Pcchanga ESAA Deliverv Cnpacitv-·$23,ODQ,OOO. 

Section 11(n)(2) nnd Section Sed) provide that funds from the Pechnngn ESAA Delivery 

Cupucity Account will be used to pay for Interim Capacity (SI,OOO,OOO) <lTId Permanent Capacity 

(822,000,000) in accordance with the ESAA Capacity Agreement in order for RCWD 10 provide 

the requisite capacity to deliver grOlllldwal~r!lIld ESAA water to Pcchanga, 
64


910f6.eps

To fulfill Pechnnga's full entitlement of 4,994 AFY, Peehangn will need the WolfVnlley 

Basin groulldwrrter and M'WD imported potable water. In order to receive delivery ofMWD 

imported potable, the MWD water would need to be delivered 10 Pechanga through oITslte 

conveyance capacity_ Available imparl delivery capacity in the region is limited, and thus posed 

n challcngc. However, the parties wcre able to ncgotiate the ESAA Capacity Agreement snch 

that RC\VD will eosme thnt requisite capacity e:-:ists in RCWD's system to deliver Wolf Valley 

ground water nnd MWD imported water to Pec1mngn. Together, the Interim Capacity and 

Pcrmanent Capacity funds will finance the nceessazy RCWD conveyance capacity. IfRCWD is 

unable to ensure that there is sufficient capacity for gronnclWlller aud M\1,'D deliveries to 

Pechanga, the Settlement Act provides that the funds in the ESAA Delivery Capacity Account 

shall be available to Pechanga to find alternative capacity. In the ""cnt that RCWD is unable to 

provide sufficient capacity, Pechanga would be forced to build its own infrastructure to deliver 

the imported water. Such iufrastructure costs would total $23,000,000, which is why the funds in 

the Peehnnga ESAA Delivery Capacity Account were increased from $17,900,000 (the amount iu 

the l111h Congress bill) to $23,000,000. 

3. Pechanea Water Fund--Sl2.232.000. 

S~ction II(a)(3) of the Act anthorizes an appropriation of$12,232,OOO for deposit in the 

Pechanga Water FundAcco\lJlt. In accordance with Section 9(d)(3)(D) of the Act, the Pechanga 

Wat~r fund Accouut will be used for: (I) payment of the EMWD Connection fcc 

(appro;cimately $332,000); (2) payment oftha MWD Connection Fcc (approximately 

$1,900,000); and (3) any expenses, charges or fees incurred by Pechangu in connection with the 

delivery or use of water pursuant to the SettlementAgreement. 

In order to receive MWD water there are certaiu fees associated with connection to 

EMWD and MWD, in addition to the cost of the expensive M'WD wuter. Hence, Ihe Pechunga 

Water fund Accounl provides the funds necessary for Pechanga to receive MWD water. Those 

fees aw as follows: 

il. EMVlD Cnnnectinn Pee 

The EMWD Connection Fee, nppro:-:imately $332,000, will be paid to EMWD as an in_ 

lieu payment instead of standby charges which normally would be collected on an annual basis 

Ihrough the o'MIer's property tax bill. Rather than have any fees that could be considered a tax 

on Pechrmgn, EMWD has agreed to a onc-time payment by PeehfUlga for connection 10 EMWD. 

b. MWD Connection Fee 

Similnrto the EMWD Connection Fea, MWD normally provides extension of their 

service through annexations. Rather than go through a normal annexation because oflribai 

sovereignty concerns, hov.-ever, the IlSAA will be governed by the terms and conditions of the 

a{',l"eemcnt such that Pechanga Vllill contractually commit to adhere to rules and wgulations 

applicable to its activities as a customer ofEM'ND and MWD but thnt 3dditioual terms nud 

conditions will be included to avoid infringement ofPechangn's sovereignty whereby EMWD 

and MWD will have alternative means to exercise their m"ponsihilitie~. Under the ESAA 
65


910f7.eps

Pechanga has agreed to pay a one-time ~onnection fee that amounts to approximately 

$1,900,000. 

c. Expen:res, Fee~, and ChnrgesAssociated Wlth WlWD Replacement 

Water 

As discussed above, as a result of the depletion ofthc Santa Mw:gru:ita Basin water 

supply, Pechanga must obtain imported water fromMWD as a replacemeut for its water from the 

Santa Margarita Basin. The United Sla1e5 has aprogrammatic responsibility to ensure that 

Pechanga's entitlement is fulfilled through replacement water, soch as the MWD imported "''liter, 

ifexisting water is unavailuble.41 The P~changa Water Fund provides a subsidy to bl"ing down 

the cost of the expensive MWD imported water. The Pedumga Water Fuud will provide funds to 

cover 10% ofthe cost ofMWD water. This pen;eutage is much less than that provided in other 

Tribal water seUlements. In comparison, the Arizona Water Settlement Tribes IC<:ei\'e 58-60% of 

the cost for Central Arizona Projoot water, theiraltematewater supply. Filrther, while the 

absolute cost ofMWD watcr is significantly hlgherthan that in neighboriug states, the 

perccntage to be provided by the Pechnng,a ,vater Fund is significantly lower than comparable 

settlements in further recognition of the uniqne economic times we are experiencing. 

The Band signifieanlly reduced the amount of funds for the subsidy from the Senate 

version of the bill in the Ill"; Congress til. the current bill before the Committee. The previo\\S 

authorization for the Pechanga Water FundAccount was $25,382,000. Again, Pechanga 

recngnizes that we are operating in difficult economic times and was thus willing to reduce the 

subsidy aulhori7.alion Ill. address the Administration's couccms, however, the Band strongly 

believes that the Administration should subsidize at least a portion ofilie ca~1. of1.he expensive 

imported w3terthaL the Band ill forced to use in place aflack of ground water left available for 

its use locally. 

4. Pechangn Water Qillility A~~~unt __ ~2.460.000. 

As discussed above, the Band agreed 1.0 create a separate account for water quality to 

fund grOllndWlltcrdesalination activities within the WolfVnlley Bnsin to address the 

Administration'S concam that fundwg under the Act be directly approprinted to the Band, The 

Band and RCWD are both eommilloo to reducing tll~ levels ofbrillc and salinity in the Wolf 

Vallcy Basin, especially given the fact that the imported "'liter from MWD has a higher salinity 

level than the gronndwater in the Wolf Valley BMin, The Band and RCWD h!lVe worked to 

provide recycled water ilifrastl'Ucture, as described more £illly in tile Recycled Wnter 

Infrastructure Agreement, an exhibit to the ScttlcmentAgrccmcnt, which provides for 

desalwation efforts and fuuding in the amount of$2,460,OOO. 

