U.S. GOVERNMENT PRINTING OFFICE

51–141 CC WASHINGTON : 1998

H.R. 3658, A BILL TO PROVIDE FOR THE SETTLEMENT OF THE WATER RIGHTS CLAIMS OF

THE CHIPPEWA CREE TRIBE OF THE ROCKY

BOY’S RESERVATION, AND FOR OTHER PURPOSES

HEARING

BEFORE THE

SUBCOMMITTEE ON WATER AND POWER

OF THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

SEPTEMBER 23, 1998, WASHINGTON, DC

Serial No. 105–112

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://www.house.gov/resources
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director

SUBCOMMITTEE ON WATER AND POWER RESOURCES

JOHN T. DOOLITTLE, California, Chairman

KEN CALVERT, California

RICHARD W. POMBO, California

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN B. SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

MICHAEL D. CRAPO, Idaho

PETER A. DEFAZIO, Oregon

GEORGE MILLER, California

OWEN B. PICKETT, Virginia

CALVIN M. DOOLEY, California

SAM FARR, California

ADAM SMITH, Washington

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

————— —————

————— —————

ROBERT FABER, Staff Director/Counsel

JOSHUA JOHNSON, Professional Staff

STEVE LANICH, Minority Staff
(III)

C O N T E N T S

Page

Hearing held September 23, 1998 .......................................................................... 1

Statement of Members:

Chenoweth, Hon. Helen, a Representative in Congress from the State

of Idaho, prepared statement of ................................................................... 4

Doolittle, Hon. John T., a Representative in Congress from the State

of California ................................................................................................... 1

Prepared statement of ............................................................................... 2

Hill, Hon. Rick, a Representative in Congress from the State of Montana . 3

Statement of Witnesses:

Cosens, Barbara, Legal Counsel, Montana Reserved Water Rights Compact Commission ........................................................................................... 9

Prepared statement of ............................................................................... 37

Hayes, David J., Counselor to the Secretary of the Interior, Department

of the Interior ................................................................................................ 5

Prepared statement of ............................................................................... 22

Sunchild, Bruce, Vice Chairman, Chippewa Cree Water Rights Negotiating Team .................................................................................................... 7

Prepared statement of ............................................................................... 23
(1)

HEARING ON H.R. 3658, A BILL TO PROVIDE

FOR THE SETTLEMENT OF THE WATER

RIGHTS CLAIMS OF THE CHIPPEWA CREE

TRIBE OF THE ROCKY BOY’S RESERVATION,

AND FOR OTHER PURPOSES

WEDNESDAY, SEPTEMBER 23, 1998

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON WATER AND POWER, COMMITTEE ON RESOURCES, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:05 p.m. in room

1334, Longworth House Office Building, Hon. John Doolittle (chairman of the Subcommittee) presiding.

STATEMENT OF HON. JOHN T. DOOLITTLE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. DOOLITTLE. The Subcommittee will come to order.

We are here today to hold a hearing on H.R. 3658, a bill to provide for the settlement of the water rights claims of the Chippewa

Cree Tribe of the Rocky Boy’s Reservation, and for other purposes.

This is the first new Indian water rights settlement bill to come

before the Congress in many years. Although there are a number

of pending and potential Indian water rights claims throughout the

country, this legislation is also the first Indian water rights settlement proposed by the Clinton Administration.

We need to take steps to advance the resolution of these issues

as quickly as possible. These claims have been outstanding for decades and, frankly, the process is too cumbersome and does not reflect the unique nature of each situation. The opportunity must

exist to meet the long sought needs of the tribes and at the same

time reduce the impacts on existing water users. I am encouraged

by the comments we have received from the Western Governors

concerning their commitment to negotiate rather than litigate these

claims.

As many of you are aware, the Senate has held an oversight

hearing and a markup this year on the Rocky Boy Reservation’s

implied reserve water rights settlement. Unfortunately, many of

the underlying questions have been left unanswered on the Senate

side.

While there is no question about the need to settle Indian water

rights issues, it is imperative, in order to arrive at a wise, fair and

equitable solution, that the following issues be fully considered:

One, the statutory, regulatory and judicial history of the implied
2

Federal reserved water rights; two, State jurisdiction in the appropriation and later distribution of water; three, the appropriate

funding mechanisms to resolve these problems; and, four, the appropriate methods for determining the liability in Indian water

rights settlements.

Over the years, both Indian and non-Indian implied reserved

water rights have undergone a judicial evolution. It is clearly time

to consider those trends and look for ways to meet the growing

needs of Indian populations while preserving the stability of current water rights holders.

Although the courts have not fully reconciled the Indian and nonIndian reserve water rights cases, the opportunity exists to weave

the many threads of existing trends in case law together; to consider existing demands, needs and technology; and to develop a

process that is faster and more equitable to all the parties.

The legislation we have before us is the product of hard work

and thoughtful consideration of a complicated situation. I believe

that everyone involved has a genuine desire to address the fundamental need the Indian tribes have for adequate water resources.

I look forward to hearing from our witnesses today. We at this

point don’t have a minority member to make the opening statement

on their side, and I guess if we do, when they come in, I will recognize them for that purpose.

[The prepared statement of Mr. Doolittle follows:]

STATEMENT OF HON. JOHN T. DOOLITTLE, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF CALIFORNIA

This is the first new Indian water rights settlement bill to come before the Congress in many years. Although there are a number of pending and potential Indian

water rights claims throughout the country, this legislation is also the first Indian

water rights settlement proposed by the Clinton Administration.

We need to take steps to advance the resolution of these issues as quickly as possible. These claims have been outstanding for decades. The process is too cumbersome and does not reflect the unique nature of each situation. The opportunity

must exist to meet the long sought needs of the tribes and at the same time reduce

the impacts on existing water users. I am encouraged by the comments we have received from the Western Governors concerning their commitment to negotiate rather

than litigate these claims.

As many of you are aware, the Senate has held an oversight hearing, and a markup, this year, on the Rocky Boy Reservation’s Implied Reserved Water Rights Settlement. Unfortunately many of the underlying questions have been left unanswered

on the Senate side.

While there is no question about the need to settle Indian water right issues, it

is imperative, in order to arrive at a wise, fair, and equitable solution, that the following issues be fully considered:

•The statutory, regulatory, and judicial history of implied Federal reserved

water rights.

• State jurisdiction in the appropriation and later distribution of water.

•The appropriate funding mechanisms to resolve these problems.

•The appropriate methods for determining liability in Indian water rights settlements.

Over the years both Indian and non-Indian implied reserved Federal water rights

have undergone a judicial evolution. It is clearly time to consider those trends and

look for ways to meet the growing needs of Indian populations while preserving the

stability of current water rights holders.

Although the courts have not fully reconciled the Indian and non-Indian reserve

water rights cases, the opportunity exists to weave the many threads of existing

trends in case law together; to consider existing demands, needs, and technology;

and to develop a process that is faster and more equitable to all the parties.
3

The legislation we have before us is the product of hard work and thoughtful consideration of a complicated situation. I believe that everyone involved has a genuine

desire to address the fundamental need the Indian tribes have for adequate water

resources.

I look forward to hearing from our witnesses today.

Mr. DOOLITTLE. We are going—we have Mr. Hill, whose bill this

is, joining us today. I recognize you for any statements that you

would like to make.

STATEMENT OF HON. RICK HILL, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MONTANA

Mr. HILL. I thank you, Mr. Chairman, and thank you for holding

this hearing. I want to welcome Bruce Sunchild, who is the vice

chairman of the Chippewa Cree Tribe of the Rocky Boy’s Reservation; Barbara Cosens, legal counsel from the Montana Reserve

Water Rights Compact Commission; and David Hayes, counselor to

the Secretary of the Interior.

The benefits of this legislation are that it addresses the longterm water needs of the Rocky Boy’s Reservation; without this compact, those water needs cannot be met. The Indian Health Service

designed the current water supply system which, Mr. Chairman,

provides an average daily use of about 60 gallons per person. The

average Montana use is about 170 gallons per person.

The reservation’s population is predicted to grow at about 3 percent per year, so clearly the current system cannot meet either the

current demand or projected demand. This bill enacts a water

needs assessment study for all of north central Montana where

water, in that area of Montana, is scarce. And this is a first step

in ratifying a solution to address not only the tribe’s needs but the

needs of others.

This bill will reduce the potential for future water rights disputes

by setting up a dispute resolution mechanism. This legislation represents a successful culmination of a long-standing negotiation between the tribe and the State, and has the blessing of the administration.

Mr. Chairman, since 1916 when the reservation was created, the

tribe has sought to meet its water needs. The tribe’s current water

needs process began in 1982, when the U.S. filed a water claim for

the tribe in the Montana water court. This led the U.S. Government, the tribe and the State of Montana to enter into negotiations, and these negotiations represent a good faith effort to avoid

costly legislation to provide a win-win solution for all Montanans.

