Mike Connor - Director, DOI Indian Water Rights Office

April 24, 2001

Federal Role
Background - Litigation

1. Federal Responsibility - U.S. has an obligation to assert Indian water rights in general stream adjudications.

2. Adjudications - At least 19 ongoing adjudications in 10 states, involving at least 52 tribes.

[e.g. Gila River, Virgin River, Walker River, Little Colorado River, Montana (Milk, Missouri, Big Horn, Tongue, Rosebud, Flathead, Blackfoot/Bitteroot, & Marias Rivers); Wind River/Bighorn; Klamath River, Snake River; Yakima River]

C In New Mexico alone, there are 10 adjudications involving approximately 18 tribes (Rio Pojoaque; Rio Jemez; Rio Chama; Pecos River; Rio San Jose; San Juan River; Santa Fe River; Rio Pueblo de Taos; Santa Clara River; Zuni River) The adjudications don’t include the middle Rio Grande–the heart of the State.

C Present adjudications do not include Mainstem Colorado River above Lake Mead; Missouri River (Dakotas); California stream systems (over 100 recognized tribes); and any number of groundwater basins with increasing conflicts (e.g. Lummi)

3. Litigation History - Lengthy and Unsatisfactory

C Yakima - 18 years and a conditional final decree on the Yakama Nation’s water rights claims; includes an unquantified instream flow right.

C Wind River (Big Horn Case) - The case has been to the U.S. Supreme Court once and the Wyoming Supreme Court 5 times. The fifth is ongoing at this time with a hearing pending in the near future

C Aamodt - 35 years & counting; still many unresolved issues

1. Success has been cyclic:

a. 1984-1993: yielded 12 settlements

b. 5 year dry spell

c. 4 additional settlements in 1999-2000

2. Current Status of Program:

a. 17 federal negotiating teams.

b. 17 federal implementation teams although 4 of those teams need to be reconsidered given that implementation is almost complete.

c. 4 federal assessment teams - (i) teams to work with Tribes pending agreement by all parties to negotiate or (ii) to develop a negotiating position where no ongoing litigation exists.

A. 2001 Budget

1. BIA Budget - $37.4 M for 5 land & water rights settlements (Hoopa-Yurok; Utah Utes; Pyramid Lake; Rocky Boys; US v. MI)

2. BOR Budget $30.0 M associated with 4 water rights settlements (Ak-Chin; SAWRSA, Colorado Ute; Rocky Boys)

B. 2002 Budget

1. BIA Budget - $ 60.9 M for 9 land & water settlements (new settlements include Torres-Martinez; Santo Domingo land; Shivwits Paiute; and Colorado Ute Amendments)

2. BOR Budget - $ 30.4 M for 4 land & water rights settlements.

C. Beyond 2002 - based on statutory language in currently authorized settlements

1. BIA Budget - 2003 - need approx. $10.0 M more for existing settlements

2. BOR Budget - 2003 - small decrease in Rocky Boys settlement but Colorado Ute Settlement Amendments contained a 5 year authorization. With only $12.0 M in 2002, future appropriation will need to compensate with approx. $50 M - $60 M per year.

C $50 M is 7% to 8% of 2002 Water & Related Resources Budget ($648 M)

III. Significant New Negotiation Activity - 5 Potential Future Settlements (which could be before Congress in the next 2-3 years) [Est. Possible Range: $ 500 M to $ 750 M]

Arizona Water Settlements Act (Introduced last October during 106^th Congress S. 3231 & H.R. 5529) [Bill = $275 M + addt’l Upper Gila $]

1. Three potential tribal settlements in the Gila River System and associated groundwater basins.

a. Gila River Indian Water Rights Settlement (653,500 afa);

b. SAWRSA Amendments (28.2 kafa, g-w flexibility, allottees);

c. Upper Gila - GRIC/San Carlos Apache Tribe (protect 653,500; Globe Equity)

2. The tribal settlements are centered around a settlement of the CAWCD v. United States litigation concerning operation & repayment issues associated with CAP.

Fort Belknap (Assiniboine and Gros Ventre Tribes) Water Rights Settlement

1. Settlement of tribal claims to the Milk River in Montana (setting for the 1908 Winters decision)

2. Tribal-State Compact enacted by the State in early April, 2001 (645 cfs + trib. water)

Nez Perce/Snake River Water Rights Settlement

1. Resolve Nez Perce Water Rights Claims both on & off-reservation and resolve a number of ESA issues related to anadromous and resident fish for a number of years.

2. Negotiations with Idaho, federal agencies, and local water users are very active.

Zuni Heaven Settlement

1. A component of the Little Colorado River negotiations - still need to determine whether it is appropriate as a stand-alone settlement given Navajo/Hopi considerations.

2. Environmental restoration of Zuni Heaven - once a diverse wetlands habitat on the Little Colorado River system.

Aamodt Water Rights Settlement

1. Active settlement discussions involving 4 Pueblos (Nambe, Pojoaque, San Ildefonso, and Tesuque), the City and County of Santa Fe, State of New Mexico, and a number of local water users.

2. Parties are working together on a settlement concept and hope to initiate a feasibility study later this year.

Recent Settlements

1. Santo Domingo Land Settlement

2. Torres - Martinez

New York - 5 Claims in Litigation

1. Cayuga - $36 M judgement against State; Court addressing prejudgment interest & other issues

2. Oneida - Preliminary stages of litigation

3. Seneca-Grand Island - Waiting for Ruling on liability

4. Seneca-Cuba Lake - State held liable, briefing remedies issue

5. Mohawk - presently stayed

Other Active Matters (not exclusive)

1. Arkansas River Bed (OK)- Federal Negotiating Team working on a settlement strategy in this trespass/liability case with the Cherokee, Chocktaw, and Chickasaw Nations

2. Alabama & Coushatta Tribes (TX) - Congressional Reference case - U.S. lost on liability; valuation phase

3. Sandia Pueblo (NM)

4. Potawatomi Indians of Kansas & Ottawa Tribe of OK (IL)