41 Forexamplo, 1Iw Gila River Indi~nCommunity W3\'rRights Settlement Act of20Q4 (Puh. L. 108-451) 

Included the LDWer Colorado RlYcr Basin DevclDpment Fund lIlat providod for a payment ~t" pay annu.lIy Ihe fixed 

operation, maimon.noo, nnd roploo:monl chorges .. ",oiated with the deliyery ofCemralllrlzOtla ProjOJC! water held 

""dor tung-tenn <"nlrooll; ror u.., by Arizona Indian tribes (., defined in soolion 2 ofillo Arizona Water S~ttletnents 

Act) in "ccOl'lbnce with eL1n"o 8(d)(iX I)(i) of the Repayment Slip"t.tion (os defined in ,o<:lion 2 orlhc Arizorul 

Walei' Scnlemcnt Acty·. Sodec. ID7 (a)(2)(A). 
66


910f8.eps

IV. NON-.I<'EDERAL CONTRIBUTION 

l'ecbanga i~ ~ognizant that in addition to !he Federal contribution, !he non-Federal 

coutribution to an Indian water settlement should be pl"Oportionate to the benefits received bythc 

non-Federal parties ulldcrtho settlement. The Band has insisted on suell non-Federal 

contribution from non-Indinn pllrties throughout the negotiations forthis settlement and 

successfully obtained, 'With the support and assistance of the Federal Negotiation Team, 

substantial non-Pederal contributions to the settlement. 

For purposes ofthe Committee's understanding, ", .. e outline each of the non-Federal 

contributions to the settlement, including Pechanga's own contribution to the settlement. 

A. RCWD Contribution 

As discussed above, the Pechanga SettlemenlAgreement is acareCully structured 

selliement with the United States, RCWD and EMWD. Substantial ciTorts were made by all 

parties in order to reach settlement. One of the largest issues ofeontcntlon during negotiations 

was the allocation of the gronudwatcr in the Wolf Valley Basin. TIlC previous Groundwater 

ManagementAgrcemcnt allocated 50% of the water to each party. For Pechanga, it wa:; 

absolutely critical that the SettlementAgrcement provide the Band with the majority ofthe ~are 

yield. lllUl;, RCVlD agre~d to allocat~ an additional 2.5% ofth~ Wolf Valley Basin to Pechangll 

as part of the seltiemenL Additionally, RCWD will wheel the MWD water nnder the ESAA to 

Pcehanga in perpetuity and RCWD agrees to provide desallnation and brinG disposal far water 

utilized in the Wolf VaHey, which will improve groundwater quality in the Wolf Valley Basin for 

both RCIVD and Pech3nga. RCIVD's contribution to the Pecl13nga SettlementAgre~ment, 

therefore, involves maretban a foregoing of its assertion of water rights, but, rather, iuvolws the 

implementation oIa partnership (0 utilize, convey and improve Ihe quality of both local and 

imported water Ior both RCWD and Pcchanga. 

The monetary quantification ofRC,\VD's contribution, me3l>ured exclusively upon its 

agreemenllo forego the right to 25% ofgrcundwaler in the WolfYalley Basin, has been 

calculated at £33,630,332. TIlls calculation assumes Ihat25% ofthe WolfYalley Basin equals 

52.5 acre feet per year, onc-lburth of the agreed upon amount ofthc safe yield in the Wolf Valley 

Basin. It firrthcr a8Sl.UUCS that RCWD's contribution will b~ equal to the rote it must pay for 

MWD water (as replacement for its share of groundwater from the Wolf Valley Basin), inflated at 

3% per year, and on effective earnings rate on the amount expended of3.5%. Utilizing these 

3Sswnptions, the present value ofRCWD's contribution is $33,630,332. 

B. Pcchangll Contribution 

As with lllany other Indian water rights settlements, the Peehanga Water Fund Account 

provides for n subsidy payment thllt partially fulfills the United States' programmatic 

responsibility to provide Pechanga with replacement water. 

The Pechanga Water Fund Account amount was developed using the follov.~ng financial 

assumption~: 
67


910f9.eps

• The."'-'xoUflt is to be u5ed to partially subsidize the cost oCMWD water to roduco 

the cost of the watcr \Ising, intcrest earned by the account. 

• TheAceount will pay ten pelccnt (10%) of tile cost of the water and Pechanga 

will pay ninety pelrcent (90%). 

• The cost ofMWD water was projected based on the published rates for an acrefoot ofM'WD Tier 2 Treated Walerplus the EMWD charge of$127.80 in 2010, 

escalated at four percent (4%) per year thereafter. 

• TIle Account is projected to accrue interest at an aVill1Igc fuur percent (4%) rate of 

retum. 

• The amount ofMWD water to be purchas\ld each year was based on a general 

estimate of the projected water usc in the proposed MWD service area that cannot 

be met from other sourees. 

While most subsidy funds fur Tribes provide fuuds that will bring the cost of the 

imported water in line with local water, the Pechauga Water Settlement ou1y seeks to subsidize 

10% ofMWD water such that Pechangais bearing 90% of the cost of imported water. 

C. EMWD Contribution 

While the Band has not completely ca1eulaLCd EMWD's C<)ntribution to the Settlement, 

EMWD's contribution is certainly proportionate to tile bcncllts it will recdve from the 

Settlement. Namely, the ESAA with MWD and EMWD is an absolutely eritical component of 

the Settlement, without which it would bG impossible to fulfill the Band's wat~r entitlements. 

Moreover, EMWD agreed to extend the tenn of the Recycled Wnter AgreelllCnt with Pechallg,ll 

and allow Pechanga to sell its unused portion ofrecyeled water to RCWD, both of which were 

m:cessary to effecth'ely seltle with RCWD. In return [or these contributions, EMWD will 

receive $332,000 as Pechanga's connection fcc to EMWD (discussed in furlhcr detail above). 

