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S. HRG. 108–383

MISSOURI RIVER MASTER MANUAL

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

IMPACT SUFFERED BY THE TRIBES IN THE UPPER BASIN OF THE

MISSOURI RIVER

OCTOBER 16, 2003

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

Statements:

Claymore, Michael, tribal council representative, Standing Rock Tribe,

Fort Yates, ND .............................................................................................. 25

Conrad, Hon. Kent, U.S. Senator from North Dakota .................................. 1

Daschle, Hon. Tom, U.S. Senator from South Dakota .................................. 10

Dorgan, Hon. Byron L., U.S. Senator from North Dakota ............................ 6

Dunlop, George, deputy assistant secretary of the Army, Civil Works ....... 5

Grisoli, Brig. Gen. William T., U.S. Army, Commander, Northwestern

Division, U.S. Army Corps of Engineers ..................................................... 8

Johnson, Hon. Tim, U.S. Senator from South Dakota .................................. 3

Smith, Chip, assistant for regulatory affairs, Tribal Affairs and Environment, Office of the Assistant Secretary of the Army, Civil Works ........... 5

Steele, John Yellow Bird, president, Oglala Sioux Tribe, Pine Ridge,

SD ................................................................................................................... 22

APPENDIX

Prepared statements:

Corbine, Elwood, executive director, Mni Sose Intertribal Water Rights

Coalition, Inc. (with attachment) ................................................................. 47

Daschle, Hon. Tom, U.S. Senator from South Dakota .................................. 35

Dunlop, George (with attachment) .................................................................. 51

Frazier, Harold C., tribal chairman, Cheyenne River Sioux Tribe .............. 57

Grisoli, Brig. Gen. William T. (with attachment) .......................................... 51

Jandreau, Michael, chairman, Lower Brule Tribe, Lower Brule, SD (with

attachment) ................................................................................................... 37

Kindle, William, president, Rosebud Sioux Tribe .......................................... 45

Murphy, Charles W., chairman, Stand Rock Sioux Tribe (with attachment) .............................................................................................................. 78

Steele, John Yellow Bird (with attachment)................................................... 69, 78

(1)

MISSOURI RIVER MASTER MANUAL

THURSDAY, OCTOBER 16, 2003

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

The committee met, pursuant to notice, at 10:05 a.m. in room

485, Russell Senate Building, Hon. Kent Conrad (acting chairman

of the committee) presiding.

Present: Senators Conrad, Dorgan, and Johnson.

STATEMENT OF HON. KENT CONRAD U.S. SENATOR FROM

NORTH DAKOTA

Senator CONRAD. We will bring this hearing before the Senate

Committee on Indian Affairs to order.

I want to welcome everyone here this morning. Today, the committee convenes to receive testimony on the impact suffered by

tribes in the upper basin of the Missouri River due to the U.S.

Army Corps of Engineers’ operations of the dams, as well as the

treatment of federally reserved Indian water rights in the revisions

to the Missouri River Master Water Control Manual.

Before I begin, I want to especially thank Chairman Campbell

and Vice Chairman Inouye for agreeing to hold this important

hearing, as well as the committee staff for all of their work in preparation for this hearing.

It is fair to say that no group of people in the Missouri River

basin has suffered more than the American Indian tribes. The advent of the Pick Sloan Plan with its series of dams and reservoirs

along the Missouri River resulted in significant damage to Indian

land and resources. Nearly one-quarter of the land taken for the

project was Indian land. Entire communities were uprooted. A way

of life was destroyed.

Vine Deloria, a well-respected scholar and an enrolled member of

the Standing Rock Sioux Tribe, noted that the Pick Sloan Plan was

‘‘the single most destructive act ever perpetuated on any tribe in

the United States.’’ Even today, nearly 50 years after some of the

dams were constructed, the suffering by the Indian people along

the river continues. Lake Sakakawea is now 19 feet below normal,

and is on track to surpass its all-time low.

In fact, I have just been notified that the water storage in the

reservoirs has reached the lowest level since the reservoirs were

filled. Marinas around the lake, including those owned by the

Three Affiliated Tribes, are dry, and in some cases are more than

one-half mile from the lake. It is certainly hard to run a marina
2

under these circumstances. This is at Fort Stevenson, actually, in

North Dakota. I was just there last week. As you can see, the marina facilities are high and dry. There is no water to float boats.

The water has receded and is a long way from any of the marina

facilities.

In addition, water supplies are at risk. The community of

Parshall on the Fort Berthold Reservation is searching for a new

water source as their intake is coming up high and dry. This is a

story about the town of Parshall perhaps running dry. I was just

in Parshall as well this last week. There is a high level of concern

about what will happen to that community without a water source.

Lake Oahe, which straddles the North Dakota and South Dakota

border, has actually now retreated from North Dakota. So Oahe no

longer is in North Dakota. The Standing Rock Sioux Tribe which

borders the lake was unable to irrigate crops this summer due to

low lake levels, rendering their intakes unusable. Tribal land is

also being eroded, exposing important historical sites.

In addition to current operations, the tribes are rightfully concerned about the future operations of the river and whether their

rights to utilize the water will be adequately considered and protected in the Master Manual revisions. That is really the focus of

this hearing today.

In 1908, the U.S. Supreme Court affirmed that when the Indian

reservations were created and reserved, the right of the tribes to

use the water was also reserved. The court noted, and I quote,

‘‘Fundamentally, the United States as a trustee for the Indians preserve the title to the right to the use of water which the Indians

had reserved for themselves.’’ This is a very important court determination that was followed by other court determinations that reaffirmed that basic and fundamental concept.

The Corps of Engineers cannot ignore the clear and indisputable

fact that the tribes have a legal right to water in the basin. It is

a right that has existed for more than 100 years when the tribes

signed treaties with the United States, and a right that was reaffirmed by the U.S. Supreme Court 95 years ago. Those rights

were never forfeited and never extinguished.

For 14 years, the corps has been working to revise the Missouri

River Master Water Control Manual. I was deeply involved in the

initial impulse to revise the manual, putting pressure on the Corps

of Engineers, holding up the appointment of the civilian head of

the Corps of Engineers for many months, to get agreement to revise the Master Manual. I must say to you, never in my wildest

imagination, never, would I have thought 14 years later we still do

not have it. This is not a good moment for the Corps of Engineers.

It is not a good moment for the functioning of the Federal Government. To take 14 years to revise the manual is just way beyond the

pale. None of us can seriously say that this is acceptable performance.

Professor John Davidson has summarized the importance of the

Master Manual revisions on the tribes, and I quote, ‘‘The final

Master Manual may lock in the status of specific river uses with

a firmness that is every bit as solid as many Supreme Court equitable apportionments,’’ and based on what we have seen, certainly

as long-lasting. The corps has previously stated that an estimated
3

withdrawal of an additional 7.2 million acre feet of water would

prevent it from meeting the current functions along the river, yet

the corps has not taken any measurable steps to plan for the use

of water by the basin tribes. I think in fairness, other than those

who have quantified their water rights, that that statement is correct.

Instead, the corps only recognizes those water rights that have

been quantified. Unfortunately, only three tribes out of 30 in the

basin have quantified water rights, with one tribal settlement

awaiting congressional approval. In my judgment, the corps cannot

selectively ignore the water rights of the other 26 tribes in the

basin. Doing so would be irresponsible and an abrogation of its

management responsibilities. Beyond that, it would be an absolute

failure of the trust responsibility that the Federal Government has

with those tribes.

The tribes fear, and rightly so, that the corps continues to make

commitments to downstream users without regard to their rights,

creating a situation that will make it impossible for them to access

water for present and future uses.

I look forward to hearing the testimony of the corps on what

steps they have and will be taking to address this important issue

in the Master Manual revisions. Before we begin with today’s witnesses, I want to remind everyone that the hearing record will remain open for 2 weeks for those who would like to submit written

testimony. So just as a reminder, the record will remain open for

2 weeks. The committee has received written testimony already

from the Mni Sose Intertribal Water Rights Coalition, which has

worked to unite tribes in the basin, and the President of the Rosebud Sioux Tribe, that will be included in the record.

With that, I want to call to the witness table, and let me just indicate for the record that Senator Daschle intends to be here to testify. Senator Johnson is already here. I would ask Senator Johnson

to make whatever statement he would like to make at this point.

While he is doing that, I would ask George Dunlop, the deputy assistant secretary of the Army, to come forward to the witness table

and to be joined by Brigadier General William Grisoli, the Commander of the Northwestern Division of the Corps of Engineers.

Senator Johnson, welcome.

STATEMENT OF HON. TIM JOHNSON, U.S. SENATOR FROM

SOUTH DAKOTA

Senator JOHNSON. Thank you, Senator Conrad, for chairing this

hearing and for your excellent remarks this morning. I am pleased

that my senior colleague, Senator Daschle, will be joining us. He

has played a very active role in Missouri River and Native American concerns. His input and leadership is essential and I am glad

that he is involved in this hearing as well.

There are a lot of individuals who traveled far for this hearing

this morning. I want to take particular time to welcome Oglala

Sioux President John Yellow Bird Steele. President Steele’s presence reminds us that the tribes with an interest in the Missouri

River are not just tribes who happen to have an immediate site located on the river, but that our tribes in South Dakota have treaty
4

rights involving Missouri River water, whether they are a few

miles from the river or whether they are on the river.

Standing Rock council member Mike Claymore, welcome. Standing Rock administrative officer Cynthia Moore and Standing Rock

BLM director Everett Iron Eyes is here. Additionally, we have several representatives from the Rosebud Tribe, as well as representatives from Mni Sose Intertribal Water Rights Coalition, including

Executive Director Elwood Corbine. I want to thank them for their

written testimony.

Mr. Chairman, we are also accepting testimony from Chairman

Mike Jandreau of the Lower Brule Tribe in South Dakota. I appreciate their important insights on this critically important matter.

I would like to welcome George Dunlop and General Grisoli to

the Committee on Indian Affairs. When I last met with General

Grisoli, he was a colonel. Congratulations on your promotion and

your new position as Commander of the Northwestern Division of

the U.S. Army Corps of Engineers. Truly, this is a daunting task,

but I know that you will listen and consider carefully the tribal

concerns that will be articulated so well here today.

Binding together all of us who care about the future of the Missouri River to a common principle of stewardship and balance is

critical to the sustainability of the river. To accomplish that shared

goal, earlier this year Senator Dorgan and I introduced legislation

to establish a long-term river monitoring program directed at the

incredibly diverse Missouri River ecosystem. The legislation will leverage the expertise of the Missouri River Basin States and the expertise of our Indian tribes to monitor the environmental conditions of the river. We fully understand the negative impacts on

wildlife, river species, cropland and cultural resources from the

construction of the Pick Sloan dams.

What is less understood and therefore urgently needed is a

framework for comprehensively examining the success of recovering

wildlife and returning portions of the river to a more natural state.

The tribes located along the Missouri River and all tribes within

the Missouri River Basin, have a keen and undeniably strong understanding that future management decisions not further degrade

the river. I envision this bill as binding together tribes, local stakeholders, the States and wildlife experts to give us a complete picture of how we can improve and enhance the Missouri River’s diverse ecosystem.

After 14 years of indecision and inaction, I greet with frankly

some skepticism the recent pronouncements and promises of millions of dollars in Federal funds to rehabilitate and restore river

bottomlands. A monitoring program is needed to give all river

users an ability to hold accountable the corps’ newfound commitment to restoring the health of one of America’s longest rivers.

I look forward to the testimony today. I will be submitting questions for the record in expectation of written responses.

Thank you, Mr. Chairman.

Senator CONRAD. Thank you, Senator Johnson, and thank you for

the leadership that you have shown on this issue and so many others that affect Indian country. We thank you for your very active

involvement on this committee as well.
5

With that, we want to again welcome our first panel, George

Dunlop, the deputy assistant secretary of the Army for Civil Works,

who is accompanied by Chip Smith, the assistant for regulatory affairs, Tribal Affairs and the Environment, the Office of the Assistant Secretary, and Brigadier General William Grisoli, the Commander, Northwestern Division, the Corps of Engineers.

I took with interest the statement of Senator Johnson that when

he first met you, you were a colonel. We hope that you do not return to that status after the hearing today. [Laughter.]

Senator CONRAD. That is a joke. [Laughter.]

