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S. HRG. 112–492

S. 134, S. 399, S. 1327, AND S. 1345

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

ON

S. 134, MESCALERO APACHE TRIBE LEASING AUTHORIZATION ACT

S. 399, BLACKFEET WATER RIGHTS SETTLEMENT ACT OF 2011

S. 1327 A BILL TO AMEND THE ACT OF MARCH 1, 1933, TO

TRANSFER CERTAIN AUTHORITY AND RESOURCES TO THE UTAH 

DINEH CORPORATION, AND FOR OTHER PURPOSES

S. 1345, SPOKANE TRIBE OF INDIANS OF THE SPOKANE

RESERVATION GRAND COULEE DAM EQUITABLE COMPENSATION 

SETTLEMENT ACT

OCTOBER 20, 2011

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

DANIEL K. AKAKA, Hawaii, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

JOHN HOEVEN, North Dakota 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

LORETTA A. TUELL, 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 October 20, 2011 .......................................................................... 1

Statement of Senator Akaka ................................................................................... 1 

Statement of Senator Barrasso ............................................................................... 21

Statement of Senator Bingaman ............................................................................ 5

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

Statement of Senator Tester ................................................................................... 2

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

Prepared statement .......................................................................................... 4

WITNESSES

Abrahamson, Hon. Greg, Chairman, Spokane Tribal Council ............................. 71

Prepared statement .......................................................................................... 75

Chino, Hon. Mark R., President, Mescalero Apache Tribe ................................... 26

Prepared statement .......................................................................................... 28

Jim, Hon. Rex Lee, Vice President, Navajo Nation .............................................. 48

Prepared statement .......................................................................................... 50

Laverdure, Donald ‘‘Del’’, Principal Deputy Assistant Secretary—Indian Affairs, U.S. Department of the Interior ................................................................ 7

Prepared statement .......................................................................................... 9

Maryboy, Hon. Kenneth, San Juan County Commissioner .................................. 67

Prepared statement .......................................................................................... 68

Show, Hon. Terry J., Chairman, Blackfeet Nation ............................................... 29

Prepared statement .......................................................................................... 30

Tweeten, Chris, Chairman, Montana Reserved Water Rights Compact Commission .................................................................................................................. 39

Prepared statement .......................................................................................... 41

APPENDIX

Baucus, Hon. Max, U.S. Senator from Montana, prepared statement ................ 107

King, Hon. Tracy ‘‘Ching’’, President, Fort Belknap Indian Community Tribal 

Council, prepared statement ............................................................................... 109

Navajo Nation, resolutions ...................................................................................... 116

Nez, Hon. Jonathan, Vice Chairperson, Budget and Finance Committee, Navajo Nation Council, prepared statement ............................................................ 108

Philemon, Susie, Member, Navajo Tribe, Aneth Chapter, prepared statement . 114

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S. 134, S. 399, S. 1327, AND S. 1345 

THURSDAY, OCTOBER 20, 2011

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

The Committee met, pursuant to notice, at 3:12 p.m. in room 

628, Dirksen Senate Office Building, Hon. Daniel K. Akaka,

Chairman of the Committee, presiding. 

OPENING STATEMENT OF HON. DANIEL K. AKAKA,

U.S. SENATOR FROM HAWAII 

The CHAIRMAN. The Committee will come to order. 

Aloha. Today, the Committee will hold a legislative hearing on 

four bills dealing with issues that will have significant impacts on 

the ability of Tribes to control and use their own resources. 

Two of these bills deal with water. The Committee held a roundtable discussion in June on Tribal water issues. What we heard 

from Tribal leaders was that Tribal access to and control over 

water resources is instrumental in supporting Tribal self-determination and self-governance. 

The third bill deals with the transfer authority over trust funds 

put in place to benefit the Navajo people. 

The final bill would compensate a Tribe for the use of a plan by 

the Federal Government to produce hydropower. 

The first bill, S. 134, the Mescalero Apache Tribe Leasing Authorization Act, was introduced by Senator Bingaman and Senator 

Udall. I am pleased that we have Senator Bingaman here with us 

today to testify on this bill, and I am sure Senator Udall will also 

say more about this important bill during his opening statement. 

The second bill we will consider is S. 399, the Blackfeet Water 

Rights Settlement Act of 2011. Senators Tester and Baucus have 

been working hard on this bill for several years. So today, the Committee will be able to learn about the progress made as a result of 

their efforts. 

The third bill we will consider, S. 1327, deals with the transfer 

of authority of the Utah Navajo Trust Fund. This bill was introduced by Senator Hatch. I look forward to hearing testimony from 

those on both sides of this issue. 

Finally, we will consider S. 1345, a bill that was introduced by 

Senators Cantwell and Murray. This bill would provide fair and 

just compensation to the Spokane Tribe whose land was used by 

the United States for the development of hydropower, but was 

never fairly compensated for that use. 

2

So, today we will hear from the Administration, the affected 

Tribes and other parties to the legislation. I encourage any other 

interested parties to submit written comments to the Committee. 

The hearing record will remain open for two weeks from today. 

I know that my good friends, Senators Tester, Udall, and Cantwell, have done a significant amount of work on these bills. So I 

would like to hear from them at this time. 

Senator Tester? 

STATEMENT OF HON. JON TESTER,

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman. I want to thank you 

for holding this hearing on all the bills, but particularly the Blackfeet water rights settlement. It is a very important bill to the folks 

with the Blackfeet Tribe there in Montana. It is important to me. 

It is important to the United States and Senator Baucus also. 

First of all, I want to welcome our witnesses from Montana 

Blackfeet Nation, Chairman T. J. Show. He is new to the job, but 

he is certainly not new to this issue. He knows it very, very well. 

Mr. Chris Tweeten, Chairman of the Montana Reserved Water 

Rights Compact Commission. Chris has been at this job for a very 

long time. He has the best mind when it comes to water rights settlements from a Compact Commission standpoint around, and a 

true pleasure to have him here, too. 

They are joined by colleagues and staffs from Montana. I want 

to welcome them all. And I would also like to welcome Del 

Laverdure from the Department of Interior. He is the Principal 

Deputy Assistant Secretary of Indian Affairs from the Department 

of Interior, also a Montanan. And we should have an interesting 

discussion on this because we are kind of on opposite sides of this 

bill, but I know Del well. He is a good friend and hopefully through 

good conversation, we will be able to get on the same sheet. 

I also want to note that Senator Baucus and I are cosponsoring 

this bill, as you have already said, Mr. Chairman. He has submitted a statement for the record in full support. He and I have 

cosponsored bills the last two sessions of Congress to get this done. 

And as we talk about improving life in Indian Country, specifically Blackfeet Territory, I would be remiss to not take a moment 

to recognize the passing of Elouise Cobell. Elouise was a member 

of the Blackfeet Tribe. She fought tirelessly to hold government accountable for the promise it made to American Indians. She was 

a friend of mine. She was a friend to all Native Americans. I will 

absolutely miss her, as will thousands and thousands of other people around the Country. And I just want to take just a brief moment. I don’t know if it is appropriate or not, but I hope so, just 

to think about all that Elouise Cobell had done for Indian Country 

in the United States. 

Thank you for that, Mr. Chairman. 

We are here to talk about the Blackfeet Water Rights Settlement 

Act. This bill is the right thing to do. It will create jobs in Blackfeet 

Reservation and it will improve reservation infrastructure for generations to come. 

Water is the foundation of life for every community, but particularly in rural communities. This bill will provide clean drinking 

3

water for Tribal communities. It will provide good Montana water 

for irrigation, for livestock, for other economic development opportunities. 

The bill is the right thing to do because it is the product of a 

complex negotiation to fulfill a trust responsibility that the United 

States has to the Blackfeet Nation. In 1908, the U.S. Supreme 

Court in its decision in Winters v. United States said that the government must provide sufficient water to reservations that it creates. 

The purpose of creating the Blackfeet Indian Reservation in 1855 

was to create a permanent homeland for the Blackfeet people. This 

bill fulfills the promise to provide the water it needs. It will create 

jobs building water infrastructure necessary to, in turn, pay for 

water rights in the quantified Blackfeet Water Compact into usable 

water for all Montanans that live on the Blackfeet Reservation. 

Rather than fight it out in court, Tribal, State and Federal officials worked on a government-to-government basis to negotiate this 

contract. The Montana Legislature approved the water compact in 

2009. The State of Montana supports this bill and has agreed to 

appropriate $35 million to enact it. Now, we need support from our 

end at the United States Federal level. 

Senator Baucus and I have been asking the Department of Interior to comment on the proposed legislation in an effort to gain 

their support. I know they have been busy working on other settlements, including the Montana Crow Water Settlement, which we 

passed last year, and I want to thank you for your work on that, 

but now it is time to fully engage on the Blackfeet bill. 

I look forward to everybody’s testimony today. And of course, I 

am going to have some questions for them when it gets done. 

Thank you all for traveling here. I appreciate your commitment 

to Indian Country. 

And thank you again, Mr. Chairman, for giving our bill the Committee’s attention. 

The CHAIRMAN. Senator Udall? 

STATEMENT OF HON. TOM UDALL,

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you, Chairman Akaka. 

Just as Senator Tester has done, I thank you very much for holding hearings on all these bills today. 

And let me also welcome President Chino and his lovely wife, 

who is the First Lady of Mescalero. 

I am especially pleased that the Committee will be considering 

the merits of S. 134, the Mescalero Apache Tribe Leasing Authorization Act, a bill that will allow the Mescalero Apache Tribe in 

Southern New Mexico to lease their adjudicated water to communities in New Mexico that are in great need of water. 

I would like to welcome Senator Bingaman, with whom I have 

been working closely to move Mescalero water legislation forward. 

Senator Bingaman has long been a great advocate of Tribal water 

legislation and has been persistently diligent in moving this and 

other important pieces of water legislation through Congress. 

Last year, we celebrated final passage of two 40-plus-year water 

settlements, and this year we continue to press the Administration 

4

and Appropriations Committees to ensure that projects related to 

these and other Tribal water settlements are funded. 

Senator Bingaman is truly an expert on Tribal water issues and 

I look forward to hearing his testimony. 

I hope that through the testimony we hear today, my colleagues 

on the Committee will, number one, understand the need for flexible and innovative approaches to water management in the arid 

west; and number two, appreciate the simple and logical nature of 

the Mescalero Apache Tribal Leasing Authorization Act; and number three, recognize the great benefits that the Mescalero Apache 

Tribe Leasing Authorization Act will be to the Mescalero Tribe and 

the neighboring communities. 

I look forward to hearing from the witnesses and thank my colleagues for their careful attention and support of the Mescalero 

Apache Tribe Leasing Authorization Act. 

And I yield back, Mr. Chairman, and thank you again.

PREPARED STATEMENT OF HON. TOM UDALL, U.S. SENATOR FROM NEW MEXICO

President Chino Introduction 

I am please to introduce my good friend, Mescalero Apache President Mark Chino 

to the Senate Committee on Indian Affairs. 

President Chino has diligently served the Mescalero Apache as president for 

years. He is currently finishing his 3rd two year term as President of the Tribe, and 

has led his Tribe in many great efforts. With a focus on economic development, 

President Chino continues to build ties with neighboring communities, and to advocate for federal contracts and other economic development opportunities for the 

Tribe. 

Public service is a family tradition for the Chinos. President Mark Chino is the 

son of President Wendall Chino, an icon in Mescalero history, who led the Tribe for 

over 40 years. I look forward to President Chino’s continued leadership of the Mescalero Apache, and thank him for his dedication to his constituency. 

The Mescalero Apache Tribe Leasing Authorization Act presents great opportunities for President Chino and the Mescalero Apache to bolster economic development, 

while helping neighboring communities. I thank President Chino for his willingness 

to participate in today’s hearing and look forward to hearing from him. 

Vice President Jim Introduction 

I am please to introduce my good friend, Navajo Nation President Rex Lee Jim 

to the Senate Committee on Indian Affairs. 

Formerly the Ranking Member of the Judiciary Committee, and Chairman of the 

Public Safety Committee in the 21st Navajo Nation Council, Vise President Jim was 

sworn in with President Joe Shirley on January 11, 2011. 

Vice President Jim was raised in the Rock Point in Arizona, where he returned 

to teach at the local community school after graduating from Princeton University. 

Beyond being an educator, Vice President Jim is an author, playwright, and medicine man. He has long been a dedicated public servant and continues be a strong 

leader of the Navajo Nation. 

I thank Vice President Jim for his willingness to participate in today’s hearing, 

and give testimony on S. 1327, a bill to amend the Act of March 1, 1933, to transfer 

certain authority and resources to the Utah Dineh Corporation.

The CHAIRMAN. Thank you very much, Senator Udall. 

Before I call on Senator Cantwell, I would like to call on Senator 

Bingaman for his statement and welcome him as a good friend and 

a brother. He will serve as our first panelist today, speaking about 

S. 134, the Mescalero Apache Tribe Leasing Authorization Act. 

Senator Bingaman, will you please proceed? 

5

STATEMENT OF HON. JEFF BINGAMAN,

U.S. SENATOR FROM NEW MEXICO 

Senator BINGAMAN. Thank you very much, Chairman Akaka, for 

your courtesy. And thank you for the chance to speak in favor of 

this bill. 

Senator Udall did a good job of summarizing what is involved 

here. I join him in welcoming President Chino who is here today, 

and who I believe will be testifying here before your Committee in 

a few minutes. 

The Mescalero Apache Tribe I believe will benefit from this legislation, which is called the Mescalero Apache Tribe Leasing Authorization Act. 

In 1993, the New Mexico Court of Appeals adjudicated about 

2,300 acre-feet of water to the Mescalero Apache Tribe as part of 

the Pecos River Adjudication. But without specific Congressional 

approval, the Tribe is not authorized to lease those water rights to 

others. So that is what this legislation would provide. It would provide that authorization. 

S. 134 will allow the Tribe to lease its water rights to other communities in their part of New Mexico, in the southeastern part of 

New Mexico, and central New Mexico, that have significant water 

supply needs. We are still in a drought situation in New Mexico. 

We have been now for well over a year. This last year has been 

one of the worst on record in our State’s history, and unfortunately 

that circumstance may not change that quickly. 

There are various communities such as the Village of Ruidoso, 

the Village of Cloudcroft, the City of Alamagordo that will be able 

to negotiate to lease some of this water from the Mescalero Apache 

Tribe if we are able to pass this legislation. So this will be beneficial to the Tribe, of course. It will be beneficial to these communities. 

All of this is done under our State law in New Mexico, under a 

process that is overseen by the New Mexico State Engineer, who 

has overall responsibility for water transactions and water rights 

in our State. 

This will also help to strengthen the relationship which is already a very good one between Indian and non-Indian communities 

in our State. The bill will greatly benefit all concerned, and I appreciate your willingness to consider the legislation at this hearing, 

and I hope you are able to act favorably upon it. 

Again, thank you for letting me testify. It is an honor to work 

with Senator Udall on this legislation. I think it is a good piece of 

legislation and one that we need to pass and send to the President 

for signature. 

The CHAIRMAN. Thank you, Senator Bingaman, for your insights 

on this bill. And thank you for being here and for being patient, 

and we wish you well. Thank you. 

And now, we will hear from Senator Cantwell. 

STATEMENT OF HON. MARIA CANTWELL,

U.S. SENATOR FROM WASHINGTON 

Senator CANTWELL. Thank you, Mr. Chairman. And I appreciate 

your determined advocacy for Indian Country and the leadership of 

this Committee. 

6

I thank you for having this very important hearing today on several pieces of legislation, specifically the Spokane Tribe and having 

the Department of Interior here on S. 1345, legislation to provide 

compensation to the Spokane Tribe for the building of a Federal 

dam on their land 70 years ago, and the continued impacts of that 

today. 

The Grand Coulee Dam project destroyed Tribal schools, roads, 

sacred sites and salmon runs critical to the Tribe’s livelihood, and 

culture. This legislation fulfills the Federal Government’s moral 

and equitable obligation to treat the Spokane Tribe honorably and 

fairly by finally settling their claims and providing the Tribe with 

just and equitable compensation. 

Let me begin by welcoming the Chairman, Greg Abrahamson, 

who is going to be on one of the panels that we have today. He has 

traveled over 2,000 miles to be here from Washington State and I 

thank you for doing that. He has testified in the past on similar 

legislation to S. 1345 and today he is going to be making comments 

about changes to this legislation since the last Congress. 

For more than a half-century, the Columbia Basin Project has 

made incredible contributions to our Nation. It has helped pull the 

economy out of the Great Depression. It provided electricity that 

provided aluminum to build airplanes and many other things. The 

project continues today to produce enormous revenues and it is a 

key component of the agricultural economy in Eastern Washington, 

helping to irrigate over 600,000 acres of land and provide about 11 

percent of the electricity needed by various towns across various 

areas of our State and the Pacific Northwest. 

However, these benefits come at a great direct cost to Tribal 

property that have been inundated when the U.S. Government 

built the Grand Coulee Dam. And before dam construction, the free 

flow of the Columbia supported a robust and plentiful salmon run 

that provided virtually all of the subsistence of the Spokane Tribe. 

After construction, the Columbia and its Spokane River tributary 

flooded the Tribal communities and sacred places, schools and 

roads, and to this day the effects of the flooding are being felt by 

the Spokane Tribe. 

To date, the Tribe has received only $4,700 for the damages that 

have been done. By comparison, the Colville, whose reservation lies 

just to the west of the Spokane Tribe Reservation, received well 

over $53 million for the losses it suffered and continues to suffer 

as a result of the Columbia Basin Project. 

It is an injustice that the Spokane Tribe has not received fair 

and equitable compensation for suffering from similar damage, and 

this legislation would fulfill our obligations to the Spokane Tribe. 

Getting to this point today has been a long and evolving process, 

but I believe the language in this legislation addresses any concerns the Department of Interior has previously raised and I look 

forward to hearing their testimony today. 

We have also made some key changes to the legislation to satisfy 

the concerns of the Bureau of Reclamation expressed during the 

last hearing on this legislation and in correspondence to the Committee in 2008. The Spokane Tribe spent several months this year 

working with the Bureau of Reclamation to address their concerns 

and with the overall settlement agreement. 

7

So I want to thank you, Mr. Chairman, for allowing this to be 

on the agenda today and for the Spokane Tribe coming here today 

to talk about this legislation. I know that there will be many people 

working on this legislation within the Northwest delegation, and so 

I just look forward to working with my House and other Senate colleagues, Senator Murray, and other House colleagues on this legislation. 

I want to say that I have received letters from different local 

counties, the Governor, the Mayor of Spokane, and many others in 

support of this legislation. 

So I look forward to hearing today’s testimony. 

The CHAIRMAN. Thank you very much, Senator Cantwell. 

And now, I would like to invite the second panel to the witness 

stand, Mr. Del Laverdure, the Principal Deputy Assistant Secretary for Indian Affairs at the Department of Interior; and Ms. 

Pamela Williams is accompanying Mr. Laverdure today. 

So welcome, Mr. Laverdure, again and please proceed with your 

testimony. 

STATEMENT OF DONALD ‘‘DEL’’ LAVERDURE, PRINCIPAL

DEPUTY ASSISTANT SECRETARY—INDIAN AFFAIRS, U.S.

DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY

PAMELA WILLIAMS, DIRECTOR, INDIAN WATER RIGHTS

OFFICE 

Mr. LAVERDURE. Good afternoon, Mr. Chairman. 

The CHAIRMAN. Good afternoon. 

Mr. LAVERDURE. And Members of the Committee. My name is 

Del Laverdure. I am the Principal Deputy Assistant Secretary for 

Indian Affairs at the Department of the Interior. 

I am here today to provide the Department’s position on S. 134, 

the Mescalero Apache Tribe Leasing Authorization Act; S. 399, the 

Blackfeet Water Rights Settlement Act of 2011; S. 1327, a bill to 

transfer certain authority and resources to the Utah Dineh Corporation; and S. 1345, the Spokane Tribe of Indians Equitable 

Compensation Settlement Act. 

But first before I begin, I would like to do, as Senator Tester did, 

and acknowledge the passing of a very significant Indian leader, 

Elouise Cobell, and in fact the Assistant Secretary, Larry Echo 

Hawk, is in flight out there to be attending services. Otherwise, he 

might be here today. 

As far as the testimony, it is important to begin by stating that 

the Administration strongly supports the principles of self-determination and self-governance, and recognizes that intrinsic to these 

principles is Tribal control over Tribal resources. 

Like Tribal homelands, water is essential to the health, safety 

and welfare of Native people and Tribal governments are in the 

best position to determine how their water will be used. 

S. 134 would enable the Mescalero Apache Tribe to lease its adjudicated and quantified water rights for use within the State of 

New Mexico for up to 99 years. The bill to lease water rights under 

S. 134 is consistent with the department’s longstanding support for 

leasing quantified water rights recognized in Indian water rights 

settlements. 

8

Leasing is an important and acceptable way for which Tribes 

may achieve economic value from the use of their resources. The 

Department believes that the policy on approval of water leases 

should parallel aspects of its policies on approving leases of land. 

Therefore, the department supports S. 134, the Mescalero Apache 

Tribe Leasing Authorization Act, with the amendments discussed 

in my full statement for the record. 

It is also important to note that this Administration supports the 

resolution of Indian water rights claims through negotiated settlement. Our general policy of support for negotiations is premised on 

a set of general principles that include the following. 

That the United States participate in water settlements consistent with its responsibilities as trustee to Indians, that Indian 

Tribes receive equivalent benefits for rights which they and the 

United States may release as part of the settlement; that Indian 

Tribes should realize value from confirmed water rights resulting 

from a settlement; and that settlements are to contain appropriate 

cost-sharing proportionate to the benefits received by all of the parties benefitting from the settlement. 

I want to affirm the Administration’s support for settling Indian 

water rights where possible. However, as discussed more fully in 

my written statement, the department cannot support S. 399 as introduced. S. 399, the Blackfeet Water Rights Settlement Act of 

2011, would provide approval for and authorization to carry out a 

settlement of the water rights claims of the Blackfeet Tribe of the 

Blackfeet Indian Reservation in Montana. 

The Department’s major concerns with S. 399 include the following. Number one, the high cost of implementing this bill, including $591 million of specifically authorized costs and unspecified, 

but significant, additional costs from several obligations imposed on 

the Federal Government without specific authorization of funds; 

number two, the settlement does not include a reasonable State 

cost share to reflect the benefits that would enure to the non-Federal and the non-Tribal beneficiaries; number three, the lack of information regarding what infrastructure projects the Tribe would 

pursue under the settlement and the actual costs for such proposed 

projects; number four, the requirement that the United States establish a mitigation fund to benefit a non-Tribal beneficiary; and 

number five, that the settlement does not achieve finality in resolving contentious water management issues in the relevant basins. 

These are not all of the concerns the Department has with S. 

399, but they are the most significant concerns as are discussed in 

my written statement submitted for the record. 

The Department believes that the settlement can be accomplished in a manner that protects the rights of the Tribe and also 

ensures that the appropriate costs of the settlements are borne proportionally. While we do not support S. 399 as introduced, the Administration is committed to working with Congress and all parties 

concerned in developing a settlement that the Administration can 

support. 

Consistent with the Administration’s strong support for the principles of self-determination and self-governance, and our recognition that the intrinsic to those principles is Tribal control over 

Tribal resources, the department opposes S. 1327, a bill to transfer 

9

certain authority and resources to the Utah Dineh Corporation. S. 

1327 would amend the 1933 Act and its subsequent 1968 amendments by identifying the Utah Dineh Corporation as the trustee of 

the former Utah Navajo Trust Fund. 

Consistent with our government-to-government relationship with 

the Navajo Nation, the department acknowledges and respects the 

position of the Navajo Nation as it pertains to the Utah Navajo 

Trust Fund. The Department understands that the Navajo Nation 

would like to manage the trust and disburse the funds to the Utah 

Navajo beneficiaries consistent with the current disbursements and 

percentages. 

We also understand that the Navajo Nation opposes this bill and 

has opposed a similar version in the 111th Congress. At this time, 

the department believes it is more appropriate for the Navajo Nation to manage the trust and disburse the funds consistent with 

and to further the intent of the 1933 Act. 

And finally, Mr. Chairman, S. 1345, Spokane Tribe of Indians of 

the Spokane Reservation Grand Coulee Dam Equitable Compensation Settlement Act. S. 1345 would provide compensation to the 

Spokane Tribe for the use of its land for the generation of hydropower by the Grand Coulee Dam. Specifically, S. 1345 would require the Secretary of the Interior to deposit $99.5 million over five 

years into a trust fund held by the United States Treasury for the 

Spokane Tribe. 

The Department is encouraged by significant progress made in 

recent months towards resolving issues of concern to the Administration. An example of significant progress is the Department’s 

support for the removal of the land transfer provisions that were 

included in previous legislation. 

However, the Administration cannot support S. 1345 in its current form. With respect to section five of S. 1345, titled Settlement 

Fund, we believe the basis for the settlement has not been established by legal claim of the Spokane Tribe. Since the Spokane Tribe 

has no legal claim, the Department does not believe that legislation 

is appropriate as a settlement of claims. 

However, the Department could examine with the Tribe and 

Congress other avenues to address the concerns of the Spokane 

Tribe. The Department, in consultation with the Bonneville Power 

Administration, would be pleased to work with the Committee on 

substitute language or amendments to the legislation that we believe could meet the needs of the Spokane Tribe and the United 

States. 

This concludes my statement and I would be happy to answer 

any questions the Committee may have. 

[The prepared statement of Mr. Laverdure follows:]

PREPARED STATEMENT OF DONALD ‘‘DEL’’ LAVERDURE, PRINCIPAL DEPUTY ASSISTANT

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

S. 134

Good afternoon Mr. Chairman, Vice-Chairman Barrasso and Members of the Committee. My name is Del Laverdure. I am the Principal Deputy Assistant Secretary 

for Indian Affairs at the Department of the Interior (Department). I am here today 

to provide the Department’s position on S. 134, the Mescalero Apache Tribe Leasing 

Authorization Act. 

10

The Administration strongly supports the principles of self-determination and 

self-governance, and recognizes that intrinsic to these principles is tribal control 

over tribal resources. Like tribal homelands, water is essential to the health, safety, 

and welfare of Native people, and tribal governments are in the best position to determine how their water will be used. Accordingly, the Department supports S. 134 

with the amendments discussed below. 

S. 134 would enable the Mescalero Apache Tribe to lease its adjudicated and 

quantified water rights for use within the State of New Mexico for up to 99 years. 