This benefit to EMWD is proportionate to the effurts EMWD has made ill securing the ESAA 

with MWD and the amendments to the Recycled Water Agreement. 

D. MWD Contribution 

Although MWD is not a party 10 the actual SetllementAgreement, MWD is a party to the 

ESAA, which as discussed above, is an exhibit to the SeUlem()lllAgreemenL The ESAA is 

essentially the eontmetual equivalent ofan annexation to MWD and EMWD, with thc Band's 

sovereignty issues protected by contrnet in the ESAA. III 2009, Governor Schwmzenegger 

issued a State ofEmergeucy fur the State ofCaHfornin's drought situation. In response, MWD 

issllt:d a press release recognizing the severe water supply challenges in California. MWD's 

press release further stated that MWD has taken a number ofcritleal steps to address the drought, 

including 1110 reduction of water supplies to member ageocies and mandatory water eonsctvation. 

Ao '" ..,,,,,\t ofC~\iforn;o'" drought nnd J>..fWD'" efforts te nddrc"" these problems it;3 unlikely 

that MWD will b~ ~pproving any anuexations in the near future. 
68

The CHAIRWOMAN. Thank you, Mr. Chairman. 

Last on the list is Mr. Matthew Stone. Thank you very much for 

being here, Mr. Stone. We look forward to your testimony on this 

legislation. I think you are here to testify on S. 1219. 

STATEMENT OF MATTHEW G. STONE, GENERAL MANAGER, 

RANCHO CALIFORNIA WATER DISTRICT 

Mr. STONE. Yes, thank you very much, Chairwoman Cantwell. It 

is our pleasure to be here. I appreciate the members of the Committee, the Vice Chair, for their attention to this matter. 

On behalf of Rancho California Water District, I appreciate the 

courtesy of being allowed to appear and just make some brief comments about pending legislation, S. 1219, which would authorize 

the settlement with the Pechanga Band of Luisen ̃ o Mission Indians 

and their water rights. 

As a neighbor and a cooperating party over the last almost a decade now on water management, we are again happy to be here to 

support this. On behalf of the board, we appreciate Senator Boxer’s 

sponsorship of the bill and Senator Feinstein’s co-sponsorship and 

the committee’s willingness to consider the legislation. We will 

enter formal written comments into the record, but they will about 

as brief as these at this point. 

Rancho provides water supply, wastewater collection and treatment and water recycling services to a population of more than 

134,000 people in our service area. It is 160 square miles, and we 

have over 42,000 customers connected to our system. Our infrastructure network, which has been built out over the last several 

decades, has 960 miles of water mains, 41 storage reservoirs, Vail 

Dam and Vail Lake Reservoir, groundwater recharge facilities that 

have been developed to enhance the operation of the basin, and 47 

groundwater production wells. 


910f10.eps
69

We currently provide about 71,000 acre feet to our community, 

which is domestic, commercial, industrial and agricultural uses. We 

still have a very large agricultural component. 

Just over two years ago, I appeared before this committee to endorse efforts to authorize the settlement. Today, I return to again 

endorse this effort and to advise the committee of our interests in 

any final bill that can be enacted into law. As has been mentioned 

by Chairman Macarro, we have worked with the Pechanga Band, 

and will continue to work with them, since the last Congress to 

clarify the limited number of outstanding issues. I am happy to report to you today that we have made substantial progress on those, 

and we believe that these issues are close to resolution. 

We are also committed to working with the Administration as 

the bill goes forward to deal with any issues that are still outstanding from the Administration’s perspective. We hope to have 

these ready as the bill moves to markup for final action. 

Madam Chair, thank you again for the opportunity to appear before you today. We look forward to providing the committee with 

any additional information that will help to expedite final consideration of this legislation. Again, we look forward to completing the 

agreement and further, to continue our partnership and cooperation with the Pechanga. Thank you. 

[The prepared statement of Mr. Stone follows:]

PREPARED STATEMENT OF MATTHEW G. STONE, GENERAL MANAGER, RANCHO

CALIFORNIA WATER DISTRICT

Good morning Chairman Cantwell and Vice Chair Barrasso and members of the 

Committee. On behalf of Rancho California Water District, thank you for the courtesy to appear before the committee to present our views on the pending legislation, 

S. 1219, a bill to authorize the Pechanga Band of Luisen ̃ o Mission Indians Water 

Rights Settlement Act. 

On behalf of RCWD’s Board of Directors, we deeply appreciate Senator Boxer’s 

sponsorship of this important legislation, and Senator Feinstein’s co-sponsorship, 

and the committee’s willingness to consider the legislation. 

In the interest of time, I request that my formal written testimony be entered into 

the record. I will summarize RCWD’s views on S. 1219. 

RCWD provides water supply, wastewater collection and treatment, and water recycling services to more than 134,000 people in a service area of 160 square miles 

with over 42,000 service connections. Our infrastructure network consists of 960 

miles of water mains, 41 storage reservoirs, Vail Dam and Vail Lake reservoir, 

groundwater recharge facilities, and 47 groundwater wells. Currently we provide 

71,300 acre feet of water for domestic, commercial, industrial, agricultural and landscape uses. 

Just over two years ago, I appeared before the committee to endorse efforts to authorize a water rights settlement agreement. Today, I return to endorse this effort 

and to advise the committee of our interests in any final bill that can be enacted 

into law. 

Since 2010, RCWD has worked with the Pechanga Band to clarify a limited number of outstanding issues. The key issues, we believe, are close to resolution. We 

hope to have these ready as the bill moves to markup. 

Chairman Cantwell, thank you again for the opportunity to appear before you 

today. We look forward to providing the committee with any additional information 

that will help to expedite final consideration of this important legislation.

The CHAIRWOMAN. Thank you, Mr. Stone. Thank you for your 

testimony today and your continued hard work on this legislation. 

I am going to go back to you, Assistant Secretary Washburn, on 

a couple of these bills. On the S. 1447, the original settlements that 

were in that legislation had the Bureau of Reclamation as the lead 

70

agency in a number of the infrastructure projects. Can you provide 

the committee with an update on how these settlements are being 

implemented and the progress on the infrastructure and how that 

is working out with Rec taking the lead? 