Senator CONRAD. Welcome, Mr. Dunlop. Please proceed with your

testimony.

STATEMENT OF GEORGE DUNLOP, DEPUTY ASSISTANT SECRETARY OF THE ARMY, CIVIL WORKS, ACCOMPANIED BY

CHIP SMITH, ASSISTANT FOR REGULATORY AFFAIRS, TRIBAL AFFAIRS, AND ENVIRONMENT, OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY, CIVIL WORKS

Mr. DUNLOP. Thank you, sir. General Grisoli might deserve the

Silver Star after this hearing. [Laughter.]

Thank you, Mr. Chairman, and good morning to all of you here

and to your other guests. As you have indicated, my name is

George Dunlop and I serve as deputy assistant secretary of the

Army for Civil Works, and have a responsibility to exercise policy

direction and oversight for the civil works activities of the Army

Corps of Engineers.

As you also indicated, I am accompanied by Chip Smith, who is

an assistant in the Office of the Assistant Secretary. Chip has been

instrumental in assuring that the Department of the Army appropriately considers the interests of Native Americans in all the work

that we do, and particularly in the matters that are of interest to

this committee today, as you have articulated them.

Of course, General Grisoli is the Commander of the Northwestern Division, and ultimately is the chief officer responsible for executing and carrying out the laws that the Congress has provided

for in these matters.

General Grisoli and I would request that our formal prepared

testimony be submitted for the record, and we will both summarize

our remarks today, our joint testimony.

Senator CONRAD. We are happy to make your full statements

part of the record, and we are pleased to have you summarize.

Mr. DUNLOP. Thank you, Mr. Chairman.

Before I do summarize, however, I wonder if I could attend to

one other ministerial duty. When I last appeared before your committee here, Senator Inouye made a request of the Army. He said:

Would you all consider appointing a single professional person to be the tribal liaison for the headquarters of the Corps of Engineers in Washington?

I want to report to you, Mr. Chairman, that we did that, and in

fact about 6 months ago Dr. Georgeanne Reynolds assumed her position as tribal liaison in the Office of Tribal Affairs at the headquarters USACE. If I could, I would like to introduce Dr. Reynolds

to the committee and to your other guests.

Senator CONRAD. Very well. We are pleased to have that bit of

business conducted here today, and we very much welcome Dr.
6

Georgeanne Reynolds. We look forward to working with you, and

I am delighted that you have made this decision.

Let me say this. Senator Dorgan has joined us now. I am advised

that Senator Daschle will be here in about 5 minutes. I would just

ask the indulgence of the panel, and turn to Senator Dorgan for

any comments that he might want to make, and then Senator

Daschle may very well be here. As you know, the protocol before

any committee is to recognize members. Certainly the Democratic

leader would be recognized upon his arrival here, and then we

would proceed with your testimony.

STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM

NORTH DAKOTA

Senator DORGAN. Mr. Chairman, thank you very much. I regret

I was delayed because of other committee work. Let me just be

mercifully brief here. I know that you have probably given a statement and captured all of the relevant issues. The issue of the Missouri River Master Manual and its impact on tribal water rights

is a really important issue.

Water policy is controversial and it is controversial because of its

importance. I think this is a critically important hearing to hold at

this time, because of where the Corps of Engineers is with respect

to the rewrite of the Master Manual. They are now under court

order to finish that by March of next year, after only 12.5 years.

We will see how well the Federal court does. I know how well the

Congress has done persuading the court to finish the project, but

we will see how well the Federal court does in enforcing this deadline. My hope is that this gets finished and that when it is finished

we have a Master Manual rewrite that addresses all of the issues

in an appropriate way, and that includes especially the impact on

tribal water rights.

So Mr. Chairman, thank you for chairing this hearing.

Senator CONRAD. Thank you, Senator Dorgan.

Why don’t we proceed, Mr. Dunlop, with your testimony?

Mr. DUNLOP. And when Senator Daschle arrives, we will withhold.

Senator CONRAD. If you are close to the end, we will continue.

If not, we will break.

Mr. DUNLOP. I will be brief also, because I am summarizing my

remarks.

Mr. Chairman and other members of the committee, as you all

know the Missouri River Master Manual, we call it the Water Control Manual, is the guide that is used by the corps to operate the

mainstem of the Missouri River. The first Master Manual was published in 1960. It was revised again in 1975 and 1979, principally

to address some flood control issues. Then in 1989, as you all have

alluded to, about 14 years ago, going on 15 years, the corps began

attempts at further revision to update the Master Manual to accommodate the Missouri River Basin needs and to assure compliance with all of the laws and statutes, including especially the Endangered Species Act, which had come to have an impact in the

way the river was operated.

As part of that process, revised a draft environmental impact

statement was completed in August 2002. As you know, that EIS
7

process is thoroughly transparent and involves an extensive series

of public hearings, meetings, workshops with all of those people

and individuals and interests that have a stake in the operation of

the river. And especially, Mr. Chairman, the public consultation

process included extensive tribal consultations, hearings, workshops, informational meetings, and tribal summits. Indeed, a tribal

summit to consider the new draft biological assessment that the

corps is soon to deliver to the Fish and Wildlife Service will be held

on October 31 in Rapid City, SD.

Since 1999, in this current cycle of trying to revise the Master

Manual, there have been 30 such tribal meetings, the list of which

we have incorporated into our formal testimony. Of course, there

have been scores of other informal meetings. These tribal meetings

affirm the commitment made by President Bush in his November

12, 2001 proclamation attesting to the sovereignty of the tribal governments, and also in accordance with the chief of engineers’ Policy

Guidance Letter Number 57, which affirms and acknowledges the

same and mandates that consultation with tribes prior to this kind

of decisionmaking that pertains to the Missouri River Master Manual.

The Army and the corps are committed to fulfill our legal responsibilities to the tribes, and will continue to consult with the tribes

and with tribal leaders, as they are the duly elected representatives of tribal people in their sovereign capacity with inherent

rights to self-government.

We will do this as we complete the entire process for the revision

of the Master Manual. I would underscore what all of you have

said about the intention of all the parties involved to arrive at a

new Master Manual and to do so by the first of March.

I think it is significant or important perhaps at this point to emphasize that there are several principles that guide this work that

we are doing to complete this Master Manual. One, of course, is to

carry out the enactments of Congress, the authorized purposes

which are provided for in law for the operation of the river; to especially focus on the environmental laws that we are obliged and

eager to enforce, including the Endangered Species Act. But also

and especially important is the fundamental obligation that we

have to do so in consideration of the treaties and the trust responsibilities that are laid forth, and for which we will faithfully carry

out and fulfill.

As you know, currently the corps and the Fish and Wildlife Service are in consultations that will inform a final environmental impact statement, and will in turn lead to a final record of decision

for a new Master Manual by March.

In addition to the water flow regimes and the balancing of the

entire range of issues for which the Master Manual is the guide,

the corps is also directing and developing what is called a programmatic agreement with the Missouri River Basin tribes. It is

my understanding that there are about 30 tribes involved in this,

including about 15 of the reservations that are immediately adjacent to the river and to the lakes. They are working this programmatic agreement between the tribes and the Advisory Council

on Historic Preservation to facilitate the compliance with the new
8

Master Manual and section 106 of the National Historic Preservation Act.

Mr. Chairman, this concludes my summary statement. Mr.

Smith and I, of course, will be pleased to respond to any of your

questions. But first, if it pleases the committee, Brigadier General

Grisoli will now address how tribal reserved water rights are accommodated in our Missouri River Basin.

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

Senator CONRAD. All right. General Grisoli, welcome and please

proceed.

STATEMENT OF BRIGADIER GENERAL WILLIAM T. GRISOLI,

U.S. ARMY, COMMANDER, NORTHWESTERN DIVISION, U.S.

ARMY CORPS OF ENGINEERS

Mr. GRISOLI. Thank you. Mr. Chairman and members of the committee, good morning. As Commander of the Northwest Division of

the Corps of Engineers, I am pleased to be here today to discuss

our efforts in updating the Missouri River Master Manual, while

ensuring our trust and treaty obligations to federally recognized

tribes are met.

When the lands were set aside for Indian reservations, whether

by treaty, legislation or Executive order, water rights were often

not implicitly defined. The courts have long recognized, however,

that such reservation of land also reserves by implication unappropriated water related to the land in order to accomplish the purposes of the reservation.

This doctrine of implied reservation of water rights was first articulated in the Supreme Court decision, Winters v. United States.

The court found that an 1888 agreement and a statute which created the Fort Belknap Reservation in North-Central Montana explicitly reserved to the tribe water from the Milk River for irrigation purposes. The nature and extent of these water rights vary

based upon the particular Indian reservation, with the objective of

making the reservation a livable permanent homeland.

Tribal water rights may be quantified through adjudication, a

congressionally ratified tribal-State compact, or by direct congressional action. Most tribes within the Missouri River basin, however,

have not yet sought to quantify their reserved water rights under

the Winters doctrine, although several tribes in Montana and Wyoming are at various stages of the quantification process. The corps

does not have the responsibility to define, regulate or quantify

water rights or any other rights that the tribes are entitled to by

law or treaty. The corps does not attempt to do so within the current revision of the current Master Manual, although the revision

provides some flexibility to accommodate potential changes in

water regimes.

The current Master Manual recognizes that streamflow use on

the Missouri River is not static, and addresses changes in its use

accordingly. For example, when a tribe exercises and establishes

water rights through a diversion of water from the mainstem reservoir system for consumption uses, then such diversions are treated as an existing depletion. In this way, the corps incorporates that

depletion into its analysis of the overall system depletions. By incorporating such information into its estimates of future depletions,
9

the corps can anticipate the manner in which depletions of water

will affect the overall system, and plan for the amount of water

that will be available to move through the system to meet the various project purposes, while complying with applicable law.

The revised Master Manual will likewise incorporate such

present and future depletions into its analysis of systems operations. Specifically, the revised Master Manual will be flexible

under its adaptive management provisions to account for consumptive of use of the tribes at such time that their rights are quantified and finally established.

Finally, I would like to emphasize that the corps fully recognizes

the principles of tribal sovereignty and the Federal Government’s

trust responsibility to the tribes. The corps will continue to engage

in government-to-government consultation in order to take into account the quantified water rights of the tribes in the operation of

the mainstem reservoir system.

We appreciate the opportunity to participate in this hearing and

look forward to hearing the testimony from the tribal leaders and

any ideas they may have regarding the Master Manual revision effort, especially in regard to the overall consultation process and our

consideration of tribal water rights, which the Army takes very seriously.

Mr. Chairman, this concludes my testimony. We are pleased to

answer any questions you or members of the committee may have.

[Prepared statement of General Grisoli appears in appendix.]

Senator CONRAD. Thank you both for your testimony.

Let me go first to the so-called Winters Doctrine. I would like to

ask the two of you, either one of whom can answer, what do you

take to be the message of the Winters Doctrine?

Mr. GRISOLI. The message of the Winters Doctrine is that we

have an obligation to ensure that tribal reservations have water

rights from a given source, in this particular case, the Missouri. So

when you take a look at that, we, the Federal Government, have

trust responsibilities for tribal reservations. So we take this very

seriously, to make sure that whatever document we have includes

that particular doctrine.

Senator CONRAD. Let me ask you this. I have noticed that Senator Daschle has arrived. We will go to him immediately. Let me

just follow-up on your answer so that the record is complete before

we go to Senator Daschle.

As I understand it, in the Winters decision, which is a Supreme

Court decision in 1908, it stated that when the Indian tribes reserved rights to land, the tribes similarly reserved the right to use

an amount of water needed to survive and prosper. Is that your understanding?

Mr. GRISOLI. Yes, sir; that is.

Senator CONRAD. All right. Just to give you a heads up, the next

question I am going to go to is the question of the case of Arizona

v. California, and what finding was there. What message did that

send us as to Federal policy? Just so you have a heads up on where

I am going with my next question.

With that, the Democratic leader has arrived. We welcome Senator Daschle, who is such an important member of this committee.

Senator Daschle?
10

STATEMENT OF HON. TOM DASCHLE, U.S. SENATOR FROM

SOUTH DAKOTA

Senator DASCHLE. Mr. Chairman, thank you for holding this

hearing, and thank you for your interest in this important issue.