The term ‘‘adjudicated water rights’’ is defined as those rights adjudicated to the 

Tribe in State v. Lewis, 861 P. 2d 235 (N.M. Ct. App. 1993). In leasing its adjudicated water rights, the Tribe would have to comply with New Mexico laws and 

regulations. In addition, the bill expressly states that the Tribe may not permanently alienate any of its adjudicated water rights. 

The ability to lease water rights under S. 134 is consistent with the Department’s 

long-standing support for leasing quantified water rights recognized in Indian water 

rights settlements. Leasing is an important and acceptable way for which tribes 

may achieve economic value from use of their resources. The Department believes 

that the policy on approval of water leases should parallel aspects of its policies on 

approving leases of land. The Department recommends including language in the 

bill that provides that the Tribe shall develop tribal water leasing standards and 

submit such standards to the Secretary of the Interior for approval. The tribal water 

leasing standards should include provisions under which the tribe would identify 

and mitigate impacts that could potentially result from water leasing. Following this 

one-time approval of tribal water leasing standards, the Tribe would then have the 

authority to approve its own leases of water. In addition, the Department recommends that language should be added clarifying that the bill applies to water 

leases off the Tribe’s reservation. 

S. 399

The Department’s position on S. 399, the Blackfeet Water Rights Settlement Act 

of 2011, which would provide approval for, and authorizations to carry out, a settlement of the water rights claims of the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana. 

I. Introduction 

This Administration supports the resolution of Indian water rights claims through 

negotiated settlement. Our general policy of support for negotiations is premised on 

a set of general principles including that the United States participate in water settlements consistent with its responsibilities as trustee to Indians; that Indian tribes 

receive equivalent benefits for rights which they, and the United States as trustee, 

may release as part of a settlement; that Indian tribes should realize value from 

confirmed water rights resulting from a settlement; and that settlements are to contain appropriate cost-sharing proportionate to the benefits received by all parties 

benefiting from the settlement. I want to affirm the Administration’s support for 

settling Indian water rights where possible. 

Disputes over Indian water rights are expensive and divisive. In many instances, 

Indian water rights disputes, which can last for decades, are a tangible barrier to 

progress for tribes, and significantly, hinder the rational and beneficial management 

of water resources. Settlements of Indian water rights disputes break down these 

barriers and help create conditions that improve water resources management by 

providing certainty as to the rights of all water users who are parties to the dispute. 

That certainty provides opportunities for economic development, improves relationships, and encourages collaboration among neighboring communities. This has been 

proven time and again throughout the West as the United States has pursued a policy of settling Indian water rights disputes whenever possible. Indian water rights 

settlements are also consistent with the Federal trust responsibility to American Indians and with Federal policy promoting Indian self-determination and economic 

self-sufficiency. For these reasons and more, for nearly 30 years, federally recognized Indian tribes, states, local parties, and the Federal government have acknowledged that negotiated Indian water rights settlements are preferable to protracted 

litigation over Indian water rights claims. 

A Blackfeet water settlement would bring an end to Federal and state court litigation that has been ongoing for more than thirty years, and resolve conflicts over 

water use that began more than 100 years ago. It would open a path forward for 

the Blackfeet Tribe to manage its water and related natural resources in a manner 

most beneficial to its members and future generations, and provide certainty to the 

communities that surround the Reservation. The Department recognizes the subVerDate 0ct 09 2002 10:19 Jul 31, 2012 Jkt 074443 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 S:\DOCS\74443.TXT JACK
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stantial work and effort that have been put into negotiating this settlement by the 

Blackfeet Tribe and the State of Montana. We would like to continue to work with 

the parties and the sponsors to address certain concerns, including those discussed 

in this statement (such as appropriate non-Federal cost share) that could make this 

a settlement that the Administration could support. 

As discussed below, however, we cannot support S. 399 as introduced. Our major 

concerns with this legislation include: (1) the high cost of implementing this bill, including $591 million of specifically authorized costs and unspecified but significant 

additional costs from several obligations imposed on the Federal government without specific authorizations of funds; (2) that the settlement does not include a reasonable State cost share to reflect the benefits that would inure to the non-Federal 

and non-tribal beneficiaries; (3) the lack of information regarding what infrastructure projects the Tribe would pursue under this settlement and the actual costs for 

such proposed projects; (4) the requirement that the United States establish a mitigation fund to benefit a non-tribal beneficiary; and (5) that the settlement does not 

achieve finality in resolving contentious water management issues in the relevant 

basins. We have other concerns with this legislation; only the most significant of our 

concerns are discussed in this statement. However, before we address our significant 

concerns it is important to acknowledge the historical background associated with 

the water rights of the Blackfeet Tribe. 

II. Historical Context 

The history of the relationship between the Blackfeet Tribe and the United States 

is not one of which the United States can be proud. The Treaty with the Blackfeet 

in 1855 encompassed some 27,500 square miles of Blackfeet tribal lands in what 

was to become Montana. The discovery of gold in the early 1860s brought the first 

wave of non-Indians into the territory, along with increasing pressure to open the 

Reservation to non-Indian settlement. A series of executive orders reduced and 

reconfigured the Reservation and then in 1888, it was divided into three separate 

and smaller reservations: the Fort Belknap Reservation, the Fort Peck Reservation, 

and the Blackfeet Reservation. The Blackfeet Reservation was further diminished 

in 1895 (Agreement of September 19, 1895, ratified on June 10, 1896, 29 Stat. 321, 

chapter 398, hereafter ‘‘1895 Agreement’’), when the United States purchased from 

the Tribe 800,000 acres of land along the western boundary of the Reservation, with 

the Tribe reserving rights to hunt, fish and cut wood and remove timber on the 

‘‘ceded lands,’’ so long as they remained ‘‘public lands’’ of the United States. The 

land was thought to have contained valuable deposits of gold, silver, and copper, but 

the mineral reserves did not prove out. Instead, a plan to establish a national park 

on the land moved forward. The rights retained in the ceded lands by the Tribe in 

the 1895 Agreement almost immediately became an issue between the Tribe and 

Glacier National Park and have remained so to the present. 

In the 1895 Agreement, the United States promised that the Reservation would 

not be allotted without the consent of the adult men of the Tribe (Article V), and, 

that if the government were to build a canal to control the abundant supply of water 

available seasonally in the St. Mary River, the canal would be constructed to provide irrigation water for the Reservation (Article III and Meeting Minutes). Within 

just a few years, the Reservation was opened to allotment; construction of a canal 

to capture the supply of the St. Mary River had begun, which was done in conjunction with land purchases by the Bureau of Reclamation; and the canal was designed 

and constructed to divert St. Mary water off of the Reservation for the benefit of 

the Milk River Project, which is located some 200 miles away, and not for the benefit of the Tribe. In 1909, the United States entered into a treaty with Canada apportioning the waters of the St. Mary and Milk Rivers. This Treaty did not specifically address the water rights of the Blackfeet Nation and other Tribes, even though 

it was concluded just after the United States Supreme Court handed down its 1908 

decision in Winters v. United States—a case involving the Milk River, which established the doctrine of Federal Indian reserved water rights. 

There is an abundant supply of water arising on or near the Blackfeet Reservation, but much of it is diverted off the Reservation, which along with a lack of storage capacity for on-Reservation use and a limited growing season, creates numerous 

challenges for the Tribe. These challenges in part account for the high unemployment and devastating poverty rate that has plagued the Reservation for generations. Securing control of and actively managing Reservation water resources would 

be an important step towards improving economic conditions on the Reservation and 

creating the homeland envisioned in the numerous treaties and agreements that 

serve as the foundation of the United States and Blackfeet Tribe’s relationship. 

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III. Blackfeet Montana Water Rights Compact and Proposed Legislation 

S. 399 would approve a Compact entered into by the Blackfeet Tribe and the State 

of Montana in an effort to settle all the Tribe’s water rights claims in Montana. The 

legislation specifically authorizes funding of $591 million, but the actual cost to the 

United States of implementing S. 399 would be substantially higher because the legislation requires the United States to carry out a number of actions spending ‘‘such 

sums as may be necessary.’’ Major costs would be incurred to carry out the requirements of section 5(a) related to the St. Mary River, section 5(b) related to compensation to the Tribe for Milk River Project Rights-of-Way and easements, and section 

11 regarding Milk River water rights. S. 399 as introduced does not even attempt 

to quantify the amounts that the United States would be required to pay to satisfy 

the requirements of these sections. Likewise, S. 399 is silent on the amount required 

for the Birch Creek Mitigation Fund that would be established under section 9. Of the $591 million that are specifically authorized, $466 million are slated for 

the Blackfeet Land and Water Development Fund established in section 8(a) of S. 

399. This trust fund would be used by the Blackfeet Tribe to carry out activities 

at its option. The list of authorized uses in section 8(a) is extremely broad. $125 

million is authorized for the Secretary of the Interior to carry out rehabilitation and 

improvement activities for the Blackfeet Irrigation Project and Four Horns Dam and 

Reservoir. The legislation does not make clear what would happen if $125 million 

is not enough to complete the work called for in section 5(d) of the Act, although 

the Tribe may be able to use funds provided to it through the Land and Water Development Fund to complete the work. As will be discussed further below, this needs 

to be clarified so that the Secretary does not face open-ended and unfunded mandates and the United States does not face continuing liabilities, instead of finality, 

despite the expense and breadth of this settlement. 

The settlement would recognize a tribal water right to approximately 750,000 

acre-feet per year of surface water from the flow of several rivers on the Reservation, including the St. Mary River, the Milk River, Cut Bank Creek, Two Medicine 

River, Badger Creek and Birch Creek. Citizens of the State of Montana benefit 

under the settlement as non-irrigation State based water rights are protected under 

the Compact in each of these basins, while irrigation State based water rights are 

protected for a period of ten years in the Cut Bank Creek and Milk River Basins 

and are then subject to a call by the Tribe. 

The remainder of this testimony will summarize a number of significant concerns 

regarding S. 399 as introduced. 

IV. Major Concerns 

A. Federal Cost 

The Department has serious concerns with the amount of the appropriations that 

would be needed to carry out this settlement. Section 14 authorizes appropriations 

in the amount of $591 million plus additional sums as may be necessary to resolve 

the St. Mary and Milk River conflicts and to implement the Birch Creek Agreement 

discussed above. Aside from just the sheer magnitude of the cost of this proposed 

settlement, there is little information regarding the projects the Tribe plans on 

funding using the trust fund that would be established under legislation. The Department has made it clear to the Tribe that it needs much greater detail and certainty along with a more realistic level of funding before it will be able to support 

S. 399. 

As a practical matter, the size of the Federal obligation created under S. 399 in 

relation to the Department’s budget presents significant challenges. As an example, 

the Bureau of Reclamation currently has a backlog of more than $2 billion in authorized but unfunded rural water projects. This is in addition to other authorized 

but unfunded Reclamation projects. Moreover, the breadth of the many benefits that 

would flow to the Blackfeet Tribe and the non-tribal beneficiaries under the settlement at almost exclusively Federal cost, such as the rehabilitation and improvement 

of the Blackfeet Irrigation Project and significant funding for unspecified and openended water and economic development projects, raises serious concerns because of 

the precedent that enactment of such a large settlement could set for future Indian 

water rights settlements. 

B. Non-Federal Cost Share 

S. 399, as introduced, authorizes almost $600 million in Federal appropriations. 

Significantly, the legislation authorizes $125 million of this cost for the rehabilitation, improvement, and expansion of the Blackfeet Irrigation Project and Four 

Horns Dam and Reservoir. Many of the benefits from Four Horns Dam and Reservoir would go to secure a guaranteed water supply for the Birch Creek water 

users associated with Pondera County Canal and Reservoir Company (PCCRC), a 

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private off-Reservation irrigation company south of the Reservation. Birch Creek 

forms the southern boundary of the Blackfeet Reservation and was the subject of 

Conrad Inv. Co. v. United States, 161 F. 829, 831 (9th Cir. 1908), where ‘‘the paramount rights of the [Blackfeet] Indians’’ to Birch Creek were decreed. If the Tribe 

develops the full Birch Creek water right it negotiated under the Compact with 

Montana, the water supply available to PCCRC will decrease. 

The Birch Creek Agreement between the State and the Tribe attempts to solve 

this problem by authorizing the construction of a new pipeline to deliver 15,000 AF/

yr to PCCRC, water that is made available by the enlargement of Four Horns Dam, 

a Bureau of Indian Affairs (BIA) irrigation project facility. Though the Tribe’s consultant estimates that full implementation of the cost for the Four Horns project 

will cost as much as $215 million, S. 399 authorizes only $125 million for the Secretary to pay for both Four Horns Dam and Reservoir and expansion of the Blackfeet Irrigation Project. Any additional required funding for this project would need 

to come from the Tribe’s water development fund, although this is not clear from 

the language used in S. 399 and would require clarification. The Administration estimates that about half of the full implementation cost of $215 million is attributable to non-tribal water users. Montana agreed in the Birch Creek Agreement to 

pay the Tribe $14.5 million for its deferral of its Birch Creek water right for a period of up to 15 years during construction of the Four Horns Dam enlargement and 

associated infrastructure, then for its delivery of 15,000 AF/yr to PCCRC for 25 

years. Additionally, the State, during water rights negotiations, paid the Tribe 

$500,000 to conduct appraisal level designs of the Four Horns enlargement project. 

The State also will contribute an additional $20 million towards construction of the 

PCCRC pipeline for a total cost share by the State of $35 million, just 6 percent 

of the specifically authorized costs of the settlement and around 33 percent of the 

Administration’s estimate of the State’s share of the capital cost of this project. 

Additional benefits to State users in the Compact arise from the Tribe’s agreement to protect junior state water rights holders, especially in the St. Mary and 

Milk River basins. These benefits are substantial although not quantified in the settlement. The Department is confident that settlement benefits, e.g., protecting existing non-Indian water users, securing the Tribe’s water rights, and empowering the 

Tribe to control and manage its water resources, can be achieved at a lower cost 

than the Birch Creek Agreement contemplates. The United States has engaged experts to identify alternatives, and working in collaboration with the Tribe, is preparing an alternative proposal for consideration by the State. While the Department 

supports the goal of preserving existing water uses whenever possible, substantial 

Federal outlays that benefit non-Indian water users are not acceptable. 

C. Lack of Information Regarding Proposed Use of Trust Fund and Infrastructure 

Projects 

Section 8 of S. 399 authorizes the Tribe to use a $466 million Land and Water 

Development Fund for: (1) the acquisition of land or water rights; (2) water resources planning, development, and construction, including storage and irrigation; 

(3) agricultural development; (4) restoring or improving fish or wildlife habitat; (5) 

fish or wildlife production; (6) any other water storage project, land or land-related 

project, or water or water-related project; (7) cultural preservation; (8) the operation 

and maintenance of water and water-related projects and environmental compliance 

related to projects constructed under this Act; (9) development of administrative infrastructure to implement this Act, including development of the tribal water code; 

(10) design and construction of water supply and sewer systems and related facilities; (11) measures to address environmental conditions on the Reservation; and (12) 

water-related economic development projects. The authorized uses of this fund are 

so broad that it is difficult for the United States to evaluate whether the fund is 

sized appropriately. 

Likewise, the Department does not have sufficient information regarding the infrastructure projects that the Tribe wants to carry out under this settlement. Without this information, we cannot evaluate the Tribe’s estimated costs for the proposed 

projects or determine an appropriate Federal cost share. The $125 million authorized for the Secretary to carry out infrastructure projects would not be sufficient to 

complete the actions called for under section 5(d) of S. 399 as introduced. The legislation should clarify the respective responsibilities of the Secretary and the Tribe 

under the legislation. It is our understanding that the Tribe would be responsible 

for completing these infrastructure projects using funds provided to the Tribe under 

this settlement after the Secretary has spent the amount specifically authorized in 

section 14 for these purposes. 

The Blackfeet Irrigation Project (Project) was authorized for construction in 1907 

at 106,000 acres but only 51,000 acres have been completed. Sixty percent of the 

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Project’s land is in trust owned by either the Tribe or individual tribal members and 

about 40 percent is owned by non-Indians. The BIA estimates the Project’s total deferred maintenance costs at over $29 million. About 38,300 acres are being assessed 

operation and maintenance fees. Section 5(d)(1) of the legislation calls for full build 

out of the Project to the authorized acreage. The rehabilitation of the Project includes plans to enlarge Four Horns Reservoir and associated delivery systems, including the Birch Creek portion of the Project discussed above. The legislation lacks 

specifics with respect to the proposed rehabilitation projects the Tribe plans to undertake. The Department has expressed its concerns about the scope and cost of the 

proposed rehabilitation of the Project, and the Tribe is working with us to more narrowly focus its plans for rehabilitation. The Tribe is also considering the Department’s proposal that after completion of an agreed upon rehabilitation and improvement of the Project, the United States would transfer to the Tribe title to the 

Project. 

Although not specifically referenced in the legislation, it is understood that the 

Tribe intends to develop a regional drinking water system using funding provided 

under this settlement. Parts of the Blackfeet Reservation have been under a ‘‘boil 

order’’ for more than a decade. While the Tribe has been working to develop and 

construct a regional water supply system, only portions of it are complete. The $466 

million Blackfeet Land and Water Development Fund authorized in this legislation 

could be used by the Tribe for funding the proposed regional water system, which 

according to the Tribe’s estimates will cost around $110 million. If the actual costs 

of construction are higher than that, the Tribe would need to use more of the Fund 

for this purpose. Assuming that the system would serve over 25,000 users, the $110 

million estimate reflects a cost per person of approximately $4,300 for the system, 

which compares favorably with costs associated with other projects in the region. 

The Tribe is considering how to modify its proposal, however, in view of the Department’s concerns about the expense of the project. Our respective technical experts 

are exploring ways to achieve cost savings through possible redesign of certain elements of the proposed regional water system. We are confident that a better, more 

efficient design is possible. 

D. Mitigation Fund to Benefit non-Indians 

The State and the Tribe entered into a side agreement, which the proposed legislation would approve and to which it would bind the United States, to secure a permanent supply of water for the PCCRC, which supplies irrigation water to its members as well as the municipal supply to the City of Conrad. Under this side agreement, the State will pay the Tribe to defer its use of Birch Creek for a period of 

up to 15 years while infrastructure is built to guarantee delivery of water to the 

PCCRC. Once the infrastructure is completed, the Tribe will supply 15,000 AF/yr 

for 25 years to PCCRC. Moreover, Section 9 of this bill requires the United States 

to establish a fund ‘‘to be used to mitigate the impacts of development of the tribal 

water right . . . on the Birch Creek water supplies of the PCCRC Project’’ and authorizes the appropriations of ‘‘such sums as are necessary’’ for this purpose. The 

United States strongly opposes this unprecedented inclusion of a fund to benefit 

non-Indian beneficiaries in a settlement using scarce Federal dollars. While Indian 

water rights settlements routinely seek to protect existing non-Indian water uses so 

as not to unduly impact local economies, they have not to date included Federal 

funds to compensate non-Indian water users if the future exercise of a tribe’s established water rights causes an impact on future non-Indian water uses. The United 

States cannot afford this sort of precedent, and it is unclear what additional potential liabilities this may impose on the United States. 

E. Lack of Resolution in the St. Mary and Milk River Basins 

The proposed legislation leaves important matters involving the Tribe’s water 

rights in the St. Mary River and Milk River Basin unsettled, imposing upon the Department the obligation to develop solutions to these problems after the settlement 

is enacted. This guarantees that there will be significant obstacles to ever achieving 

realistic solutions to these problems. The Department is committed to developing 

real solutions to the issue of Tribe’s water rights in the St. Mary River and the Milk 

River before a settlement is enacted. The two main concerns of the Department are 

found in sections 5 and 11 of the Blackfeet legislation, although we have other concerns with the indefiniteness of some of the legislation’s provisions as discussed 

more fully below. Section 5 of the legislation directs the Secretary to allocate to the 

Tribe 50,000 AF/yr of stored water in Lake Sherburne Reservoir free of any charges 

and to agree to lease the water back from the Tribe at an undetermined price for 

an indefinite period of time. The provision’s apparent goal is to have the Department find a way to provide the Tribe with a firm supply of 50,000 AF/yr on a perVerDate 0ct 09 2002 10:19 Jul 31, 2012 Jkt 074443 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 S:\DOCS\74443.TXT JACK
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manent basis and use the lease provision as a stop gap measure while the effort 

to find the additional supply is underway. This requirement is complex and raises 

difficult issues, including feasibility and future liability. Water rights in the Milk 

River Basin for both the Blackfeet Tribe and the Ft. Belknap Indian Community 

are set forth in their respective Water Rights Compacts with Montana and Section 

11 directs the Secretary to resolve conflicts that may arise between the two tribes. 

Taken together, these issues create real and significant conflicts over water use 

and water availability and will create difficult problems for the United States and 

for the communities that are affected by this proposed settlement. They must be resolved before the Administration will be able to lend its support to the Blackfeet 

water rights settlement. The purpose of a water rights settlement is to create the 

conditions for harmonious working relationships among the parties, but these goals 

will not be achieved if a settlement creates significant new liabilities and leaves significant conflicts over water use and water availability unresolved. 

F. Additional Concerns 

We have other concerns with the proposed legislation, including but not limited 

to the following. First, the waivers as set forth in section 12 of the legislation are 

inadequate, particularly given the broad nature of this legislation. The Administration has developed language that we believe is appropriate for waivers in Indian 

water rights settlements and such language should be followed here. Second, further 

analysis is needed with respect to the rights of allottees. The Administration has 

an obligation to protect allottees and the language of Section 7(b) does not contain 

the certainty that we require so that allottees are fully protected under the settlement. Third, the Department, including the National Park Service (NPS), believes 

that the water rights (including instream flows) that Glacier National Park had 

quantified in the 1994 Water Rights Compact with the State of Montana and the 

water rights that the Tribe seeks to have confirmed in its water rights settlement 

generally are consistent. The Department is working with the Tribe and the NPS 

to seek a resolution to several concerns with the legislation, including water rights 

of the park, potential impacts of the settlement, if any, on park resources, or other 

issues related to the park.’’ Lastly, Section 7(f) permits the Tribe to lease ‘‘any portion of the tribal water right’’ for use off the Reservation. While the Department has 

supported authority for tribal water leasing in several prior settlements, it is concerned with the broad and uncertain aspects of this language. 

V. Conclusion 

S. 399 and the underlying Compact are the products of a great deal of effort by 

many parties and reflect a desire by the people of Montana, Indian and non-Indian, 

to settle their differences through negotiation rather than litigation. This Administration shares that goal, and hopes to be able to support a settlement for the Blackfeet Tribe after a full and robust analysis and discussion of all aspects and ramifications of this large settlement. 

The Administration is committed to working with the Tribe and other settlement 

parties to reach a final and fair settlement of the Tribe’s water rights claims. This 

settlement, when completed, will provide certainty to the State of Montana and nonIndian users and will enable the Blackfeet Tribe to put its water rights to use for 

the economic benefit of the Blackfeet Reservation and its residents. If the parties 

continue to negotiate in good faith, we are hopeful that an appropriate and fair settlement can be reached that will contribute to long-term harmony and cooperation 

among the parties. 

We believe settlement can be accomplished in a manner that protects the rights 

of the Tribe and also ensures that the appropriate costs of the settlement are borne 

proportionately. While we do not support S. 399 as introduced, the Administration 

is committed to working with Congress and all parties concerned in developing a 

settlement that the Administration can fully support. 

S. 1327

The Department opposes S. 1327, a bill to amend the Act of March 1, 1933, to 

transfer certain authority and resources to the Utah Dineh Corporation, and for 

other purposes. 

Background 

In 1933, Congress established the Utah Navajo Trust Fund (UNTF), Pub. L. No. 

72–403, 47 Stat.1418 (1933 Act), which designated Utah as the trustee. UNTF’s corpus was derived from 37.5 percent of net royalties from the extraction of oil and 

gas deposits under the Navajo Reservation’s Aneth Extension. According to the statute, the 37.5 percent net royalties are to be paid to the State of Utah, for the health, 

16

1See, e.g., 25 U.S.C. § 396a (provision in 1938 Indian Mineral Leasing Act allowing tribe to 

lease unallotted Indian land for mining purposes, subject to Secretary of Interior approval); 25 

C.F.R. Pt. 211 (Leasing of Tribal Lands for Mineral Development). 

education and general welfare of the Indians residing in the Aneth Extension. In 

1968, Congress expanded the beneficiary class to include all Navajos living in San 

Juan County, Utah, Pub. L. No. 90–306, 82 Stat. 121. The Navajo Nation has managed 62.5 percent of the net royalties since the initial development of oil and gas 

on the Navajo Reservation. 

In approximately 1959, oil and gas wells in the Aneth Extension began producing 

in paying quantities, and the Department, through oil and gas mining leases on the 

Navajo land, began collecting oil and gas royalties. The leases are between the Navajo Nation and the producer, and are subject to approval by the Secretary of the 

Interior. 1 The State of Utah is not a party to the tribal leases for these oil and gas 

royalties. 

In 2008, the State of Utah decided to resign as trustee of the UNTF, and allowed 

UNTF, as a state agency, to sunset. The State moved the responsibility to fulfill the 

liabilities and obligations of the repealed UNTF to the State of Utah’s Department 

of Administrative Services. The State also provided for a transition process until the 

United States Congress designates a new administrator of the 37.5 percent of the 

Utah Navajo royalties identified in the 1933 Act. 

The Office of Natural Resources Revenue (ONNR) receives the Report of Sales and 

Royalty Remittance from the royalty payor and prepares a monthly summary of the 

reported royalties for 21 Aneth leases. Currently, the royalties are paid to the 

ONRR, the same as all other Indian leases. The ONRR then forwards the funds to 

the Navajo Nation, and simultaneously reports to the Navajo Regional Office of the 

Bureau of Indian Affairs (BIA) on the respective funding amounts due to Navajo Nation and to the State of Utah Navajo trust entity. The BIA then forwards correspondence to the Navajo Nation recapitulating the ONRR-calculated funding split 

and directing Navajo Nation to forward the appropriate amount to the Utah Navajo 

trust entity. 

Department’s Concerns with S. 1327

S. 1327 would amend the 1933 Act and its subsequent 1968 amendments by identifying the Utah Dineh Corporation as the trustee of the former UNTF. Consistent 

with our government-to-government relationship with the Navajo Nation, the Department acknowledges and respects the position of the Navajo Nation as it pertains 

to the UNTF. The Department understands that the Navajo Nation would like to 

manage the trust and disburse the funds to the Utah Navajo beneficiaries consistent 

with the current disbursement and percentages. We also understand that the Navajo Nation opposes this bill and has opposed a similar version in the 111th Congress. The Department, therefore, opposes S. 1327. At this time, the Department believes it is more appropriate for the Navajo Nation to manage the trust and disburse 

the funds consistent with and to further the intent of the 1933 Act. 