Mr. WASHBURN. Well, they are underway. These settlements, 

these water rights settlements often cost tens of millions of dollars 

and they take a decade or more to complete. So we have made substantial progress on the Navajo-Gallup settlement. That one is 

coming along very well. The Aamodt and the Taos settlements are 

probably, well, they are newer, so we haven’t quite gotten as far 

along. But they seem to be progressing. 

We are working well with all the parties and the Bureau of Indian Affairs and the Bureau of Reclamation, of course, work very 

well together. The Bureau of Reclamation is, well, they are engineers, mostly, and they are very good. We enjoy working with 

them, and they do a lot of work in this space. They do a lot of work 

on Indian water rights settlements, and they are very accomplished 

and capable. 

So we feel like things are proceeding nicely on all three of those 

settlements. 

The CHAIRWOMAN. Okay, well, part of that would be moving 

some of the money around for wildlife and cultural resource protections. Can you tell us about how those funds would be used? 

Mr. WASHBURN. Sure. One of the things, I gather that there was 

a typo in the New Mexico Water Rights Settlement bill, one of 

those bills that sort of reversed the amount of the money that we 

use for fish and wildlife resources and cultural resources protection. So one of these bills would correct that, the way we do it more 

commonly in water rights settlements. So we are happy to, that is 

an improvement. It changes things back to the way it should have 

been written in the first place. And those are very important parts 

of water rights settlements. But we do limit the amount of money 

in these settlements that can be used for each of those important 

purposes. So this bill would make an impovement in that respect. 

The CHAIRWOMAN. Okay. Then on the Pechanga settlement, it 

states that allotted lands within the reservation included just and 

equitable allocation for the water resources. So if it is enacted, how 

will the Department ensure that the allottees actually get that just 

and equitable allocation? 

Mr. WASHBURN. That is one of the remaining issues and one of 

the things that we have addressed to some degree already with the 

Pechanga Band. But one of the concerns that we continue to have, 

there are 112 trust allotments on the reservation, totaling more 

than 1,100 acres of land. And individual Indian allottees are also 

entitled to a portion of the tribal water rights for irrigation purposes. So that is one of the things that we need to get resolved to 

get this bill to a place where we can be supportive of it. Because 

it needs to address those very real issues. 

The CHAIRWOMAN. That has not been part of another previous 

water settlement? There is not a structure for the allottees? 

Mr. WASHBURN. Well, I think it has varied. We certainly have 

the same trust responsibility to allottees in many respects that we 

have to Indian tribes. We have a responsibility to take care of them 

as well. Honestly, those issues have come to the surface in more 

71

recent years. They were ignored in earlier water settlements, and 

we have gotten much better about trying to get those issues resolved in water rights settlements. That is an active conversation 

as to this settlement. 

The CHAIRWOMAN. So it is an issue of difficulty, or it is a difficulty of administering it? 

Mr. WASHBURN. I am not sure. I am not down in the weeds on 

the actual negotiations. But it is important to us to make sure that 

we have taken care of the allottees’ interests when we settle the 

water rights. Otherwise, we have left unfinished business, and we 

don’t want to leave unfinished business. 

The CHAIRWOMAN. Mr. Stone or Chairman Macarro, do you have 

any thoughts on that? 

Mr. MACARRO. Yes, I will attempt to answer that. The settlement 

shouldn’t affect their rights at all, the rights of allottees. As you 

know, the status of allotted land held by former tribal members, to 

say the least, is complicated. The status of allotment protections to 

allottees are set forth in provisions relating to the required water 

code, which is in place. We have a water code and it is in place. 

We don’t think that there will be a net effect on the impact of 

allottees and their water rights. 

We are glad of the due diligence that the Secretary is engaging 

in, that it is being done and is being done across the board. However, as far as it goes on our reservation, we don’t see any net 

change really in terms of what the outcome is. Insofar as there is 

a right that exists, the right is a paper right until the wet water 

right becomes real. We actually think that overall, the tribal right 

as well as the allottee right, is being perfected. That is a benefit 

that doesn’t exist to allottees right now as well. There is a huge 

improvement that accrues to allottees as a result of the tribe getting its water right put into place, and getting that wet right perfected. 

The CHAIRWOMAN. Assistant Secretary Washburn, back to the 

settlement issue and funding. Has the Department of Interior ever 

not funded a settlement that has been passed by Congress? 

Mr. WASHBURN. No, I don’t believe so. You are the boss, if you 

settle a water rights claim, whether we support it or not, we follow 

the law. So money has to be found and that sort of thing. The Congress, though, are the ones who ultimately holds our trust responsibility. You define what our trust responsibility means in any 

given case. If you find that, we will meet it. 

The CHAIRWOMAN. So how were some of those settled in the 

past? 

Mr. WASHBURN. You mean with regard to allottees? 

The CHAIRWOMAN. Yes. 

Mr. WASHBURN. Well, let me say this. It is an issue that we can 

address, there are general laws that apply. So it is something that 

we can address. Part of the issue is just making sure that these, 

there are much smaller claims to water rights. So you don’t want 

to settle all the biggest claim and then fail to settle the small ones, 

because the smaller ones then may never get settled. 

The CHAIRWOMAN. This is the Indian Lands claim and settlement? 

72

Mr. WASHBURN. Indian water rights settlements. Yes, so you 

have, the tribe has its own claim and the allottees have claims to 

the water as well. For interest of finality, we would like to get all 

of it settled all in one fell swoop when we possibly can, so that we 

are tying up all the loose ends. Because the small loose ends don’t 

have the political juice to get something done the way that the 

tribe does and the water districts and that sort of thing. 

So we would like to get all of the issues settled in one case. 

The CHAIRWOMAN. Which is what we have been striving for here 

with the Spokane settlement agreement and what you are striving 

for with others as well. How has the Department funded some of 

these in the past, like the Missouri River Tribes or some of the 

other settlements? 

Mr. WASHBURN. Well, they have been funded in different ways. 

Sometimes they come out of the regular Indian Affairs budget over 

a course of years. I have to say, that is perhaps my least happy 

outcome, because it means I am taking money from one tribe to 

apply to help other tribes. That is not the ideal circumstance, because it means that other Indian people are going to pay to take 

care of a different group of Indian people. 

So we have always looked for creative ways to settle these that 

don’t necessarily just come out of the Indian Affairs budget. This 

is a commitment of the United States, and we have ongoing commitments to each of the tribes. They don’t give me the power over 

the purse, or the Treasury and other agencies. But we always like 

to see joint contributions across the Federal Government to these 

kinds of settlements. 