The State of Montana held a series of public meetings regarding

these negotiations beginning in 1992. And with that in mind, over

a decade of technical studies, an agreement was reached in 1997

for the benefit of all Montanans. The Montana State Legislature

approved this compact on April 14th, 1997.

This legislation would ratify the compact, which will achieve the

following things: It will allow the tribe to exercise its on-reservation water rights of 10,000 acre feet of water. For this to happen,

the Federal Government would contribute $24 million for on-reservation water development projects. It would contribute $15 million toward the planning and the construction of a future water

reservation water supply system. And it would contribute $4 mil-
4

lion for the feasibility studies on enhancing the water supplies for

others in the tribe in northern central Montana.

In conclusion, Mr. Chairman, this bill represents a Montana consensus, and I look forward to working with the chairman and my

colleagues in moving this forward. Mr. Chairman, I do have a bill

on the floor, and I am going to have to leave here shortly. With

your consent, I would like to submit questions in writing to the

panelists.

Mr. DOOLITTLE. Of course, that will be perfectly appropriate, and

then we will ask them to respond expeditiously.

Mr. HILL. Thank you, Mr. Chairman.

[The prepared statement of Mrs. Chenoweth follows:]

STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF IDAHO

Mr. Chairman, I am pleased that we have the opportunity to hold a hearing on

H.R. 3658, the ‘‘Chippewa Cree Tribe of the Rocky Boy’s Reservation Indian Water

Right Settlement Act of 1998.’’ This is a bill that could have major future implications on water rights throughout the west.

Mr. Chairman, on the surface, H.R. 3658 simply affirms a compact that has been

made between the State of Montana and the United States over water rights for

the Chippewa Cree Tribe. I do not oppose the right for the Montana or any other

state to make these type of agreements. However, what I am concerned about is

how this new law, which would codify an ‘‘Indian reserved water right,’’ could impact the many numerous disputes over water between my own State of Idaho and

the United States over this very doctrine.

Mr. Chairman, I understand that this bill tries to restrict the precedents for future litigation this bill would establish for Federal reserved water rights. But there

is no way to ensure that this limitation will be enforced by future courts—and at

the very least, the first-time codification of a Federal reserved water right will lead

us down a dangerous and unintended path.

Mr. Chairman, we all are aware of a concept that has been established through

common law known as the ‘‘Winters doctrine,’’ which had its origin in the 1908 Supreme Court case Winters v. U.S. This case held that water which was flowing

through an Indian Reservation in Montana was impliedly reserved by the government in the treaty establishing the reservation. In other words, the court held that

although no mention was made in the treaty regarding the reservation of water

rights, it was assumed that such a right was meant to be implied when the treaty

was created.

Ever since this decision, the U.S. government has made numerous attempts to

broaden the ‘‘Winters doctrine’’ to suggest that the United States has an implied reserved right to water above the rights that belong to the state. However, the Supreme Court has consistently ruled that the primary authority for water rights belongs to the states. In California v. U.S. current Chief Justice Rehnquist opined

what would be the consequences if we were to undermine this right. He said:

‘‘To take from the legislatures of the various states and territories, the control

of (water) at the present time would be something less than suicidal . . . If the

appropriation and use were not under the provisions of the State law, the utmost

confusion would prevail.’’

The Court has held in cases such as Cappaert v. U.S. and Arizona v. California

that when the Federal Government reserves land from the public domain, by implication it reserves water rights sufficient to accomplish the purpose of the reservation. But the Court clarifies in later cases such as U.S. v. New Mexico that this reserved right is extremely limited and reaffirms that water rights should be ‘‘established in accordance with local custom, laws, and decisions of the courts.’’ In this

decision, Judge Rehnquist again emphasizes the importance of state rights, even in

the spectrum of Federal reserved rights, when he states:

‘‘Congress has seldom expressly reserved water for use . . . lf water were abundant, Congress’ silence would pose no problem. In the and parts of the west, however, claims to water for use on Federal reservations inescapably vie with other

public and private claims for the limited quanties to be found in rivers and

streams. This competition is compounded by the sheer quantity of reserved lands

in the western states, which lands form brightly colored swaths across the

United States.’’
5

Mr. Chairman, despite these clear limitations that the Supreme Court has established on Federal reserved rights, in the past few years we have witnessed an attempt by the Federal Government to dramatically widen the scope of the Federal

reserved water rights doctrine. In my own state of Idaho, along the Snake River,

thousands of cases are being adjudicated on this very issue.

Moreover, we are seeing Federal district judges ignore clear precedent set down

by both statutory and common law in favor of non-binding Federal ‘‘biological opinions.’’ In addition, just a month ago, a Federal District Court ruled that one-third

of Lake Ceour d’Alene, in northern Idaho, belonged under the ownership of an Indian tribe.

These type of actions may seem inconsequential now, but in the long run will dislodge the delicate system now in place for controlling water. This will result in a

devastating impact on the livelihoods that depend on that system of for survival.

Already, it is creating a sense of ‘‘confusion’’ and uncertainty that the Supreme

Court warned about. The ability for citizens who are attempting to make a living

in our state to adequately know how to protect their investments is in serious jeopardy.

Mr. Chairman, to relate back to the bill we are considering today, H.R. 3658 will

codify an Indian reserved water right. Yet, the bill does not define the exact nature

of that right. In fact, the vagueness of this ‘‘reserved’’ right leaves it wide open for

future interpretation. I hesitate to think what a ambiguous codification of the term

‘‘Federal reserved water right’’ could mean to the many water appropriation holders

up and down the Snake River, who are at this time having to fight to preserve their

water rights against the government. It is these type of precedents and ambiguities

that threaten the future stability of the long-established system of water rights in

Idaho and the West. We have a duty as Congress to stop this from happening.

Mr. Chairman, I cannot emphasize enough the seriousness of the matter before

us today. Before we allow this bill to move further in the process, we need to take

a very close look at vhat they ‘‘reserved water right’’ means, and how it could impact

state water rights. I hope that we may examine and clarify this issue today before

the Subcommittee.

Mr. DOOLITTLE. Thank you. Well, let me ask our 3 witnesses

please to rise and raise their right hands. We actually have someone who—Ms. Knight, maybe you would like to join them just in

the event that you are going to be giving testimony.

[Witnesses sworn.]

Mr. DOOLITTLE. Thank you. Let the record reflect each answered

in the affirmative. We are pleased to have you here on an important subject.

Our first witness will be Mr. David J. Hayes, Counselor to the

Secretary of the Interior. And we are pleased to have you here Mr.

Hayes, and you are recognized.

STATEMENT OF DAVID J. HAYES, COUNSELOR TO THE SECRETARY OF THE INTERIOR, DEPARTMENT OF THE INTERIOR

Mr. HAYES. Thank you, Mr. Chairman, and thank you for calling

this hearing. We very much appreciate, particularly given the late

hour of the session, the Subcommittee having this hearing.

Mr. Chairman, I will not repeat the material in our written

statement, which I hope will be accepted for the record. Instead, I

would simply like to highlight a few points this afternoon.

First is that this bill would approve a water rights compact that

was entered into truly under the leadership of the tribe and the

State parties. To our mind, as Federal representatives, this represents the model of how Indian water rights settlements should be

solved, which is at the grass roots level, with the leadership of the

Montana State Reserved Water Commission and tribal representatives, as described in some detail in the State’s testimony before

the Subcommittee today.
6

There was an effort to involve all water users in the entire affected basin, to literally work ranch by ranch, water user by water

user to try to reconcile water uses and water rights of the various

parties. The result was a very creative, thoughtful accommodation

of the rights and interests of all parties. And we as the Federal

Government were happy to play our part in helping to make that

grass roots agreement become a reality.

In terms of our role here, Mr. Chairman, really two things are

asked of us as Federal authorities. One is to validate the State

compact, the key components of the State compact, so that they

may become Federal law; and as part of that, to confirm that any

otherwise existing Federal rights and as trustee to the tribe dealing with potentially senior water rights would be waived.

And we think it’s appropriate for the Federal Government, in

consultation with the tribe and with this entire package, to provide

those assurances. And that is why through this settlement, the

question of potentially otherwise unenforced Federal rights for—on

behalf of the tribe for water rights will be resolved in favor of the

system that the State and the tribes have essentially worked out

together.

The second thing that is asked of the Federal Government is for

help in implementing the scheme that basically the State and the

tribe came up with to help satisfy the water needs of both the tribe

and the non-Indian water rights holders in the area. And in order

to do that, two things needed to happen:

First, the on-reservation water supplies of the tribe, which are

limited, need to be enhanced so that the most can be made of those

water supplies. Once the most is made of those water supplies

through, for example, the Bonneau Reservoir, then an accommodation can be made so that the downstream non-Indian water rights

holders and those depending on water will be able to count on the

continued flow of water for their purposes, while the tribe at the

same time can count on the water it needs for its reservation.