Furthermore, without additional background or definition of whom, or what 

makes up, the Utah Dineh Corporation, the Department is concerned with the designation of the Utah Dineh Corporation as the trustee for the 37.5 percent. We are 

also concerned with the deletion of a significant portion of the 1933 Act and its subsequent amendments that required ‘‘planning of expenditures’’ in cooperation with 

the appropriate department, bureaus of the United States and with the Navajo Nation. The planning and cooperation would not be required by the Utah Dineh Corporation under S. 1327. Also, the Department is concerned that S. 1327 would eliminate the reporting requirement of the 1933 Act, whereby an annual report was sent 

to the Navajo Area Regional Director of the BIA. 

Again, for the above stated reasons, the Department opposes S. 1327. This concludes my statement. I would be happy to answer any questions the Committee may 

have. 

S. 1345

Thank you for the opportunity to present the Administration’s views on S. 1345, 

the Spokane Tribe of Indians of the Spokane Reservation Grand Coulee Dam Equitable Compensation Settlement Act. 

S. 1345 would provide compensation to the Spokane Tribe of Indians for the use 

of its land for the generation of hydropower by the Grand Coulee Dam. Specifically, 

S. 1345 would require the Secretary of the Interior to deposit $99.5 million over 5 

years, $23,900,000 for fiscal year 2012 and $18,900,000 for the following 4 fiscal 

years, into a trust fund held by the United States Treasury for the Spokane Tribe. 

17

The Department is encouraged by significant progress made in recent months toward resolving issues of concern to the Administration, however, the Administration 

cannot support S. 1345 in its current form. 

As an example of the significant progress, the Department supports the removal 

of the land transfer provisions that had been included in prior legislation. Section 

9 (a) of S. 1345, ‘‘Delegation of Authority,’’ presents an alternative approach for addressing the Spokane Tribe’s interest in reestablishing its law enforcement authorities within the boundaries of the Spokane Reservation. While the Department supports the concept of providing a clear delegation of authority to the Tribe to achieve 

its law enforcement goals, we are concerned that the language in S. 1345 is 

overbroad and could be construed to delegate more than just the authority intended 

by the Tribe. The Department is willing to work with the Committee or the Tribe 

to craft acceptable language for this provision, and, alternatively, is willing to accomplish the intent of this provision of the legislation administratively through a 

written delegation letter from the Secretary to the Spokane Tribe. 

With regard to Section 5 of S. 1345, ‘‘Settlement Fund,’’ the basis for this settlement has not been established by a legal claim of the Spokane Tribe. Since the Spokane Tribe has no legal claim, the Department does not believe this legislation is 

appropriate as a settlement of claims. However, the Department could examine with 

the Tribe and Congress other avenues to address the concerns of the Spokane Tribe. 

Finally, although the Department is concerned with this legislation being styled 

as a settlement act, settlement acts generally should include a provision that requires the Tribal government to ratify and approve this legislation as a complete 

settlement prior to the Act becoming effective. 

The Department, in consultation with the Bonneville Power Administration, 

would be pleased to work with the Committee on substitute language or amendments to the legislation that we believe could meet the needs of the Spokane Tribe 

and the United States. 

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

any questions the Committee may have.

The CHAIRMAN. Thank you very much, Mr. Laverdure. 

For each bill that we are hearing about today, can you tell me 

how the Department will work with sponsors and this Committee 

so that we can all move forward legislatively, while still addressing 

the concerns of the Department and not delaying the legislation? 

Mr. LAVERDURE. Thank you, Mr. Chairman. 

With respect to the Blackfeet Water Rights Settlement Act, our 

Secretary’s Indian Water Rights Office has been working closely 

with the Blackfeet Tribe over this past year to try to resolve Federal concerns. Our testimony today makes clear that the Department still has several significant problems with the legislation as 

introduced, but that we are committed to working with the Tribe 

to find solutions so that the Administration can support a Blackfeet 

settlement. 

With respect to the Spokane Equitable Compensation Act, the 

Department’s Associate Deputy Secretary, Meghan Conklin, has 

been working closely with Senator Cantwell’s office to resolve our 

concerns and we will continue to do so. 

In addition, the Department would be happy to work with the 

sponsors of the Mescalero Water Leasing Authorization Act, which 

we support, and on S. 1327 regarding the management of the trust 

fund and the Utah Dineh Corporation. 

The CHAIRMAN. Thank you. 

Let me call for questions from Senator Tester. 

Senator TESTER. Thank you, Mr. Chairman. 

And thank you for being here today, Del. I appreciate your testimony. 

You had mentioned one of your first concerns is the high cost, 

$591 million. And then you talked about unspecified dollars withVerDate 0ct 09 2002 10:19 Jul 31, 2012 Jkt 074443 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 S:\DOCS\74443.TXT JACK
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out specific authorization. Could you flesh that out a little bit for 

me? What are you talking about? 

Mr. LAVERDURE. Yes, Senator Tester. On page three of the formal written testimony submitted to the Committee, the paragraph 

under section three talks about the phrase on a number of actions 

of spending ‘‘such sums as may be necessary’’ and that is in several 

of the provisions so that it doesn’t have a finite number. And that 

is in addition to the $591 million price tag in the bill as introduced. 

Senator TESTER. And so what you are looking for is a conversation between the Department and the Tribe to put actual numbers 

in those areas, instead of the verbiage such sums as necessary? 

Mr. LAVERDURE. Yes. 

Senator TESTER. Okay. 

Chris, when you get up, I am going to ask you why that language 

is in there so remind me if I forget. Okay? 

The other question I had was, look, I have a lot of respect for 

you. I think you are a good guy. We need somebody in the Department that is going to sit down and negotiate in good faith with the 

Tribe and with us. Who is that going to be? Is that going to be you? 

Is that going to be somebody else? 

Mr. LAVERDURE. We send the entire Federal water rights team 

out to Browning just I think two and a half to three weeks ago. 

If I hadn’t had a prior commitment, I would have went myself personally, but I can commit to you today that I would be happy to 

be the person heading the Federal water rights team to go out 

there and try to resolve the issues of concern that we have. 

Senator TESTER. That is good because if we have a point person, 

when we have a point person and you don’t get ping-ponged 

around. So I appreciate that. 

Do you know of or have you proposed any alternatives to the 

Tribe or the State to address some of the five major comments that 

you had negative about it? Have we got to that point yet? 

Mr. LAVERDURE. I would like to turn to my colleague, Pam Williams. She is the head of the Secretary’s Indian Water Rights Office and I know she works closely with all of the negotiating teams, 

so she can answer with specificity the questions you have. 

Senator TESTER. Okay. 

Ms. WILLIAMS. Senator Tester, we have been working with the 

Tribe closely, very intensely in the last few months. And only recently we received some proposals from the Tribe that we find to 

be very useful, I think progressive, and we are very excited about 

some of those concepts. And we are looking forward to beginning 

a dialogue immediately with the Tribe on those new concepts with 

them. 

Senator TESTER. I appreciate that. Is it within your, I mean, negotiations are something that you kick stuff back to them. This is 

a possible solution; this is an idea that could work. Have you guys 

done any of that? Have you guys proposed any solutions for the 

problems that you see? 

Mr. WILLIAMS. Yes, we have proposed a number of alternatives 

in the settlement. 

Senator TESTER. Okay, good. 

Let me go back to some of the concerns. The size of the project, 

for one. The second one was there wasn’t a reasonable amount of 

19

State dollars. I think about $35 million, correct? And hasn’t there 

been water compacts that have been passed that had no State 

match in them whatsoever? 

Number one, what is a reasonable amount? And number two, I 

will say it the way I see it. Why are we holding Blackfeet to a higher standard than we hold some of the other water settlements to? 

Mr. LAVERDURE. Three things, Senator Tester. Number one, the 

State contribution is roughly 6 percent of the total amount that is 

proposed in the introduced bill. In addition, the Department, to my 

knowledge, has had concerns with every Indian water rights settlement that came from Montana and Montana’s proportional contribution. And all of them I think have been deemed insufficient in 

the records in each of the testimonies. In fact, I had experienced 

the same when I was on another side of the table. 

And with respect to the $35 million that you mentioned, $15 million was to go for the deferral of 15 years for the call right of the 

Blackfeet, the senior water rights for the irrigation project just 

south of the reservation boundary. And then the $20 million was 

meant for the outlay of the pipeline coming from the, to increase 

the capacity of the irrigation project to go down to the community 

south, which is all to benefit a community south of the reservation, 

as opposed to the Blackfeet directly. 

Senator TESTER. So what are you saying? Are you saying that $35 million isn’t being spent correctly? Or are you saying that $35 

million isn’t an adequate amount? 

Mr. LAVERDURE. We are saying that the $35 million, when the 

State provides proportional contribution, that it should be to the 

benefit of the Blackfeet Nation and its citizens. 

Senator TESTER. Okay. If we get this water settlement through, 

and no matter how that $35 million is spent, you understand better 

than anybody in this room what kind of benefit it is going to be 

to the Blackfeet people. Okay. 

I have run out of time. If we have a second round, I have more 

questions. 

The CHAIRMAN. Senator Cantwell? 

Senator CANTWELL. Thank you, Mr. Chairman. 

Mr. Laverdure, are you speaking on behalf of the entire Interior 

Department? I mean, is the Bureau of Reclamation satisfied with 

this legislation since they are the ones who had issues or concerns 

and actually run Lake Roosevelt from a reservoir perspective? 

Mr. LAVERDURE. Senator Cantwell, I am speaking on behalf of 

the Department, and Reclamation’s concerns are partially included 

in the written statement that we provided, which was fairly short. 

Senator CANTWELL. So even though we have heard from the Bureau of Reclamation that they don’t have any concerns, you are 

now saying they do? 

Mr. LAVERDURE. Actually, there were two underlying issues submitted in the formal written statement. One was some law enforcement provisions that thought could be taken care of better outside 

of some of the underlying Acts that created Grand Coulee Dam or 

authorized it. 

In specific law enforcement, we thought that the Secretary could 

simply delegate the law enforcement authority that the Spokane 

Tribe is seeking, rather than in this legislation where there are a 

20

number of other non-law enforcement delegations that could be 

provided under that. 

And the second was that this was titled as a settlement act from 

claims and that from the Department’s perspective, it is more of an 

equitable compensation because of the long history dealing with 

the Indian Claims Commission Act and the fact that Colville was 

able to amend its underlying claim to include the hydropower value 

and the fisheries issue. Whereas, the Spokane Tribe was unable to 

include that. And that is the piece of the equitable compensation. 

Senator CANTWELL. But are those Bureau of Reclamation issues, 

the law enforcement and the claim issue? 

Mr. LAVERDURE. The claim issue is from the Department of Justice’s perspective; the legal claim issue. 

Senator CANTWELL. So does the Bureau of Reclamation, are they 

satisfied with the legislation as it relates to the Lake Roosevelt 

Reservoir? 

Mr. LAVERDURE. Except the law enforcement aspect of it. 

Senator CANTWELL. Okay. 

And then back to this issue, the second issue that you are raising. Do you see any difference between the damage to the Spokane 

Reservation, to its way of life, and the damage that was done to 

the Colville Tribe? Do you see any difference in the damage? 

Mr. LAVERDURE. No. 

Senator CANTWELL. No, okay. So the damage was the same. 

And the fact that the Colville received a settlement in 1994 for 

the exact same harm. You know, they lost access to salmon and 

land and burial sites and all sorts of thing. That settlement, my 

understanding is, had Department of Justice support despite the 

assertion that the Tribe had no legal claim, a position that it had 

argued for many years. Is that correct? 

Mr. LAVERDURE. My understanding, and it was included in the 

2000 GAO report, that Colville actually was able to amend its underlying Indian Claims Commission filing and it did include the 

fisheries, as well as the hydropower value. Whereas the Spokane 

were seeking outside the legal ICC claims and were unable to 

amend their underlying claim to include that. 

That was my understanding of the basis of the Colville settlement in the mid-1990s. 

Senator CANTWELL. So you are saying that the technicality of 

how they reached the agreement and what it was called at the 

time, the Department of Justice basically was supporting the 

agreement because of the structure. 

Mr. LAVERDURE. I think because of that history that there was 

less objection to that. 

Senator CANTWELL. Well, they either objected that they had no 

legal claim, or they did. So I am just trying to understand. Do you 

think the Department of Justice objected to the settlement, because 

they didn’t object to it, so I am trying to understand that they 

didn’t object to it, what are they, they also, what are they saying 

about the fact that Colville had no legal claim? 

Mr. LAVERDURE. Actually, Senator, I think they did have a legal 

claim, the Colville, because they were able to amend their original 

ICC claim to include the two things that Spokane unfortunately did 

not get to amend their underlying claim to include. 

21

Senator CANTWELL. Well, I appreciate that you at least have testified today that the damage done to both is exactly the same. So 

at least thank you for that. 

I don’t have any more questions. I will have questions for the 

Spokane Tribe when they are before us, Mr. Chairman. Thank you. 

The CHAIRMAN. Thank you very much, Senator Cantwell. 

Let me welcome and ask our Vice Chair here to make any statement and questions that he may have. 

STATEMENT OF HON. JOHN BARRASSO,

U.S. SENATOR FROM WYOMING 

Senator BARRASSO. Thank you very much, Mr. Chairman. I appreciate both the business meeting that we have been working on 

together and I look forward to continue working with you on those 

matters. And thank you for holding the discussion and the hearings 

today. 

I note that in the third panel, the Honorable Kenneth Maryboy 

from Monticello, Utah will be here, and Senator Hatch and I had 

a chance to visit at lunch and he is unable to be here to welcome 

Kenneth Maryboy, but wants to extend that welcome and I will do 

that on Senator Hatch’s behalf. 

I do have a couple of questions, if I could, Mr. Chairman. And 

it goes back to a 1930s report of advisers on irrigation on Indian 

reservations. We are going back now quite a few years. So it was 

submitted to this Committee over 80 years ago and it questioned 

the viability of the Blackfeet project. 

The report noted that adequate preliminary investigations and 

studies would have condemned the irrigation project as unfeasible. 

And then in 2006, the GAO cited that report, that report from 

1930, raising very similar concerns about this project. So we hear 

it in 1930 and then we hear it again in 2006. 

So I realize that the earlier report really is over a half-century 

old, but in light of the recent GAO report, the one from 2006, I 

would like to know: Is it a wise use of taxpayer funds to rehabilitate the Blackfeet project? 

Mr. LAVERDURE. Thank you, Vice Chairman Barrasso. 

I don’t dispute some of the background and the factual information you provided on that. In fact, we have that. I think from the 

beginning there was 106,000 acres, but only roughly half was completed. And you cite some of the conditions of it. 

My understanding is there has been some new movement on 

whether in fact aspects of the Blackfeet irrigation project would be 

part of the settlement going forward. That has not been changed 

in the bill as introduced, but that is my understanding. And I think 

that our view is that we would tentatively agree without knowing 

all the details right now. 

Senator BARRASSO. Yes, because I was wondering what may have 

changed since that 1930 report to make this project now a viable 

consideration under the water settlement. 

Mr. LAVERDURE. To my knowledge, I don’t think anything has 

changed. 

Senator BARRASSO. And I didn’t know if there was any BIA or 

other interagency financial feasibility studies of all of the projects 

contemplated by S. 399. Is there such a study? Do you know? 

22

Mr. LAVERDURE. No. 

Senator BARRASSO. Thank you. 

Thank you, Mr. Chairman. I appreciate the time. Thanks. 

The CHAIRMAN. Thank you very much, Senator Barrasso. 

Senator Udall? 

Senator UDALL. Thank you, Chairman Akaka, and I thank you 

for the witnesses being here today. And let me also echo what several Members of the Committee said in terms of Elouise Cobell. It 

is a big loss, I think, to all of us. She was a great lady and I think 

we will all miss her very much. 

Del, I am asking you now about the Mescalero Apache Tribal 

Leasing Authorization Act. Is there a precedent of Tribes being 

able to lease their adjudicated water rights for up to 99 years? 

Mr. LAVERDURE. Yes, Senator. The majority of Congressionally 

approved Indian water rights settlements contain leasing provisions. However, each marketing provision is unique and often tailored to the agreements among the settling parties. A 99-year lease 

term is not unusual and all of the Arizona water rights settlements 

allow them in some way, shape or form. 

At this time, the Department doesn’t have a precise list of all of 

those that allow a 99-year term because each settlement’s marketing provisions are worded differently and sometimes the key details are omitted from the Federal legislation and are in the relevant language within the underlying settlement documents. 

Senator UDALL. Could you provide to the Committee a rough idea 

of how many Tribes have this authority? 

Mr. LAVERDURE. We are going to have to go back and look at not 

only the Federal legislation, but the underlying agreements, but we 

can provide that to the Committee. 

Senator UDALL. Thank you very much. 

How has water leasing authority been beneficial or detrimental 

to Tribes? 

Mr. LAVERDURE. I think in general, allowing Tribes to receive 

economic value from their resources is beneficial in untold ways, 

including having direct exercise over control over their own resources and receiving much-needed revenues. And I fully anticipate 

that the panel afterwards will be able to explicate many of the 

other reasons that they could utilize that authority for. 

Senator UDALL. In your testimony, you make the recommendation that the Mescalero Apache Tribal Leasing Authorization Act 

be changed to include language that provides that the Tribe, and 

I am quoting now, your testimony, ‘‘shall develop Tribal water leasing standards and submit such standards to the Secretary of Interior for approval.’’

Will you flesh that out a little bit, expand on your idea for the 

Committee? What would these water leasing standards entail? 

Mr. LAVERDURE. Today, the Department is considering an individual bill that will allow a Tribe to lease its water off the reservation without secretarial approval of the underlying lease. And that 

is a novel and new issue for the Department. 

The Department has consistently held the view that 25 USC Section 177, the restraint on alienation of lands, also applies to the 

water resource as well. So to make water leasing consistent with 

the Department’s policy on legislation that allows Tribes to lease 

23

their own land, the Department believes it is prudent for the Secretary to approve standards for the leasing of Indian water rights. 

And in terms of detailing those types of standards, they would 

include things like identify and mitigate any environmental impacts; ensuring that the fair market value is received that could potentially result from this water leasing; and more or less things 

like that that are of a transactional business nature, as opposed to 

regulatory nature. 

Senator UDALL. Do you consider these to be part of the Department’s trust responsibilities vis-a-vis the Tribe? 

Mr. LAVERDURE. Yes. 

Senator UDALL. And I know Senator Tester asked a question 

who, and President Chino is here, I mean who should the Mescalero Apache Tribe be dealing with? Will they be dealing with you 

in terms of the expectation on the standards? Or with Ms. Williams? 

I know I am going to be asking President Chino. Make sure, 

President Chino, that I ask you about this. And I don’t know if this 

is the first time you have heard this or not, but we want to make 

sure that you have somebody to work with so that we don’t get ourselves in a situation where standards are developed and then they 

aren’t acted on quickly, and we can’t move things along. 

So, it would be you or Ms. Williams or both? 

Mr. LAVERDURE. Yes, I mean, if you want one point person, if it 

came to me, then I would make sure that we have the legal and 

the policy review of the standard so it doesn’t get caught up. 

Senator UDALL. Great. Are there standards that you have in 

mind right now that are in other water settlements that would be 

able to be looked at right off the bat? 

Mr. LAVERDURE. Because this is a novel issue, we don’t have 

those necessarily there. One, the types of concerns that could be 

utilized are from the Navajo Nation who took over its own leasing 

where they had their leasing of land regulations developed and 

they have some of those concerns listed in there that could be utilized in standards. 

Senator UDALL. I think both Navajo and Jicarilla Apache, both 

have provisions allowing off-reservation leasing. And so that may 

be an area to look at, too. I think you both are nodding in agreement to that. 

So thank you very much, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Udall. 

Before I move to the third panel, let me ask whether our Members have a second round of questions? 

Senator TESTER. I do, Mr. Chairman, if I might. 

The CHAIRMAN. Senator Tester? 

Senator TESTER. Okay. First thing, Del, could you, and you don’t 

have to do it today, if you could get it to me, if you don’t have it 

today. If you have it, I would love to hear it. What specifically, or 

maybe this is for Ms. Williams, what specifically has been offered 

up to the Tribe as far as solutions from the Department? 

Mr. LAVERDURE. I think we will have to get back to you on that 

because it is a moving target, from what I understand. 

Senator TESTER. That would be fine. Good. 

24

Well, your recommendations shouldn’t be a moving target, 

though. I mean, the negotiations should be a moving target, but 

your recommendations to the negotiations shouldn’t be a moving 

target. 

Mr. LAVERDURE. That is correct. 

Senator TESTER. Okay. Good. 

I didn’t have anything about the 1930 irrigation project so I have 

to do this first. Things change in 80 years. I have a 1931 Model 

A and I have a 2011 GMC pickup and they are a whole lot different 

as far as what is available to them. 

So I am going to approach this from a little different perspective. 

You are familiar with the Bureau of Reclamation design, engineering and construction review process? Okay. 

It is my belief that the Bureau sent a review team to the reservation to review and analyze the project’s information before issuing 

a report on those projects. Is that correct? 

Mr. LAVERDURE. Yes, I think there has been a DEC review. 

Senator TESTER. Yes, and my understanding is that the DEC review came out fine. Right? 

Ms. WILLIAMS. My understanding, Senator, is when the Bureau 

of Reclamation DEC review took place, they found there wasn’t sufficient information to conclude that the costs were realistic or not 

realistic. There was simply not enough material developed to make 

definitive determinations. 

I think they found that the material developed was accurate, but 

it simply wasn’t enough. 

Senator TESTER. Okay. Did they make a request of the Tribe for 

more information? Do you know? If there wasn’t enough information, did they make that request? 

Ms. WILLIAMS. I think they talked about the need for additional 

studies. 

Senator TESTER. Okay. Well, that is cool, I just don’t want to end 

up, I mean we can go back to the timeline. I think the Department 

got involved with this settlement in 1991, if I am not mistaken. 

And the timeline then means we are going on 20 years. Correct me 

if I am wrong. 

And I think that if they need information, we need to get them 

information. Another study isn’t exactly what I think we need here 

myself, my opinion. 

One of the last things you said, Del, was that this settlement 

wasn’t finished. And let me tell you what I think I heard, then you 

tell me if I was right, that if you supported this settlement and this 

settlement was ratified, the water settlement wasn’t finished. Is 

that correct? 

Mr. LAVERDURE. Senator Tester, just the finality piece was more 

are all the legal claims tucked into the settlement and finalized as 

all the benefits then go in commensurate to that. And my understanding was that not all of the provisions that are typically required in these settlements were in there. 

Senator TESTER. Okay. Well, look, if the Department’s right on 

that, we need to get that fixed because the settlement is exactly 

what it is. It is a settlement. And if it isn’t a settlement, if we are 

going to come back to this in 20 years or 50 years or 100 years, 

then it is not a settlement. 

25

So if that is not fixed, we definitely, absolutely need to get it 

fixed. So I would just say that. 

Just in the last, just very much in closing, you know unemployment in Indian Country, Montana. I mean, you know, the challenges that are out there and you know what impact water can 

have on opportunity. And I would just say that if there are ways 

that Senator Baucus and myself can work with the Department or 

with the commission, can work with the Tribe, especially the Tribe, 

so we can all get on the same page, it is something that needs to 

be done. You know that. We can’t continue to keep saying no. What 

we have to do is try to find ways we can say yes. 

So I appreciate your being here today and thank you for your 

input, and hopefully we can roll up our sleeves and get after it. 

Thanks. 

Mr. LAVERDURE. Thank you, Senator Tester. And we are absolutely committed for the resources to deploy and work on all of 

those things. 

The CHAIRMAN. Thank you very much, Senator Tester. 

Are there any further questions? 

Senator CANTWELL. Yes, Mr. Chairman. 

The CHAIRMAN. Senator Cantwell? 

Senator CANTWELL. Yes, I just had one last question for Mr. 

Laverdure. 

In your testimony, you say that the Department would examine 

other ways that Tribes and Congress could, avenues for concerns 

of the Spokane. What were you thinking? 

Mr. LAVERDURE. In the discussions in the Department, I think 

the idea was, at least from a policy perspective, the one that I have 

was to seek some type of measure of justice or compensation for the 

Spokane, just like the Colville did, without running into the issues 

that are listed. 

We are committed to sitting down and working with your office 

and the Spokane Tribe and trying to resolve those issues so that 

they have their share of the equitable settlement. 

Senator CANTWELL. And are you saying that that is something 

that is done legislatively or not done legislatively? 

Mr. LAVERDURE. It would still be accomplished legislatively, but 

we would just work on the language so that we alleviated these 

concerns to get to where I think you and the Spokane people would 

like to be. 

Senator CANTWELL. Because you think the word claim sets a 

precedent? 

Mr. LAVERDURE. The legal team has reviewed it and believes 

that there is no legal claim and the filing was not made at the 

right time. 

Senator CANTWELL. Even though they thought the same thing on 

the substance of the Colville? 

Thank you, Mr. Chairman. I got the answer I needed. Thank 

you. 

The CHAIRMAN. Thank you. 

Any further second-round questions? 

Thank you. And let me say thank you very much to Mr. 

Laverdure and Pamela for your testimony and your responses. We 

certainly appreciate it. Thank you. 

26

Mr. LAVERDURE. Thank you, Mr. Chairman. I appreciate it. 

The CHAIRMAN. Now, I would like to invite the third panel to the 

witness table. On our third panel is the Honorable Mark Chino, 

President of the Mescalero Apache Tribe; the Honorable Terry 

Show, Chairman of the Blackfeet Nation; Mr. Chris Tweeten, 

Chairman of the Montana Reserved Water Rights Compact Commission; the Honorable Rex Lee Jim, Vice President of the Navajo 

Nation; the Honorable Kenneth Maryboy, the San Juan County, 

Utah Commissioner; and the Honorable Greg Abrahamson, Chairman of the Spokane Tribal Council. 

We welcome all of you here to this hearing. Thank you for being 

here. We look forward to your testimony and your responses. 

President Chino, will you please proceed with your statement? 

STATEMENT OF HON. MARK CHINO, PRESIDENT, MESCALERO 

APACHE TRIBE 

Mr. CHINO. Thank you, Mr. Chairman. 

