On October 6-8, the Native American Rights Fund (NARF) and the Western States Water Council (WSWC) held the Eighth Symposium on the Settlement of Indian Reserved Water Rights Claims at the DoubleTree Hotel in Durango, Colorado. John Echohawk, NARF Executive Director, welcomed participants to the symposium, noting that over the 20 years he has been working towards the settlement of reserved Indian water right claims, much progress has been made. Mr. Echohawk said that the inaugural symposium was held in 1991 with the intention of bringing together water experts and those with the experience to discuss how to successfully execute further settlements. He noted that in regards to reserved Indian water rights, the parties involved must decide whether to engage in a "life or death struggle in court," or to settle. Mr. Echohawk emphasized that this is a very delicate issue, and each tribe must make the decision for itself. Pointing out that often tribes will resolve claims by a combination of litigation and settlement, he noted that NARF respects the tribes' choice, but at the same time recognizes that settlements are usually the best way to resolve conflicts. Noting that only two Indian reserved water rights settlements had been completed prior to the commencement of the biennial settlement symposia, he praised the efforts of all involved by pointing to one indicator of success; that 18 settlements had been approved to date.
Karl Dreher, WSWC Chair, also welcomed participants and voiced the support that WSWC has consistently had for negotiated settlements. He said that in almost every case, settlement is a more sound policy for five reasons: first, settling water rights claims is less disruptive to existing uses than litigation, because many of the uses will be allowed to continue. Second, settlement usually leads to actual "wet" water rather than just paper water. Third, settlement provides flexibility to find solutions in a variety of ways. Fourth, settlements promote conservation and wise water management. Fifth, settlement promotes unity and a spirit of cooperation between tribes and states. Mr. Dreher said that settlements result in a win-win outcome; outcomes that are not available in the win or lose battle of litigation. Citing the Fort Hall settlement, he noted the importance of solidifying decree language as early as possible to avoid what can become a lengthy delay, or possibly the disruption of a settlement between the time of agreement and a decree consummating the settlement. He also had five suggestions for succeeding with settlement negotiations: first, tribal and non-tribal entities need to set aside the issue of jurisdiction in order to focus on water use and practical solutions. Second, since there are often elements in a settlement requiring legal review, it is best to involve environmental interests early on in negotiations. Third, due to the possibility of change in sovereign leadership for state, federal, and tribal parties, the intent of the provisions agreed to by the negotiating parties can better be recalled if memorialized in parallel with the agreement, or very soon thereafter. Fourth, meeting frequently is imperative in continuing to maintain positive relationships that will lead to success. Fifth, the federal government, by virtue of its role as trustee for the tribes, can often undermine a practical solution agreed to between tribes and states. He hopes that the federal government would be a "flexible facilitator," rather than a "rigid frustrator."
As the keynote speaker, Selwyn Whiteskunk, Vice-Chairman of the Ute Mountain Ute Tribe, described the predicament in which many Indian tribes find themselves regarding water. For generations, tribes have had water available on their reservations, but now they find that water significantly reduced, or in some cases nonexistent. It is a very hard thing for tribal members to live without what they have had for so long. Mr. Whiteskunk provided an overview of the Animas-La Plata and Dolores projects, and how they provide needed water for various uses. He reemphasized that without the help of several interests, settlements would not be successful. While the treaties that created water rights on reservations remain the same, he pointed out that, although the tribes recognize no change in allocation, competing interests have led to diminished water resources for tribes seeking to use water guaranteed by treaty. Although the Colorado Ute water rights settlement was agreed to in 1986, and Congress ratified the agreement in 1988, Mr. Whiteskunk said that the Southern Ute Tribe was still waiting for water from the Animas-La Plata project. Complications with implementation have arisen due to the needs of endangered species. However, he indicated that the Ute Mountain Ute tribe had benefited greatly by the water from the Dolores project. He said that the tribes continuously lobby to settle water rights claims, preferring to settle a claim rather than to risk everything in litigation. "We don't need to drag everyone to court," Mr. Whiteskunk concluded, inviting all to work together to reach a solution, and to be fair and honest with each other in the process.
Chris Kenney, Director, Native American Affairs Office, U.S. Bureau of Indian Affairs (BIA) indicated that the federal preference was to participate in settlement negotiations because it is "the way to resolve Indian water right claims." He said that unlike litigation, negotiations provide the foundation for resolving future disagreements. From the federal perspective, without the full understanding of science and technical information, settlements would be impossible. Mr. Kenney indicated that there is a growing need for better funding for tribes to be able to hire technical personnel. He said that in 1988, close to $15M was provided by the federal government for settling Indian reserved water rights claims, but that number has dropped to around $11M in 2000. He also indicated that disagreements between the technical people involved can be a big hurdle in coming to an agreement. For this reason, the technical work should be done in conjunction with negotiations. Otherwise, in Mr. Kenney's opinion, the scientists, geologists, hydrologists, engineers, and other technical experts can go on and on in dispute, ultimately undermining a settlement. He cited the Tule River Tribe, which completed preparatory technical ground work earlier in the process, and also cut the negotiation time from an estimated four to five years, down to three.