And much of this bill is essentially a series of, in the grand

scheme of things, small projects that will enhance the on-reservation capability of the tribe to utilize its water for not only its benefit, but quite directly for the benefit of non-Indians as well, who

therefore will be able to count on and, in fact, with the tribe being

required to do, ensure that adequate supplies will flow down downstream to non-Indian parties.

The second thing we’ve been asked to do in terms of funding is

to help, long term, by examining the tribal water need for additional drinking water supplies. It’s clear that over the long haul,

with the projected increase in population by the tribe, that they

will not have adequate drinking water on the reservation, even

with the enhanced water supplies.

We as the Federal Government did not believe that we have the

wherewithal or the responsibility to fully fund any project that

might provide that enhanced water supply. But we do believe a significant financial commitment here of $15 million to be put in trust

to satisfy the long-term drinking water needs of the tribe is appropriate, and that has been incorporated into this settlement, along

with a planning effort that Congressman Hill outlined in his opening statement.
7

So in conclusion, we enthustiastically endorse this legislation. It

exemplifies the type of grass roots resolution of conflicting water

rights that we think serves as an excellent model of how these

issues should get resolved. Negotiation, not litigation, is the policy

of this administration, as it was for the previous administration in

resolving Indian water rights.

We also believe that the settlement satisfies the Federal trust responsibility to the tribe. And that, of course, is a fundamental guidance to our actions and is a reason for our support for the legislation.

We think this is a remarkable achievement. We congratulate the

citizens and the leaders of the State of Montana, both tribal and

nontribal, in putting this deal together. And we’re happy to do

what we can to make it a reality. We hope the Committee will

move on the bill.

Thank you very much, Mr. Chairman.

[The prepared statement of Mr. Hayes may be found at end of

hearing.]

Mr. DOOLITTLE. Thank you.

Our next witness will be Mr. Bruce Sunchild, vice chairman of

the Chippewa Cree Water Rights Negotiating Team. You are recognized.

STATEMENT OF BRUCE SUNCHILD, VICE CHAIRMAN,

CHIPPEWA CREE WATER RIGHTS NEGOTIATING TEAM

Mr. SUNCHILD. Thank you very much, Chairman Doolittle, Representative Hill, honorable members of the Committee. My name is

Bruce Sunchild. I’m a member of the Business Council of the Chippewa Cree Tribe of the Rocky Boy’s Reservation. The Business

Council is the governing body of the Chippewa Cree Tribe. I also

serve as vice chairman of the Tribe’s Water Rights Negotiating

Team.

I am here to testify on behalf of the tribe in support of H,R. 3658

entitled, the Chippewa Cree Tribe of the Rocky Boy’s Reservation

Indian Reserved Water Rights Settlement Act of 1998. I am accompanied today by the tribe’s water resources staff, Paul Russette,

also Yvonne Knight, the tribe’s attorney. I appreciate the opportunity to testify before you today. I submit for the record the tribe’s

detailed written testimony.

I would like to begin by expressing the tribe’s great appreciation

to Representative Hill and to his staff for their help and support

of moving this bill forward. I would also like to thank Representative Doolittle and his staff of the Energy and Power Subcommittee,

for assisting the tribe in obtaining a hearing on H.R. 3658.

The tribe and the state of Montana and the United States are

in full agreement that the settlement embodied in H.R. 3658 is

beneficial to all parties. The settlement consists of the compact entered into between the tribe and the State of Montana on April

14th, 1997, and the bill before you today.

The bill ratifies the compact and provides funding to enable the

tribe to fulfill its obligations under the compact, to compensate the

tribe for its release of breach of trust claims against the U.S. Government, and to enable the United States to carry out its trust obligation by assisting the tribe in obtaining the water necessary to
8

make Rocky Boy’s Reservation a permanent self-sustaining homeland.

The settlement benefits the tribe in a number of different ways.

First, it ratifies the compact and quantifies the tribe’s on-reservation water rights at 10,000 acre feet per year. The remainder of the

annual water supply on the reservation will be used to mitigate impacts on downstream non-Indian users. The settlement provides $3

million to enable the tribe to carry out administrative duties under

the compact.

Second, the settlement provides a future source of drinking water

for the tribe by setting aside 10,000 acre feet of water in Lake

Elwell behind Tiber Dam. The Rocky Boy’s Reservation is located

in a water-short area, and existing on-reservation water supplies

are insufficient to meet the tribe’s current and future drinking

water needs. The settlement provides $1 million to study alternative means to transport the Lake Elwell water to the reservation, and $15 million is authorized as seed money to be applied toward the design and construction of the selected importation system.

Third, the settlement provides $25 million to improve on-reservation water supply facilities. These facilities will enable the tribe to

enhance the availability of water supplies on the reservation, to improve tribal agricultural products, to ensure the existing dams are

made safe, and to meet the tribe’s obligation under the compact to

mitigate impacts on downstream water users.

Fourth, the settlement provides the tribe with an economic development fund of $3 million to assist us in furthering our economic

development plans on the reservation.

The settlement also benefits the tribe’s non-Indian neighbors in

Montana. First, it quantifies the tribe’s water rights and brings

certainty to the rights of tribe’s non-Indian neighbors. It thus

eliminates the need for lengthy, expensive and divisive litigation.

Second, the compact establishes guidelines for day-to-day administration for the water rights projected under the compact, both

tribal and non-Indian, and establishes a local system for resolving

disputes that may arise between tribal water users and nontribal

water users.

Third, H.R. 3658 will benefit the entire north central Montana

region by authorizing a $5 million feasibility study to examine

ways to supplement the Milk River Basin water supply. This study

will also undoubtedly further the United States’ effort to settle the

water rights of the two other tribes in Milk River Basin, Blackfeet

and Fort Belknap.

The tribe strongly urges Congress to enact H.R. 3658 into law

during this session. First, two of the dams on the reservation which

will be repaired in and enlarged with funds from this settlement

are classified by BIA as unsafe dams. However, these funds cannot

be expended by the tribe until a final decree approving settlement

is approved by the State water court. A final decree cannot be entered until the compact is ratified by Congress through H.R. 3658.

And even then, State court procedure could take as long as 2 years.

The longer we must wait for funds to repair the unsafe dams, the

greater the risk that a tragedy will occur.
9

Second, there is no opposition to H.R. 3658. It is fully supported

by the administration, as well as the tribe and the State, the first

Indian water rights settlement to have this distinction.

In conclusion, I thank you for the opportunity to testify on behalf

of the tribe in wholehearted support of H.R. 3658, the Chippewa

Cree Tribe of the Rocky Boy’s Reservation Indian Reserved Water

Rights Settlement Act of 1998, and we will be happy to answer any

questions this Committee may have.

Thank you very much.

[The prepared statement of Mr. Sunchild may be found at end

of hearing.]

Mr. DOOLITTLE. Thank you, sir.

Our final witness is Ms. Barbara Cosens, legal counsel, Montana

Reserved Water Rights Compact Commission. Ms. Cosens, you are

recognized.

STATEMENT OF BARBARA COSENS, LEGAL COUNSEL,

MONTANA RESERVED WATER RIGHTS COMPACT COMMISSION

Ms. COSENS. Thank you, Mr. Chairman. Chairman Doolittle and

Congressman Hill, my name is Barbara Cosens. I’m legal counsel

for the Montana Reservation Water Rights Compact Commission.

I’m here to testify on behalf of the State of Montana and Governor

Marc Racicot in support of H.R. 3658 and to urge your approval of

the Act. My written testimony has been submitted for the record.

Congressman, it would be impossible for me to overstate the importance of this bill for the State of Montana. The unquantified nature of reserved water rights casts a cloud over certainty regarding

investment in private water development throughout the West.

In 1979, the Montana legislature created the Montana Reserved

Water Rights Compact Commission in order to settle these issues.

And in doing so, our legislature articulated a policy in favor of negotiated settlements. In 1983, in a suit before the U.S. Supreme

Court in which Montana was a participant, the Supreme Court

held that State courts do have jurisdiction to join the United States

in a general stream adjudication for settlement of these issues.

That case strengthened our ability to bring tribes in the United

States to the table to settle these issues, and since 1983, we in

Montana have been very successful in doing this. We have settled

with three Indian reservations and with nine other Federal reservations, in every case we’ve been successful in protecting existing

water users and in protecting the State’s interests in maintaining

control over its water.

Similar to Montana, most Western States favor a policy of negotiated settlements, and they’ve supported their neighbors in seeking their own unique solutions. In June of this year, the Western

Governors Association passed a resolution in favor of negotiated

settlements, urging the Federal Government to participate in these

efforts and help us move forward to finalize these issues. That resolution has been submitted as an attachment to my written testimony.