Good afternoon, Chairman Akaka and Members of the Committee. I bring greetings from the great State of New Mexico and 

also from the Mescalero Apache people. I am pleased today to be 

joined by three members of our Tribal Council who are here to offer 

a little moral support and also support of our testimony before the 

Committee today. 

Thank you for having this hearing on S. 134, which was introduced by Senator Bingaman and Senator Udall, which would authorize the Mescalero Apache Tribe to lease its adjudicated water 

rights. The Mescalero Apache Tribe is located on the Mescalero 

Apache Indian Reservation in the White and Sacramento Mountains of South-Central New Mexico, which is within our aboriginal 

territory. 

The reservation is home to a majority of the Mescalero Apache 

Tribal members and we are known for our natural beauty and 

abundant resources which we are obviously very thankful for. 

We are a treaty Tribe, having entered into a treaty with the 

United States on July 1st, 1852. Our treaty is called the Treaty 

with the Apaches. And it promised specifically that the Tribe would 

have a permanent homeland in our aboriginal territory and 

impliedly reserves sufficient water rights or sufficient water to 

meet the Tribe’s historic, current, and future water requirement. 

In 1975, the State of New Mexico sued the United States in State 

court to determine a certain portion of the water rights of the 

United States and of the Mescalero Apache Tribe in the Pecos 

Stream system. The suit, which was State ex rel Reynolds v. Lewis 

et al, was filed pursuant to the McCarran Amendment, 43 USC 

Section 666. 

First, the court had to determine whether the McCarran Amendment, which waived the United States’ sovereign immunity from 

suit in State court to determine the water rights in the stream system, allowed for the adjudication of the right of the Mescalero 

Apache Tribe. 

In 1975, after the lease was appealed, the New Mexico Supreme 

Court held that the waiver contained in the McCarran Amendment 

did allow for adjudication of the Tribe’s water rights. The case was 

27

then remanded to the State District Court in Chaves County, New 

Mexico for a determination of our water rights. 

The Mescalero Apache Tribe intervened in that particular action 

as a party defendant and a trial was held to determine the Tribe’s 

water rights. After the trial, on July 11th, 1989, the State court 

held that the Tribe was entitled to consumptive water rights for its 

historic, present, and future requirements in the amount of 2,322.4 

acre-feet per year. 

But the State court held that the Tribe would have five different 

priority dates. On appeal, the New Mexico Court of Appeals affirmed the consumptive water rights amount and reserved the five 

different priority dates. The Court of Appeals held that the Tribe’s 

priority date is that of our Treaty with the Apaches, July 1st, 1852. 

After many years of litigation, a portion of the Tribe’s water 

rights in the Pecos Stream system have been adjudicated. At 

present, the Tribe has been approached by our governmental neighbors to lease water. There is a need for water that the Tribe can 

meet. Additionally, the Tribe will be able to use the proceeds from 

water rights leasing legislation to fund basic governmental services. 

Federal law imposes certain restrictions on the alienation of the 

Tribe’s property. In particular, the Tribe cannot lease our water 

without Federal legislation specifically authorizing us to do so. S. 

134 will provide such Federal legislation and the Tribe will be authorized to lease our adjudicated water rights for a period not to 

exceed 99 years. 

There are no budgetary concerns with the passage of S. 134 as 

implementation of the bill does not require any appropriations or 

expenditures. The legislation holds the United States harmless if 

there is any loss or other detriment resulting from any lease, contract or other arrangement entered into pursuant to the bill if 

passed. 

The other treaty Tribes in New Mexico have been authorized to 

lease their water rights for a period not to exceed 99 years. Under 

State law, owners of water rights can lease their water rights. The 

Mescalero Apache Tribe is simply seeking the same rights to lease 

our adjudicated water rights. 

Lastly, Mr. Chairman and Members of the Committee, I am 

pleased to inform the Committee that I have met in person with 

Mr. John D’Antonio, the New Mexico State Engineer, and he has 

informed me that the State of New Mexico does not oppose this bill. 

In fact, Mr. D’Antonio stated that he saw this legislation as a winwin situation for the State and for the Tribe. 

Lastly, Mr. Chairman and Members of the Committee, I am disappointed and dismayed that the Department of the Interior has 

in fact tried to propose amendments to this legislation. The Tribe 

was not informed of their intent to do so. In fact, we were led to 

believe that the Department of Interior had no specific concern and 

did not intend to offer any specific amendments. And I am disappointed that they have seen fit to do so today. 

And with that, Mr. Chairman and Members of the Committee, 

that does conclude my written testimony. I will be pleased to answer any questions that the Committee may have. 

Thank you very much, sir. 

28

[The prepared statement of Mr. Chino follows:]

PREPARED STATEMENT OF HON. MARK R. CHINO, PRESIDENT, MESCALERO APACHE

TRIBE

Chairman Akaka and Committee Members: 

Thank you for having this hearing on Senate Bill 134, introduced by Senator 

Bingaman and Senator Udall, to authorize the Mescalero Apache Tribe to lease its 

adjudicated water rights. 

The Mescalero Apache Tribe is located on the Mescalero Apache Indian Reservation in the White and Sacramento Mountains of south central New Mexico, which 

is within the Tribe’s aboriginal territory. The Reservation is home to the majority 

of Mescalero Apache Tribal members and is known for its natural beauties and 

abundant resources. 

We are a treaty tribe, having entered into a treaty with the United States on July 

1, 1852. Our treaty, known as the ‘‘Treaty with the Apaches,’’ promised that the 

Tribe would have a permanent homeland in its aboriginal territory and impliedly 

reserved sufficient water to meet the Tribe’s historic, current and future water requirements. 

In 1975, the State of New Mexico sued the United States in state court to determine a certain portion of the water rights of the United States and the Mescalero 

Apache Tribe in the Pecos Stream System. The suit, State ex rel. Reynolds v. Lewis

et al., was filed pursuant to the McCarran Amendment, 43 United States Code, Section 666. First, the court had to determine whether the McCarran amendment, 

which waived the United States’ sovereign immunity for suit in state court to determine water rights in a stream system, allowed for the adjudication of the rights of 

the Mescalero Apache Tribe. In 1975, after the issue was appealed, the New Mexico 

Supreme Court held that the waiver contained in the McCarran Amendment did 

allow for adjudication of the Tribe’s water rights. 

The case was remanded to the state district court in Chaves County, New Mexico, 

for a determination of the Tribe’s water rights. The Tribe intervened in the action 

as a party defendant and a trial was held to determine the Tribe’s water rights. 

After the trial, on July 11, 1989, the state court held that the Tribe was entitled 

to a consumptive water right for its historic, current and future requirements in the 

amount of 2,322.4 acre feet per year. But, the state court held that the Tribe would 

have five different priority dates. On appeal, the New Mexico Court of Appeals affirmed the consumptive water rights award of 2,322.4 acre feet per year and reversed the five different priority dates. The Court of Appeals held that the Tribe’s 

priority date is that of the ‘‘Treaty with the Apaches,’’ July 1, 1852. See 116 N. M. 

194. 

After many years of litigation, a portion of the Tribe’s water rights in the Pecos 

Stream System have been adjudicated. 

At present, the Tribe has been approached by its governmental neighbors to lease 

water. There is a need for water that the Tribe can meet. Additionally, the Tribe 

will be able to use proceeds from water rights leasing to fund basic governmental 

services. 

Federal law imposes certain restrictions on the alienation of the Tribe’s property. 

See 25 United States Code, Section 177. In particular, the Tribe cannot lease its 

water without federal legislation authorizing the same. 

Senate Bill 134 will provide such federal legislation. The Tribe will be authorized 

to lease its adjudicated water rights for a period not to exceed 99 years. There are 

no budgetary concerns with the passage of Senate Bill 134 as implementation of the 

bill does not require any appropriations or expenditures. The legislation holds the 

United States harmless if there is any loss or other detriment resulting from any 

lease, contract or other arrangement entered into pursuant to the Bill, if passed. 

The other treaty tribes in New Mexico have been authorized to lease their water 

rights for a period not to exceed 99 years. See the Navajo Nation Settlement Act, 

Public Law 111–11, Act of March 30, 2009, and the Jicarilla Apache Tribe Settlement Act, Section 7 of Public Law 102–441, 106 Stat. 2239. Under state law, owners 

of water rights can lease their water rights. The Mescalero Apache Tribe is seeking 

the same right to lease water. 

Lastly, I am pleased to inform the Committee that I met with John D’Antonio, 

New Mexico State Engineer, and he informed me that the State of New Mexico does 

not oppose this Bill. Mr. D’Antonio stated that he saw this legislation as a win—

win situation for the State and the Tribe. 

This concludes my written testimony.

29

The CHAIRMAN. Thank you very much, Mr. Chino. 

All or your full statements will be entered into the record. 

Mr. Show, please proceed with your testimony. 

STATEMENT OF HON. TERRY J. SHOW, CHAIRMAN, BLACKFEET 

NATION 

Mr. SHOW. Thank you, Mr. Chairman. I feel too that on behalf 

of the Blackfeet People, that I also recognize Elouise Cobell. She 

was a Blackfeet Tribal member and to me she was the epitome of 

a Blackfeet member. And I believe she is the epitome of all Native 

people. 

With that, Mr. Chairman and Members of the Committee, my 

name is T. J. Show. I am the Chairman of the Blackfeet Tribal 

Business Council. I am honored to be here on behalf of the Blackfeet Tribe in support of the Blackfeet Water Rights Settlement Act, 

a bill that is crucial to the future of the Blackfeet people. 

With me today are Council Member Shannon Augerre and Reese 

Fisher; our Director of Research Monitoring Jerry Lunak; and our 

Water Rights Attorney Jeanne Whiteing. 

I want to thank the Committee for holding this hearing. I also 

want to thank Senator Max Baucus and Senator Jon Tester for 

their strong support of the Tribe in introducing this bill, and their 

understanding of the importance of this settlement to the Blackfeet 

Tribe. I also want to thank their staff and their Committee staff 

for their hard work on this bill. 

The Blackfeet water rights settlement is a culmination of over 

two decades of work by the Tribe, the State, and the Federal Government. It represents an historic breakthrough in a Tribe’s over 

century-long battle to secure and protect its water rights. 

S. 399 ratifies the Blackfeet Montana Water Rights Compact, resolves certain water-related claims against the Federal Government, and provides critical resources for development of a self-sustaining economy in a permanent homeland for the Blackfeet people. 

The Blackfeet Reservation was established by treaty in 1855. The 

reservation originally encompassed much of the State of Montana, 

but was reduced in size by various Federal actions to the present 

1.5 million acres. The reservation is located along the Rocky Mountains in North-Central Montana along the U.S.-Canadian border 

and adjacent to Glacier National Park to the west. 

Our reservation is renowned for its protecting mountains, majestic plains, abundant national resources and our pristine streams 

and lakes. Over 518 miles of streams and 180 bodies of water, including eight large lakes, are located on the reservation. More than 

1.5 million acre-feet of water arrives on or flows through the Blackfeet Reservation on an annual basis, the St. Mary River alone contributing to over one-third of the total supply. 

Water is critical to the continuing survival of the Blackfeet people culturally, spiritually, and economically. We have over 18,000 

members, about half who live on the reservation. Safe and clean 

drinking water supplies are essential for our Tribal communities to 

grow and thrive. 

Our reservation economy is heavily dependent on agriculture, 

stock raising, requiring substantial stable water supplies. Reservation unemployment can run as high as 70 percent to 80 percent, 

30

however, and our economic future increase depends on development 

of our natural resources, along with alternative energy resources 

including hydropower and wind energy, all which requires significant water supplies. 

At the same time, the Tribe is committed to preserving our 

unique and special environment and is mindful of conserving the 

quality and quantity of our resources for generations to come. Historically, water has been a controversial issue on the Blackfeet Reservation, beginning with the 1909 Boundary Waters Treaty that divided the St. Mary and Milk River between the United States and 

Canada without consideration or even mention of the Blackfeet 

water rights. 

The treaty facilitated diversion of the United States’ share of the 

St. Mary’s water off-reservation for 100 years for the use of the Bureau of Reclamation Milk River Project. Early conflicts on the Birch 

Creek, the southern boundary of the reservation, resulted in a 1908 

Federal water rights decree in the Conrad Investment case, a case 

brought by the United States at the same time as the Winters case. 

The case spawned efforts to obtain allotment of the reservation as 

a means of controlling the water through ownership of land. 

Given the historical water rights issues on the reservation, the 

Blackfeet Water Rights Compact is truly a milestone achievement. 

The compact, together with S. 399, represents a comprehensive settlement of the Blackfeet water rights and related issues and 

achieves three important goals. 

First, it confirms the Tribe’s right to surface and groundwater on 

the reservation and provides for an allocation of water from the 

Bureau of Reclamation’s Tiber Dam. Second, it provides for Tribal 

administration of Tribal water rights, along with protection for 

State water users. Third, it provides funding for projects that are 

critical to the implementation of the Tribe’s water rights and homeland purpose of the reservation. 

These projects include long-term municipal water systems for 

reservation communities, irrigation and water storage improvements on the reservation, energy development, and land acquisition. 

The compact was approved by the Montana Legislature in April 

of 2009, two and a half years ago. At that time, the State submitted $20 million to the contribution of the settlement, which is 

now fully authorized and available. In addition, the 2007 Legislature appropriated $15 million for Birch Creek mitigation, for a 

total of $35 million, the State’s largest contribution to a Montana 

settlement. A vote of the Tribal membership is also required to give 

final approval. 

I thank the Committee and the staff, and look forward to responding to any questions you may have. 

Thank you. 

[The prepared statement of Mr. Show follows:]

PREPARED STATEMENT OF HON. TERRY J. SHOW, CHAIRMAN, BLACKFEET NATION

Mr. Chairman, and members of the Committee, my name is T.J. Show. I am 

Chairman of the Blackfeet Tribal Business Council. I am honored to be here on behalf of the Blackfeet Tribe in support of the Blackfeet Water Rights Settlement Act. 

I want to thank the Committee for holding this hearing on S. 399, a bill that is 

critical to the future of the Blackfeet People. I also want to thank Senator Max BauVerDate 0ct 09 2002 10:19 Jul 31, 2012 Jkt 074443 PO 00000 Frm 00034 Fmt 6633 Sfmt 6621 S:\DOCS\74443.TXT JACK
31

cus and Senator Jon Tester for their strong support of the Tribe in introducing this 

bill, and their understanding of the importance of this bill to the Blackfeet Tribe. 

I also want to thank their staffs and the Committee staff for their hard work on 

this bill. 

The Blackfeet Water Rights Settlement is the culmination of over two decades of 

work by the Tribe. It represents an historical breakthrough in the Tribe’s over century long battle to secure and protect its waters rights. S. 399 ratifies the BlackfeetMontana Water Rights Compact, resolves significant water related claims against 

the Federal Government and most importantly provides the critical resources needed for the development of a self-sustaining economy on the Blackfeet Reservation 

and a permanent homeland for the Blackfeet People. 

The Blackfeet Reservation and the Blackfeet People 

The Blackfeet Reservation was established by treaty in 1855. The Reservation is 

located along the Rocky Mountains in north central Montana adjacent to Glacier 

National Park. Our Reservation is renowned for its spectacular mountains, majestic 

plains and abundant natural resources. The Blackfeet People have occupied this 

area since time immemorial. As we say: ‘‘We know who we are and where we come 

from. We come from right here. We know, and have always said, that we have forever lived next to the Rocky Mountains.’’

Our treaty, known as Lame Bull’s Treaty, was signed in 1855. Executive orders 

and statutes followed, each taking large areas of our traditional land. In the end, 

we ended up with the land that was most sacred to us: our present day reservation 

In 1896, the Northern Rockies were taken from us because speculators believed 

there were rich minerals to be had. When mineral riches did not materialize, this 

most sacred part of our homeland became part of Lewis and Clark National Forest 

and a portion later became part of Glacier National Park in 1910. To this day we 

question the legitimacy of the 1896 transaction. While the Tribe retained hunting, 

fishing and timbering rights in the area taken, we hope that one day our claims 

to this area will be resolved. 

The present Blackfeet Reservation is about 1.5 million acres. Although the United 

States had promised our reservation would never be allotted in the 1896 Agreement 

by which the Northern Rockies were lost, the Federal Government went back on its 

word and lands within the reservation were allotted to individual Tribal members 

under allotment acts in 1907 and 1919. 

The Tribe now has over 16,000 members, about half of whom live on the Reservation. Our people have worked hard to survive in the sometimes harsh climate of the 

Rocky Mountains, and to live in the modern world while maintaining the cultural 

and spiritual ties to the land and its resources. 

The Critical Importance of Water 

Water is critical to the Blackfeet People. It is central to our culture and our traditions. It is an essential element of our way of life, and is crucial to our continuing 

survival culturally, traditionally and economically. Six different drainages are encompassed within the Reservation: the St. Mary, the Milk, Cut Bank Creek, Two 

Medicine River, Badger Creek and Birch Creek. These are the veins and arteries 

of the Reservation and provide life to the Blackfeet People and bind us together as 

a People. 

Water is the source of creation to the Blackfeet People. We believe that rivers and 

lakes hold special power through habitation of Underwater People called the 

Suyitapis. The Suyitapis are the power source for medicine bundles, painted lodge 

covers, and other sacred items. Contact with supernatural powers from the sky, 

water and land is made through visions and dreams and manifests itself in animals 

or particular objects. The beaver ceremony is one of the oldest and most important 

religious ceremonies, and beaver bundles have particular significance. The ceremonial importance of water is especially present in the use of sweat lodges as a place 

to pray, make offerings and cleanse and heal. The sweat lodge remains a part of 

the religious and spiritual lives of many tribal members. 

Water is truly the lifeblood that sustains the Blackfeet people and our way of life. 

The water resources of the Blackfeet Reservation are essential to make the Reservation a productive and sustainable homeland for the Blackfeet people and for our 

communities to thrive and proposer. Safe and clean drinking water supplies are 

vital for the growing population on the Reservation, and water is critical to our 

economy which is heavily dependent on stock raising and agriculture. 

The Blackfeet Reservation’s location along the eastern Rocky Mountain Front 

makes it the home of abundant fish and wildlife, which depend directly on the water 

resources of the Reservation to support them and allow them to thrive. Large game 

animals, including moose, elk, and deer abound. The Reservation provides signifiVerDate 0ct 09 2002 10:19 Jul 31, 2012 Jkt 074443 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 S:\DOCS\74443.TXT JACK
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cant habitat for grizzly bears and other bears, and for other animals such as lynx, 

pine marten, fisher, mink, wolverine, weasel, beaver, otter, grey wolf, swift fox and 

others. Numerous bird species are also found on the Reservation including bald 

eagle, golden eagle, osprey, ferruginous hawk, northern goshhawk, harlequin duck, 

piping plover, whooping crane, and all migratory and shoreline birds, as well as 

game birds such as the sharptail grouse, ringnecked pheasant, mountain dove, Hungarian partridge and two species of grouse. The fishery on the Reservation is renowned, and includes the west slope cutthroat trout, northern pike, lake trout, rainbow trout, mountain white fish, lake white fish, brook trout, brown trout, Yellowstone cutthroat trout, walleye, and many others. The threatened bull trout is also 

be found on the reservation. The habitats of these wildlife and fish species depend 

directly on the water resources of the Reservation to support them and allow them 

to thrive. 

The Reservation also possesses significant timber, and oil and gas resources and 

other natural resources. Oil and gas production has occurred on the Reservation 

since the 1930s, and the Tribe has recently experienced a significantly increased interest in new development on the Reservation. The Tribe has also been working 

hard to develop wind energy and the hydroelectric potential on the Reservation. All 

of these activities are dependent on adequate supplies of water. 

Fortunately, we are blessed with an abundant supply of water. Over 518 miles 

of stream and 180 water bodies, including eight large lakes, are located on the reservation. More than 1.5 million acre-feet of water arise on or flow through the 

Blackfeet Reservation on an annual basis, the St. Mary River alone contributing 

over one-third of the total supply. Despite the significant water supply, or maybe 

because of it, historically others have sought to appropriate it for themselves, and 

water has become a precious resource in more modern times. 

Historical Water Conflicts 

In 1909, the United States entered in to the Boundary Water Treaty with Canada, 

which among other things, divided the Milk River and St. Mary River between the 

two countries. However, not a word in the Treaty, or the negotiations leading to it, 

mention the Blackfeet, that these streams arise on or near the Blackfeet Reservation, or that the Blackfeet have rights to water in these streams. 

Not long after the Boundary Waters Treaty, the United States withdrew significant lands on the Blackfeet Reservation under the 1902 Reclamation Act, and began 

construction of the St. Mary facilities that would divert most of the United States’ 

share of the St. Mary River off the Reservation for use by the Milk River Project 

over a hundred miles away, notwithstanding that there was an equally feasible 

project on the Blackfeet Reservation to which the water could have been brought. 

The diversion is accomplished through facilities on the Reservation, including 

Sherburne Dam, and a twenty-nine mile canal through the Reservation that eventually empties into the Milk River. The Milk River flows north into Canada and then 

back into the United States near Havre, Montana, where it is heavily utilized by 

the Milk River Project and by the Fort Belknap Reservation. There are few historical acts, other than loss of land, that have engendered more passion and outrage 

than this wholesale transfer of Reservation water to serve non-Indians far downstream, without a word about or any consideration of Blackfeet Tribe’s water rights 

or the Blackfeet water needs. The Tribe is left not only with no access to and no 

benefit from its own water, but a tangled web of confusing and non-existent rights 

of way and easements for the St. Mary Diversion facilities on the Reservation. 

At the same time that the St. Mary diversion was taking place, non-Indian water 

users south of the Reservation built a dam on Birch Creek, the southern boundary 

of the Reservation, which was intended to appropriate Birch Creek water for use 

by the non-Indian water users off the Reservation. In Conrad Investment Company 

v. United States, decided by the Ninth Circuit in 1908, the same year as the Winters

case, the court upheld the Tribe’s prior and paramount right to the water. But the 

court did not award the full amount of water necessary to irrigate all of the Tribe’s 

irrigable lands, leaving it open for the Tribe to claim additional water in the future. 

United States v. Conrad Investment Company, 156 Fed. 123 (D. Mont. 1907), aff’d 

Conrad Investment Co. v. United States, 161 Fed. 829 (9th Cir. 1908). In the meantime, Birch Creek has been fully appropriated through non-Indian development of 

80,000 acres of irrigation immediately off and adjacent to the Reservation. 

In an attempt to control the water through the land, the Conrad Investment case 

served as the springboard to the first Blackfeet allotment act in 1907. Over a span 

of two congresses, the Blackfeet allotment act moved forward with various water 

rights provisions intended to make Blackfeet water rights subject to state law, to 

enjoin the United States from prosecuting any further suits against water users, 

and to give preference to settlers on surplus lands to appropriate water on the ResVerDate 0ct 09 2002 10:19 Jul 31, 2012 Jkt 074443 PO 00000 Frm 00036 Fmt 6633 Sfmt 6621 S:\DOCS\74443.TXT JACK
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ervation. See, John Shurts, Indian Reserved Water Rights: The Winters Doctrine in 

its Social and Legal Context, 1880s–1930s (University of Oklahoma Press, 2000). 

These efforts largely failed, thanks in part to a veto from President Theodore Roosevelt, but the 1907 Allotment nevertheless became law notwithstanding the promise that the Reservation would never be allotted. See Agreement of September 26, 

1895, ratified June 10, 1896, 29 Stat 321, 353, Art. V. 

Allotment brought the third serious conflict between the Tribe and non-Indian 

water users. The Bureau of Indian Affairs Blackfeet Irrigation Project was authorized in the 1907 Allotment Act. However, many of the prime irrigation lands both 

within the Project and in other areas of the Reservation on Cut Bank Creek and 

the Milk River quickly went out of trust. The Tribe’s water rights have gone unprotected from the use of water by non-Indian development on former allotments. Numerous disputes have arisen over the years of varying severity, and the need to resolve the Tribe’s water rights has increasingly become critical. At the same time, 

the BIA built the Blackfeet Irrigation Project with undersized and inadequate delivery systems and storage facilities, thereby ensuring that the economic promise of 

the Project would be unfulfilled for the Tribe and Tribal members. 

Traditionally, the Tribe has taken the approach of sharing the resource cooperatively, but increased shortages during the late irrigation season in both the Milk 

and Cut Bank Creek, and the dilapidated condition of the Blackfeet Irrigation 

Project have become serious impediments to water use within the Reservation. 

Plans to rehabilitate the hundred year old St. Mary Diversion facilities have further 

raised water right concerns, and have emphasized the need for the Tribe to finally 

resolve its water rights. 

Water Rights Compact 

Given the historical water rights issues on the Reservation, the Blackfeet Water 

Rights Compact is truly a milestone achievement after nearly two decades of negotiations among the Tribe, the Montana Reserved Water Rights Compact Commission 

and the Federal Government. The Compact was complete in December 2008. It was 

approved by the Montana Legislature in April, 2009 (85–20–1501 MCA), and it is 

now before this Committee for ratification in the Blackfeet Water Rights Settlement 

Act. It will further require approval of the Tribe through a vote of the Tribal membership. In general, the Compact confirms the Tribe’s water rights to all streams 

on the Reservation, bringing certainty to the Tribe’s water rights and the ability to 

protect and use the water for the Tribe’s growing population and needs to make the 

Reservation a productive and sustainable homeland. The Compact:

• Establishes the Tribe’s water right as all surface and groundwater less the 

amount necessary to fulfill state water rights in all drainages except for the St. 

Mary River and Birch Creek.

• Establishes a St. Mary water right of 50,000 acre-feet, and requires the parties 

to identify how the water will be provided to fulfill the Tribe’s water right.

• Establishes a Birch Creek water right of 100 cfs, plus 25 cfs for in stream flow 

during the summer and 15 cfs during the winter.

• Protects state water right non-irrigation use and some irrigation uses through 

‘‘no-call’’ provisions.

• Provides for water leasing off the Reservation.

• Closes on-reservation streams to new water appropriations under state law.

• Provides for Tribal administration of the Tribal water, and State administration 

of state law water rights, and creates a Compact Board to resolve disputes

• Provides for an allocation of water stored in Tiber Reservoir (in an amount to 

be determined by Congress).

• Mitigates the impacts of the Tribe’s water rights on Birch Creek water users 

through a separate Birch Creek Agreement by which the Tribe defers new development on Birch Creek for 15 years and provides 15,000 acre-feet of water 

per year to Birch Creek water users from Four Horns Reservoir, the total agreement not to exceed 25 years.