I want to especially thank my dear friend and colleague from South

Dakota for all of the work that he has put into the question of the

problems associated with the management of the Missouri River

over the many years. No one has put greater leadership into this

effort than the three members of the committee that are currently

here. I acknowledge that and thank them for that commitment and

for their leadership.

I have a written statement that I will ask unanimous consent

that the full statement be submitted as part of the record, Mr.

Chairman.

Senator CONRAD. Without objection.

Senator DASCHLE. I wanted to come by and just emphasize how

critical I believe this issue is. Unfortunately, I believe the Corps of

Engineers’ management of the Missouri River has been nothing

short of abysmal. I don’t know that anybody has felt the brunt of

that mismanagement more routinely and more dramatically than

the reservations that border the river. It is absolutely essential

that we fix the Master Manual, that we revise it this year, and

that we do it in a way that accommodates the needs and concerns

of our Indian people.

I would argue that no one in the country has probably sacrificed

more on the Missouri River than South Dakota’s Indian tribes sacrificed in terms of sacred sites, sacrificed in terms of the economic

loss, sacrificed in terms of the cultural repercussions of what happened when we built the dams. The acknowledgement of that sacrifice has yet to be made in full. We have begun to build a water

system that will serve their needs, and I think that is one small

way of beginning to address the extraordinary impact that these

dams have had.

I must say, we have a moral and a legal obligation to consult and

to work more closely with the tribes. A government-to-government

responsibility acknowledges in large measure that those governments have every bit as much right to be at the table as any State

or as anybody in the Federal Government. So I know that this

hearing acknowledges that realization and again I thank the Chair

for making it the priority that I know it is for him.

We have an opportunity here to address these concerns and these

needs in the Master Manual, but the only way that is going to happen is if every tribe, every leader is at the table in a way that allows full participation and an airing of these views, and a commitment made by the corps to change their approach and to recognize

how important their role can be.

Again, I thank you for giving me the chance to interrupt the testimony and I appreciate very much the chance to be heard this

morning.

[Prepared statement of Senator Daschle appears in appendix.]

Senator CONRAD. We especially thank you, Senator Daschle, for

coming here and addressing this hearing and sending such a clear

message. I think you would not be surprised to find out that the

statements of the three of us preceding yours were very closely in
11

alignment with what you have said and the conclusions you have

reached. I think really it is impossible to defend the performance

thus far of the corps with respect to management of the river. We

understand they are under all kinds of cross-pressures. There are

downstream States that have a different take on this.

But look, I really do think this is fundamental. We go to the

question I asked to begin with with respect to the Winters decision,

the so-called Winters Doctrine, going back to a Supreme Court decision in 1908. I think that said very, very clearly that water rights

are reserved along with rights to the land.

Then, if I could follow up with Mr. Dunlop and General Grisoli,

in the Arizona v. California decision, what is your understanding

of what it said on the question of Indian water rights? This is some

60 years after the Winters decision.

Mr. DUNLOP. Mr. Chairman, I have consulted with my colleagues

here at the table and none of us are familiar with that case. I have

also consulted with Martin Cohen who is from the Office of General

Counsel at the Corps of Engineers, the litigation branch, and he

advises that this is a complicated case that we would ask that we

could provide some written response to you, to give you an analysis

of our understanding about that for the record.

In the meantime, though, we would be very interested in being

informed about your take on it and your understandings from it.

Senator CONRAD. Let me just say to you, I believe this is an important case. I will welcome your written response. I believe what

it said was that the court recognized that the reserved right

amounted to the water necessary to satisfy the future, as well as

the present needs of the Indian reservations. It went beyond that

and said that enough water was reserved to irrigate all of the practicably irrigable acreage on the reservation.

Now, that is a standard often referred to as the PIA standard,

practicably irrigable acreage, and that has become a standard for

reserved water rights throughout the West.

Now, that takes us to the next question, and that is, in your testimony you said that the corps recognizes the tribes have claims to

reserved water rights and will to the extent permissible by law continue to operate the mainstream reservoir system in a way that

does not preclude such claims. You say the tribes have claimed to

reserved water rights, and the corps will, to the extent permissible

by law. Can you identify any existing law that in your view requires the corps to manage this system in a manner that would

preclude tribes’ claims to reserve water rights?

Mr. DUNLOP. I think each of us might want to take a stab at

that, and of course we could elaborate further after we have a

chance to give due consideration later. But I think that from the

perspective that I would bring to that is that our obligation, the

first principle that the corps has, that the Army has when the operation of the river is taken into consideration is to faithfully execute

all the laws and statutes. As you indicated in your comments, this

creates a circumstance for the corps which is in some ways just almost impossible because there are conflicting interests and uses

and statutes that require us to balance all these different laws and

statutes, as the Manual is prepared and the river is operated.
12

That is why when General Grisoli was discussing these matters,

he talked about the importance of adaptive management as circumstances change. Within the guidelines of the Manual, we have

to adapt to that. I think more specifically even, when we are talking about these reserved rights as you have been discussing, as

General Grisoli said in his remarks, in his summary, he said the

corps does not have the responsibility to define, regulate, or quantify water rights. Actually, it goes beyond that. They don’t have the

authority.

So I think that the thrust of the testimony that we have presented today is that once the three methods that may be used to

arrive at particular quantifiable rights, that is adjudication or by

congressional action, when those circumstances then occur, then

yes, the corps will be obliged to operate the flow regimes consistent

with those formally adopted under the rule of law for water rights.

That is the philosophy that we maintain in regard to all aspects

of operation of the river, that we must faithfully execute the laws

that Congress has enacted or its subordinate agreements such as

these compacts and adjudications.

General would you care to elaborate?

Senator CONRAD. Let me followup with you, if I could, before we

go to General Grisoli, because I want to give him a chance as well,

but I do not want to lose the opportunity to discuss, when you say

you don’t think the corps has the authority, who does have the authority?

Mr. DUNLOP. As General Grisoli testified, there are these three

methods, as I understand it, and my understanding may not be

perfect on this. I can be better informed, perhaps. But my understanding is that when these water rights are then quantified, that

is the operative term, and that there are three ways that tribal entities can have their water rights quantified, and therefore become

operative in the way that the corps would write and operate the

Master Manual: Through adjudication, through a compact with the

States; or by direct congressional action. Once any one of those or

any combination of those result in a quantified water right, then

that water right would have to be respected. It would take on, I

presume, the force of law.

Senator CONRAD. Can I just say this to you, I think that is too

narrow a view of the responsibility of the corps. When I look at

what you have done here, it appears to me that you have really not

done much of anything to protect rights that the U.S. Supreme

Court has said are reserved to the tribes, number one; number two,

in the follow-up case of Arizona v. California that we discussed,

that they went further in defining what is the reserved right, and

that that reserve right includes all practicably irrigable acreage,

that gets to be I think a pretty clear signal to us from the United

States Supreme Court as to a responsibility that the corps has or

anybody else representing the Federal Government in determining

what is being reserved.

So when you go through a master manual revision, it would seem

to me you have some obligation to go out and try to define what

has been reserved based on previous Supreme Court holdings. I do

not think it is adequate. The Supreme Court did not say, this is

based on what is quantified. It did not say that. They said the
13

tribes have reserved the right to this water, and then they followed

up in the Arizona v. California and they said when you determine

what is reserved, it is a broad definition. It is a broad definition.

The fact is, tribes that have not quantified, only three have, you

have a fourth on the cusp, out of 30, but all these tribes are using

water, are they not? Have you done an assessment of how much

water they are using now? Is that any part of this Master Manual

review?

Mr. GRISOLI. Yes; we have. And what we have done, Mr. Chairman, we have looked at the larger number also in our analysis, but

it is not something that is quantified in the Master Manual at this

time.

Senator CONRAD. So it is not quantified in the Master Manual.

Well, that is one part of the problem. Look, if you have gone out

and done an analysis of how much water is being used, not only

by those who have quantified, but also those who have consumptive

uses of water, whether it is for household use, commercial use, irrigation, those are, it would seem to me, very clearly things that the

previous Supreme Court decisions would have reserved. Would you

agree with that or disagree with that?

Mr. GRISOLI. Mr. Chairman, the water that is depleted from the

system is acknowledged and is calculated. It is the water that has

not been depleted from the system that we have not added to the

master manual. If I may, the Master Manual is a guide for the operation of the river, and every year the water flow changes, the

amount of water in the system changes. That is why you have to

have an annual operating plan. So you have to have this basic

plan, but every year it changes. So when you take a look at the

water in and the water out, you have to adjust each year as you

manage it, whether it is a flood year, a normal year, or drought

year.

So when we look at the water rights, we recognize those water

rights and we clearly indicate in the Master Manual that those

rights are there and that as they are quantified and depletions are

withdrawn, we have to modify how we operate the river.

I like to look at three critical things that I always look at. First,

are the authorized purposes, authorized by Congress. Second, I

have to comply with environmental laws. And third, I have trust

and treaty obligations to the Native Americans. So I really look at

three critical things.

The water that they have is in the system. There is not going to

be any more water in the system. So if x number is quantified, that

water will be withdrawn from the system and we will have to balance those with the other two to make sure I comply with all Federal laws.

Senator CONRAD. Let me just say to you, that is what raises a

lot of concern, concern by tribes, concern by members, because the

way you define it to me is too cramped, too narrow a view of the

responsibility. You said in your testimony, and I will turn to colleagues after this question. You state in your testimony, the corps,

and Mr. Dunlop you repeated this, does not have the responsibility

to define, regulate or quantify water rights or any other rights that

the tribes are entitled to by law or treaty.
14

Let me just ask you this, is it your position that the corps in developing a Master Manual need not give any consideration to the

existence or magnitude of tribal reserved water rights or to the fact

that the existence of those rights may at some future point result

in increased on-reservation use of water that would reduce the

availability of water to downstream users?

Mr. GRISOLI. I would like to say that the key, Mr. Chairman, is

that we recognize their water rights in the document. We also are

willing to, and we do work with the tribes and will provide technical assistance to help quantify those water rights, and we do, as

I mentioned before, in our overall analysis, we run models. We do

take a look at depletions that could be taken from what is already

being depleted or possible future depletions from the river itself,

the mainstream itself. So we do look at that to see possible outcomes that might happen.

Senator CONRAD. What would happen if in the future the tribes

collectively had claims totaling 10 million acre-feet of water? What

would that do to your overall plan?

Mr. GRISOLI. I would offer, Mr. Chairman, as I said before, every

year the amount of water changes. In a normal runoff year, you

have 25 million acre-feet to runoff. That is a significant chunk of

water to come out of that 25 million. It would alter the way we

would have to manage. So we would have to take a look at that.

Senator CONRAD. But isn’t that the point? You are not doing it

now in this Master Manual as I understand it. You do not have

that water reserved. You have what is in the system, other than

those water rights that have been quantified by the three tribes.

You do not really have anything reserved for the Indians for the

future.

Mr. GRISOLI. As I mentioned, Mr. Chairman, we operate the river

yearly. If the water is not being taken out of the system at this

time, for us to reserve that water and to impact all of the other

congressionally authorized purposes and the environmental impact,

is probably not a wise way to run the river at this time. What you

want to do as depletions come on, then you have to make those adjustments.

Senator CONRAD. Adjustments.

General GRISOLI. Trying to speculate how we are going to have

to manage the other authorized purposes, given x number when it

is not being withdrawn, is not practical.

Senator CONRAD. I understand exactly what you are saying and

there is a logic to it. But do you see that the problem that this logic

could lead to? That is, in the future, as commitments are made

downstream, a right of the tribes upstream is compromised. In

other words, unless you do an analysis now that says, gee, this is

potential future water needs and that has to be taken into account

as make commitments downstream. You may well find yourselves

in a circumstance in the future in which so many commitments are

made downstream, you cannot keep the fundamental commitment

outlined by the U.S. Supreme Court to the tribes upstream.

As I see it, that is the nub of this problem. I know it presents

you with an extraordinarily difficult task, but as I look at what you

have done here, I see almost nothing that has been done. My un-
15

derstanding is that in the environmental section here, there is a

half-page devoted to the Indian water rights issue.

Mr. GRISOLI. Mr. Chairman, I would have to go back and look

at the exact number, but I believe there is a lot more than that.

We have an appendix that talks about water rights on half of a

page, but then when you look at the whole picture of the tribal

issues, et cetera, there are several pages that try to outline the impacts of the operation of the river.