It’s not hard to understand this preference for negotiated settlements, which allows us to tailor unique solutions to meet the needs

of the specific locale that we’re dealing with. If you think about the

diversity of the Western landscape, our climate varies drastically.
10

We have wide differences in water supply, in precipitation, in growing season, in access to markets, and in the economic value of

water, which varies widely from Southwestern urban areas to agricultural areas like Montana.

In the area of this particular reservation, most of the precipitation comes as snow pack in the Bearpaw Mountains. It runs off in

early spring. Springs run dry in late summer. The only way to provide a firm yield of water supply is through storage.

This Act, by authorizing enlargement of existing dams on the

reservation, chooses a relatively low cost to do that, and in doing

so, has minimal impact on the environment. Also, by storing early

spring runoff, it minimizes the impact on downstream water users.

We took further measures in the settlement to protect downstream water users from any harm, and we did this with the process of working with water users literally on a ranch-by-ranch basis.

Years of experience has taught us that no amount of expert study

can replace the knowledge that ranchers have gained through generations of living and making—working on these streams. We made

staff engineers and contract engineers available to them to design

improvements and conveyance in diversion structures, to allow

them to take water at the lower flows while the tribe is storing

water.

In Beaver Creek we purchased water from an off-reservation reservoir for release to make up for water stored on the reservation.

All of these measures were funded by State grants. In addition to

these local protections, the compact protects the State’s interests in

maintaining control over its waters by assuring that any off-reservation use of the tribal water rights subjects it to full compliance

with State law.

On behalf of Montana, I would urge you not only to pass this bill,

but to do so this session. The Montana legislature has prioritized

the Milk River Basin in which the Rocky Boy’s Reservation is located for adjudication by our water court, and the reason for doing

this is because this is an area with high potential for conflict over

water use. Our water court is prepared to begin working on a decree next year if Congress passes this Act.

Of even greater urgency is the need to repair the unsafe dams

on the reservation. On Friday I spoke with Hill County Commissioner Kathy Bassett and we talked about a rainstorm that occurred this June in the Bearpaw Mountains. It dropped 9 inches

of rain in the 24-hour period, and Kathy said that it appeared for

a while that the East Fork Reservoir, which is an unsafe Federal

dam on the reservation, would not hold. A county park downstream

from the reservation was evacuated.

Downstream from that, there is a larger reservoir. Had East

Fork gone out and taken the lower reservoir with it, the 10,000

residents of the community of Havre would have been directly in

the path of the flood. Repair of these dams is needed before this

situation occurs again.

Congressman, we know of no opposition to this settlement. Passage of the Act would send a signal to Western States that the

United States is once again prepared to help us move forward toward finality on these issues.
11

I appreciate the opportunity to testify on behalf of the state of

Montana in support of H.R. 3658. I urge your timely approval of

this bill, and I would be happy to answer any questions by the Subcommittee.

[The prepared statement of Ms. Cosens may be found at end of

hearing.]

Mr. DOOLITTLE. Thank you very much.

Mr. Hayes, is it my understanding that the administration then

supports H.R. 3658?

Mr. HAYES. That’s correct, Mr. Chairman.

Mr. DOOLITTLE. What does the language in Article VII, section

A(4) of this bill mean? Is that in the compact? That’s in the compact. And, Mr. Hayes, it’s not in the bill. But let me ask you about

the compact. I don’t have the full text of that in front of me, but

there’s language in there that I understand Article VII, section

A(4), that says notwithstanding any other provision in this compact, the Department of the Interior reserves the right to refuse

support for Federal legislation ratifying this compact.

Mr. HAYES. Mr. Chairman, let me explain. The compact was

passed and signed into State law at a time when there was not

agreement by the Federal Government on some of the basic terms

of the compact, including an open-ended request or requirement,

really, for Federal funding of as yet unidentified potential projects.

Essentially, what we did, in close cooperation with the State and

with the tribe, is, following the enactment into State law, the compact looked at the Federal piece, we agreed consensually on the

Federal role. And the way the statute before you is drafted, is that

the compact applies except to the extent that there’s anything in

this Federal law that is inconsistent with it. And that provision, in

particular, is essentially moot by the—I think, by the fact that this

Federal law would be enacted.

Mr. DOOLITTLE. OK. So you’ve subsequently determined that it

merits your support?

Mr. HAYES. That’s correct.

Mr. DOOLITTLE. The legislation, I guess, reflects your desires as

to what should happen?

Mr. HAYES. That’s absolutely correct, Mr. Chairman. Just to explain a bit more, at the time the State passed the compact, there

was not any precise understanding of what the Federal role, funding-wise, responsibility-wise, might be. There were certainly some

indications of what the State was looking for, but we needed to

work those out, and we subsequently did, and this legislation embodies the results of that shared view.

Mr. DOOLITTLE. Does the administration have any reservation

about the legislation?

Mr. HAYES. We do not.

Mr. DOOLITTLE. What happens to the settlement if the Federal

Government fails to construct the works authorized in the settlement?

Mr. HAYES. Mr. Chairman, I’m not certain, to be honest, what

would happen. I mean, I think we have a very clear and explicit

responsibility under this law to construct those works. I would

imagine that if we failed in that responsibility, we would be subject

to some legal challenges at the least.
12

Mr. DOOLITTLE. I guess there’s language in here in the bill on

page 21, (c)(1), it says, ‘‘Upon passage of this act, the tribe shall

execute a waiver and release of the following claims against the

United States, the validity of which are not recognized by the

United States, provided that the waiver and release of claims shall

not be effective until completion of the appropriation of the funds

set forth in Section 11 of this act and completion of the requirements of Section 5(b) this act.’’

So it appears to read that unless everything is done, then this

waiver will not be complete. Is that your understanding?

Mr. HAYES. That’s correct. My counsel is telling me that’s correct.

Mr. DOOLITTLE. So if you did nine-tenths, just for the sake of argument, of the funding of the projects and didn’t do the remaining

one-tenth, then there would be no waiver in effect?

Mr. HAYES. I suppose there’s that theoretical possibility, Mr.

Chairman. These are quite well-defined projects, though, and very

doable. I don’t think any of the parties are concerned about that

issue.

Ms. COSENS. Mr. Chairman, may I supplement the answer?

Mr. DOOLITTLE. Yes, Ms. Cosens.

Ms. COSENS. I think if I could refer you to the same section that

you’re looking at, number (c)(4) in the tribal release of claims, one

of the concerns that came up when we were finally negotiating

these with the Federal Government, since appropriations would

occur over a period of time, is what happens if some of the appropriations occurs, some of the dams are repaired, and then the will

to provide further funding is not there. Does the tribe still retain

its entire claim against the United States? And this provision provides that there would be offset for funds that have already been

spent.

Mr. DOOLITTLE. OK. Thank you for pointing that out.

Suppose the government took 20 years to do this. Is there any

maintenance of effort, or is this anything in here governing how

long this might take?

Ms. COSENS. Mr. Chairman, the one provision of the compact

that does have a deadline in it is entry of the decree in water court.

The funding does not have a deadline on it for entry of the decree.

The parties were concerned with finalizing these claims as quickly

as possible, and we provided a 3-year deadline. If that deadline is

not met, the United States’ approval is withdrawn from the compact and then the tribe may withdraw. A 3-year deadline with our

water court we feel is quite reasonable to meet.

We had similar provisions in the Northern Cheyenne Settlement

Act that was passed by Congress and we did meet those deadlines.

Mr. DOOLITTLE. But it’s—knowing just how the Federal Government works from time to time, at least the congressional part of

it, if that decree actually won’t be allowed, even if it’s sought in

court, under this (c)(1), I don’t think it takes effect until all of those

things have been done, does it?

Ms. COSENS. Actually, Mr. Chairman, the appropriations are contingent on entry of the decree. The Department of Justice communicated to us that they were very concerned that there be a final

decree before the Federal obligations to provide funding kicked in.
13

So we need to get the decree entered before the funding can actually be used by the tribe.

Mr. DOOLITTLE. But the decree isn’t effective until the appropriations are completed, is it?

Ms. COSENS. Mr. Chairman, the waiver by the tribe is not effective until the appropriations are completed.

Mr. DOOLITTLE. The waiver is not effective until the appropriations are completed. I suppose the way as a practical matter it

would work, they would fund the appropriations, hopefully complete them.

But, I mean, suppose they run into budget problems or something? For whatever reason, it’s never completed. Is this—what

happens then? Are you just in limbo? I mean, they’ve never declared they’re not going to complete them, they just haven’t appropriated all the money they’re supposed to appropriate. What would

happen to that in that circumstance?