Additional identification and study of alternatives to provide the Tribe’s St. Mary 

water right will be necessary and are included as part of the legislation. As described above, nearly the entire United States’ share of the St. Mary River is diverted off the Reservation to the Bureau of Reclamation’s Milk River Project. In the 

meantime, S. 399 provides that the Tribe will receive its water right through an allocation of Sherburne Dam, the Milk River Project storage facility on the Blackfeet 

Reservation. The Tribe will lease back the water to the Project, until a permanent 

water supply is identified and implemented for the Tribe. Such an arrangement is 

34

the only way to ensure that the water rights of both the Tribe and the Milk River 

Project are fulfilled. 

Upon completion of the Compact, a separate concern was raised by the Fort 

Belknap Indian Community relating to the Milk River, and the potential for conflict 

between the Blackfeet and Fort Belknap Milk River water rights. While the Blackfeet Tribe believes that the potential for conflict is extremely minimal, the two 

tribes met on a number of occasions to resolve any possible conflict. Language was 

agreed upon to be inserted in our respective settlement legislation. The language 

requires the Secretary to insure that the water rights of both tribes are fulfilled. 

This is a particular federal responsibility due to the United States trust responsibility to both tribes, and particularly because the Federal Government was party to 

the negotiations of both tribes. 

State Approval and State Contribution 

As described above, the Blackfeet water rights compact was approved by the State 

Legislature in April 2009. The State of Montana has committed to contribute $20 

million to the Compact. These funds were fully authorized and are available when 

the Compact becomes final. In 2007, the Montana Legislature also appropriated $15 

million for Birch Creek mitigation. Of these funds, $14.5 million has been placed 

in an escrow fund for the Tribe as part of the Birch Creek Agreement, and $500,000 

was used for engineering studies for the Four Horns enlargement. Therefore, the 

State has committed to a $35 million contribution to the Blackfeet settlement. This 

is very major contribution on the part of the State, and the largest for an Indian 

water rights settlement in Montana. 

Blackfeet Water Rights Settlement Act 

S. 399 carries forward the terms of the Blackfeet Water Rights Compact, and addresses issues of particular federal responsibility and federal concern. The bill would 

do the following:

• Approves and ratifies the Compact and the associated Birch Creek Agreement.

• Authorizes the allocation of Tiber Dam water.

• Provides 50,000 acre feet of Sherburne Dam water to the Tribe in fulfillment 

of the Tribe’s St. Mary water right and authorizes necessary investigation and 

studies to provide a firm supply to the Tribe.

• Requires resolution of all rights of way issues related to the Milk River Project 

facilities, involving tribal lands and allotted land.

• Authorizes the rehabilitation and improvement of the Blackfeet Irrigation 

Project, including the enlargement of Four Horns Reservoir.

• Establishes a Blackfeet Water Settlement Fund and authorizes $125M for the 

Blackfeet Irrigation Project and $93.2 for each of five years for other water 

projects and water related projects.

• Provides for a waiver of water related claims against the Federal Government.

The Tribe has identified a number of projects that are critical to the implementation of the Tribe’s water right under the Compact. These projects include a regional 

water system to provide a long term municipal water supply to Reservation communities, improvements to irrigation and water storage on the Reservation associated 

with the Bureau of Indian Affairs’ Blackfeet Irrigation Project including enlargement of Four Horns Reservoir as provided for in the Birch Creek Agreement, putting new lands outside the Project into production through new irrigation facilities 

and small water storage projects, stock water and domestic water developments, energy development projects, and acquisition of lands on the Reservation that have 

gone out of trust. Settlement funds would also fund the implementation of the Compact and the administration of the Tribal water right through the Tribal Water 

Code. 

In particular, it is critical to establish a long term supply of water to Reservation 

communities. The Tribe has continually had to address community water supply 

problems by cobbling together short term fixes. At the same time, the Reservation 

population has significantly increased, and projections are that such increases will 

continue. A long term supply will provide the necessary stability that will allow for 

long term community growth. 

For many years, East Glacier has been under a boil order issued by EPA. The 

Town of Browning has had frequent problems with its current water supply which 

is provided by groundwater wells. These wells have experienced supply and quality 

problems that have affected a continuous water supply for Browning. The Seville 

water supply is currently provided through an agreement with the City of Cut 

35

Bank. However, the ability of Cut Bank to continue to provide water to this reservation community given the City’s own water supply problems is in doubt. 

The Blackfeet Tribe, Indian Health Service (IHS) and other entities have designed 

and are currently constructing a Phase 1 regional water system within the Reservation. The source is at Lower Two Medicine Lake, with an associated water treatment plant, with water service pipelines going to the towns of East Glacier and 

Browning. The Phase I project focuses on current needs. The proposed project would 

provide a 50 year water long-term community water supply and would include enlarging the treatment plant and Phase 1 pipelines and extending the pipeline from 

Browning to serve Indian communities to the eastern boundary of the Reservation, 

including the Star School and Seville areas. 

The Cost of Settlement 

The Tribe’s technical consultant, DOWL HKM of Billings, Montana, has assisted 

the Tribe in the development of the above projects and has prepared reports on each 

of the projects and the associated costs. Separate costs have been developed for each 

of the projects. 

The cost of settlement is fully justified by the needs of the Reservation and the 

potential Tribal claims against the United States associated with (1) the one-hundred year old diversion of St. Mary water off the Reservation to the Milk River 

Project over a hundred miles away, (2) the environmental and resource damages 

caused by the St. Mary diversion facilities, (3) claims relating to the 1909 Boundary 

Waters Treaty, (4) the United States promise to construct a new storage facility on 

Two Medicine after a catastrophic flood in the 1960’s, (5) the failure of the United 

States to properly operate and maintain the Blackfeet Irrigation Project, and (6) the 

failure of the United States to protect the Tribe’s water right from development by 

others, particularly on Birch Creek, Cut Bank Creek and Milk River. 

Conclusion 

The Blackfeet Water Rights Settlement has critical importance to the future of 

the Blackfeet people and represents decades of hard work by many people. The legislation will secure the water rights of the Tribe through ratification of the Tribe’s 

water rights compact, and will also provide the necessary funding for the development of vital reservation water projects, including drinking water projects, water 

storage projects and irrigation and stock development. The settlement will significantly contribute to the development of a strong Reservation economy, jobs for Tribal members, and a better life for the Blackfeet people. 

Even though the Department of the Interior was involved in our negotiations 

every step of the way in the decades long process, and was intimately involved in 

the drafting of the Compact, the Administration has raised a number of issues relating to S. 399. We are engaged in discussions with the Department of the Interior 

to address these concerns, and expect they will be resolved in a satisfactory manner 

to both parties. 

We thank the Committee and Committee staff and look forward to responding to 

any questions you may have. 

SUPPEMENTAL PREPARED STATEMENT OF HON. TERRY J. SHOW

Mr. Chairman, and members of the Committee, we appreciate the opportunity to 

provide this Supplemental Testimony in support of S. 399, Blackfeet Water Rights 

Settlement Act. This supplemental testimony provides additional information about 

the Settlement, and responds to certain issues raised at the hearing on the bill held 

on October 20, 2011. 

As stated in our hearing testimony, the Blackfeet Water Rights Settlement is the 

culmination of over two decades of work by the Tribe, and represents an historical 

breakthrough in the Tribe’s over century long battle to secure and protect its waters 

rights. S. 399 ratifies the Blackfeet-Montana Water Rights Compact, resolves certain water related claims against the Federal Government and provides the critical 

resources needed for the development of a self-sustaining economy on the Blackfeet 

Reservation and a permanent homeland for the Blackfeet People. 

Cost of the Settlement 

The Department of the Interior has expressed concern about the cost of the Blackfeet settlement. In particular, Interior has expressed concern about the precedent 

the settlement would set for future water settlements. However, the cost of the 

Blackfeet settlement is consistent with other Indian water rights settlements involving reservations of similar size, water allocations, types of resources and Bureau of 

Indian Affairs irrigation projects. For example, the cost of the recently enacted Crow 

36

Tribe Water Rights Settlement, Title IV, P.L. 111–291, 12 Stat. 3097 (2010) is 

$464.99 million, principally for an MR&I water system and rehabilitation of the 

Crow Irrigation Project. The total cost of the recent Navajo San Juan Settlement, 

Subtitle B, P.L. 111–11 (2009), is $934.1 million principally for the Navajo-Gallup 

Water Supply Project ($870M), conjunctive use wells ($30M), and for irrigation 

projects ($34.1M). 

Since the Blackfeet water rights compact was completed in 2007, the Blackfeet 

Tribe has consistently indicated a willingness to enter into discussions with the Administration to further refine the costs of settlement. However, the Administration 

only recently began discussions with the Tribe in July of this year (2011). 

Otherwise, we are unaware that the Department of the Interior’s consideration of 

Indian water rights settlements is intended to or should take into account any backlog for appropriated but unfunded Bureau of Reclamation projects as Interior suggests in its testimony. Whether and to what extent the Bureau of Reclamation has 

a backlog has nothing to do with the settlement of Indian reserved water rights and 

the Federal Government’s trust responsibility to ensure that the Tribe’s water rights 

are fully established and protected. 

Information Regarding Settlement Project 

The Department of the Interior also expressed concern about the level of information regarding the Tribe’s projects funded under the settlement. Interior requested 

and the Tribe provided a list of projects and estimated costs for each proposed 

project for purposes of a BOR review. However, the level of information required by 

BOR is not possible without the expenditure of millions of dollars upfront. For example, the $500,000 spent on studies for just one project—the Four Horns project—

was not adequate, according to BOR, to verify cost estimates. We believe the issue 

has to do with the Departments attempt to treat Tribal settlement projects like 

BOR projects. BOR projects are developed for funding by Congress over many years. 

By the time BOR proposes funding for its projects, it has already received millions 

of dollars in appropriations to develop the project. For Indian water settlements, 

federal funds are not available for development of projects to the degree BOR prefers. Nevertheless, Congress has consistently funded tribal projects. See e.g., P.L. 

111–291 (2010), which authorizes funding four Indian water rights settlements, including funding for MR&I projects and irrigation projects with similar levels of information to the Blackfeet projects. 

Four Horns Enlargement Project 

As part of the Birch Creek Agreement entered into between the State and Tribe, 

the Tribe agrees to mitigate impacts to Birch Creek water users for a 25 year period 

by providing 15,000 acre feet of water from an enlarged Four Horns Reservoir 

through a pipeline to Birch Creek. The Department of the Interior’s testimony states 

that the total cost of implementing the Birch Creek agreement is $215 million, half 

of which is attributable to benefits to Birch Creek water users. Interior has significantly misinterpreted and misstated the costs. 

The $215 million cost is the cost for the complete rehabilitation and improvement 

of the Badger-Fisher unit of the Blackfeet Irrigation Project, including full build out 

and enlargement of Four Horns and the pipeline to provide water to Birch Creek. 

However, the Tribe has not proposed full rehabilitation and build-out of the BadgerFisher unit. Instead, the Tribe has proposed to spend $125 million for the BadgerFisher unit, including partial rehabilitation of the unit and the Four Horns enlargement and pipeline. Of this amount, the pipeline to provide the 15,000 acre feet of 

water to Birch Creek plus a proportionate share of an increased feeder canal is approximately $36 million. Therefore, the amount attributable to non-Indian benefits 

at the high end is $36/$125 or 28 percent. Taking into account the State contribution of $20 million, the amount attributable to non-Indian benefits from federal 

funds is $16 ($36-$20)/$125 or 13 percent. Further, taking into account that the benefit is only for 25 years and after that time the Tribe would receive 100 percent of 

the benefit from the enlarged Four Horns, and assuming a life expectancy of 100 

years (the age of the current project), the amount attributable to non-Indian benefits 

from federal funds is reduced to a little over 3 percent (one-fourth of 13 percent). 

In addition, under the Birch Creek agreement, the Tribe receives a payment from 

the State of $14.5 million to provide the 15,000 acre feet of water for the 25 year 

period. In effect, the Tribe is marketing the 15,000 acre feet to Birch Creek paid 

for by the State. Taking the State payment to the Tribe into account, the federal 

funds benefit to Birch Creek water users is effectively reduced to zero. 

We are requesting the Department of the Interior to correct its statement to the 

Committee on this issue. 

37

We also point out that the reason mitigation is necessary for Birch Creek water 

users is the failure of the United States to fully ensure and protect the Blackfeet 

Tribe’s water rights in Birch Creek. Pursuant to a 1908 federal court decree in 

Conrad Investment Co. v. United States, 161 F.829 (9th Cir. 1908), contemporaneous 

with the Winters case, the Tribe’s water rights were partially quantified based on 

its then existing uses. However, the court made clear that the Tribe could obtain 

additional water for additional irrigable lands when needed. In the meantime, the 

Birch Creek users developed over 70,000 acres of land immediately adjacent to the 

Reservation, fully utilizing all remaining water in Birch Creek. The United States 

never took steps to limit such development or to go back to court to obtain a complete adjudication of the Tribe’s water rights in the face of such development until 

the 1970s. Indeed, the Birch Creek water users argue that the United States facilitated the development of their lands through the 1894 Carey Act. 

Additional Benefits to Non-Indians 

The Department of the Interior also argues that there are additional benefits to 

state users through protections to junior state water users in the St. Mary and Milk 

Rivers, and that the costs relating to such benefits are unquantified. Nevertheless, 

Interior insists that such unquantified benefits can be secured at a lower cost. However, Interior fails to mention that the largest beneficiary from the protections for 

the junior state water in the St. Mary River is the Bureau of Reclamation’s Milk 

River Project. The Milk River Project diverts the entire U.S. share of the St. Mary 

River off the Blackfeet Reservation through a 29-mile canal and uses it over a hundred miles downstream for the benefit of non-Indian water users. It is the Bureau 

of Reclamation that insisted the Tribe protect its junior state water rights in the 

St. Mary for the benefit of the Milk River Project and its water users. Indeed, BOR 

wanted stronger language in the Tribe’s water rights compact for this purpose. 

The only protection for junior state water users in the Milk River is for non-irrigation uses such as domestic water supplies and stock water uses. The Tribe agrees 

to not make a call on such uses. There is no cost relating to such protection, and 

we are unclear why Interior objects to such protections for domestic and stock uses. 

Resolution of St. Mary/Milk Issues 

The Milk River Project’s use of the entire U.S. share of the St. Mary River is the 

reason why the Tribe’s 50,000 acre feet of St. Mary water is problematic to the Department of the Interior. In addition, a question has also been raised as to whether 

the Blackfeet Tribe’s Milk River water right and the Fort Belknap Tribe’s Milk 

River water right can both be fully satisfied. While the Tribe believes that the potential for such conflict between the Tribes is extremely remote, since the Department of the Interior participated in the negotiations of both Compact, both Tribes 

feel that if there is an issue, it is an issue for the U.S. to resolve. The Fort Belknap 

Compact was completed in 2001; the Blackfeet Compact was completed in 2007. The 

Department has made no attempt to determine whether a conflict exists, and if so, 

the extent of such. Again, however, the Blackfeet Tribe believes that such a conflict 

is extremely remote. 

Because the St. Mary/Milk issues are uniquely federal issues that the Department 

has not yet resolved, the exact costs, if any, are not yet known. However, Interior 

cannot complain since it is within its authority to fully resolve the issues and to 

determine any costs involved. 

Non-Federal Cost Share 

As previously set out in our testimony, the State contribution to the settlement is $35 million. Of this amount, $15 million was appropriated and made available 

by the Montana Legislature in 2009—$14.5 million has been put into an account 

for the Tribe as part of the Birch Creek agreement, and $500,000 already has been 

utilized for studies relating to the Four Horns enlargement. The 2011 Legislature 

authorized the issuance of bonds for the remaining $20 million. The State contribution is therefore fully available. The $35 million state contribution to the Blackfeet settlement is also the largest 

Montana contribution to a settlement. The contribution to the Crow settlement was 

$15 million. The State contribution to the Rocky Boys settlement was $550, 000, 

$400,000 of which is in the form of State services. There was a $16.5 million contribution to the Northern Cheyenne settlement which the State paid in the form of 

a loan from the Federal Government. We are aware of other settlements where 

there has been no federal contribution at all. For example, there is no state contribution at all in the Nez Perce Snake River Basin Settlement, Div. J, Title X, P.L. 

108–447 (2004), a settlement of over $120 million. Indeed, in the Nez Perce settlement, the State of Idaho received federal funds of over $25 million for a habitat 

fund. 

38

Mitigation Fund for PCCC 

At the request of the Pondera County Canal and Reservoir Company, located on 

Birch Creek south of the Reservation, a mitigation fund was included in the present 

bill for the purpose of mitigating any impacts at the end of the 25 year term of the 

Birch Creek Agreement. The Tribe supports this provision, but it is up to PCCRC 

and the United States to resolve any issues relating to it. We note however, that 

notwithstanding Interior’s statements that such a fund is unprecedented, such provisions have been included in other Indian water rights settlements. Indeed, settlements have routinely included funding for mitigation. For example: (1) the Taos 

Pueblo Indian Water Rights Settlement, Title V of P. L. 111–291 (Sec. 509(c)(1)(B)), 

authorizes $38 million to mitigate impacts non-Indian water users, a portion of 

which is a mandatory appropriation; (2) the Soboba Band of Luiseno Indian Settlement Act, P.L. 110–297 (2008) (Sec. 5a and Sec. 6) authorizes $10 million for the 

San Jacinto Restoration Fund to operate and maintain a recharge project (this is 

compared to the total appropriation for the Tribe of $11 million); and (3) the Snake 

River Water Rights Act of 2004 (Nez Perce), P.L. 108–447, Div. J., Title X (Sec. 

5(b)(1), authorized $2 million for mitigation for local governments. 

The Tribe also notes that while the United States has criticized the Tribe for including certain protections for non-Indian water uses, it states in this section of its 

discussion of the PCCRC mitigation fund, that Indian water rights settlements ‘‘routinely seek to protect existing non-Indian water user so as not to unduly impact 

local economies.’’ We agree. 

Additional Concerns 

We believe the additional concerns raised by Interior are all matters that are easily resolved through discussions between the Tribe and Interior. We note that the 

nature of many of these concerns arise from the Department’s many conflicts of interest in seeking to represent and protect water rights of various federal entities 

like the Bureau Reclamation and the Park Service, as well as other Tribes and 

allottees, and its conflicts of interest in limiting its own liability relating to failures 

to protect the Tribe’s water rights while at the same time purporting to protect such 

rights in the context of this present settlement.

39

The CHAIRMAN. Thank you very much, Mr. Show, for your testimony. 

We will now hear from Chris Tweeten. Please proceed with your 

statement. 

STATEMENT OF CHRIS TWEETEN, CHAIRMAN, MONTANA 

RESERVED WATER RIGHTS COMPACT COMMISSION 

Mr. TWEETEN. Thank you, Mr. Chairman, Members of the Committee. 

First of all, I would like to remind the Committee that we saw 

the United States’ objections to this bill for the first time within 

the last 24 hours, so we obviously have not had an opportunity to 

fully develop our reactions to those objections. And with your permission, we would like to submit a supplemental statement in 

which we will fully respond to those objections as we understand 

them. 

The CHAIRMAN. Without objection. 


1020a1.eps
40

Mr. TWEETEN. One, I would like to respond briefly to Senator 

Barrasso’s observation regarding the lack of recent studies with respect to the feasibility of the improvements that are recommended 

in this legislation. As part of our $15 million appropriation that 

Chairman Show referred to a minute ago, $500,000 was set aside 

and expended for a feasibility study with respect to the feasibility 

of the enlargement of the Four Horns Reservoir and the improvement of infrastructure to deliver water trans-basin from Badger 

Creek into the Birch Creek drainage. 

That study was done. The conclusion was that the improvement 

of Four Horns and the creation of that infrastructure was both 

technologically and financially feasible. So, that part of the expenditures in the bill at least has been studied and we would be happy 

to provide whatever further information we can gather with respect 

to those studies for the Committee’s consideration. 

With respect to Senator Tester’s question regarding the objection 

as to the open-endedness of certain aspects of the compact, the inclusion of language regarding the expenditure of such sums as may 

be necessary was not, obviously, original to this compact. That language appears in lots of other Federal legislation, as I understand 

it. Those projects that are being discussed, of course, are projects 

that are going to be designed and developed by the Blackfeet Tribe. 

And so we would like to have an opportunity to visit with them 

specifically about those before we respond more directly to Senator 

Tester’s question and we will include that in our supplemental 

statement. 

The Blackfeet Compact is a linchpin of the settlement of water 

rights for Native American Tribes that covers virtually the entire 

northern half of Montana east of the Rocky Mountains. The Blackfeet Tribe is the northern headwaters of the Missouri River. It also 

provides the headwaters for the Milk River, which in our written 

statement we explain begins on the reservation, goes into Canada. 

It is the subject of an international treaty apportionment. It then 

comes back into the United States, where its waters are collected 

in Fresno Reservoir, which is a Bureau of Reclamation project, and 

then distributed to irrigation interests downstream. One-seventh, I 

believe, of the storage in Fresno Reservoir has been allocated by 

the bureau to the Tribes at Fort Belknap. 

So when you consider that there are four Indian reservations 

across northern Montana that touch upon the Milk River, beginning with Fort Peck in the east and then ending at the headwaters 

with the Blackfeet Tribe, you can understand how complicated and 

interrelated all these water rights issues are and how important it 

is for us to obtain finality with respect to the issues surrounding 

the Blackfeet water rights. 

We agreed wholeheartedly with Senator Tester’s observation 

about the importance of economic development on the Indian reservations in Montana in general, and on the Blackfeet Reservation 

specifically. It provides intrinsic benefits to the people of the Blackfeet Reservation who are among the poorest residents of the State 

of Montana. 

The State of Montana develops whenever economic development 

occurs within our boundary, whether it is on an Indian reservation 

41

or not. Economic development on our reservations is economic development for the State. 

And finally, and most importantly, the uncertainty that surrounds the unquantified nature of Indian reserve water rights is 

eliminated when those rights are compacted and those compacts 

are brought to the Congress and ratified by the Congress. 

So the benefits to the State of Montana from this bill, both economically and in terms of creating certainty for our water development going forward, are substantial incentives for the State. 

Hopefully, Senator Tester will ask me a question and give me an 

opportunity to respond to the United States’ concern regarding the 

adequacy of the State’s cost share. As Mr. Laverdure said, the 

United States has objected to the cost share in all of our compacts 

that have come before Congress. Congress has seen fit to overrule 

all of those objections. And as I hope to be able to explain, it ought 

to overrule that objection here as well. 

Thank you, Mr. Chairman. I look forward to questions. 

[The prepared statement of Mr. Tweeten follows:]

PREPARED STATEMENT OF CHRIS TWEETEN, CHAIRMAN, MONTANA RESERVED WATER

RIGHTS COMPACT COMMISSION

Chairman Akaka and distinguished members of the Senate Committee on Indian 

Affairs, I thank you for the opportunity to provide written testimony on this important matter. My name is Chris Tweeten, and I am the Chairman of the Montana 

Reserved Water Rights Compact Commission. I am here to testify on behalf of Attorney General Steve Bullock, the Commission, the State of Montana and Governor 

Brian Schweitzer, in support of Senate Bill 399, the Blackfeet Water Rights Settlement Act of 2011, and to urge your approval of this bill. 

The Montana Reserved Water Rights Compact Commission was created by the 

Montana legislature in 1979 to negotiate, on behalf of the Governor, settlements 

with Indian Tribes and federal agencies claiming federal reserved water rights in 

the state of Montana. The Compact Commission was established as an alternative 

to litigation as part of the statewide water adjudication. It is charged with concluding compacts ‘‘for the equitable division and apportionment of waters between 

the state and its people and the several Indian tribes’’ and the Federal Government. 

(Mont. Code Ann. § 85–2–702 (2011)). 

Montana has been remarkably successful in resolving both Indian and federal reserved water rights claims through settlement negotiations. To date, we have concluded and implemented water rights Compacts with the tribes of the Fort Peck, 

Northern Cheyenne, and Rocky Boy’s Reservations, as well as with the United 

States Forest Service, National Park Service, Agricultural Research Service, Bureau 

of Land Management, and several units of the Fish and Wildlife Service. The Congress has previously ratified the Northern Cheyenne, Rocky Boy’s, and Crow Compacts. The Northern Cheyenne and Rocky Boy’s Compacts are substantially implemented, and both tribes have seen substantial economic and social benefits from the 

completed settlements. We are now working actively on the implementation of the 

Crow Nation’s settlement, and we expect similar economic and social benefits to follow implementation. In addition, we have reached a Compact agreement with the 

tribes of the Fort Belknap Reservation that is in preparation for submission to Congress for ratification. The Blackfeet Tribe-Montana Compact has already been approved by the Montana legislature (Mont. Code Ann. § 85–20–1501 (2011)), and is 

now before Congress for ratification pursuant to S. 399. 

Montana has also been extremely proactive in contributing to these Indian water 

rights settlements. In the early 1990s, Montana spent $21.8 million as part of the 

Northern Cheyenne settlement. The State spent $550,000 as part of the smaller 

Rocky Boys settlement, and $15 million as part of the Crow Tribe settlement. The 

State has also made-and almost fully funded-commitments for the two settlements 

that have been ratified by the Montana legislature but not yet approved by Congress. The State has committed $17.5 million to the Fort Belknap settlement, $14.5 

million of which has already been appropriated or authorized: $1 million in cash, 

$9.5 million in bonding authority and $4 million of in-kind contributions in the form 

of modeling and other hydrology work that has already been implemented. Finally, 

42

* A copy of the information referred to has been retained in Committee files. 

as will be discussed in greater detail below, Montana has fully funded its $35 million commitment to the Blackfeet water rights settlement. 

Concurrent with the initiation of the Montana general stream adjudication and 

the establishment of the Compact Commission in 1979, the United States filed suit 

in federal court to quantify the rights of tribes within the State, including the 

Blackfeet Tribe. Those federal cases have been stayed pending the adjudication of 

tribal water rights in state court. Should the negotiated settlement of the Blackfeet 

Tribe’s water right claims fail to be approved, then the claims of the Blackfeet Tribe 

will be litigated before the Montana Water Court. The Blackfeet Tribe has always 

had the senior water rights in the basins that are the subject of the settlement embodied in S. 399lthis Compact does not create those rights, it simply quantifies 

them. 