The CHAIRWOMAN. You are certainly committed to finding the resources for this settlement. 

Mr. WASHBURN. I am as committed as you are. 

The CHAIRWOMAN. Thank you. 

Okay, well, I think that is all the questions I have. I know my 

colleagues may have some questions, so we will leave the record 

open on all three of these bills. I thank all the witnesses for being 

here, including you, Mrs. Wynecoop. Thank you for traveling all the 

way from the Pacific Northwest and for your ability to give us a 

sense of history on this issue as it relates to the Spokane Tribe in 

the Pacific Northwest. 

Again, thank you, Secretary Washburn, for your diligence and 

your team, everybody that is here on all these issues. We are adjourned. 

[Whereupon, at 3:20 p.m., the Committee was adjourned.] 

(73)

APPENDIX

PREPARED STATEMENT OF HON. ERNESTO C. LUHAN, GOVERNOR, TAOS PUEBLO


910g1.eps
74


910g2.eps

and was designated a World Heritage Site in recognition of our enduring living culture. 

Our people have lived in the Taos Valley since lime immemorllil. 

As the firlit w;crs crlhc Taoo Valley's water rcsources, we constructed irrigation systems 

many centuries ago that are still in use today. The traditional earthen ditches that 

comprise our system are a core element of our cultural practices. They are the means by 

which we currendy ilTigate approximately 2,322.45 acres of the Pueblo's 5,712.78 

Historically Irrigated Acreage. Importantly, not much more farmland can be irrigated 

because there is no way to convey water to more fields without extensive construotion 

consisting of repair and rehabilitation of this traditional infrastructure. 

The Bureau of Indian Affairs, in its capacity as the federal trustee, has not done any 

repairs ofsignific:mce to our irrigation infrastructure in decades. In 2000, njoint 

investigation report by the Burenu of Indian Aifwrs and the Bureau of Reclamation 

identified nserious need [or the rehabilitation and repair of Pueblo irrigation 

infrastructure. The findings of this report were based heavily on investigation of 

infrastructure on Taos Pueblo. 

Forthese reasons, one of the important purposes for the $15 million of "early money"-

money available upon appropriation-in our settlement is to allow the Pueblo to 

reconstruct, rehabilitate, repair and replace dilapidated irrigation structures. 111is purpose 

is closely related to another purpose of early money: acquisition and retiremt:nlofjunior 

non-Indian waterrigbts. The Settlement Agreement specifically provides lbat"As a goal 

oftbis ~cttkmt:nt and in accordance with Article 5.1.1.2,[ the Pur:blo will seek to expand 

thr: exercise of its BrA [historically irrigated acreage] Right 10 an amollllt at Jeast 

sufficient to irrigale three thousand (3,000) acres as oflhe Enforcement Date" 

(Settlement Agre~ment Article 8.6.1). In order to meet this key settlement goal of 

increasing our historically irrigated acres acrually under ilTigation from 2,322.45 acres to 

3,000 acres bylbe Enforcement Date, the Pueblo needs early money not only to acquire 

and relire non-Indian rights but also for construction on the traditional earthen ditches 

that are the means of irrigating these 3,000 acres.. 

Because the SettlementAet uses the word "construction" in dcscribing the water and 

wastewater infrastructure wark for which early money can be used, the Administration 

has taken the position that the Pueblo cannot use early money for irrigation ditch 

rehabilitation. repair, replacement, or reconslruction. The only exception the 

Administration has made is for ditches that bring water to the Buffalo Pasrure, on the 

grounds that the Buffalo Pasture Recharge Project is a purpose Jor whioh Section 

505(f)(1) authorizes the use of early money. 

1 Article 5.1.1.2 of the Settlement Agreement provides that the Pueblo will initially limit 

the e:u:rcise ofit.> historically irrigut~d llcreagt: right for 5,712.18 acres t.o the recently 

irrigated acreage level of2,322.45, and sets out how the Pueblo will increase the use of 

this right as non-Indian irrigation water use is reduced by the Pueblo buying those rights 

or eircumstances such as abandonment ofa water right by a non-Indian user. 
75


910g3.eps

The. Administration's exceedingly narrow interpretation ofthe word "colllltructian" pmll:S 

an \lllJtecessary hardship on the Pueblo Illld Lhn:atens to prevent ll.'I from meeting the 

settlement goo.! of actually irrigating 3,000 of our hi.s!orically irrigated acres by the 

Enforct:ment Dale. Such a limited purpose was never intended by the Pueblo or 

Congress. Many of our farmlands-including a substantial portion oflWlds that CWl be 

brought back into production as part of the initiaIS,OOO-acre settlement goal-are on 

ditches that do not serve. the Buffalo Pasture. Sections of many of these ditches are in dire 

need ofrepair, reconstruction, replacement. or rehabilitation. This was a mlljor reason we 

insisted that the allowed uses of early money include construction on irrigation 

infiastruotOfe,notjust for planning and design. 

All ofthe irrigation infrastructure conslruction plMIled and discussed with the federal 

Administration and Congressional delegation over the many y= of the setllemem 

m:gotiation and authorization involve.~ our traditional earthen Pueblo ditches. In the 

context of traditional Pueblo irrigation systems, construction wod< is obviously not about 

construotion of new ditches-it is about the reconslruotion, replaecment, repair and 

rehabilitation OfthC3C traditional ditches. 

Similarly, most of the work urgently needed Oll our drinking water infiastructurc involves 

reconstruction, replacement, rehabilitation or repair of existing aging infra~tructure. nol 

new construction. For example, we \vill need an early money distribution to replace the 

south side water storage tank. A recently completed inspection confirmed that this tank 

is in dire need of replacement due to extensive corrosion. We fear that it may collapse 

because the supporl£ UfO st:verely eOITodcd. This is an ~mergcney. Additionally, one of 

the Pueblo's four municipal wells needs to be replaced priorlo the Enforcement Dale due 

to poor production. Yet, the Administration's overly narrow interpretation of -the word 

"construction" in Sed.ion 505(£)(1) could preclude the release ofearJy money to the 

Pueblo that Congress intended to be available for stloh urgently needed reconstruction. 