Senator CONRAD. Quite apart from the number of pages, I think

you and I both agree that is not the issue. The issue is, does this

document faithfully reflect the commitments made by the Federal

Government, both in terms of treaties written by this government

and by court interpretations, the U.S. Supreme Court interpretations.

Let me turn to Senator Johnson, who was here first, for any

questions that he might have.

Senator JOHNSON. No; I do not have any questions at this point.

We may submit some to the corps, but I am pleased that they are

now, after not having any meetings with the tribes this year, now

do have one planned for this month. I do urge the corps to make

an extra effort to be closely consultative with the tribes relative to

revamping the Manual. That is my only concern at this point.

Senator CONRAD. Senator Dorgan.

Senator DORGAN. Mr. Chairman, thank you very much. The testimony from the Corps of Engineers is interesting. I understand your

point about how you interpret existing law and court decisions and

your responsibilities. You, I think, understand our concern about

the rewrite of a Master Manual that is long overdue. We feel that

when that rewrite is complete, it ought to respond to all of the interests and needs and responsibilities.

The failure to include provisions that would recognize existing

rights, obligations and existing treaties with respect to Indian

tribes would be a remarkable failure. That, it seems to me, must

be a part of this.

Let me ask this question. We recognize that lands were taken

from Indian tribes and from individual Indians in pursuit of the

Pick Sloan Plan and the development of the reservoir system and

the series of dams. Do you not recognize that? The land has been

taken from Indian tribes. So as a result of that, did the Federal

Government ensure benefits to those tribes? If so, what are those

benefits and have the tribes received those benefits? Have the obligations that were caused by the Federal Government and inherited

by the Federal Government as a result of taking these lands been

met? Tell me your impression of that, Mr. Dunlop, if you would.

Mr. DUNLOP. Yes, sir; I think so. What I would like to do, just

so that I am comprehensive and don’t leave any particular matter

out that would be obvious that I had missed it, and therefore somebody would think we were establishing policy if we could respond

to that in a formal way, with a written response.

But yes, sir, I think that virtually everything that you have said,

and in fact what the other members and the leader have said, we

could concur with in the philosophy and the approach. We have

these obligations and responsibilities under the treaties and trust

responsibilities. We believe that in fact the path that the corps is
16

on in its consultations with the other parties, including the public

and the Fish and Wildlife Service, all the activities underway to

bring about the conclusion of a new Master Manual do incorporate

the concerns that you have expressed here, and do make provision

for circumstances that might change such as quantified water

rights come along.

It might be an overstatement to say this, but I think it picks up

the general theme of it, is what Senator Conrad mentioned:

Well, what if the tribes and the people there were to exercise their rights under

the Winters Doctrine and use the water to which they have senior right to the tune

of 10 million acre-feet?

Well, what if they took 25 million and used it for these purposes

that were provided for in treaty and other things?

Well, then there would be no water left. They have drained it

dry. Ultimately, my understanding, which may not be complete, of

the Western water law, the Winters Doctrine and things like that,

is based upon seniority. It is my understanding that the tribal

rights are among the most senior in the country.

So therefore, everything that we do has to take that into account.

So ultimately if those consumptive uses obtained and they are

quantified and they use those, then the operation of the river will

have to accommodate to that.

Senator DORGAN. You are saying that the Master Manual will

address that?

Mr. DUNLOP. It provides the procedure, yes. It is my understanding that it takes into consideration the fact that if senior consumptive uses are utilized under the quantified rules that are obtained

through these three ways that we described, that they would have

to be taken into account.

Senator DORGAN. And if this process is consultative, then are the

tribes satisfied that the consultations have addressed the issues?

Mr. DUNLOP. Sir, of course, the tribes would have to address

that.

Senator DORGAN. What is your impression of where you are with

the consultative process?

Mr. DUNLOP. Well, I am very pleased at the enormous amount

of effort that the corps has made. It has been our policy not only

in this Administration, but in the previous one, that the corps and

other agencies engage in a robust way with the tribes and their

elected representatives. The 30 meetings that I mentioned in my

testimony, plus scores of other informal meetings, I think are evidence of the fact that we are trying to be faithful to that.

Senator DORGAN. But my question was not whether you are trying to be faithful. My question is where do you think you are with

respect to the consultative process. For example, testimony that we

will receive from the tribes, among others, says, and I will quote

from part of one testimony from the Oglala Sioux Tribe, the region’s largest tribe, that they will suffers severe harm as the result

of the Corps of Engineers’ Master Manual review and update process. And they go on to explain why.

My point is that if tribes have seniority rights here with respect

to the consumptive use of water, and you are rewriting a Master

Manual you rewrite should reflect that. As you know, the tribes

were here long before the Corps of Engineers ever designed a uni-
17

form. They actually lived on the river long before anybody that represented your forbears even thought of being here.

Mr. DUNLOP. And long before the Congress authorized and directed and appropriated the funds that executed all this.

Senator DORGAN. That is true. So the tribes feel some claim here,

and we have a process of harnessing the Missouri River and creating dams. We took their land. We have obligations to them, and

you say that in the rewrite of the Master Manual there is a consultative process. I ask you, how is it going, and you say, well, you

think the corps is trying hard. My point it, we are having testimony today from the tribes who say that they fear that this is

going to cause severe harm. So clearly the consultative process is

not working from the standpoint of the tribes. Would you agree

with that?

Mr. DUNLOP. No, sir; I really could not associate with that, because I do believe that it is working. Ultimately, I guess it gets

down to what is the definition of ‘‘consultation.’’ In so much of what

we do, we have had to focus that coming to consensus does not always mean unanimity. It means that people are willing to engage

and make trade-offs. As long as they are consulted and involved in

a substantive and a sincere way that does in a demonstrated way

take into consideration people’s earnestly held thinking, to measure

its success, if any party does not obtain exactly what they want

that it is a failure, well, then that is not a fair representation.

Senator DORGAN. But Mr. Dunlop, there is a difference between

not obtaining exactly what you want and alleging severe harm

from a process.

Let me just ask the question: You say that the corps recognizes

that the Feds have obligations to the tribes, but then you also say

that those obligations are recognized only if those obligations are

quantified; Only at the point that they are quantified are you

forced or required to adjust the management of the river itself or

the river system. I do not understand. I think that is a discrepancy.

Either you recognize obligations or you don’t. There is either an obligation or there isn’t. You recognize it or you don’t. It is hard for

me to understand that you are going to create a system to manage

the river that you say will ignore potential senior consumptive use

of water by those who have the right to it, but at some point when

they use that water, you will have an accommodation in the Manual to allow that use. For some reason, it sounds like bureaucratic

doubletalk to me.

Mr. DUNLOP. Well, sir, the reason that it is not is what General

Grisoli is addressing. That is that there is no such thing as a fixed

amount of water in that river or in any river in any given year.

Senator DORGAN. But there is some amount of water, not fixed,

but there is some amount of water, right?

Mr. DUNLOP. I would hope so. If we get into a drought of the

1930’s, there might not be any, but right now there is some.

Senator DORGAN. And if we agree on that, you also agree that

some of that water is owed to the tribes for their use. Agreed?

Mr. DUNLOP. Indeed. They have rights under law and treaty to

exercise those. That is the distinction. What I was trying to communicate, and if I am not successful, I apologize, but there is a

clear connection in my mind when one says, we are going to make
18

provision in our guide. We hope this Master Manual lasts another

30 years, for heaven’s sakes. We do not want to have to go through

what we have gone through every cycle, every year, every 15 years.

For a long time, that Master Manual ought to obtain.

So by definition, it has got to be a document that serves as a

guide that can be adaptive to changing in different circumstances.

So when I assert to you that it is my understanding that is the direction in which we are moving, now the General has not decided

yet on this Master Manual. He is the deciding official. He has not

put out his record of decision. All of the input we are having today

is informative to that and very helpful. But ultimately when a

Master Manual is arrived at, it will by definition have to be the

kind of guide, the kind of document that can take into consideration the conundrum you have mentioned.

Senator DORGAN. Okay. But my point it, this should not be a conundrum. It ought to be a certainty. There are obligations and

rights and they ought to be a product of certainty, not a conundrum. How long have you been in your job, Mr. Dunlop?

Mr. DUNLOP. Only about 20 months, Senator.

Senator DORGAN. And you understand the impatience and the

anxiety that we share here on this panel. The same organization—

and it is not you personally but the same organization—that says

12 years ago it is going to rewrite the Master Manual and has not

done so yet, now comes to this table and says we are going to make

provisions for the tribes’ water rights.

The question in our minds is, when might one do that? Twelve

years from now? Twenty-four years from now? If a person is going

to make provisions, it seems to me you deal with certainty. The

certainty is that we have an obligation to the tribes with respect

to the management of the river, and we do not create a new management plan that says, oh by the way, if at some point there is

a withdrawal of water based on rights the tribes have, we will

make provisions for that, but we will not assume that will happen.

That is implausible to me. It is not good planning and it is not

meeting your obligation to the tribes. That obligation is not some

guesstimate. The obligation is in a treaty. It is in the law. And they

come here and they say what you are doing will cause them irreparable harm. Why do they do that? Because they are worried you

are not going to make provisions for their rights. You are just not

going to make provisions.

What you are going to do is you are going to say, well, sometime

later if this happens, we will deal with it. ‘‘Sometime later’’ with

the Corps of Engineers looks to us like a decade, two decades, three

decades. These tribes don’t live in the long term, they live this

month, this week, tomorrow. And they are trying to make do with

this resource which runs right smack through their reservations,

and is an enormous resource for them, but one which if managed

improperly is a significant liability and detriment.

So that is why they are here. That is why you see this anxiety

in their testimony. I was only trying to understand the difference

between your rather positive outlook, and again Mr. Dunlop, this

is not personal. There are others like you who have sat at this

table and had to see the wrath of my colleague Mr. Conrad or mine

or others. We do not like what is going on. It is not right. It is not
19

right for us. It is not right for the tribes, and not right for our

States.

You must, it seems to me, address each part of this in a satisfactory way, and there must be certainty with respect to the rights of

the tribes. If you do not do that, this Master Manual is not going

to work.

Mr. DUNLOP. Yes, sir; I understand and comprehend everything

that you and the other senators and members of the committee

have said. I appreciate all that.

One final thought that I might offer for your consideration, and

again there may be other people who are more informed about

these things who could be more articulate. But it seems to me that

if the corps were to in a Master Manual make an attempt to do

things that it does not have authority to do under law, that is to

quantify anybody’s rights, that we would actually be mitigating

against the interests of people who might have a more rule of law

way, I don’t know how to say that in words, a way that is more

sound and has more legitimacy under the rule of law.

As I indicated, there are three ways that the tribal people can

be assured of quantifying their rights, this adjudication process,

the process of a compact, or an act of Congress. If an agency of the

Government, if people who are civil servants or people who are people like me who are policymakers who pass through our elective

process, attempt to do that in a way that might mitigate against

their right under law to establish and quantify these things, that

might not be the path they really want to go if they considered it.

Because the law and the Constitution and the other corpus of our

law provides these three means to quantify those things, that is

really in our view the best way to protect and defend the tribal

rights to their reserve water.

Senator DORGAN. Mr. Chairman, you have been very generous.

Let me just make one final observation. I would much sooner fight

with the Corps of Engineers, if we have to fight, over the fact that

you did something, rather than over the fact that you do nothing.

Historically for 1 dozen years I have served in the Congress, you

have not moved on the Master Manual.

General, good luck. I would not bet your star on that. I hope that

you meet March as a deadline. I hope the Master Manual includes

the tribal rights. My point is, you explain why things can’t happen.

We are trying to say to you that you must make the right things

happen, as you construct this. Otherwise even if you meet the

March deadline and you do not address this the right way, with all

of the component parts of all the stakeholders, a very significant

one of which is tribes, then you are destined to fail even if you

meet the deadline. That is my point.

Thank you for the time, Mr. Chairman.

Senator CONRAD. Absolutely. Maybe I can go back to this point

and try to leave you with perhaps a firmer understanding of why

some of us are concerned.

General Grisoli, you talked about a stream flow of something like

25 million acre-feet. That is an average. Let me take you to the

next point. Of those tribes that have quantified their rights, and

including the one that is on the cusp of quantifying, how much has
20

been reserved for them? Do you know? How much has been committed?