The Blackfeet Indian Reservation is located in north-central Montana, bounded by 

Glacier National Park and the Lewis and Clark National Forest to the west, Canada 

to the north and prairies and farmland to the east and south. The Reservation encompasses 1.5 million acres (roughly one and a half times the size of Rhode Island), 

making it one of the largest in the United States. The Reservation is home to approximately half of the 16,000 enrolled Tribal members. Unemployment on the Reservation is estimated at being up to 70 percent. The region is arid, with approximately 13 inches of average annual precipitation. Ranching and farming are the 

major uses of land on the Reservation, with the principal crops being wheat, barley 

and hay. 

The provisions in S. 399 will recognize and quantify water rights as well as offReservation storage allocations that will allow the Blackfeet Tribe to provide for its 

growing population and to develop its natural resources. The State of Montana and 

the Blackfeet Tribal Business Council agree that this is a fair and equitable settlement that will enhance the ability of the Tribe to develop a productive and sustainable homeland for the Blackfeet People. We appreciate the efforts of the Tribe and 

the Federal Government to work with the State to forge this agreement, and, in 

doing so, to listen to and address the concerns of non-Indian water users both on 

and off the Reservation. This settlement is the product of over two decades of negotiations among the parties, which included an intensive process of public involvement. 

The primary sources of water on the Blackfeet Indian Reservation are the St. 

Mary River, the Milk River, the Two Medicine River, and Badger, Birch and Cut 

Bank Creeks. (See Attachment A.) Collectively, these watercourses discharge approximately 1.5 million acre-feet per year (AFY) of water, with the St. Mary River 

alone accounting for roughly one-third of that total. The St. Mary River originates 

in the mountains of Glacier National Park and flows north and east across the Reservation before crossing into Canada. The Two Medicine River and Badger and 

Birch Creeks originate in the mountains to the west of the Reservation and flow 

east, ultimately uniting to form the Marias River just east of the Reservation. Birch 

Creek delineates the Reservation’s southern boundary. The Milk River and Cut 

Bank Creek are prairie streams. The Milk River flows from the Reservation northeast into Canada before re-entering the United States just west of Havre, Montana, 

while Cut Bank Creek flows south and east until it joins the Marias River. The St. 

Mary and Milk Rivers are both subject to an apportionment agreed to between the 

United States and Canada in the 1909 Boundary Waters Treaty (BWT), and implemented by a 1921 Order of the International Joint Commission that was established 

by the BWT. Indian water rights were not considered during the negotiation or implementation of the BWT. The Bureau of Indian Affairs (BIA) manages the Blackfeet Irrigation Project on the Reservation. The Blackfeet Irrigation Project serves 

land in the Birch Creek, Badger Creek, Two Medicine River and Cut Bank Creek 

drainages. 

The Blackfeet Tribal Water Right is quantified separately for each drainage basin 

within the Reservation. The Tribal Water Right for the St. Mary River drainage 

within the Reservation is 50,000 AFY, not including the flows of Lee and Willow 

Creeks. It is worth noting that this quantified amount of 50,000 AFY is almost exactly what the United States claimed for the Tribe in its November 14, 1997, More 

Definite Statement of Claim filed in the Montana Water Court. * The Tribe’s water 

right is subject to the limitation that its exercise may not adversely affect the water 

rights held by the Bureau of Reclamation’s Milk River Project (MRP). The MRP diverts almost the entire United States’ BWT share of the St. Mary River into the 

Milk River for use by MRP irrigators in northern Montana approximately 200 miles 

downstream of the Reservation. The balance between tribal rights and MRP needs, 

43

and the protection of these off-Reservation water users, was a critical aspect of the 

negotiations of this settlement. 

In 1902, when Congress authorized, and the Bureau of Reclamation began to develop, the MRP, insufficient attention was given to the senior water rights of the 

Blackfeet Tribe. The Tribe has received neither benefits from nor compensation for 

the St. Mary River water used by the MRP, which can account for up to 90 percent 

of the MRP’s water supply in dry years. At the same time, water users in the Bureau of Reclamation’s MRP have for generations depended on the St. Mary River 

water delivered to Project facilities for their livelihoods. This settlement addresses 

these two factors by providing for an interim allocation to the Tribe of 50,000 AFY 

of St. Mary River Water stored in Sherburne Reservoir, which is located contiguous 

to the Reservation and just inside Glacier National Park. That water is to be leased 

by the Tribe back to the Bureau of Reclamation for use by the MRP, at a rate to 

be negotiated between the Tribe and the United States, while studies are conducted 

to identify a permanent solution capable of satisfying the Tribe’s water rights while 

keeping the MRP whole. The Tribe is also entitled to groundwater in the St. Mary 

drainage that is not subject to the BWT’s apportionment, as well as the entire 

United States’ share under the BWT of the natural flow of Lee and Willow Creeks 

(which are located in the St. Mary River drainage), except for the water in those 

streams that is subject to existing water rights under state law. The Tribe has 

agreed to afford protections for those existing water rights under state law through 

the inclusion of a no-call provision. 

The Blackfeet Tribal Water Right in the Milk River is quantified as the entire 

United States’ share under the BWT of the Milk River on the Reservation, as well 

as all non-BWT groundwater in the Milk River drainage on the Reservation, except 

for the water that is subject to existing water rights under state law. In addition, 

the Tribe has agreed to afford protections for those existing water rights under state 

law, including a no-call provision for uses other than irrigation, and a 10 year 

phase-in for new development of tribal irrigation. The tribes of the Ft. Belknap Indian Community also claim water rights in the Milk River downstream of the point 

at which the Milk River re-enters the United States from Canada. Staff for the 

Compact Commission has evaluated the potential of competing demands on the Milk 

River between the Blackfeet Tribe and the Ft. Belknap Indian Community and has 

concluded that the possibility of actual conflict is, as a matter of hydrology, exceedingly remote. Nevertheless, the Blackfeet Tribe and the Ft. Belknap Indian Community have negotiated a memorandum of understanding over Milk River water uses 

pursuant to their respective settlements, which contemplates that the Secretary of 

the Interior shall, with the consent of the tribal governments, identify and implement alternatives to resolve any such conflict that might someday arise. This provision is included in S. 399 as well. 

The Blackfeet Tribal Water Right in Cut Bank Creek is quantified as all of the 

water (both surface and underground) in that drainage within the Reservation, except for the water that is subject to existing water rights under state law. The Tribe 

has also agreed to afford existing water rights under state law in the Cut Bank 

Creek drainage the same protections as are provided for in the Milk River drainage. 

The quantifications of the Tribal Water Right in the Two Medicine River and Badger Creek drainages are done in the same fashion as the Cut Bank Creek quantification, though the protections accorded by the Tribe to existing water rights under 

state law in these two drainages, as on the streams in the St. Mary drainage, extend the no-call protection to all existing water rights under state law, not just nonirrigation water rights. 

The Tribe’s water rights in Birch Creek were judicially recognized as early as the 

1908 Ninth Circuit Court of Appeals decision in the Conrad Investment Company

case (161 F. 829 (9th Cir.1908)), which was decided very shortly after the United 

States Supreme Court ruled in the seminal Indian water rights case Winters v. 

United States (207 U.S. 564 (1908)). The Blackfeet Irrigation Project diverts water 

from Birch Creek for project water users on the Reservation, but historically the 

Tribe has taken far less water from Birch Creek than it was legally entitled to take. 

There is also extensive non-Tribal water resource development immediately to the 

south of Birch Creek, where roughly 80,000 irrigated acres, as well as several municipalities, are served by the facilities of the Pondera County Canal and Reservoir 

Company (PCCRC), a privately owned irrigation company. PCCRC also operates 

Swift Dam, which abuts the southwest corner of the Reservation. During the irrigation season, PCCRC’s use diverts nearly all of the water available in Birch Creek. 

Since the unconstrained development of the Tribe’s Birch Creek water right recognized in this settlement has the potential to cause significant impacts to existing 

users, the balance between tribal and off-Reservation water use from Birch Creek 

was a major component of the negotiations. 

44

* A copy of the information referred to has been retained in Committee files. 

The settlement quantifies a substantial Tribal Water Right in Birch Creek. The 

quantification consists of a senior irrigation right of 100 cubic feet per second (cfs) 

of Birch Creek natural flow, a seasonably variable in-stream flow right (25 cfs from 

October 1 to March 31, and 15 cfs from April 1 to September 30), and all groundwater in the Birch Creek drainage that is not hydrologically connected to Birch 

Creek. In addition, the Tribe is entitled to the remainder of the water in Birch 

Creek after full satisfaction of existing uses under state law. As part of the protection of existing water rights under state law for which the State bargained, the 

Tribe agreed in the Compact to limit the development of its Birch Creek irrigation 

right to the Upper Birch Creek Drainage. There are also very specific administration provisions in the Compact concerning the manner in which the Tribe may 

change the use of its Birch Creek irrigation right to other beneficial purposes. In 

addition, a Birch Creek Management Plan has been appended to the Compact, 

which commits the Tribe, the BIA and the operators at PCCRC to meet prior to 

each irrigation season to develop management plans to maximize the beneficial use 

of Birch Creek for all water users, and to adapt those plans as conditions warrant 

during the course of each irrigation season. * 

When the Compact Commission initially presented this proposed settlement 

framework at public meetings south of the Reservation, the response was overwhelmingly negative, as stakeholders believed that the risks posed to their livelihoods by full tribal development of its Birch Creek water rights were insufficiently 

mitigated. Consequently, the parties returned to the negotiating table and entered 

into an Agreement Regarding Birch Creek Water Use (the Birch Creek Agreement) 

on January 31, 2008. The Birch Creek Agreement * is a critical component of the 

overall settlement. Under the Birch Creek Agreement, the State agreed to put $14.5 

million into an escrow fund payable to the Tribe after final approval of the Compact 

by the Montana Water Court. (In anticipation of settlement, the 2007 session of the 

Montana legislature fully funded this amount.) In the interim, the Tribe is entitled 

to receive the interest from that fund, up to $650,000 per year. In exchange for 

these payments, the Tribe agreed to defer any development of its Birch Creek water 

rights beyond their current use for a period of 15 years from the effective date of 

the Birch Creek Agreement. In addition, the Tribe agreed to prioritize in this settlement authorization and funding for the Four Horns Project. 

The Four Horns Project involves the repair and improvement of the Four Horns 

Dam and Reservoir and associated infrastructure, features of the Blackfeet Irrigation Project located on the Reservation in the Badger Creek drainage. Preliminary 

engineering studies, funded by a $500,000 appropriation from the State legislature, 

indicate that the storage capacity of the reservoir can be substantially increased in 

a cost effective fashion, and that a delivery system can be constructed economically 

to move excess water from the reservoir across to Birch Creek for the benefit of all 

Birch Creek water users. The studies suggest that this can be accomplished without 

reducing the access of Badger Creek water users, including those within the Blackfeet Irrigation Project, to the quantity of water currently stored in Four Horns that 

they use. The State has committed to spend $20 million toward the construction of 

this Four Horns Project, a commitment which has been fully funded by the Montana 

legislature in the form of a $4 million cash appropriation in 2009, and $16 million 

of bonding authority approved by the Legislature during its 2011 session. These 

monies, coupled with the $14.5 million that the State has already put in escrow for 

the Tribe as part of the Birch Creek agreement comprise the $35 million State contribution to this settlement. 

One of the essential mitigation benefits secured by the State in exchange for the 

financial and other commitments made in the Birch Creek Agreement is the Tribe’s 

agreement to deliver 15,000 AFY of water from Four Horns to Birch Creek, for the 

benefit of Birch Creek water users, from the time construction is completed on the 

facilities necessary to make such deliveries possible until a date 25 years from the 

effective date of the Birch Creek Agreement. This provision of supplemental water 

is expected to offset the impacts of the Tribe’s development of its Birch Creek water 

rights after the expiration of the 15 year deferral period. In addition, the existence 

of infrastructure capable of bringing Four Horns water across to Birch Creek provides the Tribe with a potential market for surplus water from Four Horns into the 

future. With the Birch Creek Agreement in place, PCCRC and other off-Reservation 

stakeholders supported ratification of the Compact by the Montana legislature in 

2009. 

The settlement also includes provisions allowing the Tribe to lease to water users 

off the Reservation those portions of its water rights that it has stored or directly 

used. The Tribe must offer water users on Birch Creek, Cut Bank Creek, the Milk 

45

River and the St. Mary River, respectively, a right of first refusal on water leased 

from those drainages to users downstream. The Tribe may lease water from Birch 

Creek, Cut Bank Creek and the Milk River, all of which are within the Missouri 

River Basin, but only for use at other locations within the Missouri River Basin. 

In addition, under S. 399, the United States will allocate to the Tribe a portion 

of the water in the Bureau of Reclamation’s storage facility on Lake Elwell, located 

along the Marias River in central Montana. The bill provides for the Tribe’s allocation to be all water not yet allocated from that storage facility, less the quantity 

of water agreed to by the Tribe and the Ft. Belknap Indian Community that may 

be allocated to Ft. Belknap in the future pursuant to its own water rights settlement. The bill further provides that nothing in this allocation to the Blackfeet Tribe 

requires the United States to provide any facility for the transportation of the 

Tribe’s allocation from Lake Elwell to any point, and also that nothing in this allocation to the Blackfeet Tribe diminishes the allocation from Lake Elwell that was 

made to the Chippewa Cree Tribe of the Rocky Boys Reservation as part of the 

Rocky Boys water rights settlement which was ratified by Congress in 1999. S. 399 

authorizes the Blackfeet Tribe to lease water from its Lake Elwell allocation so long 

as it is for use within the Missouri River Basin. 

The Blackfeet water rights settlement also closes all of the on-Reservation basins 

to new appropriation under Montana law. In all cases, both under Tribal Code and 

State law, the development of new small domestic and stock uses are not precluded 

by the basin closures. For all on-Reservation basins, water rights under state law 

will become part of the Tribal Water Right if the Tribe reacquires the land and the 

appurtenant water right. This structure will allow the Tribe to reconsolidate both 

land and water resources within the Reservation. 

The Tribe will administer the Tribal Water Right. The State will administer water 

rights recognized under state law. The Blackfeet Irrigation Project will use part of 

the Tribal Water Right and will continue to be administered by the BIA under applicable federal law. The Blackfeet Tribe will enact a Tribal Water Code to provide 

for administration of the Tribal Water Right in conformance with the Compact, this 

Act, and applicable federal law. In the event a dispute arises, the Compact provides 

for an initial effort between the water resources departments of the State and the 

Tribe to resolve the dispute. Should the informal process fail to reach resolution, the 

Compact establishes a Compact Board to hear disputes. Decisions of the Compact 

Board may be appealed to a court of competent jurisdiction. 

The Compact will recognize and protect the Blackfeet Tribe’s water rights and 

provides for the improvement of agricultural water systems and tribal economic development. The Compact promotes development for the benefit of the Blackfeet Nation while protecting other water uses. The Compact is the full and final settlement 

of all of the Tribe’s water rights claims within the Blackfeet Reservation and the 

Tribe waives any claims to water rights not contained or reserved in the Compact. 

We urge your support in ratifying the Compact by passage of this Act. 

SUPPLEMENTAL PREPARED STATEMENT OF CHRIS TWEETEN

Chairman Akaka and distinguished members of the Senate Committee on Indian 

Affairs, I thank you for the opportunity to provide additional written testimony on 

this important matter. 

This testimony is in direct response to several points raised in both the written 

and oral testimony presented to you by the United States at the Hearing on S. 399, 

the Blackfeet Water Rights Settlement Act of 2011, that this Committee held on October 20, 2011. 

In both its written and oral testimony, the United States attacked the State of 

Montana’s contribution to this settlement as inadequate. The State takes great issue 

with this characterization. The $35 million that the State has committed to this settlement and that, in a demonstration of our commitment to the success of this settlement, has already been fully funded, represents one of the largest contributions 

a state has ever made to any Indian water rights settlement. Indeed there have 

been many water settlements that have been enacted with no state contribution 

whatsoever. Montana’s contribution to this settlement is also the largest contribution the State has made to any Montana settlement. As a point of contrast, the 

State contributed $15 million to the Crow Tribe water rights settlement, a settlement that this Administration supported before the Congress less than a year ago, 

and which the Congress enacted last December. 

Part of the United States’ position on state contribution appears to stem from its 

view of the Four Horns rehabilitation project contemplated by the settlement as 

being ‘‘for the benefit of the community south of the reservation, instead of the 

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ald Laverdure stated at the hearing on October 20, 2011. But this statement, the 

substance of which is repeated in the United States’ written testimony, reflects a 

fundamental mischaracterization of the Four Horns project, and of the structure of 

the settlement itself. 

According to analysis conducted by the Tribe’s technical consultant and independently evaluated by the Montana Reserved Water Rights Compact Commission’s 

technical staff, the Four Horns Project will capture roughly 50,000 acre-feet per year 

more water than the dam, which the BIA has allowed to fall into a state of disrepair, can store. The Project will also address some significant sedimentation and 

other repair issues that dramatically limit the utility of the infrastructure at 

present. The majority of the water made available by the Four Horns Project will 

provide a firm source of supply for the Badger-Fisher Unit of the Blackfeet Irrigation Project, a Bureau of Indians Affairs project located on the Reservation. 

According to the same analysis, this more reliable supply has the capacity to increase the productivity of the lands served by that unit of the Blackfeet Irrigation 

Project, and thus the value of the crops grown, by nearly $10 million per year. Preliminary engineering analysis, funded by a $500,000 contribution from the State, 

has indicated that this enlargement is a feasible and economically reasonable 

project. Moreover, the Tribe’s technical consultant has determined that the incremental cost of engineering the Four Horns Project to be capable of delivering water 

to Birch Creek is roughly $25 million. The State intends to contribute $20 million 

to the design and construction of this infrastructure. 

The State’s contribution reflects more than a fair amount for the benefits that will 

be received by non-Indians from this infrastructure. Pursuant to the Birch Creek 

Agreement, the substance of and context for which are addressed in my written testimony submitted to the Committee in advance of the Hearing on October 20, 2011, 

the Tribe has agreed to defer development of new uses of its Birch Creek water 

right for a period of 15 years, and to provide 15,000 acre-feet per year of water to 

non-Indian water users on Birch Creek for a period of 10 years, in exchange for a 

payment from the State of $14.5 million. The tangible benefit provided by the State 

to the Tribe concerning the use of its water rights. At the end of the 25 year period 

covered by the Birch Creek Agreement, the Tribe has no further obligation to supply 

water for the benefit of non-Indians. But the infrastructure to bring water from 

Four Horns to Birch Creek will remain under the Tribe’s control and is available 

for its benefit should it choose to lease some portion of its water rights to Birch 

Creek water users or others. 

The economy on and around the Blackfeet Reservation is such that Birch Creek 

water users constitute perhaps the most optimal market for the Tribe to lease its 

water. As Mr. Laverdure noted in his testimony concerning S. 134, the Mescalero 

Apache Tribe Leasing Authorization Act, heard by this Committee at the same hearing that considered the Blackfeet Water Rights Settlement Act, leasing is an important mechanism by which a tribe can receive economic benefits from a water rights 

settlement. The State’s contribution of roughly 80 percent of the cost of the infrastructure to bring water from Four Horns to Birch Creek is thus of direct and significant benefit to the Blackfeet Tribe. Thus, contrary to the misperception of the 

United States, the State contribution directly benefits the Blackfeet Tribe. By benefitting the Tribe, it also protects the non-Indian water users. This is exactly the sort 

of win-win arrangement that underpins successful settlements. 

In its written testimony, the United States also asserts that the State contribution is inadequate because it does not fully account for the ‘‘[a]dditional benefits to 

State users in the Compact arise from the Tribe’s agreement to protect junior state 

water rights holders, especially in the St. Mary and Milk River basins.’’ This statement completely ignores the fact that it is the United States itself (through the 

water rights claims filed by the Bureau of Reclamation for its Milk River Project) 

which is overwhelmingly the largest ‘‘junior state water rights holder’’ in those two 

basins. It is wholly inappropriate for the United States to claim that the protection 

of its own water rights is a ‘‘non-federal’’ benefit. Montana believes that the United 

States bears significant responsibility for those costs, and likewise for the benefits 

achieved in the Blackfeet water rights settlement for protecting that project’s water 

rights—particularly where it is the United States that concomitantly developed that 

Project over a century ago while failing to safeguard the Tribe’s water rights. 

The United States has also expressed concern with the ‘‘broad and uncertain aspects’’ of the provisions in S. 399 regarding the Tribe’s ability to lease its water 

rights. It is difficult to see what is uncertain about the leasing provisions. Section 

7(f) of S. 399 provides that the Tribe, consistent with expressed United States policy 

about water leasing, will have the right to lease portions of its water right ‘‘in accordance with article IV.D.2 of the Compact for use off the Reservation within the 

Missouri River Basin, subject to the tribal water code and the terms and conditions 

47

of the Compact and applicable Federal law.’’ Article IV.D.2 of the Compact provides 

a lengthy explanation (the provision runs three full pages) of both the processes and 

the conditions whereby the Tribe may lease its water rights. The United States 

ought to be fully familiar with these provisions, as members of the Blackfeet Federal Negotiating Team participated in scores of public and staff-level meetings and 

conference calls, including several marathon drafting sessions where all of the Compact language was discussed in extreme detail. Thus it is at best indicative of poor 

communication within the Department of the Interior and at worst highly disingenuous for the United States to raise before this Committee vague and unsubstantiated ‘‘concerns’’ on an issue of this sort. If the United States has difficulty with 

specific terms with the language in the Compact, that would obviously be important 

information to have. The generalized nature of its written testimony is unhelpful 

if we are to be able meaningfully to address the United States’ concerns. 

The State of Montana, the Blackfeet Tribe and the United States have been working on reaching this settlement for fully two decades. It is disappointing for the 

United States, in its testimony before this Committee, to act as though it is a latecomer to the settlement process. Nevertheless, the State of Montana is heartened 

by the United States’ commitment to this Committee that it intends to work diligently on this settlement and to put forward its own proposals for how it would like 

to resolve the issues it has raised. The State is eager to receive those proposals, and 

to do all it can to ensure the successful ratification of the Blackfeet Water Right 

Settlement Act of 2011.

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The CHAIRMAN. Thank you very much, Mr. Tweeten, for your 

statement. 

Mr. Rex Lee Jim, please proceed with your testimony. 

STATEMENT OF HON. REX LEE JIM, VICE PRESIDENT, NAVAJO 

NATION 

Mr. JIM. Good afternoon, Chairman Akaka and honorable Members of the Committee. Senator Cantwell, Senator Tester, and Senator Udall, thank you for your time. 

My name is Rex Lee Jim. I am the Vice President of the Navajo 

Nation. I am here before you today to discuss the Navajo Nation’s 

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Fund pursuant to S. 1327. I will quickly summarize the Navajo Nation’s position. 

Through oil and gas revenues, the Navajo Nation Trust Fund 

provides much-needed funding for Utah Navajos. As a result of negotiation between the Navajo Nation, the State of Utah and the 

Federal Government, 37.5 percent of royalties received through oil 

and gas development go to the State of Utah to be administered for 

the benefit of Utah Navajos. The UNTF is funded with royalties 

from Navajo Nation oil and gas leases on Navajo trust lands. Those 

funds come first to the Navajo Nation and then are paid out of the 

trust fund for the Navajo Nation’s general funds account. 

Utah passed legislation in 2008 that effectively ends both disbursements from the UNTF and ends the trust fund administration. In finding a new trustee, Congress should focus on finding a 

trustee capable of managing and growing the fund to ensure the 

fund’s long-term survival for the ongoing benefit of Utah Navajos. 

Congress should not appoint a trustee without a record of such 

management and without independent capital or assets. 

The Navajo Nation believes that, consistent with principles of 

self-determination, the Navajo Nation should be appointed as the 

new trustee for the Utah Navajo Trust Fund. The Navajo Nation 

has a successful record of managing and increasing its own trust 

fund; has a highly developed legal system that respects the rule of 

law; and has a well-established budgeting and auditing process for 

the appropriation of funds. 

Finally, the Navajo Nation is concerned about how the process of 

developing legislation and assigning a new trustee will take place. 

In a process that so greatly affects the vital interests of the Navajo 

Nation and Utah Navajos, Congress needs to respect our sovereign 

status and our government-to-government relationship. 

In spite of the Navajo Nation’s considerable interest in the future 

of the Navajo Trust Fund, including who will be designated as the 

new trustee, S. 1327 was introduced by the Honorable Senator 

Hatch without adequate consultation by the Senator or his staff 

with the Navajo Nation government or the beneficiaries. In the previous 111th Congress, Senator Bennett from Utah also did not consult the Navajo Nation when he introduced a near carbon copy of 

this legislation. 

With me today are Jonathan Nez, the Council Delegate representing the Utah Chapters of Navajo Mountain, an objector 

whose statement I also would like to submit for the record, with 

your permission of course; John Billie, President of Aneth Chapter; 

Linda Brown, Secretary of the Aneth Chapter; and Andrew Tso, a 

beneficiary who lives in the Aneth Extension, and who all also oppose this legislation drafted and introduced without their knowledge or consent. 

Designating the Navajo Nation as trustee of the UNTF is the 

only position consistent with the policy established by the United 

States Congress to recognize the sovereignty of the Navajo Nation 

and the right of the Navajo Nation to self-determination in matters 

which concern the nation’s land, resources and citizens. 

The Navajo Nation is committed to ensuring that the UNTF continues to grow and benefit current and future generations. In developing parameters of the trust, the Navajo Nation will consult 

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closely with the local Utah Navajo community, considering first 

and foremost their interests and the critical importance of local 

control. Moreover, we Navajos will resolve any conflicts internally 

by talking things out in conformity with our culture and laws. 

S. 1327 was introduced without adequate consultation with the 

Navajo Nation and government or the beneficiaries and would give 

the important Federal trust responsibility over the nation’s resources and citizens to an unproven nonprofit corporation. S. 1327 

does not respect the Navajo Nation’s sovereignty and right to selfdetermination, and this Committee should oppose it. 

Chairman Akaka and honorable Members of the Committee, on 

behalf of the Navajo Nation, I wish to express my appreciation for 

this opportunity to provide testimony to the Senate Committee on 

Indian Affairs on a government-to-government basis. 

Thank you and I look forward to your questions. 

[The prepared statement of Mr. Jim follows:]

PREPARED STATEMENT OF HON. REX LEE JIM, VICE PRESIDENT, NAVAJO NATION

Good Morning Chairman Akaka, Honorable Members of the Committee on Indian 

Affairs. I am Rex Lee Jim, Vice President of the Navajo Nation. I am here to provide testimony in regard to the future of the Utah Navajo Trust Fund (UNTF) and 

Senate Bill 1327 introduced by the Honorable Senator Orrin Hatch. 