The technical eomction in S. 1447 would fncilitate giving Congress' intended effect to 

the word "construction" in Section 505(£)(1). As we have said in correspondem:c to 

Bureau of Reclamation Commissioner Micho.el Connor, it would be a terrible imny for 

the-Administration not to support this technical cOITection when our settlement has been 

lauded by Administrations past and present as II model for Indian water rights 

settlements. One of the reasons Ollr settlement is touted as a model is that it avoids the 

cost 3l1d envirorunentai damage of coru;trllcting reservoirs and major new surface ,,,:ater 

infrastructun; and it docs this in part by allowing early reconstruction of existing 

irrigation facilities in exchange for the Pueblo's forberu:ance on -the full exercise ofil£ 

senior water rights. 

Taos Pueblo respectfully submits that the Administrotion is mistaken when it 

charaoterizes tllis technical correction as "expanding" -the purposes ofcarly money on 

page 3 of its testimony. It bears emphasis that this is truly a. technical correction, not a 

change in the d!llli WIl negotiated. In all of our negotiations with the Administration and 

throughout the Congressional process, we WIlre never asked to give up the use of early 
76


910g4.eps

money for infrastructure rehabilitatiou, repair, rcplattmcnt, or reconstruction. We were 

assured that the ward "construction" inc1ud~d I<!COnstruction, replacement, rehabilitation 

and repair undtbat it was not m:cessary for Cangre!!S to repeat "reconstruction, 

replacement, rehabilitation and repair" in Section 505(f)(1) because these concepts we.c 

clearly captured in the word "construction" and the cross reference to sectiQn 505(a) in 

Section 505(f)(1). The technical correction 'WOuld honor this understanding and would be 

consistent with the common sense interpretation ofthemcauing af"construction" in the 

context of traditional Pueblo ditch ~ystems and aging drinking water infrastructure on 

Pueblo lands. 

2. Delete Unnecessary Autborizution Dates: 

The nmendruent to Sections 509(e)(lj(A) and 509(e)(2)(A)(i), which provide for 

mandatory appropriations to the s~ttlement funding accounts, are intended to eliruillute 

possiblc confusion about the meaning oftbe phrase "for the period of fiscal years 2011 

through 2016." As noted in the sponsors' summary, there is no need for any 

author.ization dates tor the mCUldntory approprimior.s bccuu3C thc,:;c funds rem!!.;n 

available until expended. 

The Administration stated in its testimony (on ptlge 3) that it "is still anaiy.lillg this 

amendment but believes that the changes in indexir.g will huve impacts on the Treasury 

and cou.1d tdgger mandalory offset requirt:menls." Thl: Admini~tration's concern arises 

from its interpretation of the amendment to Section 509(0)(1 )(A) a~ a proposed chwlge to 

the inflation indexing authorized by the Settlement Act The Administration 

reads Section 509(c)(I)(A) of the Act to makethc illCUldatory appropriations 

subject to indexiIlg "only between fiscal years 2011 and 2016." Consequently, the 

Administration believes thut "S.1447 would remove the time limitations for indexing." 

The Pueblo respectfully submits that the Settlement Act provides for inflation 

adjustments from tho base year2007 and does not Slale an. end year. Specifically, Section 

SOl(c)(1)(A) appropriates "S50,000,000, 115 adjusted by such amounts as may be required 

due to incrcasc~ sinte April 1,2007, in constructions costs, as indicated by the 

engineering cost indices applicable to the type~ of construction or rehabilita!ion 

involved." Put simply, the amount of the inflation tdjustment authorizcd is tlu; amount of 

percentage change in the inflation index from April!, 2007 to March 31, 2017 (the 

Expiration Dwe of the Settlement Act authorizatiom and the date by which the 

Enforctlmenl Date must occur). 

The Pueblo negotiated with theAdministralion for it.~ support of inflation indexing of 

the settlement fund from the base yeW' 2007 until the funds become available to the 

Pueblo in cxchang~ for the reduction sought hy theAdmini~tration in the amount of 

early mDney from $25 million in the bill as introdu~ed to $15 million in the bill es 

enacted. The technical correction would recognize lle phrase "fortlle period of usei'll 

years 2011 through 2016" in Section 509(e)(1)(A) for what it must be: an unintended 

relic of the discretionary appropriation authorization Ihal was in the bill until late in 

the session when the bill Ww> WIlended to make a portion of the funding mandatory. 
77


910g5.eps

The Pueblo strongly disagrees with the Administration's comment that the Settlement 

Fund "will already he able to earn interest beginning not later than 2017, which will 

help maintain the purchasing power of the funds provided and make indexing less 

necessary," The fact that the Secretary of the Interior is obligated to invcst Tribal trust 

ftmds, including the Pueblo's settlement fund, does not compensate the Pueblo forthe 

loss of any portion oflbe intended inflation adjustment prior to 2017. 

The Administration's unfortunate reading of Section 509(c)(1)(A) to clumgc the base 

year of inflation adjustment from 2007 to fiscal year 2011 and to cutoITthe inflation 

adjustment premattlrely at fiscal year 2010-in theAdministrntion's still ongoing 

anaiysis-illl1strates the need for the teclUllCal correction. The c<m:cction will ensure 

that mandatory appropriations arc provided through the Expiration Date in an amount 

that reflects inflation from the base year 2007 on the initial $50 million mandatory 

appropriation. 

I thunk CllEli .... voman Maria Cantwell, Vice Chainnan John Barrasso, Senator Udall, and 

members of the Committee for the honor and privilege to provide this testimony. r also 

give thanks for the spiritual guidance I have received, and the SUpport and advice of our 

Tribal Council. We ask that you be spiritually guided to make the right deoisions Oil this 

hill and others that affect the lives and future of the Taos Pueblo people. 
78

PREPARED STATEMENT OF HON. BEN SHELLY, PRESIDENT, NAVAJO NATION


910h1.eps

Dc:\!' fl.bdxm (:bskw()Jn:an ~",l Mr. Vl~ {~hshma(l: 

I ""';re to ~m;ss tIlI'- s"l'Pmt or W!l N~"'*' N~tion fo, p!'(Wbk.l'I~ in S. 1-M1. ~ hi!! to I:\... lru 

l<:<:hniccl t"Orw:tlons 10 <:<:n:rin Nau~.c Ame:tk.m WIlt",. dghu =leIDetlts in the SImi:: of New 

~~, :>rtd for o!;h"", ~ The K""""j<:> Nri:>n U:g<>£ CM~ m. ~';h,'pt S<><;tioo. 4 cl the rnli, 

whicl: f=¢:lS/:S !he "",",~\lmI fu:: cclt>.ttal. ~ "" tIl" N~"'f- W~te, s,,??1ji 

;~¢t (NG:\WSl') W=. tl.~ =="".1:% d!he """"r ~'" =rt to<> 4'JIo bf d ... ~ ... ,,,,1 p=j",,;- "".1. 