Mr. GRISOLI. The water is committed as required, all the water.

The water that has been identified and quantified is withdrawn

from the system.

Senator CONRAD. How much is that?

Mr. GRISOLI. I believe it is about 1-million acre-feet.

Senator CONRAD. I am told it is 1.6-million acre-feet, if you take

the three that have quantified, plus the one that is about to have

its interests quantified; 1.6 million. Does that sound about plausible?

Mr. GRISOLI. Yes, sir.

Senator CONRAD. Okay. What if all 30 were quantified on the

same basis of the four that either have been or are about to be?

Do you have any idea how much that would be?

Mr. GRISOLI. I believe it is along the number that you had given

to me before, roughly 10 million acre-feet, around that number, et

cetera. I do not know off the record. I could come back to you on

that.

Senator CONRAD. Okay. Let’s do that.

Based on your current analysis, I am told that you have a 7.2-

million acre-feet cushion to current operations, to meeting all the

commitments that have been made. Is that correct? Is that roughly

correct?

Mr. GRISOLI. It is approximately correct.

Senator CONRAD. Do you see the problem that I see?

Mr. GRISOLI. I see a requirement that will grow possibly over

time. We recognize that again their water is in the system, and

how the water is allocated will have to change each year because

if you have a drought, for example, right now, the water flow is

about 17-million acre-feet. If we go to 17 million acre-feet, there are

no winners on the river. We may have to come back to Congress

to ask for how we are going to answer the authorizes purposes, because every year it changes.

I guess that is why I feel very comfortable with saying that we

have provisions as water requirements grow on the river, which

they will, for not only the tribal reservations, but all the stakeholders, and some of the purposes. As those come in, we have to balance. There are Federal laws that commit a certain amount of

water to the Native Americans. We will meet those. We have to

meet the environmental piece also, and then whatever at that particular point down the road would be to authorized congressional

purposes, that will grow over time.

So if you try to look at it too far out, you get to a point in time

where you really cannot have a great vision. But when you look at

it close-in, and the amount of water being withdrawn, we can manage that, and we can manage anything in the near-term for a long

period of time.

So what I would offer is that as things change, and as one of

those three areas authorized quantifications of water rights, we

then are obligated to be prepared to manage that. Because first of

all, when you do that, you have to be able to withdraw that water.

You have to build structures. You have to prepare. That takes

time. So even after ratification, it is not an automatic withdrawal.
21

That time is what we use in consultation because consultation is

something that is continuous and needs to happen every year. If

it is signed this year, I need to have a tribal summit every year,

not just this year, but every year, and I should do that prior to preparing any annual operating plan. When I do that, I then have to

adjust.

So when we look at the practical management over time, we can

take these changes into effect and then move forward.

Senator CONRAD. You know what it is to have an epiphany? As

you were speaking, I had an epiphany and I realized why we are

having the problem we are having. You sit on that side of the dais

and you are a very good man. I know that. I know something of

your record, absolutely well-intentioned, and speaking from the

heart.

Mr. Dunlop, you are a good man. I can tell that from your testimony. You are being honest as you can be. The tribes are similarly

well-intentioned and well-intended, and they have a totally different view of what is occurring. The epiphany I have had is I understand the difference. You know, where you stand has a lot to

do with where you sit. You are in positions of responsibility for a

relatively brief time. They have been living with this problem for

100 years. Their experience is so different from what you believe

the experience will be. There is the problem.

You know, you think back, in my brief career, I am in my 17th

year in the U.S. Senate, and in the 1980’s we had this terrible

drought. The corps released the increasing amounts of water in the

depths of the drought, dramatically drawing down the reservoir. I

had a hearing in North Dakota. It was one of the most intense

emotional hearings I have ever conducted. People were irate, irate,

because they found out, as I did on the very day of the hearing,

that the corps was increasing their draw-downs of water in the

midst of the worst drought since the 1930’s.

General Grisoli, you say and I know you believe it and you intend it to happen, that this is going to be adjusted. Those are

words that you have used here, that you have to have a living document, one that adjusts, because water flows change, as indeed

they do. The problem is, we started revising the Master Manual 15

years ago.

Now, if I were sitting in your seat testifying then, and somebody

asked me when is this Master Manual review going to be done, I

would have said, and I think I did say to the public, a year or two.

And now here we are 15 years later from when we started the process. I am talking about the entire length of the process.

There is the difference. You know, Indian people are saying to

themselves, my God, wait 1 minute. We have only got 1.6 million

acre-feet quantified. That is only 4 of the 30 tribes. On average,

there is 25 million acre-feet, and in a drought year, 17 million acrefeet, and commitments are going to be made downstream without

their rights being fully and completely quantified. You can see why

they are worried. They see the possibility in the not-too-distant future, although both of you will be gone. I will probably be gone.

And they will be looking around and they will be looking back

at this testimony and they will see General Grisoli saying, with absolute best of intentions, this thing will be adjusted. But they have
22

a sneaking suspicion that it is going to be adjusted against them;

that their full rights will have been compromised by commitments

downstream that did not take into account their needs, based on

only a small number of the tribes having quantified in the ways

that, Mr. Dunlop, you have described.

That, to me, is the gap here in communication and understanding. You have the best of intentions, fully believe that it will happen in a way that is rational and fair. Their experience, unfortunately, is quite different. Their experience is every time they turn

around, they get shorted. I tell you, as a representative of four

tribes, I can tell you it is pretty much my experience. What is wellintended and what really happens are two very different things.

Senator Johnson.

Senator JOHNSON. No.

Senator CONRAD. We will go to the next panel. Thank you very

much, and we will await your written responses to those things

that we identified. General Grisoli, thank you very much for being

here today.

Mr. DUNLOP. Thank you, Senator. This was all very helpful to us

and we are very appreciative for the opportunity to appear before

you.

Senator CONRAD. Thank you very much.

Mr. GRISOLI. Thank you, Senator Conrad.

Senator CONRAD. I want to welcome the second panel, including

John Yellow Bird Steele, the president of Oglala Sioux Tribe, Pine

Ridge, SD; and Michael Claymore, tribal council representative

from Standing Rock Sioux Tribe in Fort Yates, ND.

Mr. Claymore, I hope that you will forgive me if we begin with

our representative from South Dakota. [Laughter.]

Senator CONRAD. Welcome very much. Please proceed with your

testimony.

STATEMENT OF JOHN YELLOW BIRD STEELE, PRESIDENT,

OGLALA SIOUX TRIBE, PINE RIDGE, SD

Mr. STEELE. Thank you, Senator.

Mr. Chairman and members of the committee, as president of the

Oglala-Lakota Tribe, I wish to express my sincere appreciation for

the opportunity to testify before the Senate committee today. I am

here today to testify on the Indian water rights in the Missouri

River basin and the concerns of the Oglala-Lakota people respecting the Master Manual update by the Corps of Engineers.

I would like to apologize, Senator, for President Charlie Murphy

of Standing Rock Sioux Tribe. His mother is dying and he needed

to personally transport her to Oklahoma where she is from.

Senator CONRAD. I understand fully. We have been in communication with Chairman Murphy. Chairman Murphy had asked me

to hold this hearing and he told me of the family emergency that

exists, and we certainly understand. We are glad that Mr. Claymore is here and we appreciate your attendance as well.

Mr. STEELE. Thank you. I would like to especially thank you,

Senator Conrad, for requesting and chairing this meeting and for

your words, sir, and the quotes you put up there in relation to the

operation of the Master Manual. I think you are very knowledgeable about the situation, Senator.
23

I would like to also thank Senators Campbell and Inouye for

their long-time leadership on the Committee on Indian Affairs and

their support for the treaty rights of the Oglala Sioux Tribe. These

are treaty rights, Senator, that the U.S. Supreme Court has said

are to be interpreted as the Indian interpret them. This is a ruling

of the U.S. Supreme Court. We say that there are water rights that

are being violated right now by the Corps of Engineers in the operation of the Missouri River.

I am also pleased that both Senators Daschle and Johnson can

be with us here today to listen to our concerns regarding this important issue. I personally am very proud to call them friends of

the Oglala Sioux people and personal friends of mine. I appreciate

their support for our efforts to protect our rights against the way

the Army Corps of Engineers is operating.

We, the Oglala Sioux people, are extremely proud of our history.

Our ancestors exhibited the values of courage, wisdom, generosity,

attributes which we strive to practice today. In doing so, we have

the legacy of our treaties. Under the Fort Laramie treaties of 1851

and 1868, we retained important legal claims to land and water in

the upper Missouri River basin.

The Oglala Sioux Tribe is the largest tribe in our region. Pine

Ridge Indian Reservation is our homeland. Rivers and streams that

cross our lands and join the Missouri River include the Cheyenne

River and the White River. The Oglala Aquifer underlies our reservation. The Mni Wiconi Project, which we thank Congress for,

provides drinking water to the reservation and includes a major intake and water treatment plant on the Missouri River that delivers

water through a nine-county area of Western South Dakota and to

Pine Ridge, Roosevelt, and Lower Brule Indian Reservations. My

tribe claims water rights to the Missouri River, its tributaries and

aquifers that underlie our lands.

Our water rights have been held since time immemorial, and

well before the United States took possession of these rights to the

Missouri River basin in the Louisiana Purchase of 1803. I today

join the Standing Rock Tribe in claiming prior and paramount

water rights for the irrigation of our lands, as well as municipal

and industrial fish and wildlife, recreation, aesthetic, mineral and

all other purposes for which water can be beneficially used for the

general welfare and health of our people.

Collectively, the Indian claims in the Missouri River may exceed

more than half of the natural flow of the river as it reaches Sioux

City, IA. However, on our reservation, our water remains largely

undeveloped.

The Corps of Engineers is developing a new Master Manual for

the future operation of the Missouri River mainstream dams. Our

tributaries and our aquifers drain into the Missouri River and become a component of the water supply regulated by the mainstream dams. Whether diverted from the Missouri River mainstream, from tributaries or aquifers, our present and future depletions impact the Missouri River.

Conversely, the reliance by others on our unquantified unused

water rights adversely impacts our ability to obtain an equitable

future adjudication or equitable congressional settlement confirming our invaluable water rights. The Federal Government has ex-
24

pended considerable resources developing flood control and irrigation projects to supply water that is needed on the Pine Ridge Reservation to non- Indian water users. The Corps of Engineers’ Master Manual will change the Missouri River. As of the 2002–03 annual operating plan demonstrates, 12 million acre-feet increase of

water in storage is contemplated before the length of the navigation season would be reduced.

This increase from 40 million to 52 million acre-feet would be

largely derived from claim of Indian tribes in the Dakotas, notwithstanding claims from those tribes that have already decreed or settled their water rights upstream.

Other interests, including hydropower purchasers, navigation,

municipalities, recreation developers, threatened and endangered

species, and advocates of habitat improvement, among others, will

make investments, commitments and long-term plans based on the

new changes in the Missouri River operations. These changes will

greatly prejudice the ability of the tribes, including the Oglala

Sioux Tribe and the Standing Rock Tribe, to protect, preserve and

administer or adjudicate or settle our prior and superior rights to

the use of the water as the future unfolds.

The Master Manual carefully avoids any attention to this issue

and requests that the Secretary of the Interior address the matter

on behalf of tribes has gone unheeded. The Master Manual review

and update process has become a tool to lock in existing non-Indian

water users such as downstream navigation, fish and wildlife, to

the detriment of water users on the Pine Ridge and other Sioux

reservations.

The Corps of Engineers’ planning documents would render our

rights as secondary to the existing users supplied by the corps now,

although under Federal law, our rights are prior and superior to

non-Indian water users. This is an extreme injustice that must be

remedied by Congress. We heard the corps refer to our water rights

as superior just before I came up here, but the way the Manual is

being written, we see our water rights as being secondary.

The Standing Rock Sioux Tribe has shown convincingly that the

corps’ analysis of Indian water rights, environmental and cultural

and historic impacts are fatally flawed, even though there has been

a decade of consultation with the tribes. The most compelling aspect of our argument is that the Corps of Engineers has failed to

address the impact of the Master Manual on Indian water rights

and failed to mention any impact on the tribal water rights to the

Missouri River tributaries.