As the Committee knows, the State of Utah has declared its desire to withdraw 

as trustee of the UNTF. The State of Utah passed legislation in 2008 that effectively 

ends most disbursements from the UNTF, ends the trust fund administration, and 

moves the trust assets to a new fund pending selection of a new trustee. The Utah 

legislation specifically calls on Congress to appoint a new trustee for the UNTF. The 

Navajo Nation no longer has a role in the planning of expenditures from the UNTF, 

as is mandated under the 1933 Act. Consistent with federal policy toward Indian 

tribes, the Navajo Nation is requesting that Congress designate the Navajo Nation 

as the new trustee of the UNTF. 

Please be aware that the Navajo Nation has many elected officials at various levels of government, all of whom have individual agendas that may or may not coincide with the broader goals and policies of the Navajo Nation. However, the Navajo 

Nation has its own law that governs who may speak on behalf of the Navajo Nation 

and our People. Pursuant to Navajo Nation law, only the testimony today is representative of the Navajo Nation in this matter. See Exhibit A, Navajo Nation Position Statement. 

History of Utah Navajo Lands and UNTF 

The Utah portion of the Navajo Nation has a complex history of additions, withdrawals, restorations and exchanges. The United States added the lands in the 

Utah Territory that lay south of the San Juan and Colorado rivers by Executive 

Order on May 17, 1884. Navajo People have a historic tie to this area and have continuously occupied this land since long before the captivity of Navajos in 1864. On 

November 19, 1892, four years before Utah was awarded statehood, then President 

Benjamin Harrison, by executive order, took back those lands in the Utah portion 

of the Navajo Nation which lay west of the 110° parallel (what is called ‘‘the Paiute 

Strip’’), and placed those lands back in the public domain. Navajo lands in the Utah 

Territory which lay east of the 110° parallel remained part of the Navajo Nation. 

On May 15, 1905, by executive order, President Theodore Roosevelt added the Aneth 

area in Utah to the Navajo Nation. In 1908, the Department of the Interior made 

an administrative withdrawal of the Paiute Strip from the federal public domain, 

designating those lands again for exclusive use by the Navajo. In 1922, the Department of the Interior again took the Paiute Strip away from the Navajo, and put the 

lands back into the public domain. The Paiute Strip was again withdrawn from the 

public domain in 1929. 

The federal legislation that created the UNTF was the result of negotiation and 

agreement between the Navajo Nation, the State of Utah, and the United States 

Government. In 1930 and 1931, the Navajo Tribal Council asked the Commissioner 

of Indian Affairs to negotiate on its behalf to permanently restore the Paiute Strip 

to the Navajo Nation, based on the previous set asides of this area by the federal 

government and on historic Navajo occupation. On July 7 and 8, 1932, at its annual 

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meeting in Fort Wingate, the Navajo Nation Council gave its support to proposed 

federal legislation which would restore the Paiute Strip to the Navajo Nation and 

to add lands to the Aneth area of the Nation, between Montezuma Creek and the 

Colorado border (what is referred to as the Aneth Extension). 

After Utah citizens voiced opposition to the proposed addition of the Aneth Extension and the Paiute Strip to the Navajo Nation, the Commissioner of Indian Affairs 

negotiated on behalf of the Navajo Nation with a Utah committee made up of San 

Juan County representatives to satisfy their concerns. In order to gain the Utah 

committees’ support for the 1933 Act, the Commissioner of Indian Affairs made several concessions to the Utah committee. These concessions included prohibitions on 

further Native American homesteads or allotments in San Juan County, fencing of 

Native allotments outside the new Navajo Nation boundaries, fencing of the Aneth 

Extension’s northern boundary, and agreement that state game laws would apply 

to Navajos hunting outside the Nation’s boundaries. The proposed legislation also 

included an unusual provision that in the event oil and gas was discovered in the 

Aneth Extension and the Paiute Strip, instead of all net oil and gas royalties going 

to the federal government to administer on behalf of Navajo citizens, 371⁄2 percent 

of those royalties would instead go to the State of Utah to be administered for ‘‘the 

tuition of Indian children in white schools and/or in the building of roads across [the 

newly added lands], or for the benefit of the Indians residing therein.’’ A final concession to Utah in the proposed legislation provided that Utah could exchange any 

state school trust lands inside the Aneth Extension and the Paiute Strip for equivalent federal lands, and that any fees or commissions for the exchange would be 

waived. Congress enacted the legislation Congress in 1933, as Pub. L. No. 403, 47 

Stat. 1418 (1933) (‘‘1933 Act’’). 

In 1958, by Act of Congress, the Navajo Nation was further expanded within San 

Juan County. Under the 1958 Act, the Navajo Nation and the United States government exchanged Navajo Nation lands at Glen Canyon Dam and Page, Arizona for 

federal lands northwest of and adjacent to the Aneth Extension, including the 

McCracken Mesa area. In 1949 and 1998, with the Navajo Nation as party to the 

negotiations, state school trust lands within the Navajo Nation were made Navajo 

Trust Lands in exchange for other federal lands given to Utah. Currently, negotiations are under way to exchange school trust lands in the Aneth Extension with 

other federal lands under authority of the 1933 Act. 

In 1968, Congress amended the 1933 Act, redefined the purposes of the UNTF, 

and expanded its class of beneficiaries to include all Navajos in San Juan County. 

The amended legislation provided that trust monies can be used ‘‘for the health, 

education and general welfare of the Navajo’s residing in San Juan County.’’ The 

1968 Amendments also provided that trust funds could be used for projects off the 

Navajo Nation provided that the ‘‘benefits’’ were proportional to the expenditures 

from the trust. This vague term ‘‘proportional’’ provided one of the main vehicles for 

mismanagement of the trust monies. 

The Navajo Nation Has Sovereignty Over Its Lands, Resources and Citizens 

The Navajo Nation is a sovereign Native Nation located in the southwestern 

United States with territory in the States of New Mexico, Arizona and Utah. Numerous Executive Orders, Acts of Congress and Treaties have guaranteed the rights 

of our Nation to the surface use, and the subsurface mineral resources, of much of 

our traditional lands. For over forty years, the Navajo Nation has enjoyed a government-to-government relationship with the United States, respectful of the Nation’s 

sovereignty and self-determination in its own affairs, and free of the policies of paternalism which have blemished the past. It remains critical to the sovereignty and 

self-determination of the Navajo Nation that the United States respect our government-togovernment relationship in deciding matters that uniquely concern and affect Navajo lands, resources and citizens. It is also crucial to the integrity of our 

Nation and its political institutions that passage of any federal legislation directly 

affecting our interests is done with the consent of the Navajo Nation government. 

The Utah Navajo Trust Fund is capitalized completely by royalties from Navajo 

Nation mineral leases on Navajo Nation lands in Utah which were added to the 

Navajo reservation in 1933. Since the 1970s, the Navajo Nation has been the fiscal 

agent for all UNTF royalties, distributing money every year to the State of Utah 

out of the Nation’s general funds, for investment in the UNTF. The beneficiaries of 

the UNTF are those Navajo citizens residing in San Juan County, Utah. Only members of the Navajo Nation are eligible beneficiaries of the UNTF. The future of the 

UNTF is clearly a Navajo Nation issue and Congress should respect our sovereignty 

in this matter. 

52

The Navajo Nation Was Never Consulted and Is Adamantly Opposed to Senate Bill 1327 

In spite of the Navajo Nation’s considerable interest in the future of the Utah 

Navajo Trust Fund, including who will be designated as the new trustee, Senate Bill 

1327 was introduced by the Honorable Senator Hatch without adequate consultation 

by the Senator or his staff with the Navajo Nation government or the beneficiaries. 

See Exhibits A and B, Aneth Chapter and Red Mesa Resolutions. In the previous 

111th Congress, Senator Bennett from Utah also did not consult the Navajo Nation 

before submitting his bill. 

The Navajo Nation is adamantly opposed to Senate Bill 1327. Senate Bill 1327 

would give the federal trust responsibility for royalties from Navajo Nation mineral 

leases to a nonprofit corporation, the Utah Dineh Corporation. Senate Bill 1327 

would give control over approximately thirty (30) million dollars in trust funds and 

assets, as well as an additional 6 to 8 million dollars a year of royalties from Navajo 

mineral leases, to a corporation with zero experience as a trustee, and absolutely 

no outside capital. In the event of any breach of trust by the Utah Dineh Corporation, the beneficiaries would have no remedy against the corporation. Senate Bill 

1327 fails to ensure any accountability or transparency in the use of trust fund monies and fails to ensure that the trust will exist into perpetuity for the benefit of future generations of Navajo beneficiaries. Senate Bill 1327 broadly expands the original purposes of the trust and could lead to misuse and misappropriation of trust 

funds. Senate Bill 1327 would violate the common law of trusts by designating a 

handful of beneficiaries as the trustee and causing countless conflicts of interest. 

On the other hand, the Navajo Nation would be an accountable, responsible and 

transparent trustee of the Utah Navajo Trust Fund. The Navajo Nation has been 

the fiscal agent for royalties of the UNTF for over 30 years. The Navajo Nation has 

a successful record of managing, investing, and increasing the value of multiple 

Navajo Nation trust accounts, including many multi-million dollar accounts. The 

Navajo Nation has a well established budgeting and auditing process for the appropriation of funds. Importantly, unlike the Utah Dineh Corporation, the Navajo Nation has sufficient outside assets to be accountable to the beneficiaries and can be 

sued in Navajo Nation Court with consent of the Navajo Nation Council. Our vision 

includes further consultation with the local Navajo Chapters and Utah Navajo communities in developing the parameters of the trust. 

The Oil and gas revenue for the trust will not last forever. The trust must be 

grown and managed successfully not only to pay for needed expenditures in the 

short term, but for the benefit of future generations of Navajos in San Juan County 

as well. The trust also should be managed to ensure its survival in perpetuity. The 

Navajo Nation is committed to ensuring that the UNTF continues to grow and benefit current and future generations of Utah Navajos and the Navajo Nation should 

be made the new trustee. Senate Bill 1327 does not ensure a trust corpus in perpetuity. 

Conclusion 

Designating the Navajo Nation as trustee of the UNTF is the only position consistent with the policy established by the United States Congress to recognize the 

sovereignty of the Navajo Nation and the right of the Navajo Nation to self-determination in matters which concern the Nation’s lands, resources and citizens. Senate Bill 1327 was introduced without adequate consultation with the Navajo Nation 

government or the beneficiaries and would give the important federal trust responsibility over the Nation’s resources and citizens to a non-profit corporation. Senate 

Bill 1327 does not respect the Navajo Nation’s sovereignty and right to self-determination and this Committee should oppose it. 

I appreciate this opportunity to provide testimony to the Senate Committee on Indian Affairs. The Navajo Nation looks forward to working with the Committee and 

the Utah delegation in a government-to-government relationship as reasonable legislation is introduced to secure the future of the Utah Navajo Trust Fund. Thank 

you. 

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The CHAIRMAN. Thank you very much, Vice President Jim, for 

your testimony. 

Commissioner Maryboy, please proceed. 

STATEMENT OF HON. KENNETH MARYBOY, SAN JUAN COUNTY 

COMMISSIONER 

Mr. MARYBOY. Greetings, good afternoon, aloha, Mr. Akaka. 

Happy birthday, Chairman, a little bit late. 

Senators Cantwell, Udall, good afternoon. 

My name is Kenneth Maryboy. It is an honor to come before you 

the second time. I am on the Navajo Nation Counsel. This is going 

to be my fourth and last term on the Navajo Nation Council and 

I am one of the lucky 24 to go back on the Navajo Nation Council. 

I am in a second term as a San Juan County Commissioner for the 

San Juan County, Utah. 

I represent 10,500 Navajos in the State of Utah, and of course, 

300,000 Navajo Nation in Arizona, New Mexico and Utah, as well 

as the Chairman of the five Tribes in Utah, which is the Paiute, 

Shoshone, Goshu, Ute, and the Navajo. 

So with that, it is truly and honor to be able to address you this 

afternoon regarding the Senate bill 1327. This Committee is important to the Dineh. We are grateful for your insight, of your willingVerDate 0ct 09 2002 10:19 Jul 31, 2012 Jkt 074443 PO 00000 Frm 00071 Fmt 6633 Sfmt 6601 S:\DOCS\74443.TXT JACK

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ness to listen to the people. We are specifically grateful for the opportunity to shed light on some of the questions surrounding the 

Utah Dineh Corporation. 

The beneficiary of Utah Trust Fund, the certain state of trust, 

and various functions have an interest in the outcome of this process. In 1933, the United States Congress signed into law an Act 

which created the Utah Navajo Trust Fund. The Act added the section of Federal land known as an Aneth Extension to the existing 

Navajo Reservation. 

In regard to the 1933 final Act, the United States District Court 

explained in order to compensate the State for the resulting loss of 

tax revenues and the increase in the need for the government services to the Act to provide internal ally, that the 37.5 percent of the 

net royalty of oil and gas production within extension would be 

paid to the State of Utah provided by the 37.5 percentile. 

Of said royalties shall be expanded to the State of Utah in the 

tuition of Indian children in school and white schools and other 

building maintenance, roads across the reservation in lands described section and hereafter of all the benefits of Indians residing 

there, 47 State, 14, 18, 19, 33. 

This was an argument of the State of Utah to benefit the Indians 

living in the Aneth Extension. In 1968, an amendment expanded 

beneficiary, including the Navajos living in San Juan County, 

Utah. The Navajo Nation wasn’t overlooked in 1933 Act. In 1968 

amendment, they were given 62.5 percent of the royalties from 

those trust fund wells of many other wells located in the Utah portion of the Navajo Reservation. 

The Tribe received 100 percent of the royalty in addition to the 

agreement was amazed at the royalty paid to the Utah would be 

based on the fixed price at $45 per barrel. This means that when 

the oil and the selling at $90, that the trust fund received the 

equivalence of royalties of only 18.75 percent. And the Tribe received 8l.25 percent. 

It is not my purpose today to argue whether these past agreements are fair or equitable. They are the laws and we are bounded 

by laws and the State of Utah has asked Congress to relieve them 

of their duties over the trust funds. Normally in such cases, if the 

beneficiary or legal ages, they would be required to select a new 

trustee. 

It is true that we are citizens of the Navajo Nation. We are proud 

to be the citizens. We are also citizens of the State of Utah. We are 

also citizens of the San Juan County, Utah. It is our citizenship of 

San Juan County. 

So with this, I submitted my testimony and I stand to answer 

questions from the Committee. 

[The prepared statement of Mr. Maryboy follows:]

PREPARED STATEMENT OF HON. KENNETH MARYBOY, SAN JUAN COUNTY

COMMISSIONER

Honorable Chairman Akaka, Vice Chair Barrasso, Members of the Committee, 

Senator Hatch, 

My name is Kenneth Maryboy. I am a Navajo Nation Delegate, and a County 

Commissioner for San Juan County, Utah: 

This is truly an honor to be able to address you in this morning in regard to Senate Bill 1327. This Committee is important to the Dineh. We are grateful for your 

69

insight and for your willingness to listen to the people. We are especially grateful 

for the opportunity to shed light on some of the questions surrounding Utah Dineh 

Corporation, the beneficiaries of the ‘‘Utah Navajo Trust Fund,’’ the current state 

of the trust fund, and the various factions who have an interest in the outcome of 

this process. 

In 1933, the Unites States Congress signed into law the Act which created the 

Utah Navajo Trust Fund. 

That Act added a section of federal land, known as the Aneth extension, to the 

existing Navajo Reservation. 

In regard to the 1933 final Act, the United States District Court explained:

In order to compensate the State for the resulting loss of tax revenues and increased need for governmental services, the Act provided, inter alia, that 371⁄2

percent of net royalties from oil and gas production within the Extension were 

to be paid to the State of Utah: ‘‘provided that the 371⁄2 percentum of said royalties shall be expended by the State of Utah in the tuition of Indian children 

in white schools and/or in the building of maintenance of roads across the lands 

described in section 1 hereof, or for the benefit of the Indians residing therein.’’ 

47 Stat. 1418 (1933).

This was an agreement with the State of Utah for the benefit of the ‘‘Indians’’ 

living on the Aneth Extension. 

The 1968 amendment expanded the beneficiaries to include Navajos living in San 

Juan County, Utah. 

The Navajo Nation was not overlooked in the 1933 Act or in the 1968 amendment; 

they were given 621⁄2 percent of the royalties from those ‘‘Trust Fund’’ wells. Of the 

many other wells located on the Utah portion of the Navajo Reservation, the Tribe 

receives 100 percent of the royalties. In addition, an agreement was made that the 

royalties paid to Utah would be based on a fixed price of $45 per barrel. This means 

that when oil is selling for $90, that the Trust Fund receives an equivalent royalty 

of only 183⁄4 percent and the Tribe receives 811⁄4 percent. 

It is not my purpose today argue whether these past agreements are fair or equitable. They are the law, and we are bound by the law. The State of Utah has asked 

Congress to relieve them of their duty as the trustee over the Trust Fund. Normally, 

in such a case, if the beneficiaries are of legal age they would be required to select 

a new trustee. 

It is true that we are citizens of the Navajo Nation. We are proud to be citizens. 

We are also Citizens of the State of Utah. We are also Citizens of San Juan County, 

Utah. It is our citizenship in San Juan County along with our Race, which qualifies 

us as beneficiaries of the Utah Navajo Trust Fund. 

There is some disagreement among Utah Navajos about who should be a beneficiary, or who should be the Trustee. Fortunately we have political sub-units which 

help to determine the ‘‘mind’’ of the people. Our Chapter governments have had 

their say in the formation of the Utah Dineh Corporation. They have had their say 

in the appointment of board members. And they will have their say in the reorganization of the board once the Corporation is charged with the responsibilities of 

Trustee. 

We cannot expect a consensus on such a matter any more than Congress would 

expect a consensus on the matters on which they vote. But we do have the ability 

to hear all concerns and to put the matter to a vote. We have resolutions from all 

but the Aneth Chapter in favor of appointing Utah Dineh Corporation as trustee. 

There is more of a division on this matter in Aneth because they were named as 

beneficiaries in the 1933 act, and many there believe that the 1968 amendment was 

a mistake. I acknowledge their concern. I share their frustration. But the 1968 

amendment was made for a wise purpose. Over time as the population has shifted 

from one place to another; as generation has come and gone, to isolate the beneficiaries to a small geographic area like the Aneth extension would cause many 

more problems than it would ever solve. 

Utah Dineh Corporation 

In July 2010, this same issue was heard by the Natural Resources Committee. 

At the time Mr. Ross O Swimmer suggested two possible options for the beneficiaries; to allow the Navajo Nation to step in as Trustee, or have the Utah Navajos 

form a private non-profit organization to manage the trust. This was the genesis of 

the Utah Dineh Corporation. Other existing non-profits were also considered, but it 

was determined that if this was going to be done right, the new beneficiary should 

be a new entity with no prior history. A fresh new company has been formed. It 

is fully at the mercy of the Utah Chapters. Until it is named as the trustee, it will 

remain a dormant shell. The board that is in place was put there by the chapters. 

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Or, in the case of the Aneth Chapter, by a volunteer until an appointment became 

necessary. 

Currently Utah Dineh does not even have a checking account. It never has had 

a checking account. There is not possibility of mismanagement, because it has not 

been activated other than as a shell corporation formed in the State of Utah. It has 

articles of incorporation, and bylaws. Its current board members serve with not 

promise of compensation. Travel expenses are born by the individual board members, or by a sponsor. 

I am confident that Utah Dineh Corporation can take full advantage of the current management of the Utah Navajo Trust Fund Holding Account. We also have 

the promise of support from the State of Utah, including the people who were involved with the previous administration of the fund. We have the support of several 

key people with the Navajo Nation and hope that once this matter is decided in 

favor of Utah Dineh Corporation that we will have the full support and cooperation 

of the Navajo Nation as well. 

Naturally a transition from the current Trust Fund Holding Account to a new 

trustee will not happen in an instant. We anticipate an orderly transition. 

In the future, we expect that the Trust Fund will provide opportunities for matching funds from Utah’s Community Impact Board; from federal program grants such 

as education, housing, etc; from State and Federal highway funds; from the Navajo 

Nation for programs that they would like to see offered to members of the tribe in 

Utah. 

With the ‘‘Holding Account’’ simply accumulating money, the people are suffering 

from lack of services. There is much good that needs to be done, but for the past 

three years, there has not been an entity authorized by Congress to act. This cannot 

continue. The people have spoken as a majority. Utah Dineh Corporation is well 

structured and still in its original wrapper waiting to be used. All we lack is the 

nod from this Committee. 

The Navajo Nation, if they were the trustee would have a distinct advantage of 

sovereign immunity. It would be nice to lay aside any concerns about potential future law suits. While this is of great benefit to the trustee, it is not of benefit to 

the beneficiaries who should have legal recourse to ensure accountability of the 

trustee. Utah Dineh Corporation is not immune from full accountability. Charging 

them with the fiduciary role of trustee is the correct course for this Committee. 

Thank you.

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The CHAIRMAN. Thank you very much, Commissioner Maryboy, 

for your testimony. 

Chairman Abrahamson, will you please proceed with your testimony? 

STATEMENT OF HON. GREG ABRAHAMSON, CHAIRMAN, 

SPOKANE TRIBAL COUNCIL 

Mr. ABRAHAMSON. Thank you, Chairman Akaka, Senator Cantwell and other Members of the Committee. My name is Gregory J. 

Abrahamson. I am Chairman for the Spokane Tribe of Indians. I 

appear before the Senate Committee on Indian Affairs to testify on 

S. 1345. With me today are Tribal Council Members Michael SpenVerDate 0ct 09 2002 10:19 Jul 31, 2012 Jkt 074443 PO 00000 Frm 00075 Fmt 6633 Sfmt 6601 S:\DOCS\74443.TXT JACK

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cer, Rudie Peone, David C. Wynecoop, Jr., and Rodney W. 

Abrahamson. 

I would also like to thank Senator Murray and Senator Cantwell 

for their support on this legislation. 

We are here today as a full Tribal Council with the authority 

from the general membership to act on behalf of the Tribe to finally 

resolve this matter. We are shocked and dismayed with the statement submitted by DOI and are frankly blindsided by their position, particularly because we had reached agreement with the Bureau of Reclamation and the Bonneville Power Administration and 

understood that DOI supported S. 1345. 

Apparently, the Department has once again failed its trust responsibility to the Tribe. We came here today on behalf of the Spokane Tribe to finally conclude our efforts to work with the Untied 

States to recognize and fulfill its trust responsibility to keep the 

promises of the United States to the Tribe, finally treat the Spokane Tribe fairly and honorably, recognize the contributions the 

Spokane Tribe continues to make for the benefit of our Nation, 

compensate the Tribe for the use of its land and injuries caused by 

the construction and operation of Grand Coulee Dam. 

I came here today to summarize the written statement for the 

record submitted by the Tribe and the critical need for this important legislation. Unfortunately, I feel compelled to recount the history one more time of the false promises that underscore the DOI’s 

lack of good faith to resolve this matter. 

Spokane Tribe has struggled to protect our reservation since 

agreement with the United States in 1877. This settlement must 

be viewed with historic context for over more than 130 years. We 

therefore have submitted a detailed statement. 

The Spokane Reservation is located in Eastern Washington at 

the confluence of the Spokane and Columbia Rivers. These two rivers are expressly and legally part of our reservation and remain in 

Tribal ownership today. Our life, culture, economy, and religion 

center around the rivers. We are river people. We were fishing people. We depended heavily on the rivers and the historic salmon 

runs they brought to us. We were known by our neighbor Tribes 

as salmon eaters. 

The Spokane River, which is named after our people, was and is 

the center of our world. We call it the path of life. Our best lands 

and fishing sites are at the bottom of Lake Roosevelt. Our salmon 

runs have been destroyed. The history of the last 70 years have led 

to the systematic destruction of the Spokane Indian people’s culture and way of life. 

We continue to survive, but the time has come for the United 

States to recognize the profound effect the construction of Grand 

Coulee Dam has had on us. The Spokane Tribe has suffered enormous and catastrophic losses due to the project. In short, the construction of Grand Coulee Dam project was deadly for the members 

of the Spokane Tribe. We lost our salmon runs, which devastated 

our culture and our lives. Over 3,000 acres of land, Tribal communities, schools, roads, orchards, farms were flooded. Burial sites 

were flooded. Access across river was blocked. The historic trade 

and commerce was lost and forced physical relocation of households. 

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And those impacts continue today. Grand Coulee is operated for 

many purposes, power, irrigation, salmon flows, and flood control. 

Lake Roosevelt fluctuates seven feet or more every year. These operations flush our fish, disrupt our enterprises, erode our lands, impair recreation, affect water quality, among other things. 

The Grand Coulee project, more than any other economic asset 

available to Washington State or the Pacific Northwest, has provided extraordinary levels of benefits, not just for the Northwest, 

but for the entire Nation. 

The Spokane Tribe and its members lost a lot to Grand Coulee. 

The inability of the Spokane Tribe to receive just compensation for 

the seizure of our lands has severely impacted the ability of the 

Tribal government to provide for the basic needs of our members. 

The extreme disparity between the losses suffered by the Spokane 

people and the contrast to the enormous benefits Grand Coulee 

provides to the Nation and the Northwest is inconceivable and continues to reflect an extremely sad chapter in America’s history. 

There is simply no way the United States can ever make up for 

the damage caused. The United States repeatedly promised to compensate both the Spokane and the Colville Tribes for the use of 

their Tribal lands. These promises became the basis of U.S. settlement with the Colville Tribe. Only one Tribe has been compensated. 

Some Federal agencies have said we did not file Coulee claims 

within the 1951 deadline. Neither did the Colvilles. They were allowed to amend their original claim in 1975 to add Coulee hydropower claims, but neither Tribe had a legal claim. Both Tribes have 

a moral, equitable claim, yet only Colville Tribe is compensated. 

Technical defenses by the Federal agencies are not fair, honorable or just. Congress recognized that the legislation is the fair and 

honorable thing to do. The settlement was approved by the Senate 

in the 108th Congress, by the House in the 109th Congress. Over 

the years, the Tribe has amended the legislation to address many 

concerns and has done so once again. 

Despite numerous concessions by the Tribe in this effort to resolve this issue, the efforts of key legislators such as Senators 

Cantwell, Murray, Inouye and others, and agreement with BPA 

and BOR, the United States has simply failed to fulfill its trust responsibilities to the Tribe. 