Scctioo 4 will w"",cr:a dcd=i = in the Omnibu, l'ui>ik: Lwd Mil1l:lIsemeD.I Ad: <>f2009,-True. 

x Pa.:t m (I"'blic: Law 111.11).u.at hl!.l Cl.~s~d a significat1t sl><mull in !l"lliklble funds l<l pw::ect 

II.lld prt.'S<1tv.:o impormm culruml rosoutetJl flk'llg (he NGWSP route. 

The NGW.':lf will brlng b",catly needed \IIlI,rIW 1;0 tha Na,."jn Nation <:l)tlltllllnid<:s, Yet, thisproj~t, 

",hi~h ~noomfl'l5se~ 2BG 11U1es. of 1at'gC dI~lIl"!m' plpc!1:ne and a 4O(I.fOO'C rlgru: of way-. ';vill also 

disnu;1;o mllW thm 12,ik.">O ~ (,If iac.d m L"gI1"bly tlte mosl lU"cl\:leQlegio:J\lly ,cnsiti'1t' tcgk>n in 

Nor,h Am<iie.. ,s..'=>\YP'="nt of ~l<l mild 13 N~""jo Nation T"",,! Liou,.mu "'" b<:fu:vc .=ugly 

\}.:<I" ttw catinll'mo:! 1,000 ~ site:<. .including"nci<m' btn>al !'it<:>Unm, a\ung-tbe nmte must 

he b<uiIIffi P«lf.=\f """ ~Iy. 

Th" =nt bI><ltet cornmainLq fo:: .:,.,!~)..-..I nlrol1I<:CS JitIC :tlre:t.dy drecing t1,~ pIOje<:t design, £lor 

umam:r; thQ Pllltrnctor hlIS been iOl'..'ed \'{\ modifY its research dcsi8n nltlh tlmt many prmistoci~ 

middl'!l$ IIt1d "tb~J; areas where we VltIIl.]d <:l;pect to find h\lIIlMl ~Ull,imI cannot hu .. mpl..:L 

Whco d~(~~d lu advan"" of the ~IH>$fl:UCrI(ln {""m, buci:!ls c:t!l. hu j'/'Ioved I<::jp<:ctfuUl Dr !:h¢ 

projec\ m\lr<! ~n be adi""'ted. w~ n:.:pt'(( thiLI: u a r.:sult of the ""~~ budget OOB:IIi"intli <In 

culrual """"ow:~~ and the tim.ill/,tion~ fM udv~"cc work" tho\> <:O<1at,ru~tio\! tc:un. will likely 

~_ h,...t~!g ,,,,,J be fu=d to stnp W.u.. """"«' =u.;"t> ,,,,tcid <.lei .. ,.,. ~na ~"" ~ to 

the ~ project. So. 1441. ,,'bel; p<t;l.oo. 'Will hci[> """,~<>:he ando::ut lmrWs loCIW:d "-~ ~ 

plpdittc ~Il be b.mdkd ,,",¥,ctf.-.dly 8S =l,ukM by ::k N",,,*, N-ari:oo Po!£q fur !he I'rotocti<or. ,;If 

fisb<:h~a'1 G=~> HUm>ln ~!', ~r..d f=ty ite.""s 11\1& ~ Nl!&." Amd:::m G",~ 

Ptmeci:m ,"<(10;] ~cn Act (';)1d that "r,:h:=.klgiOil sOw; lU<I i<l~nt1Ii"" "ml protxmd ~ 

ro'luir¢4 b; rlw N~tkmal Flli,-wri<;: ~\;;-6t'< Act. 

(~th" NCWSP mlHl ~ !T\UlDct ~ of gt:eIU" impottantAl t<, the Na.vlljo Natioo 1ID.d 

to dt¢ U~ States Dq>o.ttrrumt of tb<l blteriot. which hs:o cb.~ tim project .,. itll top 

prio.ril:),. BMuring tlw: 4% of ~ pt'llf:(:t COlI! is a ... :aili.bh: fot" "'lIl.W1II resaurce. surv..'Y >.ltd 

ming..ti<:oa wil! IIWr Ireep du: project on ~uIe and ensure mar out \lWUge $ treated with tW 

Clm:aad~it~ 
79

PREPARED STATEMENT OF THOMAS MOTSINGER, PRESIDENT/FOUNDER, PALEOWEST

ARCHAEOLOGY


910h2.eps

Chairwoman Cantwell.. Vice-Chairman Barrasso and Members of the Committee, my name 

i~ Thomas Motsinger. I am Fresident ,lIId Founder of PaleoWest Archaeology, based in 

Pho~n!x, Arizona. Thank you for the opportunity to present PaleoWest's views on S. 1447, 

the New Mexic[J Native American Water Settlements Technical Corrections Act, a bill to 

make technical corrections to r:crtaln Native American water rights settlements in the State 

of New Mexico, and for other purposes. 

Background 

PaleoWest is contractor to Bureau of Reclamation for the first phase of cultural resources 

field work at the Navajo-Gallup Water Supply Project, which will affect nearly 1,000 

archaeological sites and disturb 12,000 acres in New Mexico of arguably the most 

archaeologically sensitive region in the United Stata~. Approximately 280 miles of large 

diameter pipeline (60-70") will be laid, witll a 400-Foot rlgllt-of-way and at leilst 100 

additional miles of roads, power lines, and otller necessary apparatus. The Omnibus Public 

Land Management Act of 2009, Title X Part III (Public Law 111-11) signed on March 30, 

2009 (the "Act'), provided the authorization to construct this important project as a major 

component of tbe Navajo Nation San Juan River Basin Water Rights Settlement in New 

Mexico. 