This is the situation of my tribe, the Oglala Sioux Tribe. The use

of water by tribes and non–Indians in the tributaries have as much

impact on the depletion of the Missouri River supply as main stem

users. Conversely, the Master Manual has impacts upon the water

rights of all tribes who have treaties with the United States. It is

incumbent upon Congress to ensure that the Corps of Engineers

takes no final action to enhance non-Indian water flows downstream without consideration of the water rights of the Oglala

Sioux Tribe and the Great Sioux Nation as recognized under the

Winters Doctrine.

Let me point out another crucial issue, the desecration and destruction of Native American cultural resources and human re-
25

mains along the Missouri River. The Corps of Engineers’ operations

are directly responsible for the destruction of tens of thousands of

cultural sites of Lakota origin. The Master Manual review and update planning documents completely whitewash this heartfelt matter. There is no compliance with the importance provisions of the

National Historic Preservation Act, Native American Graves Protection and Repatriation Act.

Just in the USA Today in the South Dakota portion down there,

the Corps of Engineers reminds people to leave these artifacts and

human remains alone because of the drought situation now, and

the exposure that is happening now, but have they contacted the

tribes on any kind of remediation of this or repatriation of these

human remains? No, they have not, not the Oglala Sioux Tribe.

There can be no greater injury to our people than the destruction

of cultural objects and desecration of human remains, yet this is

happening now. The Master Manual revision process fails to remedy this or to provide any kind of mitigation.

Also demonstrative of the Corps of Engineers’ lack of genuine attention to the tribes is the sharp contrast of language in the Master Manual related to trust responsibility. Our treaties are with the

President and Congress of these United States. Every Federal Department under the treaties that we have with the U.S. Government have a full trust responsibility.

On the one hand, the Corps of Engineers states that it is striving

to fulfill its trust responsibilities to Native American tribes in the

Missouri River basin. On the other hand, it states that without a

specific duty, the trust responsibility may be discharged by compliance with general statutes and regulations not specifically aimed

at protecting tribes. This, I think, Senator Conrad, you sort of

quizzed them on, and I did not see an answer coming to you, Senator.

It is for these reasons that we have come before the committee

today. I am hopeful that we can work with members of the committee and possibly enact legislation to protect the tribes and to mitigate the damages to our water rights. I would like to thank the

committee and you, Senators, especially for your time.

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

Senator CONRAD. Thank you for your excellent testimony. I have

been reading it as you went along as well. You make many excellent points that I think will be very helpful to the committee.

Next, we are going to turn to Michael Claymore, tribal council

representative from the Standing Rock Sioux Tribe in Fort Yates,

ND. Welcome.

STATEMENT OF MICHAEL CLAYMORE, TRIBAL COUNCIL REPRESENTATIVE, STANDING ROCK SIOUX TRIBE, FORT YATES,

ND

Mr. CLAYMORE. Thank you, Mr. Chairman and committee members for holding such an important hearing. Good morning. My

name is Michael Claymore. I am chairman of the Tribal Economics

Committee. Mr. Murphy was invited to provide testimony, however

due to family emergency is unable to be here. He asked me to

thank you for holding this very important hearing and to ensure

that the Standing Rock Sioux Tribe’s testimony would be heard.
26

Mr. Chairman, I wish to express the sincere and genuine thanks

of the Standing Rock Sioux Tribe and its members for your continued work for the tribes in the Missouri River basin. We will never

forget your support of the equitable compensation legislation for

the taking of 56,000 acres of land on the Standing Rock Indian

Reservation by the Corps of Engineers for the building of the dam

and reservoir. Without your efforts and other members of the

North Dakota delegation, the legislation would not have been possible.

In the past, we came because the corps had taken our lands. We

come today because the corps is taking our prior, superior and vested rights to the use of the water of the Missouri River and its tributaries. The Master Manual will adversely affect our future ability

to use equitably, adjudicate or settle our invaluable rights to the

use of the waters.

Our written testimony documents the pretensions of the Corps of

Engineers in the Master Manual to address environmental impacts

and draws attention to the complete inadequacy of the scope of

analysis and the errors and conclusions. I will list a few instances.

No. 1, the full extent of the environmental analysis is presented

for the tribes on the main stem Missouri River only. Impacts are

measured on the basis of percentages of change. In wetland habitats, riparian habitats, fish production in the reservoir, fish habitat

in the reservoir, flood control, water supply, recreation and historic

properties, no impacts on our water rights is measured.

No. 2, the Corps of Engineers measured economic impact of the

Master Manual on navigation, hydropower and other purposes, but

failed to measure the economic impact on the tribes or the tribes’

water rights.

No. 3, there is no quality in the limited analysis of the Standing

Rock Indian Reservation. For example, the impact analysis shows

flood control benefits from as low as a negative 80 percent to as

high as a plus 40 percent for the 11 alternative studies. All the

land that can be damaged by flooding are above the taking area

line for the Oahe Reservoir and those areas not within the Missouri River floodplain. Therefore, there can be no change in the

flood control impact for the alternatives studied by the Corps of Engineers. The analysis is flawed not only with respect to the numerical values presented, but with respect to its sensibility.

No. 4, the impacts on water supplies are shown to vary for the

alternative studies in detail from a plus 9 percent to a plus 10 percent. There is virtually no variation. I can tell you, however, that

any change in the Master Manual would be much greater benefit

than the conditions that exist today. The reservoir levels are so low

that the intake for our drinking water is severely threatened. The

intake for irrigation has dried up for the second time, to my knowledge, in the 1980’s and again today. Our second crop is destroyed.

This cannot continue. There must be an end to the Master Manual

process and changes must be implemented to stop the draining of

the Missouri River water away from the reservation.

No. 5, the depletion analysis does not distinguish between future

water use based on State permits and future water use based on

Indian reserved water rights. While the Corps of Engineers may

conclude that the State water rights do not exist until used, the
27

same cannot be said for Indian water rights which do not rely on

appropriations, but are currently vested and require preservation,

protection and mitigation.

No. 6, the Corps of Engineers has consulted for more than 10

years with the Standing Rock Sioux Tribe. We have corresponded,

attended meetings and have been visited by officials of the Corps

of Engineers, including the Native American coordinator, and all

has been to no value to the Standing Rock Sioux Tribe. The Corps

of Engineers has proven it cannot analyze our environmental impacts, much less impacts on our invaluable water rights of the

Standing Rock Sioux Tribe.

No. 7, the Corps of Engineers in consultation with other Federal

agencies has prepared wetland mitigation plans, fishery mitigation

plans, plans for protection and preservation of threatened and endangered species, and programmatic agreements for cultural and

historic resources. We feel that those plans, particularly the programmatic agreements for cultural and historical resources, is as

deeply flawed as the environmental analysis for the Standing Rock.

But most damaging, the Corps of Engineers has carefully avoided

any plan to protect, preserve or mitigate damages to our water

rights, despite considerable correspondence from the tribe on this

subject.

In the meantime, we are drying up. I am hopeful, Mr. Chairman,

that these points will help underscore the insincere nature of the

Master Manual efforts respecting the Indian tribes of the Missouri

River basin. Mr. Steele and I believe many other tribes are anxious

to work with you, outside the Master Manual, to assure the protection necessary for the preservation, protection and mitigation of the

damages to our Indian water rights, our environment, our economy

and our cultural and historic resources.

The Indian people have great faith in you, Mr. Chairman, and

the congressional delegation in the Dakotas. I am confident we can

work towards this to the benefit of many. I thank you for accommodating my testimony.

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

Senator CONRAD. Thank you very much, Mr. Claymore. Thank

you very much for being here and for your excellent testimony.

Let me ask the two of you, if I could, there is obviously a world

of difference between the perspective of the corps and the perspective that you have brought to this committee. This is about as wide

a gulf in perspective as I have seen here. What do you think needs

to be done? Mr. Steele, what do you think should happen next?

Mr. STEELE. Before I answer your question, I would like to address Senator Johnson on his words in his opening statement, in

recognizing the Oglala Sioux Tribe by treaty as just as important

as a tribe that sits on the Missouri River. Senator, I hold you in

high regard, and just for your words, I trust you so much more and

I thank you for being our Senator.

Senator JOHNSON. Thank you.

Mr. STEELE. Sir, as you yourself stated to the corps, the way they

have operated over all of the decades on the Missouri River without

addressing treaty rights and our water rights in the Missouri

River, we see the consultation, they call it, and they will put down

as consultation a passing by. Yes, they did hold these meetings and
28

we did attend them. They take very good notes and they come up

with tables. These tables and all jimmied up and it looks like they

really have done their homework and they have facts and figures.

No, Senator; they do not. We know this for a fact. We are afraid

that the way that they are going to operate that river is for downstream barges, for endangered species, and it is going to be almost

impossible to get this water back if ever in the future we have a

use for it as a tribe.

I am thinking that we had better get together possibly with the

States and the tribes go into recreation and fishing, and utilize our

water rights in other ways also. There are other ways we can do

this to address this Master Manual. But we would like to work

with the Corps of Engineers on a very realistic basis, and have

them in their EIS and in their Master Manual to recognize our

rights and to really show us that they are serious, and they are not

just playing us along and saying, yes, you have superior rights, but

we are waiting for statutes or you to quantify before we can really

address your water rights. This we believe is totally out of hand.

Senator CONRAD. Mr. Claymore, what do you think should be

done?

Mr. CLAYMORE. In all due respect, I am not exactly sure how we

should move forward. I know in the consultation process that the

corps has had, there are a lot of our elder people who say that regardless of what we say, the corps will do what the corps is going

to do. So therefore, I do not know where we go from here. I am

really concerned about our water, about the use of our water and

the rights that we have. You mentioned that in the Master Manual, we have one-half page addressing water rights for the Native

people. I am concerned about that because, again, the corps had

mentioned appendix. It is like it is put on the back burner; we need

to address that, but let’s not put it in the Manual, let’s put it as

an appendix. I am really concerned about that.

I do think that we need to seriously address our needs, futuristic

and current needs. That is about all I have.

Senator CONRAD. Can you tell me, in your testimony you indicated that you believe the corps failed to include an analysis of the

economic impact on the tribe’s water rights under the revised draft

environmental impact statement. Has the tribe completed an analysis of what it believes would be the economic impact?

Mr. CLAYMORE. No; we have not, but I can tell you that our marinas and our irrigation are actually being severely threatened right

now. So I guess the future of our economics is in the hands of the

corps and how they manage the river right now. I think the tribe

would gladly look towards analyzing that economic benefit more

thoroughly as we move forward.

Senator CONRAD. Let’s talk about things that have already happened, because in your testimony you indicate that the corn crop

burned up this year, that was on irrigable land. Is that correct?

Mr. CLAYMORE. Yes, sir; that was at Fort Yates. There are approximately 800 acres of irrigable land there at Fort Yates, eight

center pivots. This is not the first time it has happened. It happened in the late 1980’s in the drought that you mentioned and the

corps dropped the lake levels at that time. So this is the second

time that we are without water at Fort Yates irrigation project.
29

Senator CONRAD. I go back to the testimony that the corps provided. They may wonder why some of us are skeptical about good

intentions, however good the people are who have them. I go back

to the 1980’s and I remember very well finding out just on the day

of the hearing, management of the river, that the corps had increased releases in the depth of the drought. You wonder why people are skeptical about assertions that the corps is going to respond

and is going to make the changes necessary year by year.

Now, you come before us today and you tell us that the tribe that

has 800 acres that they have paid to irrigate, would seem to have

a right to that water based on Supreme Court decisions, but the

fact is the intake is now high and dry. As a result, you do not have

the water to irrigate the corn. As a result, the corn burned up, as

a result people have substantial economic losses. Is that correct?

Mr. CLAYMORE. Yes.

Senator CONRAD. It would not be just the corn crop that was adversely affected. It would also be the marina. Do you still have access?

Mr. CLAYMORE. No.

Senator CONRAD. You don’t have access to the water?

Mr. CLAYMORE. No; we are about one-half mile from the water.

Senator CONRAD. Your marina is one-half mile?

Mr. CLAYMORE. Maybe a little less, but it is high and dry.

Senator CONRAD. Just like the picture I showed up at Fort Stevenson, then.

Mr. CLAYMORE. Yes, sir.

Senator CONRAD. It really is kind of a startling sight. You go

there, and there is no water. You have all the facilities, but there

is no water.