In 1994, Congress approved a settlement with the Colville Tribe. 

The Spokane settlement is based on the Colville Settlement. The 

Spokane Tribe lost 39 percent of its land in proportion to the 

Colvilles. The payments to the Spokane in the bill before the 106th 

Congress was set at 39 percent of the Colvilles. 

In the 108th Congress, at the request of Members of Congress, 

the Spokane Tribe was reduced from 39 percent to 29 percent of 

the Colvilles for return of lands taken by the reclamation of the 

project, including an enlarged Spokane River outside reservation 

boundaries known as the far or the south bank of the river. 

In the 108th Congress, the Senate passed a bill directing the return of these lands. In the 109th Congress, the House passed a bill 

directing return of these lands. In the 110th Congress, return of 

the south bank of the river to the Tribe was removed from the bill. 

The bill still called for return of the lands within the reservation 

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taken for the project that included portions of the river within the 

reservation. 

Now to satisfy the Bureau of Reclamation concerns regarding 

erosion and landslides, no lands are to be returned to the Tribe, in 

exchange for the confirmation and delegation of authority by the 

Department of Interior set forth in the 1990 Lake Roosevelt Cooperative Management Agreement with respect to the land within the 

boundaries of Spokane Indian Reservation. 

So now we do not get our land back, yet our payment is 29 percent, not 39 percent of the Colvilles. 

Section 9 provides for the protection of the Bureau of Reclamation and project operations. Section 9 leaves intact the authority of 

the National Park Service over the lands taken from the Tribe. The 

Spokane and Colville Tribes have agreed to a disclaimer regarding 

reservation boundaries in section 9 that remain from earlier 

versions of the bill. 

We were promised our reservation and our rivers in 1877. Our 

rivers have been flooded. We have endured enormous impacts to 

our lands, culture, and way of life. The United States promised to 

compensate us, but continues to changes it position and creates 

more obstacles in an effort to avoid reaching an agreement. 

The Colvilles have been compensated for the same wrongs we 

have suffered. The time has come to treat us equally. We deserve 

fair and honorable treatment by our trustees in the region and this 

Country for the use of our lands that are used to generate such 

enormous benefit at our expense. 

I thank you for this opportunity and am open to any questions. 

Thank you. 

[The prepared statement of Mr. Abrahamson follows:]

75

PREPARED STATEMENT OF HON. GREG ABRAHAMSON, CHAIRMAN, SPOKANE TRIBAL

COUNCIL


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The CHAIRMAN. Thank you very much. 

I will defer my questions and let me call on Senator Cantwell for 

her questions. 

Senator CANTWELL. Thank you, Mr. Chairman. Thank you. I appreciate it. 

Chairman Abrahamson, good to have you here and your testimony is much appreciated. We heard from the BIA earlier about 

the filing of claims. Could you explain where the Spokane Tribe 

was in 1951 when this deadline was supposed to have transpired? 

Mr. ABRAHAMSON. Yes, thank you, Senator. 

We at that time our Tribe was just splitting. The Colville Tribe 

was over the Spokane Tribe, our agency, at that time because of 

the ruralness of where we were at. Their agency was there and we 

just moved away from the Colville agency and was establishing our 

own reservation and we didn’t have our lawyers or anybody intact 

at that time. Our government was just being formed there. 

Senator CANTWELL. So they are penalizing you not because you 

weren’t impacted, but because of the fact that you weren’t properly 

formed at the time? 

Mr. ABRAHAMSON. Yes, at that time, the government at that time 

should recognize and brought it up to our leadership at that time 


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to file something or to at least acknowledge that the Tribe should 

do something with that body of water there. 

Senator CANTWELL. And that was 16 days before the filing? I 

mean, we are talking about a small period of time. Is that correct? 

Mr. ABRAHAMSON. Yes. 

Senator CANTWELL. Okay. And you mentioned fair and honorable 

dealing standards of the ICCA. 

Mr. ABRAHAMSON. Yes. We recognize that we don’t have a legal 

claim and that it is just a moral claim. And it is one that was done 

by a colloquy when the 1994 legislation was done. And Senator 

Inouye, Senator Murray, Senator Bradley, and Senator McCain 

was four of them that did a colloquy to deal with the Spokane 

Tribe fairly during that legislation. 

Senator CANTWELL. And is that your understanding of what the 

Department of Interior was also saying today, that they believe 

that there should be an equitable settlement? 

Mr. ABRAHAMSON. We would hope that is what the intent was, 

but our people have been coming back here since the 1940s. We 

had a delegation of leadership that came back and that was just 

when the war happened. And they told our delegation leadership 

that we have a war to fight; we will deal with you later. That has 

been 71 years ago there, so. 

Senator CANTWELL. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Cantwell. 

Senator Tester? 

Senator TESTER. Thank you, Mr. Chairman. 

We will get right to it. One of the things that Mr. Laverdure said 

from Interior was the State’s share not being reasonable. Being 

prompted slightly on this, could you talk about the adequacy of the 

State’s share, Mr. Tweeten? 

Mr. TWEETEN. Senator Tester, thank you for the question. 

I think any fair reading of the bill and the compact would suggest that the proportion of benefits flowing to the Tribe and the 

State tremendously favors the Tribe. Objections have been raised 

in prior settlements to the idea of taking projects that States want 

and trying to ‘‘hide them under the Indian blanket,’’ I think was 

the phrase that was used. There are no such projects in this compact. 

The expenditures that the State makes in the compact are specifically designed for the mitigation of the effects of the compact on 

non-Indian water users, but the benefits of those mitigation efforts 

flow directly to the Tribe. For example, the compact provides for 

deferral on the part of the Tribe in the development of its water 

right on Birch Creek. 

In consideration of that agreement to defer, the State has set 

aside a fund of $14.5 million that will be payable to the Tribe when 

certain conditions are fulfilled. That is functionally the equivalent 

of a lease of that water in the sense that there is a payment on 

the part of the State to protect the flow of that water going downstream. 

But as Mr. Laverdure said, allowing the Tribe to receive value 

for resources is beneficial in many ways, and that provision provides the Tribe the opportunity to directly receive value for the use 

of its resources. So I think it is directly beneficial to the Tribe. 

101

The Four Horns project is the same. The Tribe has deferred or 

agreed to provide water downstream for a period of years for the 

use of the Pondera Canal Company, but once that period of years 

expires, the use of the Tribe’s water is completely up to the Tribe 

and the canal company has no legal or equitable claim on it. 

The hope is, of course, on the part of the canal company, is that 

the Tribe will agree to negotiate a lease of some of the water in 

the Four Horns Reservoir to flow downstream to the Pondera 

Canal Company at a fair market rate. But the Tribe is under no 

obligation to make that lease and once that mitigation period of 25 

years expires, the water in the expanded Four Horns project belongs to the Tribe. 

So I think the argument that the State’s cost share doesn’t somehow contribute to the benefit of this compact and legislation for the 

Tribe is completely misplaced. 

Senator TESTER. Let me get to that point, and this can be for either one of you, T.J. or Chris. When you do these kinds of negotiations, are people from the Federal Government usually at the table 

when you are doing these negotiations? 

Mr. SHOW. Thank you, Mr. Chairman. 

To my knowledge, they have been there every step of the way. 

They have participated to my knowledge in everything. That is 

kind of what is disheartening about this whole process is they have 

been intricately and intimately part of this process. 

Senator TESTER. That is a good sign on one hand. Did they ever 

provide you with a written list of concerns? 

Mr. SHOW. Not that I know of. 

Senator TESTER. Okay. Did they ever present you any alternatives to the compact? 

Mr. SHOW. No. To my knowledge, the only thing that was ever 

brought up is problems. 

Senator TESTER. Okay. One of the things that, it was either you 

or Mr. Tweeten said, I think it was you, that the objection, this was 

the first time you had seen them happened in the last 24 hours. 

That is correct, right? 

Mr. TWEETEN. Senator, that is correct. 

Senator TESTER. And Ms. Williams, I am glad you are still here. 

I hope there are other folks from the Department here. I am not 

going to call you up to talk. Don’t worry. But I would just say that 

the only way you solve problems around this place is to talk and 

to discuss and to negotiate, whether we are negotiating among this 

Committee or you are negotiating with the Tribes. I would just tell 

you that for the objections to be heard for the first time by these 

guys in the last 24 hours is totally unacceptable. It is just totally 

unacceptable. It just doesn’t cut it. 

So I would hope that we can ramp that up in the future. What 

is done is done, but the communication needs to be much better if 

that is the case. And I don’t mean to lecture. It is just a fact that 

we are not going to get anything done if that doesn’t happen. Good 

communication is that. 

Just a last thing, and I know, T.J., it is hard to predict what the 

Tribe is going to do, but how was the support for this so far among 

the people on the Blackfeet Reservation? 

102

Mr. SHOW. Mr. Chairman, it is my belief that when the people 

know what I know, and this is an education process that we all go 

through, I believe that they will support this and I believe they do 

support this. You will always have opposition. That is granted. But 

I believe they do support this and I do support this. 

Senator TESTER. Good. Let’s go to another Tribe. Let’s go to Fort 

Belknap because I think that you guys talked about the headwaters of the Milk and its impacts on the Fort Belknap Tribe about 

150 miles away from you guys. Have you worked with them to resolve problems with them in regards to this water? And either one 

of you can answer it. 

Mr. TWEETEN. I think Chairman Show can probably talk more 

directly about the specific discussions, but we have done on the 

State side considerable study with respect to the possibility of the 

provisions of the Blackfeet Compact somehow affecting flows that 

we have agreed to compact with the Fort Belknap Tribe downstream. And we think the possibility, as a hydrologic matter, of 

those conflicts is extraordinarily slim. 

Senator TESTER. Do they think that, too? 

Mr. TWEETEN. Mr. Chairman, I won’t speak for them about that. 

Perhaps Chairman Show can talk about it. 

Senator TESTER. Okay. T.J.? 

Mr. SHOW. We have sat down with the Fort Belknap Tribe and 

we both have come to the same conclusion that the Secretary kind 

of put us in this situation. We believe it is him that needs to help 

make a decision to get us out, so to speak, I guess. 

Senator TESTER. Okay, all right. 

Thank you, Mr. Chairman. I ran over time. 

Just as kind of a sidebar, I want to thank Richard Litsey for 

being here from Senator Baucus’s office. 

Thank you very much, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Tester. 

Senator Udall? 

Senator UDALL. Chairman Akaka, thank you very much. I can’t 

tell you how honored I am to see two of our distinguished Native 

American leaders here before the Committee. I have prepared 

longer statements about both of them, about President Mark Chino 

and also about Vice Chairman Rex Lee Jim, which I will put in the 

record. We are late in the day here and I want to get directly to 

the questions. But I was going to flatter both of you greatly and 

I will do that in the record and try to get directly to questions so 

that we can resolve the business of the Committee. 

And also, of course, welcome Selena, the wife of President Mark 

Chino, the First Lady of the Mescalero. Good to have you here, and 

all the other officials with both Tribes. 

I would also, and I don’t know what the timing was here in 

terms of when the Department learned it was going to take a position on specific bills, but I find it a little bit striking to hear all 

of the leaders say that this is the first time they heard from the 

Department about objections. I agree with what Senator Tester 

said. 

It seems to me a simple phone call, even if the timing, the Department knows it is going to appear at the hearing; the leaders 

know they are going to be here. To at least receive some kind of 

103

notice that the Department is going to take a position on a piece 

of legislation that has been working its way through is a reasonable way to work. 

It is meant more as a comment to try to urge better communication in the future, so that we can get fully to the issues. Some of 

the questions, President Chino, that I am going to ask, I don’t want 

you to respond too hastily because I think you need to look at this 

and hear from the Department about this proposal in terms of 

standards and that kind of thing. And I don’t want to put you in 

a position to have to take a position against it right now. So if you 

want to defer on that, that will be fine. 

But let me start with President Chino. Would you describe for 

the Committee the water situation in the region surrounding the 

Mescalero Apache Nation? What is the size of the surrounding communities? What is the availability of water? Have any of your 

neighbors expressed interest in leasing the Tribe’s adjudicated 

water? And does the Mescalero Apache Tribe have a surplus of 

water? 

Mr. CHINO. Thank you, Senator Udall. 

As you and Senator Bingaman are well aware, we are located in 

a resort area of the State of New Mexico. To a certain extent, we 

are isolated, and not only our economy, but the economies of the 

communities surrounding us rely very heavily on tourism and travel. U.S. 70 is a major east-west route through the reservation that 

brings a lot of traffic into our area. 

And we have been approached, Senator, by the City of 

Alamagordo, by the village of Cloudcroft, by the village of Ruidoso 

and the Ruidoso Downs as to the possibility of leasing our adjudicated water rights. 

So as Senator Bingaman alluded to in his remarks, the State of 

New Mexico has been in a very serious drought situation for the 

better part of a year and a half and we are very much in the middle of that. And the communities’ interest in acquiring some of our 

water certainly indicates to us that not only is there an interest, 

but there is a very definite need and a very severe need of those 

surrounding communities for this very precious resource which we 

have and which we would very much like the ability to interact 

with those communities and to enter into some type of agreement 

that would be mutually beneficial. 

Senator UDALL. And it would obviously be an economic benefit to 

the Mescalero Apache Tribe to be able to lease your water to these 

communities. 

Mr. CHINO. Very much so, Senator. The Tribe would use the proceeds, for example, to provide college scholarships for our students 

who wish to go on and pursue a higher education. We would use 

it to fund our fire and rescue. We would use it to provide various 

services that any government would provide to its citizens. So it 

would be very beneficial to us, Senator, yes. 

Senator UDALL. President Chino, I want to ask a question about 

Mr. Laverdure’s testimony where he said that he would like to see 

language included providing that the Tribe ‘‘shall develop Tribal 

water leasing standards and submit such standards to the Secretary for approval.’’

104

But I don’t want to force you into a situation to take a position 

now if you don’t want to. The record I believe the Chairman will 

say will be open for a week or more and you could make a comment 

like that. But if you want to comment today, I would be happy to 

hear it. 

Mr. CHINO. I definitely would like to comment, Senator. 

Senator UDALL. Please. 

Mr. CHINO. The notion that the Department of Interior provided 

to the Committee that the water leasing requirement should be 

consistent with land leasing requirements is virtually a new policy 

that certainly the Tribe has never heard of from the Department 

of the Interior. And I feel very strongly, and I believe I can speak 

for the Tribal Council as well, that we believe that this is nothing 

more than an effort on the Department of the Interior to implement new policy at the expense of the Mescalero Apache Tribe’s 

legislation. 

In fact, the record will show that the Department of Interior has 

a precedent of never involving itself in requesting these so-called 

water use codes and standards of any Tribe. Our cousins at 

Jicarilla were not subject to the same requirements, nor was the 

Navajo Nation. 

So we feel that it is very, very unfair, grossly unfair to subject 

us to these requirements when other Tribes weren’t subjected to 

the same. It is simply a matter of fairness, Senator. 

Senator UDALL. And it appears to me that Mr. Laverdure’s testimony was that this was a first in time. This was a precedent. Do 

you agree or disagree with that in terms of the leasing situation? 

He seemed to be describing that this had never been done before. 

Do you agree or disagree on that one? 

Mr. CHINO. Well, I think, Senator, with respect to the leasing, I 

don’t think that that particular aspect is new. I think the concept 

of equating water rights to land leasing requirements by the Department is certainly a new concept. And as I said, to our knowledge, it has never been put forth as an issue until now. 

And our concern is that it is being put forth now in the context 

of requiring our Tribe to submit to these requirements and to formulate water codes and other things that other Tribes have not 

been subjected to and requirements have not been made of those 

Tribes. 

Senator UDALL. Thank you. 

Mr. Chairman, I have already run over. I have a couple more 

questions that I can ask and then I will be complete and won’t 

need a second round or anything. Would that be all right? 

The CHAIRMAN. Will you please continue. 

Senator UDALL. Okay. Thank you. 

These questions here are both to Vice President Rex Lee Jim and 

also to Commissioner Maryboy. 

Based on the original 1993 statute, is there any way the Navajo 

Nation could legally divert these royalties outside of Utah? 

Mr. JIM. Senator Udall, thank you for that question. 

It is not possible because it is mandated by the U.S. legislation 

and the Navajo Nation has proven over the years that it has always paid out that amount to the trust. 

Senator UDALL. Commissioner Maryboy? 

105

Mr. MARYBOY. Senator Udall, it is an Act that was re-amended 

in 1968 and furthermore the 1933 Act stands as the body here that 

was initially enacted in 1933. So with that, I stand on behalf of the 

Utah Navajos that it is about time we administer our funding. For 

many years, we never laid a hand on this until now. 

Senator UDALL. Which Navajo Nation chapters in Utah support 

the Utah Dineh Corporation as trustee and which chapters support 

the Navajo Nation as trustee? And this is also a question for both 

of you. 

Mr. MARYBOY. Senator, we have board members from Navajo 

Mountain all the way down to Aneth. As a matter of fact, I have 

the former chapter president, Leonard Lee, which is a part of the 

board member to the Utah Dineh Corporation. And as far as I 

know, all the chapters are in support of keeping the money in 

Utah. 

Senator UDALL. Now, I have information here, and it may be incorrect and I want both of you to speak to this. There are seven 

chapters in Utah. Is that correct? 

Mr. MARYBOY. Seven chapters. 

Senator UDALL. Both of you are nodding, so I assume that is correct. And apparently, three support the Navajo Nation as trustee. 

So that would mean there is a split between these chapters. 

Is that correct or incorrect, Vice President Jim? 

Mr. JIM. Thank you. With me today is Honorable Jonathan Nez, 

who represents Navajo Mountain and whose chapter opposes the 

current bill. I spoke to members in Dennehotso and Mexican 

Water, they also oppose the current bill. We do have a resolution 

from Red Mesa and Aneth who oppose this bill. We have a process 

that we go through at the local chapters. It is put on the agenda 

and discussed and a motion invoked, and that is what we have. 

Thank you. 

Senator UDALL. Thank you. 

Mr. Maryboy? 

Mr. MARYBOY. Mr. Chairman, for the record, the resolution was 

submitted from all seven chapters and I just barely got a email and 

a text from Alex Bitsinnie, which is with the Navajo Mountain 

Chapter, as well as James Adakai for the record, with Oljato Chapter asking and pleading to continue to support the bill. 

Senator UDALL. Vice President Jim, what kind of accountability 

would the Navajo Nation have if it were trustee? 

Mr. JIM. First of all, we have a legal system that is in place. So 

we do have the Navajo judicial branch who oversees the laws and 

interprets them. And recently, they have been able to challenge 

some of the actions of the Council in order to maintain integrity 

and we have that in place. And we have several trust funds in the 

multimillions of dollars that we oversee. So we have an auditing 

process in place to keep us accountable. 

And should for any reason, the Navajo Nation violate the trust 

fund, then the beneficiaries have the ability to take us, the Navajo 

Nation, to court. And the Navajo Nation Council has agreed to 

waiver, and with the assets that we have, it would cover anything 

that may have been misspent. 

Mr. MARYBOY. Senator? 

Senator UDALL. Yes? 

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Mr. MARYBOY. The former President, the same question was 

raised and he refused to waive the sovereign immunity if there is 

any wrongdoing to the trust fund. Furthermore, there is a legal 

opinion that was drafted by the former Attorney General which is 

Lewiston Atocci, telling the Navajo Nation that this is something 

that the Utah Navajos can do themselves. 

And on top of that, I think we have capable and able educated 

students, young men, that have been looking for jobs elsewhere for 

the longest time, and are able to do this as well. We have 67.5 percent which is already going into the Navajo Nation, which we hardly or don’t see. And outside the wells, 100 percent of that is going 

to the Navajo Nation we hardly see or don’t see. 

So we have our own independent medical facilities and we have 

been doing things on our own for so long. 

Senator UDALL. Well, I very much appreciate both of your answers and at this point I think the best thing from my perspective 

is submit some additional questions for the record for you to answer outside of the hearing, and then we will be able to see everything fully in the record and work with both of you on this issue. 

Mr. Chairman, I want to just thank you very much. I realize I 

went way over and thank you for your courtesies. This has been 

a long hearing, but I think it has been an important one. 

And I would thank all of the witnesses here today. I think you 

have made an excellent case in your testimony and you have given 

us a lot to think about. And Chairman Akaka has been very aggressive about moving the agenda on bills. And I think, once again, 

we have had a very good hearing day here. 

Thank you very much. 

The CHAIRMAN. Thank you very much, Senator Udall, for your 

questions and your cooperation here. 

I want to add my thanks to all of you, my warm mahalo thank 

you very much to all the witnesses in today’s hearing. I do have 

questions for you that I will defer and place in the record for you. 

The record will be open for two weeks so other Members may add 

questions as they have them and concerns that they can communicate with you. 

The whole effort here is to try to work together and resolve some 

of these issues that have been pending these years and try to resolve them at this point in time. 

I want to also thank the Administration for providing their views 

on these bills, and especially I want to thank the Tribal representatives and the affected parties who are here. It is very important for 

the Committee to hear from all of you, and that is what I am trying 

to do, to give more of you an opportunity to let us know how you 

feel about these issues. 

And I would tell you thank you so much for adding to that and 

we will continue to do this with other issues as well, but ask you 

to please work closely with us, with the Committee and also with 

the Administration. In some cases, communication is a problem 

and we will continue to work on that as well and try to improve 

that, but we can do it only if we work together and it is happening. 

Again, I want to thank you for all of this. 

The hearing is adjourned. 

[Whereupon, at 5:12 p.m., the Committee was adjourned.] 

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APPENDIX

PREPARED STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM MONTANA

Chairman Akaka, thank you for holding this hearing on an extremely important 

bill. 

A wise man from Indian Country once said, ‘‘I do not think the measure of a civilization is how tall its buildings of concrete are but rather how well its people have 

learned to relate to their environment and fellow man.’’ This bill speaks to both lessons. 

The Blackfeet Water Rights Settlement Act is a critical step in two decades of negotiations between the Blackfeet Nation, the State of Montana, and the U.S. The 

bill ratifies the water rights compact with the Blackfeet Nation. It confirms that the 

United States is a nation that honors its commitments to all its citizens, including 

those who belong to Tribal Nations. 

The Blackfeet people call the mountains of their homeland the ‘‘backbone of the 

world.’’ Yet even the strongest back will bend without water. The backbone of the 

world is at the same time a wellspring. It is this crucial resource that makes the 

high plains habitable, and it is this crucial resource before us today. Water is critical for the variety of land uses that occur on the reservation: farming, ranching, 

timber, oil and gas development, and tourism. These activities also harken back to 

the efforts of our recently departed friend Elouise Cobell, who forced a long-standing 

resolution to the payments and royalties of these activities. 

In the same spirit as Eloise’s legacy, the creation of the Blackfeet Reservation a 

century and a half ago implied a commitment on the part of the United States to 

reserve sufficient water to satisfy both present and future needs of a Tribe. With 

this hearing, we are taking the next step on the slow march toward fulfilling that 

commitment. 

By ratifying this compact, Congress will both establish the federal reserved water 

rights of the Tribe and authorize funds to construct the infrastructure necessary to 

make the water available for use. This infrastructure includes rehabilitation of the 

Blackfeet Irrigation Project and construction of other water projects. It also mitigates the impacts of the Tribe’s water rights on current non-tribal water users. The 

Blackfeet Water Compact has already been ratified by the State of Montana. As this 

Committee knows well, the obligation is now on Congress to complete the settlement. 

Four out of seven tribal water compacts in Montana have already been ratified 

by Congress. I look forward to diligent work with the other tribes to complete theirs. 

The wheel is turning, and every compact will be addressed. I am confident, for instance, that any overlapping claims in this bill with the Gros Ventre and Assiniboine Tribes’ Milk River allocation are resolvable. 

I look forward to cooperating immediately with the Obama Administration, the 

Tribe, the state, and other stakeholders to strengthen the bill in order to move forward. The Blackfeet have a bright future, and it will be brighter still with this settlement. 

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PREPARED STATEMENT OF HON. JONATHAN NEZ, VICE CHAIRPERSON, BUDGET AND

FINANCE COMMITTEE, NAVAJO NATION COUNCIL


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PREPARED STATEMENT OF HON. TRACY ‘‘CHING’’ KING, PRESIDENT, FORT BELKNAP

INDIAN COMMUNITY TRIBAL COUNCIL


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PREPARED STATEMENT OF SUSIE PHILEMON, MEMBER, NAVAJO TRIBE, ANETH

CHAPTER

We strongly feel that Senate bill 1327 should be constructed and enacted with 

these amendments for the following reasons:

1. Massive drilling and exploration for oil and gas had devastated our Aneth community, livelihood and health. 

2. Fifty-four (54) years of oil and gas extraction had polluted and contaminated 

our surface and underground fresh drinking water. Nearly all natural springs and 

artesian wells in Aneth Greater Oil Field are unsafe for human consumption therefore many families still haul drinking water from border towns, 25 to 80 miles away. 

3. Half of the land area in Aneth community is impacted and ruined due to clearing of natural vegetation for drilling sites, network of roads, oil pits and holding 


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trances and exposed pipelines. Drilling site constructed every 1⁄4 of miles apart 

throughout Aneth community. 

4. Miles of high powered electricity lines criss-crossing Aneth land to operate 

every oil pumps to 1,000 wells. Pipelines are everywhere as well, some unused but 

still buried underneath the ground. 

5. Pollution, contamination and land damaged at this multitude had impacted the 

health of Aneth residents. 

6. Navajo Nation, Utah State, and federal government has consistently ignored 

and has offered no protection, relief, or solution to the people’s health and devastation of our community. In fact Navajo Tribal government designated Aneth community as a ‘‘sacrificial area.’’

7. Despite enormous wealth and revenues from oil, aneth community has no stable economy that would offer decent living. There are only two convenience stores, 

high price of gasoline which high than the national average, potholes of one central 

paved road and many families are still lack modern conveniences of electricity and 

indoor plumbing. 

8. For over fifty (50) years, Navajo Nation had flourished on Aneth oil wealth but 

they never gave serious thought to the problems or to work with us to our desire 

to grow as a community. 

9. Aneth area is still open market for drilling which current tribal administration 

is strongly advocating for it. 

10.We like to have Indian Senate Committee to consider the revision of the Lease 

Agreement within Aneth Greater Oil Field.

Report No. 91-10 to Utah State Legislature—November 1991 has been retained 

in Committee files. 

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