Mr. HAYES. I think, Mr. Chairman, what would happen is that

the tribe would potentially have at least part of its claim still

against the United States but there would be an offset. To the extent that funds have been provided for the projects and there are

benefits flowing to the tribe, they would be an offset against a

breach of trust claim.

Mr. DOOLITTLE. So you think they would have to file an action

for breach of trust, then?

Mr. HAYES. Yes, yes.

Mr. DOOLITTLE. I mean, but that’s—how do we know when the

trust has been breached?

Mr. HAYES. Well, that would be in litigation. That would be a

subject for a Federal Government action. So in our sense, we think

that’s fair, Mr. Chairman. We do not—we would not expect the

tribe to waive completely its potential rights against the United

States unless and until, rather, any—precisely because of the potential that this would not be fully implemented.

Let me say, though, that we have worked closely with OMB in

connection for the funding for this matter. And as you can see, the

funding is a multiyear funding scenario, which has been worked

into the potential budgets in outyears for both the BIA and Bureau

of Reclamation budgets which would be sharing responsibilities for

this funding. And, in fact, our track record in terms of implementing Indian water rights settlements has been quite good in

terms of Congress and the administration working together to come

up with the funding to actually implement enacted settlements.

Mr. DOOLITTLE. What are you estimating is the total amount of

time to complete the appropriations?

Mr. HAYES. I think it’s over a 3-year period.

Mr. DOOLITTLE. OK. Well, is the Secretary’s signature of this settlement a final commitment, then, to carry out the terms of this

agreement?

Mr. HAYES. Yes, Mr. Chairman.

Mr. DOOLITTLE. Is it the administration’s position that executing

paperwork that makes no change in the physical world does not

constitute a major Federal action under the National Environmental Policy Act?
14

Mr. HAYES. Well, let me explain that if I can. I think you’re referring, Mr. Chairman, to Section 11, or rather 13, 13 (f), of the

bill.

Mr. DOOLITTLE. Right.

Mr. HAYES. That needs to be read in connection with 13 (e). The

administration’s position is that environmental compliance for all

physical elements of the project needs to be completed. And, in fact,

in connection with our policy of trying to identify if there are any

environmental issues as soon as possible, much of the NEPA analysis on the major on-reservation activity, the enlargement of the

Bonneau Reservoir, has already been completed.

So we are comfortable with the substantive application of NEPA

for all physical activities. What section 13 (f) does is simply say

that the signing of the compact itself in the context in which we

are, with the NEPA applying to the physical activities, does not

itself trigger an additional obligation.

Mr. DOOLITTLE. Well, then, I think your answer—which was fully

explained, I appreciate that—but it would be ‘‘yes,’’ then. It does

not constitute a Federal—a major Federal action in your view, the

mere execution of it?

Mr. HAYES. In this context, we’re comfortable with that.

Mr. DOOLITTLE. And so I think you’ve explained this, but apparently then—well, I will just ask the question: Does the administration believe that it is more appropriate for NEPA, ESA and other

environmental compliance processes to be carried out at the implementation stage, when actions are not merely contemplated in theory but actually proposed?

Mr. HAYES. I’m not sure I understand the question, Mr. Chairman.

Mr. DOOLITTLE. Well, I was just looking—I think that particular

sentence came out of the letter that you sent, and I was just—I

have a special interest in this. Let’s see. This is a letter to—I guess

responding to questions posed by Senator Campbell’s committee.

There’s a date stamped on it, August 31st. And in there—let’s see,

you’re responding to questions, and you state in that letter, ‘‘Moreover, we believe that it is more appropriate for full NEPA, Endangered Species Act and other environmental compliance processes to

be carried out at the implementation stage, when actions are not

merely contemplated in theory but actually proposed.’’ I assume

you still believe that.

Mr. HAYES. Certainly. In this context, but I hope this won’t be

taken out of context, this is—the context here is in a situation

where the possibilities for enhancing the water supplies have been

well studied for years on the reservation, where NEPA in fact had

already been well underway for the major aspect of the water enhancement program on the reservation. I guess I would caution use

of that sentence outside the context of this matter.

Mr. DOOLITTLE. I just—I’m glad you’ve got it in there, because

I felt it’s been appropriate on a number of occasions for many of

the reasons that you’ve mentioned. I don’t think this is a unique

circumstance. But, you know, we constantly get the administration

objecting and calling that type of language ‘‘veto bait’’ and implying

that it’s—or not implying, I mean it’s basically stating that it’s unreasonable, and I don’t believe it is a major Federal action.
15

And I guess you don’t either, or else if it were, you would have

to be doing all of these studies before the Secretary were able to

execute the contract.

Mr. HAYES. Well, in fact, we have done most of the studies already.

Mr. DOOLITTLE. But you haven’t done them all, and to all the

specificity required, have you?

Mr. HAYES. No, that certainly is the case. That’s certainly the

case.

Mr. DOOLITTLE. And as you pointed out, or as it says in the law

itself, of course, before any of these projects is actually carried out,

all the necessary environmental work will have to be completed?

Mr. HAYES. That’s correct.

Mr. DOOLITTLE. That I think is a reasonable policy, and I’m glad

the Clinton Administration agrees.

This matter of the reservoir, Elwell, Lake Elwell off the reservation, let me ask, Mr. Sunchild, do you envision receiving a distribution system from Lake Elwell to the reservation?

Mr. SUNCHILD. Yes, we do.

Mr. DOOLITTLE. And who are you anticipating will be providing

that?

Mr. SUNCHILD. At this point right now there’s a feasibility study

that will happen with this money that’s—if it’s allocated.

Mr. DOOLITTLE. What is the approximate cost that you’re hearing

for—I realize it’s being studied, so you only will perhaps have a

ballpark figure. But what’s a ballpark figure for building the distribution system from that reservoir to your reservation?

Mr. SUNCHILD. Mr. Chairman, at this point I can’t answer that

without the feasibility.

Mr. DOOLITTLE. Can anyone give us a ballpark figure, stipulating

that it’s subject to completion of the study?

Mr. Hayes, do you have any idea about that?

Mr. HAYES. Well, we really can’t, Mr. Chairman, because the

method of potential delivery is a key question. There has been discussion in the past of a potential pipeline from Tiber Reservoir to

the reservation, but that is extraordinarily expensive.

And the feasibility study is going to look at other potential options, including the release of the water at the reservoir and the

potential pickup of the water downstream out of the Missouri right

up to the reservation, which will be a much shorter distance and

potentially tremendously cheaper in terms of costs.

Mr. DOOLITTLE. The distance from the reservoir of that pipeline

you’re talking about to the reservation is about 50 miles?

Mr. HAYES. That’s correct.

Mr. DOOLITTLE. And if you did, it would be releasing the water

and then picking up it in Missouri river. What distance would that

be from there to the reservation?

Mr. SUNCHILD. Mr. Chairman, I would estimate about 30 miles.

Mr. DOOLITTLE. That would be 30 miles. We’re still talking about

a major, even at 30 miles, a major conveyance system?

Mr. HAYES. Yes.

Mr. SUNCHILD. Yes.
16

Mr. DOOLITTLE. And I guess, what is the intention then with releasing the acre feet? Is that then—the intention is to release it to

pick up at the other end?

Mr. HAYES. That’s potentially one scenario that will be evaluated, Mr. Chairman.

Mr. DOOLITTLE. Is there any intention to satisfy existing water

needs to downstream water users?

Mr. HAYES. I think, Mr. Chairman, the downstream water users’

needs will be satisfied with the on-reservation enhancements, and

what we’re talking about here is a longer term imported water supply that would be needed at some point in the future for anticipated on-reservation growth.

Ms. COSENS. Mr. Chairman, if I could also answer that question.

Mr. DOOLITTLE. Yes. Yes, please jump in there, Ms. Cosens.

Ms. COSENS. As Mr. Hayes says, the compact fully protects downstream water users for any impact by the tribal water right. In this

part of Montana, the groundwater resources are very saline for the

most part, and in some areas where there is good water, it’s a very

low yield. And many of the communities in the surrounding areas

already have put in rural water systems for treatment and transport of surface water, so there’s an existing infrastructure already

in place.

Part of the feasibility study will look at whether it will sort of

bring in an economy of scale and reduce costs if more of those rural

water systems that are already in place actually attach to a system

that would go to the tribe, and that’s one thing that may lower

costs in this area. But certainly at this point the development and

treatment of surface water for drinking for the tribe lags way behind the surrounding communities.

Mr. DOOLITTLE. The tribe in its testimony has indicated they’re

going to come back to Congress to provide for the money for this,

I guess, for their part of the system, and it wouldn’t be paid for

by other water users as was described.

Is that your understanding, Mr. Hayes?