Now, I guess what also adds to our skepticism that this is going

to be managed in the future in a way that is fair and equitable,

is in the 1980’s, do either of you gentlemen recall by how much the

corps reduced the navigation season downstream in order to respond to the crisis? Do you recall how many weeks the navigation

season was shortened by the corps in order to respond to the depletion of the reservoirs?

Mr. STEELE. No, sir; downstream navigation, no we don’t.

Senator CONRAD. Would this refresh your memory, that they reduced the navigation season by 5 weeks 3 years in a row, 5 weeks

3 years in a row. Do you know how much they have reduced the

navigation season now, when we have a report that the reservoirs

have reached the lowest levels ever?

Mr. STEELE. I expect none from the previous way they have operated. I don’t know for sure. I think 6 days.

Senator CONRAD. You said 6 days. That is the correct answer, 6

days. In the 1980’s, when things were bad but not as bad as they

are now, it was 5 weeks; 5 weeks then, 3 years in a row; 6 days

now. And they wonder why we are a little skeptical about claims

that this is going to be adjusted in the future, and that things are

going to be dealt with fairly.

Mr. STEELE. Senator, I just went to Little Rock, AR and to a little town there. All of the people there, southern people, were coming up and saying the Federal Government has really treated you

Indians bad in the past, throughout history. They have not kept
30

their promises, their words. This happens, Senator, wherever we go

throughout the United States, that people come up and say this.

I see, Senator, your words, Senator Johnson’s, and it seems to me

the bureaucracy here that is not keeping their word once again.

This is part of history. It is going to affect us, like we say, in our

economics, our treaty obligations. The people of America are really

upset and they wish that the U.S. Government would act according

to keeping their word, but I see where the bureaucracy and the

Corps of Engineers in their Master Manual update are the problem, and it is the leaders of these United States that want to keep

their word.

I do not know how we would go about it. We need a continued

working relationship, Senator, and possible legislation to address

this.

Senator CONRAD. I would just say this to you, there is no wonder

that people are upset and skeptical. I was just at home, and spent

the week break going town to town. The anger is building. I can

tell you that. People have a very hard time understanding how it

is that the economic analysis that has been done shows that the

downstream navigation value is $7 million; the upstream recreational value is $85 million. But when we have the reservoirs at

the lowest levels they have been in history, the history of the structures, that the navigation season is reduced by 6 days, when in the

1980’s, 3 years in a row, they were reduced by 5 weeks. That does

not send a very good signal.

Mr. STEELE. Senator, we want to get that Master Manual completed also. It has been worked on too long here.

Senator CONRAD. Do you think 15 years is too long?

Mr. STEELE. Yes.

Senator CONRAD. We have been assured here that it is going to

be adjusted year by year.

Mr. STEELE. Let it be completed, Senator. We have these fears

and we see they are not changing their ways today. Or do we drag

it on for another 15 years because of our fears, and we see them

operating the way they are operating today, just like the 1980’s,

just like they will in 2015.

Senator CONRAD. Senator Johnson, anything that you would say?

Senator JOHNSON. Yes; thank you, Mr. Chairman. I thank both

the witnesses for excellent testimony today and excellent leadership back home.

I would note that Councilman Claymore from Standing Rock Reservation, which of course straddles both North and South Dakota,

Mike has exercised the good judgment to live actually on the South

Dakota side of the line. [Laughter.]

We are pleased to have his presence here as well.

I am pleased that on top of the water issues that Mr. Claymore

has talked about, the economic impact, and President Steele has

talked about the problems we have with cultural sites. I have been

to White Swan, I have been to a number of places, and it is all up

and down the river, literally human remains exposed. Part of the

problem is Congress needs to do a better job of providing the corps

with the financial resources, but I think the corps also needs to

better prioritize their obligations to take care of those sites. It is

truly an outrage what has happened to so many cultural sites and
31

the disrespect that this inevitably visits on the ancestors of native

people.

Let me ask President Steele, I think your testimony is excellent,

and I do want to reiterate the moral and legal reality that the Oglala, while not having a riverfront geography to its current reservation, nonetheless is party to a treaty which guarantees water rights

the same as if they were immediately contiguous to the river.

Let me go to what strikes me as a fundamental question here.

My natural inclination is to view things from the perspective of the

tribes, but let me be a devil’s advocate a bit here, because I think

there is a question that we need to do a better job of responding

to our colleagues on the committee and in the Senate. That is that

the corps says, well, they acknowledge that the Indian rights to the

water are superior. They say that is true, but they seem to be suggesting that because there has not been a quantification on the

part of most tribes, that they are then not in a position to adequately set aside the amount of water that truly is needed because

who knows what it is.

Some would suggest, well, the problem then is with Congress and

the tribes for not having, then, quantified at a large level or a

small level or at any level, the amount of water that the tribes

truly need and are legally required to have. What would you say

to that argument about the key problem has been the inaction on

the part of Congress and the tribes relative to quantification, rather than the problem of the corps in not setting aside the water?

How would you respond to that?

Mr. STEELE. Senator, I would say that the Corps of Engineers,

just like any other Federal department, I have said it before, has

this full trust responsibility to the tribes under the treaty. There

are other tribes that the Supreme Court says that they have trust

responsibility on, some Federal departments the Supreme Court

says, but they are Executive order tribes, other federally recognized

tribes. Treaty tribes are different. I say that the corps does not

need to mention quantification as a necessity before they can really

recognize water rights. The McCarran amendment that the Supreme Court says that State courts are going to be the adjudication

tool to quantify water, we will not use State courts. So that is going

to be out.

Senator JOHNSON. If it were to be resolved in a Federal court as

opposed to a State court, would that make very much difference in

terms of the tribe’s inclination or disinclination to quantify?

Mr. STEELE. That is a possibility, Senator, yes. It is just the idea

that State courts, who we see have a conflict in adjudication of

these rights, that we will not use them. No, no, no, we will not.

And so, we see the corps using the quantification issue as something to put our water rights to the back of the burner, when they

are in the forefront here according to our treaty.

Yes, we are willing to sit down at some point in time to really

look at our needs in acre feet or whatever, but not at this point in

time.

Senator JOHNSON. I respect and agree with your point here. I do

think that in a perfect world that at some point, some sort of just

recognizing that there is a certain use it or lose it dynamic at work

that is going on here, and I do worry that about the time we finally
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come to some concurrence about exactly how much water is needed,

we are going to have to then undo previous commitments and it is

going to get very complicated. But I do share your observations

about the State courts. Indian tribes are not sub-units of States.

They are sovereign nations. They have a government-to-government relationship with the Federal Government and they should

not be forced into a legal system that is contrary to the whole underlying sovereignty of the tribes. I appreciate that.

I also thought your thoughts, I appreciate somewhat in passing,

but your thoughts about the potential for fish and wildlife agreements with States, so long as it is negotiated as two separate sovereign powers, is intriguing. Again, it would not be for me to tell

the tribe or the State exactly how to do that, but wherever common

ground can be found and strategies found that would be win-win,

and which would indeed recognize the dignity and the sovereignty

of the tribes and their treaty rights, that that is an intriguing idea.

I encourage you to pursue that as best you can. Anytime we can

broaden our coalition of support for a sensible water strategy that

retains water where it has the greatest economic impact and wildlife and the natural impact, all the better there. So I appreciate

that.

Those are my only thoughts. I appreciate both of you articulating

so well the perspective of the tribes. We will work with you.

There are some areas where, while we have heaped a lot of criticism on the corps and much of it deservedly so, I think it is important that Congress look in the mirror at itself a bit as well, and

the Administration as well, because there are faults on our side of

the dais here as well in terms of politically complicating in some

instances the timely pursuit of a revamping of the Master Manual.

There have been amendments on the floor of the Senate and we

have had some complications there. There also have been funding

issues and funding priority problems which are not necessarily of

the corps’ making, but which come back to rest with us. So I want

to acknowledge that the Congress could do better and the White

House could do better as well as we deal with these issues.

Nonetheless, the most immediate issue we have is the Master

Manual. We want a timely completion of it, but we want a timely

completion of a proper manual, of a good manual, and not a quick

completion of a manual that is not observant of Native American

rights and needs.

So I thank you for what you have done here today to help educate us, our staff, and indirectly the entire Congress, by your testimony. We look forward to working with you and to see that we can

advance a manual that best reflects our needs and priorities.

Thank you again.

Senator CONRAD. Thank you, Senator Johnson. Thank you so

much for your thoughtful comments on this issue.

And thanks to President Steele, Mr. Claymore. Extend my best

wishes to the chairman. I am very sorry about his mother. I want

to thank you very much for appearing here today and to your assistance to this committee. I am very hopeful that people are listening.

I want to thank the gentlemen from the corps who stayed to listen. I think that reflects well on their seriousness and their inten-
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tions. I believe they are men of good intentions. I hope in the listening that they caught a sense of the frustration here. It is not

just a frustration of the last weeks or months. This is a frustration

built up over many years.

I hope that they think carefully about how the messages that are

sent in this Master Manual review reverberate across not only Indian country, but in other parts of our States as well, that there

is a very deep and strong feeling that our part of the country has

gotten shortchanged, and has not been dealt with fairly, and that

in the real world of experience that people have had, it has not

been a happy experience. It has not been one that has led people

to have confidence in the future fairness of actions.

I hope that message is received and understood. It is not an attack on an individual or a person or an agency. It is a frustration

because of experiences that have been very, very frustrating to people in situations where there was a lot at stake.

I tell you, I will never forget the hearings I have had with people

who ran marinas, people whose crops burned up because they could

not irrigate land that they thought they had a fundamental right

to irrigate as part of a compensation for things that were done

years ago, to help the downstream States.

I guess the great irony is these main stem reservoirs were built

for the primary purpose of flood control for downstream States. It

saved them billions of dollars in flood damage. Those things have

been quantified. We know that is the case. We have been good

neighbors. We have saved them from enormous losses. So it is especially difficult to accept when there is what is seen by us as a continuing unfairness in the operation of these facilities.

Again, thank you all. Thank you for being here. We will declare

this hearing adjourned.

[Whereupon, at 12:08 p.m. the committee was adjourned, to reconvene at the call of the chair.]

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APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF HON. TOM DASCHLE, U.S. SENATOR FROM SOUTH DAKOTA

Mr. Chairman, thank you for convening this hearing today on the management

of the Missouri River, and specifically the ongoing revision of the Missouri River

Master Manual. I especially appreciate this hearing’s focus on the effect the Master

Manual has on federally reserved Indian water rights. I am grateful for the opportunity to speak before you today to share my insights and experiences in dealing

with the U.S. Army Corps of Engineers in South Dakota.

I am pleased that President John Steele, of the Oglala Sioux Tribe, as well as

Mike Claymore, council member for the Standing Rock Sioux Tribe, are here to testify on this important topic. They will describe to you the effects the Corps of Engineers’ management of the river and this Master Manual revision will have on their

tribes. I also look forward to hearing the testimony of General Bill Grisoli to better

understand what steps the Corps is taking to respond to tribal concerns, and hope

we can work together in a constructive manner to resolve these issues.

Mr. Chairman, the Corps of Engineers’ reputation in South Dakota on the management of the Missouri River is tenuous at best. As my fellow Senator from South

Dakota, Mr. Johnson, knows, the Corps’ management of the Missouri River has long

been the source of much division between the upstream and downstream states. Our

constituents, many of whom depend on the river for recreation, drinking water, and

irrigation, cannot understand why it is that during times of drought, such as the

one South Dakota has experienced in recent years, our State’s reservoirs are

drained to maintain a nearly nonexistent barge industry. To them, it simply flies

in the face of commonsense.

South Dakota hosts four of the six mainstem dams. Five South Dakota Indian

tribes border the river, and many others have historical and cultural ties to the

river. Tribal burial grounds dot the landscape up and down the river, and the fluctuating water levels erode tribal land and expose these burial sites to the environment, leaving many remains and artifacts subject to poaching. Tribes are disconnected from the river that was once central to tribal life. You would think that simply bordering our Nation’s longest river, a vital economic lifeline, would provide

some benefit to the tribes, but that is often not the case.