DraftIng Error 

Wh~n the Act was passed, it contained a drafting error resulting in 2% of project costs 

allocated to cultural resources compliance and 4% to envIronmental compliance, instead of 

4% to cultural and 2% to environmental, as Intended by Congress and the parties. This 

drafting error is causing funding constraints tllat are affecting PalcoWest's research design. 

We cannot i1dequately survey for human remains in advance of pipeline construction; 
80


910h3.eps

when construction crews encounter une)(pected remains, it will result in costly dalays. Wa 

hava been forced to modify our res(l<lrch design such that we cannot sample many 

prehistoric middens and other areas whom we would oxpect to find hum<ln rem<lins. The 

bill, when passed, will help ensure the respectful handling of ancient burials located along 

the pipeline, <IS required by the Native American Graves Protection and Repatriation Act, 

and tha Id,mtffication and protection of archaeologic<ll sites, <lS m<lndated by the National 

Historic Preservation Act. 

To date, the project's archaeologists and ethnographers have been linding prehistoric and 

historic-era archaeological and ethnographIc sltes in much greater numhers than 

anticipated. Most of these sites will require additional investigation to comply with Federal 

and Tribal historic preservation laws. The m<ljority of the sites are prehistoric occupations 

dating after 700 A.D, which typically contain human burials; these sItes are particularly 

sensitive to Native Americans and are afforded special protection. As expected, Navajo 

archaeological Sites and traditional cultural properties - which date fmm the 1500s to 

recent times - are plentiful, but have been encountered across a much larger area th~n 

expected. 

Wa undarstand that the Administration Is fully In favor of the technic~l amendments to the 

Navajo-Gallup settlement in S. 1447 because it changes the Act back to the way it should 

have been written and thus improves it Also, keeping the project on schedule Is a top 

priority of the Department of the lnterior. 1 Fin<llly, the Navajo Nation supports the 

technical correction because 70% or the Project's land is NavajO Nation Trust Land, and the 

Navajo are concerned th<lt archaeological sites and ancient burials be handled respectfu!ly. 

If the 4% technIcal correction Is made, PaleoWest will be able to do ~ thomugh and 

respectful job at the Navajo-Gallup project, and ensure the proper handling of remaIns. 

r.onclu~jon 

PaleoWest would like to thank you Chairwoman Cantwell, and all the members of the 

Senate Committee on lndi~n Affairs for the opportunity to submit testimony. I would be 

happy to answer any questions the Committee may have. 

I ''Obo",a Adnlil';SlrotiOIl ju,nouncc, SClcclion of 14 Inf,osu"clUrc ProjOCIS to k E~pcdilcd tllrough Ponnlllmg ,nd 

EnvirOllllV:nlaI Revl(:\\' Process," Oct. II, 2DII, avaIlable ., htlp1iwww." .. hitehen, •. govflhe-p"'''-

officcl20 I11I Olll1nb 'JT\.-adm ini ,'mtinn .",.,noUIlcc>W!d" tin o_14_inf",."", lurt:.proj cc"..bc·~. 
81

RESPONSE TO WRITTEN QUESTIONS SUBMITTED BY HON. TOM UDALL TO

HON. KEVIN WASHBURN


910i1.eps
82

Æ


910i2.eps

project funding call be used for protection of cultural resouwes and 2% for fish and wildlife 

facilities. 

Could you lell the commiltee the curren! status of archaeological work on the Navajo 

Gallup pipeline? 

Answer: Arcl\!leological work on the Navajo-Gallup Waler Supply Project is nenring 

completion of initial National Historic Preservation Act Section 106 compliance inventory 

efforts in support ofJllanning and. design ofpipelwe reaches. As the unal construction 

alignments are refined for individunl reaches, cuituml resource mitigation measures will btl 

completed to allow construction to conti nile. Archaeological monitoring of COll.'itruction 

activilies is ongoing as Project work proceeds. 

• Is the Bureau ofRecinmatlon TUooing up against their limited allocation of2% of project 

fi.Ulding? 

Answer~ WillIe oultural resource expenditures to date are not approaching thl:! currently 

authorized 2% allocation, WffiC ofllie most expensive components ofth" cultural resources 

compliance program have yet to occur, namely the mitigation efforts that will be required. 

Decisions on the appropriate disposition efthe potentially impacted sites wil! be driven, in part, 

by tho amolmt offunding available for cultural resollrce work. Clarity on the 3Il1.ount offunding 

available for the culturn1 resource work will assist in this prooeliS and allow for botter decisions 

that will respect Native American cultures and tribal values. 

4) Section 4 ofS 1447, the New Mexico Settlements Te~hcical Corrections Act, would amend 

the Navajo Water Settlement to put the wotd "Ptoject" before "water" in refcrence to the trigger 

oflhc 10 ycarclock for waiving of OM und Reosts allocable 10 the Navajo Nation for any 

completed section oftlw project that are in O)(CCSS oftb<l ability of the Nation to pny. The intent 

of this change is to make clear that the II) year period of OM and R assisllrnct: BllOUld 1I0t slflrt 

until water associated with the project, or "Project Water" as referred to throughout the ~talule, is 

through the .flowing completed portion oflhe project. It is my understllllding that there is some 

possibility that nan-project water, likely groundwater, could be used ill portions ofilie pipeline 

project before full completion and before project water is delivered, 

In your-opinion, is the simple clarification of "Project water" proposed in S 1447, 

sufficient to make ch".ar the intent of the panics thatthc 10 years of OM ond Rassisl.an<:e 

will only be triggered when projcct water, and not any other Wllter, is delivered in 11 

completed section? 

AllSWer; Section JQ603(b) ofPL 111-11 dct'incs Project water >"IS wnterthotis diverted from the 

Navajo Reservoirand the SanJuan River. We believe that the simple clarification of "Project 

water" as proposed in S 1#7 is sufficientto define the intenl that the 10 yearwaivcr ofOM&R 

aWslImcc will begin when watel" diverted from the San JllBIl River, or Navajo Dam,. is delivered 

b) a completed !leCtion, and thallhe 1 O-year period would lID! be triggered when groundwater or 

any other noo-Projeet water is delivered.. 

• Is there a need to insert a more clear definition of "Project Water"? 

Answer: We believe: that Section 1 0603(b) provides an adequate definition of"Projec:t \VaIer".