Mr. HAYES. We don’t know what the tribe’s ultimate intentions

are or what—how this would play out in the future. If I can make

a couple of comments, as the administration, we were uncomfortable with making an open-ended financial commitment to the tribe

in connection with a potential future water delivery system whose

outline and potential costs and timing and everything else is unknown.

We recognize, obviously, a trust responsibility. And we evaluated

that and concluded that setting aside a $15 million trust fund,

which could earn interest over time, would satisfy the Federal trust

responsibility in this regard and would be the basis for waiving

claims, both ways, in terms of Federal reserve water rights.

If at some point in the future the tribe wants to approach the

administration, the then administration or the Congress, and ask

for programmatic funds to supplement this fund, I suppose they’re

free to do so. And that will be for a future Congress and a future

administration to evaluate. But that would not be in the context of

a resolution of an Indian water rights settlement, that would be in

the context of a request for programmatic funds.
17

Mr. DOOLITTLE. Ms. Cosens, could the proposed MNI water system from the Tiber be tapped by nontribal members for tribal profit?

Ms. COSENS. Mr. Chairman, I believe that is one of the options

that the tribe has looked at, is ownership of the system. I think the

tribe could better answer on their discussions with surrounding

communities on that. Certainly, one aspect, as I mentioned earlier,

that would be looked at is I think there are eight rural water systems between Tiber and the reservation whose lines are very close

to or actually cross the path that a pipeline would have to take.

And contribution by those systems to building the pipeline so

that they can tie into it would certainly reduce the overall per capita costs of a system. I know that’s being looked at seriously. And

I would defer to the tribe whether there have been discussions of

marketing.

Mr. DOOLITTLE. Do you want to comment on that, Mr. Sunchild?

Mr. SUNCHILD. Yes, Mr. Chairman, as far as marketing, I think

there was some thought that some individual communities would

go to the BOR for some sort of allocation for their water needs.

Mr. DOOLITTLE. OK.

Mr. SUNCHILD. We never intended to sell to non-Indian communities.

Mr. DOOLITTLE. It was your intent to keep it for the tribe, then?

Mr. SUNCHILD. Yes, sir.

Mr. DOOLITTLE. OK. Back to Ms. Cosens. What impact do you

think this settlement will have on other implied reserve Federal

water rights that are being expanded, such as those for Forest

Service, national parks, wilderness areas, watershed protection,

cattle grazing, big game and waterfowl refuges, recreation, planned

occupancy for the military and other governmental personnel, tree

nurseries and seed beds, fire fighting? I mean, what impact do you

think that might have on some of those other things?

Ms. COSENS. Mr. Chairman, the short answer to your question

would be no impact whatsoever.

Maybe I could supplement that by explaining one of the reasons

why Montana has chosen this process of negotiated solution is, it

does allow them to tailor solutions to the specific circumstances of

a particular reservation, come up with site-specific solutions, and

avoid wading into any of the questions that might raise a precedent

in other areas.

In addition, it has allowed the State of Montana to provide some

certainty in these areas by quantifying the reserve water rights

that are unquantified at this point and place some uncertainty on

it. I think that the State of Montana has been very successful in

this process, and the values of negotiations for the people of Montana have been substantial.

Mr. DOOLITTLE. Is it fair to say your main interest in this is certainty?

Ms. COSENS. Mr. Chairman, I think that we have several interests in this process. Certainly, certainty is probably the primary

thing that caused the legislature to create the Reserve Water

Rights Compact Commission, starting the general stream adjudication in order to quantify these rights. But over the years I think

we have found that the benefits are far greater than that.
18

If I could just go through maybe three of the main benefits that

we’ve seen from these negotiations, certainty is definitely one quantification. But quantification can be achieved through litigation as

well, and you can get certainty that way.

Litigation is a highly costly alternative, and what litigation can’t

accomplish is protection from junior water users. In Montana most

of the basins that have Indian reservations in them are highly appropriated, and in most cases the Indian reservations was created

prior to most of the development of water. And the only avenue we

have for protecting those junior uses is through settlement, and

again, we’ve been very successful in doing that.

Secondly, through these compacts, we’ve been able to resolve

many more issues then simply the quantification of water. The

beauty of settlement is that you can wrap a number of issues into

a single package.

And the main one that I’m thinking of is the dispute resolution

once the compact is implemented. If a reserve water right is litigated, you get a quantification, but the question remains open as

to what form people have to resolve disputes after that quantification occurs. And I can tell you in our negotiations, working with

the ranchers around Rocky Boy’s, that they were probably as concerned or more concerned with what remedy they would have if the

obligations that were put forth in the compact were not lived up

to or water wasn’t being used in that way than they were with the

actual quantification.

It’s a small comfort to a water user that has their head gate

opening on to a dry stream that they have the right to spend the

entire irrigation season arguing over what court they should be resolving their disputes in. And this compact and the other ones that

we have settled set up a dispute resolution mechanism by creating

a tribal-State compact board that would resolve those disputes.

And I think the third benefit that we’ve seen is that it creates

negotiation rather than litigation, creates improved relationships,

both between tribes and their neighbors and between tribes and

States. We can all go home tomorrow, but the tribe and the ranchers out around the Rocky Boy’s Reservation will live with whatever

we end up with for generations to come.

I think in the Western Governors Association letter that I attached to my testimony, there was also a concern expressed with

this. The letter talks about the hiatus in Federal approval of these

settlements and the concerns of what that break down might be.

And if I can quote from that, they stated that the prospects for returning to an era of adversarial relations between tribes and their

local neighbors and the neglect of addressing tribal rights appeared

imminent because of that breakdown. I think that many of the

Western States are concerned with going back to a system in which

the only avenue we have is litigation.

Mr. DOOLITTLE. Mr. Hayes, we’ve read and heard that several of

the dams in the reservation are at risk. I just wondered if you

could tell me why the department has allowed them to deteriorate

to such an extent?

Mr. HAYES. Well, the funding for the safety of dams program in

the BIA has been significantly curtailed in recent years. And

the——
19

Mr. DOOLITTLE. Can I just jump in and ask, why have you pursued such a policy of allowing that to be curtailed?

Mr. HAYES. We have sought appropriations from Congress for the

BIA budget for this purpose and have not gotten the appropriations

we’ve requested, Mr. Chairman. It’s quite—it’s as simple as that.

What we’ve had to do is prioritize the dams that are in the worst

shape so that the limited funds available can be put to those BIA

facilities.

In the case of the Bonneau Reservoir, at one point the Bonneau

Reservoir I think was in the top five or so as one of the most unsafe dams. The Bureau took funds to stabilize the facility and take

it out of the red zone, if you will. However, it was—it’s not efficient

to do a permanent fix at the same time that there’s a contemplation of an enlargement of the facility. So the permanent fix will be

done in connection, in fact, with the enhancement of the reservoir

capacity. And that is an important purpose here. But we’re hopeful

that the temporary fix will provide adequate safety.

Mr. DOOLITTLE. Has Congress actually specifically turned down

the requests for the safety of dams program?

Mr. HAYES. Mr. Chairman, I don’t know the answer to that, in

terms of whether it’s been targeted at this program or not. I suspect not. I suspect it’s part of the programmatic cuts for the BIA,

which has forced the BIA to try to put its scarce dollars to any

number of often life-threatening situations, be it safety of dams or

people-oriented projects. I’m happy to look into that and get you

some more information, if you would like, Mr. Chairman.

Mr. DOOLITTLE. I would appreciate that, because my hunch is if

you made a specific request for that, it would be fully funded. I just

wonder how many other dams are in the yellow zone or the red

zone.

Mr. HAYES. It’s a serious issue, and we would be happy to get

some more information to you, Mr. Chairman.

Mr. DOOLITTLE. I think that would be good.

Ms. Cosens, you state that the Western Governors continue to

support negotiating rather than litigated settlement of Indian

water rights disputes, and that’s certainly the direction I would

want to encourage.

Do the Western Governors generally support extending implied

reserve water rights to include the quantification of additional

uses, such as fish and wildlife enhancements?

Ms. COSENS. Mr. Chairman, what the Western Governors Association supports is the ability of States to choose their own paths

in this. Certainly there is no specific endorsement of specific types

of reserved water rights. As I stated earlier, one of the things that

we’re able to avoid when we negotiate is setting precedent. We can

tailor a solution to the specific needs of the reservation.

In the case of Rocky Boy’s with the fish and wildlife enhancement, it was a need that the tribe brought to the table that we

were able to agree to without affecting any other water users and

with the support of the other water users. I think that there has

been a long history of Federal deference to State water law, probably because we each have our own unique solutions that we can

put forward in these cases. Certainly the Western Governors Asso-
20

ciation supports their neighboring States’ efforts to choose their

own solutions in those cases.

Mr. DOOLITTLE. How many people do you have in Montana?

Ms. COSENS. Less than a million, Mr. Chairman.