When the mainstem dams were built almost 50 years ago, the State and the

tribes were assured they would be compensated. Hundreds of thousands of acres of

productive river bottom land was lost when the reservoirs filled. The two largest

reservoirs formed by the dams, Oahe Reservoir and Sharpe Reservoir, caused the

loss of approximately 221,000 acres of fertile, wooded bottomland that constituted

some of the most productive, unique, and irreplaceable wildlife habitat in South Dakota.

This included habitat for both game and non-game species, including several species now listed as threatened or endangered. Meriwether Lewis, while traveling up

the Missouri River in 1804 on his famous expedition, wrote in his diary, ‘‘Song birds,

game species and furbearing animals abound here in numbers like none of the party

has ever seen. The bottomlands and cottonwood trees provide a shelter and food for
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a great variety of species, all laying their claim to the river bottom.’’ The Missouri

River tribes did receive payment for the lands they lost to the reservoirs. However,

the level of payment was a pittance of what it was worth. In the 1980’s, the Joint

Federal-Tribal Advisory Committee, or J–TAC, determined that tribes were owed

tens of millions of dollars more than they originally received. This committee has

held a number of hearings on this issue over the last decade as Congress has enacted law after law to provide additional compensation to affected tribes to adequately compensate them for their losses.

But adequate compensation is more than just paying a fair value for the lost land.

Compensation was supposed to come in other forms, such as guarantees that the

reservoirs would provide irrigation for farmland, conserve and enhance fish and

wildlife habitat, promote recreation along with meeting other important goals. This

has never been fully realized. While recreation has become an important economic

draw in South Dakota, water levels continue to be subject to the whims of the downstream interests threatening the future of river-based businesses. And Indian tribes

have never fully realized the benefits promised them, while they continue to experience the adverse effects of low water levels.

For the last decade, I have watched as the Corps has steadfastly refused to

change its management of the Missouri River to reflect the environmental and economic needs of the 21st century. The current operating plan for the agency was

written in the 1960’s, with the last revision coming in the 1970’s. Barge traffic has

long been the primary focus of the Corps’ management policies on the river, but

today that traffic is a mere fraction of what people thought it would be. Yet the

Corps continues to support navigation at the expense of all the other uses the river

should support. Nearly 14 years ago, the Corps was directed to revise the Master

Manual to reflect the modem river and provide a more appropriate balance among

the various uses on the river. However, the agency has continually delayed this review to avoid implementing a plan that will bring meaningful change to the management of the river. This will only further jeopardize endangered species, drive

river-dependent businesses into bankruptcy, and lead to further erosion of Native

American burial and cultural sites along its banks. The Missouri River is important

to all of us, especially the Native Americans who share a special kinship with the

river and hunted and fished off its banks for hundreds of years before Lewis and

Clark. As a senator from South Dakota and as a citizen who appreciates awesome

power and beauty of the Missouri, I share the sense of betrayal that so many upstream residents feel watching the Corps’ management slowly degrade this oncethriving river.

The Corps has taken a very unbalanced approach in its revision. I continue to see

the agency push its preconceived notion of how the Missouri River should be managed, even while it speaks of ‘‘inclusiveness’’ and ‘‘compromise.’’ The Corps has

shown time and again its unwillingness to work effectively with members of the

public, states, tribes, or stakeholders to resolve ongoing challenges. For example, the

Corps has stated it will not incorporate more natural river flows, such as the spring

rise, in its plan, even though the U.S. Fish and Wildlife Service and the National

Academy of Sciences have both stated that these changes are essential to the health

of the river system. Someone once told me that when discussing the Master Manual,

the Corps has stated people should ‘‘think outside the box—just don’t change anything.’’ This narrow view leaves out any real hope of compromise, and I sincerely

hope that something can be done to change it.

That is why this hearing today is so important. American Indian tribes lost a

great deal when the dams were constructed, and they continue to face hardships because of the Corps’ management of the Missouri River. With the scarce resources

available on the river, it is important that tribes be included in the process to ensure their needs are adequately addressed in the revision of the Master Manual.

The Corps now plans on finalizing a Master Manual by March 2004. The agency

has waited far too long to finish this work, and it must be completed quickly. However, it is imperative that the Corps revise it the right way, by developing a plan

that fairly balances all current and future uses of the river. Only through commonsense, balanced river management can upstream states and Indian tribes fully realize the benefits of the river they were promised so many years ago.

Again, Mr. Chairman, thank you for holding this hearing. I look forward to hearing the views of the other witnesses.
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PREPARED STATEMENT OF MICHAEL JANDREAU, CHAIRMAN, LOWER BRULE SIOUX

TRIBE, LOWER BRULE, SD

Mr. Chairman, members of the committee, I am pleased to present this statement

on behalf of the Lower Brule Sioux Tribe. We are located in central South Dakota

along the Missouri River.

Last year, on May 21, 2002, the Lower Brule Sioux Tribe and the Crow Creek

Sioux Tribe filed a lawsuit against the Secretary of Defense and the Army Corps

of Engineers seeking injunctive relief growing out of their management of Lake

Sharpe, which is formed by the Big Ben Dam.

As you know, the Department of Defense, including the United States Army Corps

of Engineers, has adopted an American Indian and Alaskan Native Policy that:

Acknowledges Federal trust responsibilities to tribes; B. Commits to a ‘‘government-to-government’’ relationship with Indian tribes; C. Recognizes the obligation of

meaningful consultation with federally recognized tribal governments; and D.

Agrees to manage lands under Federal jurisdiction in a manner mindful of the special significance tribes ascertain to certain natural and cultural resources.

The plaintiffs filed the action, in short, because the Department of Defense and

the Corps was operating in a manner that was inconsistent with their own Policy.

I am pleased to report to the committee that we have just recently settled our

litigation with the Department of Defense and the Corps. Under the terms of the

Settlement Agreement, the Corps has agreed to maintain an operating level at Lake

Sharpe as measured at the gauge on the Big Ben Dam, and adjusted for wind effects, between an elevation of 1419 and 1421.5. Further, when the Corps anticipates

that conditions may result in a water level outside of this ‘‘normal’’ operating level,

they will contact the tribes and consult with them on a government-to-government

basis.

Attached to this statement is the Settlement Agreement and Order signed by

Judge Charles B. Kornmann on August 8, 2003.

The Corps is to be commended for signing this Settlement Agreement. It is vital,

however, that the Department of Defense’s American Indian and Alaskan Native

Policy be incorporated into the master manual for the Missouri River. Policy articulated in Washington, DC is very important, but only if it is actually followed at the

local level throughout the country. The Army Corps of Engineers has not adequately

apprised its employees of the Department of Defense’s American Indian and Alaskan Native Policy. The Corps should also conduct training for its employees so that

they might become better acquainted with the Department’s American Indian and

Alaskan Native Policy. Finally, as I mentioned above, the Policy must be formally

incorporated into the Missouri River master manual; then, it must be followed.

Thank you very much for your consideration.
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PREPARED STATEMENT OF WILLIAM KINDLE, PRESIDENT, ROSEBUD SIOUX TRIBE

The Rosebud Sioux Tribe [Sicangu Oyate or Lakota] thanks the Senate Committee

on Indian Affairs for the opportunity to provide testimony on the Missouri River

Master Manual update and the state of Indian Reserved Water Rights. Your oversight of this important matter is needed and appreciated.

For others to understand the importance of these issues to the Sicangu Oyate it

may be beneficial to share our knowledge and experience. In the very beginning

when Unci Mka [Grandfather Earth] came to be known as earth and before life

forms were created, Tunkasila Inyan [Grandfather rock] caused himself to bleed and

with the drip of his blood, colored blue, created the bodies of water of this earth.

Among these waters was the Mni Sose, or muddy [sose] water [mni] now known

as the Missouri River. The key to understanding our reverence for water is in the

translation of the word Mni. This word is a contraction of Miye le un wqni [I live

by this]. Mni is a gift created by Tunkasila Inyan and it is crucial for the world

to survive physically, mentally, and spiritually. Because water provides healing to

the mind, body, and core of human existence it is not by accident that many of the

ceremonies taught by White Buffalo Calf Women require its use.

Water is critical for not only humans but also all other life forms and the very

earth itself. With this in mind, please listen to our concerns on our Indian Water

Rights and the Master Manual Update.

The ancestral homelands of the Sicangu Lakota were collectively shared by all of

the other bands of the Lakota Nation. This territory originally embraced a vast area

consisting of 100 million acres extending from east of the Missouri River to the Yellowstone River and south through Wyoming and into Kansas and Nebraska. Our

homelands were the heart of the Missouri River Basin long before these lands were

acquired from France in 1803. To this day, the Sicangu Lakota still own land in

the Missouri River on the eastern edge of our ‘‘Original Reservation’’. We are a river

tribe and will always be a Mni Sose Tribe.

The United States recognized our sovereignty over these lands and, beginning in

1851 entered into treaties with the Great Sioux Nation. Through the Fort Laramie

Treaties of 1851 and 1868 and later acts of Congress, our homeland was diminished.

Through none of these treaties or acts of Congress did we give up our right to mni.

Our ancestors knew that water is sacred and essential to life. We reserved our Indian Water Rights.

The U.S. Supreme Court recognized the importance of water to making Indian

reservations inhabitable and acknowledged our rights in its 1908 decision in Winters

v. United States, which created the reserved rights doctrine. More recent actions by

the courts and Congress are troubling.

The Supreme Court decided that the McCarran amendment establishes State

courts as the forum for adjudicating Indian Water Rights. Who asked us if we wanted our Water Rights adjudicated in State courts? We are often at odds with our

State government and are under-represented in the legislative, judicial, and executive branches.

We see our worries confirmed in State court decisions involving other tribe’s water

rights. In the Gila River adjudication, the Arizona Supreme Court has applied a

minimalist approach to the quantification of Indian Water Rights based on sensitivity and consideration of existing water users. We believe that the Corps of Engineers proposed revisions to the Missouri River Master Manual further imperil our

Indian Water Rights.

The droughts that plagued the Missouri River Basin during the late 1980’s provided the impetus for the Corps of Engineers to revise their Master Manual for the

operation of the mainstem reservoir system of the Missouri River. Operating the

reservoirs under the existing manual prepared in 1979 increased conflicts between

competing water users. Bear in mind that tribes have yet to exercise their Indian

Water Rights. What will happen when tribes exercise their rights?

The process that was used to update the Master Manual included some, albeit inadequate participation by tribes and Indian organizations. In addition, there is a

lack of acknowledgement of how the use of Indian Water Rights would impact the

operation of the mainstem reservoirs. This lack of acknowledgement is troubling. Indian Water Rights have the most senior priority date in the Missouri River Basin.

There are millions of acres of Indian lands and appurtenant water rights in the Missouri River Basin. To not consider how the use of these rights would impact the

mainstem reservoirs is poor planning.

We are also very concerned with the defacto allocation of the flow of the Missouri

River [Mni Sose] through the Master Manual and Annual Operating Plans. Whether

the flows and releases are allocated to recreation, navigation, hydropower, or endangered species, they do not account for Indian Water Rights. As these water uses be-
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come ‘‘usual and accustomed’’, we fear that our ability to exercise our Indian Water

Rights will be diminished.

An additional concern with the Master Manual Update is the lack of acknowledgement by the Corps of Engineers that the Rosebud Sioux Tribe still owns lands on

the Missouri River. To this day, we still own lands bordering the Missouri. The

Corps needs to acknowledge this.

While Indian tribes have deferred the use of Indian Water Rights, other interests

have benefited and the United States has earned billions of dollars in revenue. We

are proposing that a trust fund be established with a principal of between

$1,000,000,000 and $2,000,000,000. Proceeds from the trust fund would be used for

economic development. The people living on the Indian reservations in South Dakota and elsewhere in the Missouri River Basin are among the most impoverished

in the Nation. This level of funding is needed to effect meaningful change.

Mni is sacred to the Sicangu Oyate. We are concerned about our Indian Water

Rights for our children and their grandchildren. As competition for water increases,

we fear that we will be unable to have a fair adjudication of our Indian Water

Rights. We do not believe we will be treated fairly in a State court. Our concerns

are compounded by the Corps of Engineers lack of planning for the use of our Indian

Water Rights. As others become accustomed to using water that we may need to

use in the future, it will be harder for our grandchildren to use what our ancestors

reserved for them. We also request compensation for having deferred the use of our

Indian Water Rights while others have benefited.

We seek your consideration of these matters and assistance in protecting our

rights. We thank you again for this opportunity.
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