Mr. DOOLITTLE. You’re in the fortunate circumstance of, I believe, of having sufficient water for your needs. Is that not the

case?

Ms. COSENS. Mr. Chairman, that’s not, certainly when you compare our State to other States. Because of our low population,

that’s probably true, but because of our high reliance on agriculture, there are basins that are water short and because particularly east of the Continental Divide it is a very arid region. The

Milk River Basin, in which this reservation is located, has many

periods of short water supply.

And part of that is brought on by the fact that our climate is

highly variable. We can have years where we have more water

than we could ever need, and then we have expanses of years

where we have extreme drought, so it is variable. We’re not without our shortages, but certainly I think we are at an advantage in

having a low population.

Mr. DOOLITTLE. And you do have the—you’re able to—in my

State, where we’re water short on the average now and are going

to be more water short when some of those other basin States

claim everything they’re entitled to, we—it’s not just theoretical.

We’re at the point where somebody is making a claim, somebody

else is going to give up the water they have, whereas you are apparently able to parcel this out and make everybody happy and

that’s good. I wish it were that way for everyone.

But there is some concern about approving this kind of a settlement that may be setting some real precedent. I know it says it’s

not intended to set a precedent. But it will set a precedent, and

most of our Western States are water short.

And so there is no reluctance on the part of the Committee to

acknowledge the hard work that has gone into this legislation and

the compact. And certainly we understand your desire, for the reasons you mentioned, certainty and a more desirable dispute resolution process, and just the comity and general good feelings amongst

the different interests within your State. Those are all positive

goals.

But this whole implied water right reservation system has some

substantial ambiguous areas in it. And when it comes to dealing

with the non-Indian claims or the downstream, the junior rights

holders, there’s lots of issues that come into play, as you know, but

you’ve been able to work them all out in your case.

The Subcommittee is grappling with what do we do in some of

these other areas where we’re not going to be able to work them

out as nicely as you have and, where you’re going to have to deal

with taking—you know, not having a larger pie, so to speak, but

reallocating the pieces thereof, and that’s a much more difficult

question.

And I think this hearing has afforded us the opportunity to at

least begin to explore some of these issues. And I’m sure we will

have—if Mr. Hill were here, I know he would have a number of

questions that he would want to ask you, and frankly a number of
21

other members who are just probably in the air now as we speak.

So there will be lots of other questions we will probably tender in

writing, and I ask you to respond as expeditiously as you can.

Ms. COSENS. Mr. Chairman, could I respond to the last comment?

Mr. DOOLITTLE. Yes, certainly.

Ms. COSENS. I apologize if I misled you into thinking that the

Milk River Basin has abundant water to allocate. That’s not why

we were able to settle in this area. We have 6 years of intensive

work with water users in the area resting on this settlement and

waiting for it to move forward. This is by no means a region with

abundant water. We get 12 inches of precipitation a year on the average in the part of the reservation that has agriculture, and

ranching and farmland around it is fully developed.

Milk River notoriously has shortages in waters. The Milk River

has one of the earliest Bureau of Reclamation projects authorized

by Congress. And I’m sure you know enough about reclamation

projects, having a number of them in your State, that those

projects historically were built in areas where there was not sufficient water to support the agriculture in the area.

So as early as the early 1900’s when that project was authorized,

there were water shortages in this part of Montana. It’s not because of the population, it’s because of the agriculture, which uses

substantially more water than in municipalities. We don’t have the

concern that other States do with municipal water supply, and one

of the results of that is that the water isn’t worth a lot in Montana,

like it is in the Southwest.

But in terms of shortages for allocations, we have very difficult

issues that we need to deal with. This compact allocates 20,000

acre feet to the Rocky Boy’s Reservation. I think if you compare

that with other agreements, both in the Southwest and in Montana, that’s a very small amount of water, and it reflects the fact

that the water supply on the reservation is extremely limited.

Mr. DOOLITTLE. Well, I didn’t mean to imply that it was an easy

thing for you to do. But we’re losing, even in wet years, 60 percent

of water deliveries say to our farmers in the San Joaquin Valley,

which is probably the most productive area in the world for agriculture, and we’re losing it due to fish and wildlife requirements.

You’re not experiencing that kind of thing to that degree in Montana, are you?

Ms. COSENS. In certain areas, Mr. Chairman, in certain areas of

Montana, we are. The whole western part of the State is part of

the Columbia River System.

Mr. DOOLITTLE. You do have a taste of it, don’t you?

Ms. COSENS. We do.

Mr. DOOLITTLE. Well, I appreciate all of you coming up here to

offer your testimony. We are very interested in this subject. We

want to achieve a good result for you and for others in the future,

so we will be looking carefully at the facts and the information you

provide us. And we’ll hold the record open for the responses that

you provide to our questions.

And with that, why, this hearing is adjourned.

[Whereupon, at 3:16 p.m., the Subcommittee was adjourned.]

[Additional material submitted for the record follows.]
22

STATEMENT OF DAVID J. HAYES, COUNSELOR TO THE SECRETARY OF THE INTERIOR, DEPARTMENT OF THE INTERIOR

Good Afternoon. I am David J. Hayes, Counselor to Secretary of the Interior

Bruce Babbitt. It is my pleasure to be here this afternoon to testify on behalf of the

Administration in support of H.R. 3658. This bill represents the successful culmination of approximately eight years of negotiation among the United States, the State

of Montana and the Chippewa Cree Tribe of the Rocky Boy’s Reservation over water

rights disputes being litigated in the case entitled, In the Matter of the Adjudication

of All Rights to the Use of Water. Both Surface and Underground, within the State

of Montana. It represents a true partnership among Federal, State and Tribal interests. By working hard, together, the parties have forged a water rights settlement

that satisfies Tribal rights and needs, while also taking into account the rights and

needs of non-Indian neighbors, and enabling all affected Montanans to plan for the

future with confidence and certainty.

The Rocky Boy’s Reservation, located in North Central Montana, consists of approximately 110,000 acres and includes several tributaries of the Milk River. The

average annual water supply on the Reservation is limited by hydrological delivery

constraints and inadequate storage infrastructure. The Tribe has over 3,500 enrolled

members and a population growth rate well above the typical rate for tribes of 3

percent. Tribal unemployment averages around 60–70 percent in an economy based

primarily on agriculture, including raising livestock. Existing Reservation water use

includes irrigation, livestock consumption, wildlife and recreational use, and municipal and industrial uses. The Tribe’s municipal water is derived from 12 community

wells and approximately 240 individual wells. A majority of the domestic wells suffer from low production due to aquifer overdraft or improper siting. In addition,

groundwater contamination from hydrogen sulfide, iron and manganese contributes

to well casing corrosion and makes the water very unpleasant to drink or use for

other domestic needs.

Since the Tribal economy is heavily based on livestock and hay is the principal

crop grown using irrigation, the Tribe’s goal is to maintain, or perhaps slightly increase, the current level of irrigated agriculture on the Reservation in order to avoid

having to purchase supplemental livestock forage on a regular basis. Without enhanced on-Reservation storage and other infrastructure improvements, experts calculate that, within 20 to 40 years, the Tribe will be unable both to maintain its

modest agricultural base and meet the domestic water needs of its rapidly growing

population.

The United States, the State and the Tribe struggled for many years to find an

immediate solution to the problem of an inadequate Reservation water supply. For

a time, the Tribe viewed the only solution to be the importation of water from the

Tiber Reservoir, a Bureau of Reclamation facility some 50 miles from the Reservation. In this context, the water would have been delivered to the Tribe as part of

a combined Indian/Non-Indian system. This system would have been very expensive

and would have required an extensive Federal subsidy. Moreover, this system would

have cost the Federal Government far more than it could reasonably be expected

to pay to settle the Tribe’s water rights. Rather than pursue this expensive regional

water system, the parties decided to focus on developing existing Reservation water

supplies and setting aside funds that will be available for use in a future plan to

supplement on-Reservation water supplies. This is the approach that has been

adopted in H.R. 3658.

Under the terms of H.R. 3658, Congress would approve, and authorize participation in, a Water Rights Compact entered into by the Tribe and the State. The Compact was enacted into Montana law on April 14, 1997, and recognizes the Tribe’s

right to approximately 10,000 acre feet of water on the Reservation. In order to enable the Tribe to exercise its on-Reservation water right, the United States would

contribute $24 million for four specific on-Reservation water development projects

and additional funds of no more than $1 million to cover Bureau of Reclamation

(BOR) administrative costs associated with these construction activities. First and

foremost among the projects is the repair and enlargement of Bonneau Reservoir,

a facility that has ranked in the top ten of the Department’s ranking list of most

dangerous dams. Other projects include repair and enlargement of several smaller

on-Reservation irrigation and recreational dams, including East Fork, Brown’s and

Towe’s Pond dams.

H.R. 3658 also addresses the Tribe’s future water needs by providing the Tribe

with the right to an additional 10,000 AF of water stored in Tiber Reservoir. This

allocation is only a small percentage of the 967,319 acre feet of water stored in Tiber

Reservoir and will not impact on any other use of the Reservoir. The Department

has carefully considered the impact of the allocation on the reserved water rights
23

of other Indian tribes and has concluded that such rights will not be negatively affected.

It is important to note that by making the Tiber Reservoir allocation, the United

States is not undertaking any obligation to deliver water to the Reservation. Section

8(d) of the bill expressly provides that the United States shall have no responsibility

or obligation to deliver the Tiber allocation or any other supplemental water to the

Reservation.

Nonetheless, in order to assist the Tribe when the time comes that it needs additional on-Reservation water supplies, H.R. 3658 provides that the United States will

set aside $15 million in trust toward the planning, design, construction, operation,

maintenance and rehabilitation of a future Reservation water supply system. In addition, the bill authorizes BOR feasibility studies totaling $4 million to explore alternative methods of augmenting the Rocky Boy’s Reservation water supply, as well

as analyzing region-wide Milk River water availability and enhancement opportunities. One particular alternative that will be studied will be the feasibility of releasing the Tribe’s proposed Tiber Reservoir allocation into the Missouri River for later

diversion into a treatment and delivery system for the Reservation. We are hopeful

that this alternative or others identified by the BOR studies will prove to be more

realistic and reasonable solutions than an expensive rural water supply system centered upon a pipeline from Tiber Reservoir. The BOR studies should provide an indepth understanding of the Milk River Basin water supply, its potential and limitations, that will be of valuable assistance to the United States, the State of Montana

and Montana Indian tribes in our efforts to address Indian water rights disputes.

The studies will address, as well, some of the water supply problems facing many

small North Central Montana communities.

Other components of the Chippewa Cree settlement are a $3 million Tribal Compact Administration fund to help defray the Tribe’s Compact participation costs and

a modest $3 million Tribal Economic Development fund to assist the Tribe in putting its water to use.

The total Federal contribution to the settlement is $50 million. We believe that

this expenditure is justified. The Tribe has presented the United States with a legal

analysis setting forth a substantial damages claim against the United States. The

Department of Justice and the Department of the Interior have analyzed the claim

and concluded that settlement is appropriate. In addition to releasing the United

States from damage claims, the settlement also will relieve the United States of the

obligation to litigate, at significant cost and over many years, the Tribe’s water

rights. The certainty secured by the settlement is, in fact, its central feature. By

resolving the Tribe’s water rights, all of the citizens of this area of the State of Montana will be able to plan and make investments for the future with the assurance

that they have secure and stable water rights.

Like other Indian water rights settlements, the benefits to accrue to the Tribe and

other settlement parties will be available only after a final water rights decree is

issued by the appropriate court. We expect that the process of entering and gaining

final approval of the decree will take approximately eighteen months to two years.

As motivation to keep the court approval process moving, the settlement parties

have set a three year deadline for finalization of the decree. The Department of the

Interior is committed to advancing the court process and other settlement implementation tasks as expeditiously as possible in order to avoid having to seek Congressional relief from the settlement deadline. The Tribe has waited many years to

see its water rights become a reality and we do not want to see that wait prolonged

any more than absolutely necessary.

In summary, the Administration strongly supports H.R. 3658. To strengthen the

probability of securing appropriations for this settlement, we support swift passage

of H.R. 3658. We congratulate the Chippewa Cree Tribe for this historic achievement and we extend our thanks to the State of Montana, and, in particular, the

States Reserved Water Rights Commission, for the indispensable role it played in

bringing this settlement to fruition.

I will be happy to answer any questions you may have.

STATEMENT OF BRUCE SUNCHILD, MEMBER OF THE BUSINESS COMMITTEE OF THE

CHIPPEWA CREE TRIBE OF THE ROCKY MOUNTAIN BOY’S RESERVATION, AND VICECHAIRMAN OF THE CHIPPEWA CREE WATER RIGHTS NEGOTIATING TEAM

Chairman Doolittle, and Representative Hill, Honorable Members of the Committee:

My name is Bruce Sunchild. I am a member of the Business Council of the Chippewa Cree Tribe of the Rocky Boy’s Reservation. The Business Council is the gov-
24

erning body of the Chippewa Cree Tribe. I also serve as the Vice-Chairman of the

Tribe’s Water Rights Negotiating Team. I am here to testify on behalf of the Tribe

in support of House bill 3658 entitled ‘‘The Chippewa Cree Tribe of the Rocky Boy’s

Reservation Indian Reserved Water Rights Settlement Act of 1998.’’ I am accompanied today by Paul Russette, the Tribe’s Water Resources staff, and the Tribe’s

attorney. I appreciate the opportunity to testify before you today, and I subunit for

the record, the Tribe’s detailed written testimony.

I would like to begin by expressing the Tribe’s great appreciation to Representative Hill, and to his staff for their help and support in moving this bill forward. I

would also like to thank Representative Doolittle, and the staff of the Energy and

Power Subcommittee for assisting the Tribe in obtaining a hearing on H.R. 3658.

The Tribe, the State of Montana, and the United States, are in full agreement

that the settlement embodied in H.R. 3658 is beneficial for all parties. The settlement consists of the Compact entered into between the Tribe and the State of Montana on April 14, 1997, and the bill before you today. The bill ratifies the Compact

and provides funding to enable the Tribe to fulfill its obligations under the Compact,

to compensate the Tribe for its release of breach of trust claims against the United

States, and to enable the United States to carry out its trust obligations by assisting

the Tribe in obtaining the water necessary to make the Rocky Boy’s Reservation a

permanent self-sustaining tribal homeland.

The settlement benefits the Tribe in a number of important ways.

First, it ratifies the Compact and quantifies the Tribe’s on-reservation water

rights at 10,000 acre feet per year. The remainder of the annual water supply on

the Reservation will be used to mitigate impacts on downstream non-Indian users.

The settlement provides $3 million to enable the Tribe’s to carry out its administrative duties under the Compact.

Second, the settlement provides a future source of drinking water for the Tribe

by setting aside 10,000 acre feet of water in Lake Elwell behind Tiber Dam. The

Rocky Boy’s Reservation is located in a water-short area, and existing on-Reservation water supplies are insufficient to meet the Tribe’s current and future drinking

water needs. The settlement provides $1 million to study alternative means to

transport the Lake Elwell water to the Reservation. and $15 million is authorized

as seed money to be applied toward the design and construction of the selected

water importation system. Third, the settlement provides $25 million to improve on-Reservation water supply facilities. These facilities will enable the Tribe to enhance the availability of

water supplies on the Reservation to improve Tribal agricultural projects, to ensure

that existing dams are made safe, and to meet the Tribe’s obligations under the

Compact to mitigate impacts on downstream water-users.

Fourth, the settlement provides the Tribe with an economic development fund of $3 million to assist us in furthering our economic development plans on the Reservation.

The settlement also benefits the Tribe’s non-Indian neighbors in Montana.

First, it quantifies the Tribe’s water rights and brings certainty to the rights of

the Tribe’s non-Indian neighbors. It thus eliminates the need for lengthy, expensive,

and divisive litigation.

Second, the Compact establishes guidelines for the day-to-day administration of

the water rights protected under the Compact, both Tribal and non-Indian, and establishes a local system for resolving disputes that may arise between Tribal water

users and non-tribal water users.

Third, H.R. 3658 will benefit the entire North Central Montana region by authorizing a $5 million feasibility study to examine ways to supplement the Milk River

basin water supply. This study will also undoubtedly further the United States’ efforts to settle the water rights of the other two tribes in the Milk River basin–Blackfeet and Ft. Belknap.

The Tribe strongly urges Congress to enact H.R 3658 into law during this

session.

First, two of the dams on our Reservation which will be repaired and enlarged

with funds from this settlement are classified by BIA as unsafe dams. However,

those funds cannot be expended by the Tribe until a final decree approving settlement is entered by state water court. A final decree cannot be entered until the

Compact is ratified by Congress through the enactment of H.R. 3658. And even then

state court procedure could take as long as two years. The longer we must wait for

funds to repair the unsafe dams, the greater the risk that a tragedy will occur.

Second, there is no opposition to H.R. 3658. It is fully supported by the Administration, as well as the Tribe and the State-the first Indian water rights settlement

to have this distinction.
25

In conclusion, I thank you again for the opportunity to testify on behalf of the

Tribe in wholehearted support of H.R. 3658—‘‘The Chippewa Cree Tribe of the

Rocky Boy’s Reservation Indian Reserved Water Rights Settlement Act of 1998.’’ I

will be happy to answer any questions from these Committees.
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49