Susan Cottingham, Director, Montana Reserved Water Rights Compact Commission, referred to the negotiations on the Flathead Indian Reservation, and agreed that technical complications can result in delay, or even in the demise of settlement negotiations. The Flathead negotiations have ground to a halt due to a reluctance to share tribal technical information on hydrology. In her opinion, the best possible outcome would include: the hiring of good technical personnel, working under strong policy guidance; a joint effort between the parties to contribute to the technical work; the assistance of extensive geographical information system (GIS) mapping; working with a knowledge of the probable outcome if the situation were litigated, thus enabling all sides to better measure what is at stake in the negotiation process; and doing the technical work while recognizing the legal and political climate, so that the information can be used by technical, legal, and political officers without a communication breakdown. Ms. Cottingham stressed the importance of having the technical personnel able to communicate well with "normal people." Citing problems that have arisen on the Milk River, she said that it is important for the parties to provide themselves needed flexibility before the agreement is finalized. The settlement agreement should be dynamic, and flexible enough to serve the parties far into the future.
Joe Ely, Project Coordinator, Stetson Engineers, categorized three tribal components of settlements: the political, legal, and technical. The political component comprises tribal chairmen, committees, and possibly others involved in tribal government. Mr. Ely said that the political component is the owner of the process, while the legal and technical components are merely the tools used to accomplish the goal of the political component. The legal component, usually the tribal attorneys, faces the duty of ensuring that settlement terms and negotiations themselves are within the confines of the law. He indicated that another important job of the legal component is word-smithing legal documents in a way that will prevent future disputes or litigation over the settlement agreement. This job can be difficult since tribal attorneys also face the ethical responsibility of pushing for the highest water quantity possible for their clients. The technical component entails scientific questions, such as how much water is needed by the tribe?, and what is the quantity of the tribe's entitlement? Mr. Ely said that the level of technical data required depends on the action being pursued. There is a "reconnaissance level," where water rights are simply being assessed to get an idea of the rights involved. It is vital that all parties to a negotiation are informed of the needs of the others involved. The next level, requiring further determination of a claim, he referred to as the "appraisal level." The highest level of technical data is required at the "litigation level," where the information gathered, and conclusions derived therefrom will undergo great scrutiny. He said that the litigation level of technical data is quite expensive and should be avoided unless the tribe is planning to litigate.
Bruce Sunchild, Vice-Chairman, Chippewa Cree Tribe, related the particular challenge in trying to help tribal elders understand the concept and need for water quantification. He also indicated a challenge in maintaining continuity on the tribal committees. He provided an overview of the emotions and procedure involved in the Rocky Boys settlement in Montana. Early on, there was a lot of anger surrounding the idea of negotiating the quantity of water available to the tribe. Over time, the reluctance and anger gave way to discussion, and in 1997, the tribe reached an agreement with the state. Mr. Sunchild indicated that it is critical to identify and involve the decision makers with authority to act. He also pointed to the importance of being able to negotiate with the state of Montana at a state level. Some of the critical issues demanded decisions which had to be made without the opportunity to consult. But tribal leadership continuity and the ability to trust and delegate enabled the tribal representatives to make decisions. Having confidence in the technical data also made it easier to predict what the tribe's water needs would be for the next 50 to 100 years. He cited other entities that aided in the negotiation process, including the Bearpaw Resource Alliance, congressional committees, and the state governor. In Mr. Sunchild's view, the Rocky Boys settlement has had a positive effect on the tribe by creating numerous jobs for tribal members.
Gregg Houtz, Deputy Counsel, Legal Division, Arizona Department of Water Resources, shared an experience from Arizona to show how water rights settlements can bind larger groups. He noted the fact that the claims to water in both the Little Colorado River and the Gila River drainages were well in excess of twice the quantity of water available in the basin. Undoubtedly all water users in the two river drainages would be affected by a settlement. However, there was a positive attitude about resolving claims via settlement. In the settlement of the claims on the Salt River and Verde River, since the court mandated a settlement adjudication process, notice was published in several newspapers of general circulation, and notice was sent out to more than 26,000 individual water right holders (derived from the lawsuit's claimant list). Mr. Houtz provided a few examples of Arizona laws that had been enacted to protect tribal interests to facilitate a settlement. A buffer zone has been created near reservations limiting groundwater pumping. Legislation also has closed the upper Gila River basin and the entire San Pedro River basin from further appropriation, providing also a safe harbor clause for existing uses. Legislation has also identified a 1982 groundwater pumping right for the Tohono Oodham Nation. This right is not a reserved right, but a right to pump in priority under state law. He said that part of the reason the state has been willing to propose legislation for Indian water rights is because such rights work into the state's water regime much better than federally reserved rights. When asked how the tribes would be protected against legislation that would repeal such laws, Mr. Houtz explained the existing structural check keeps the legislation tied by contract to the settlement, as well as a safe harbor provision for non-Indians. The risk of losing the safe harbor protection coupled with the strength of the contract helps to keep future legislatures from repealing these laws. He added that the recent Zuni settlement provided the tribe with a state water right, but unlike other private rights, the tribe can use it for instream uses.
Gerald Henrikson, Natural Resources Officer, Warm Springs Agency, BIA, shared an insightful overview of the water issues negotiated on the Warm Springs reservation in Oregon. Over 23,000 water users were personally notified of the negotiations by utilizing the water rights holder list and the land owner list. Even though there are numerous parcels owned in fee within the reservation, the tribe administers the state water rights on the reservation.
Rich McAllister, Assistant Regional Counsel, Office of Regional Counsel, U.S. EPA Region 10, gave an overview of the requirements of the Clean Water Act (CWA) for tribes to receive treatment-as-state (TAS) status under 518. Tribes' ability to obtain TAS status was made possible by a 1987 amendment to the CWA providing that TAS status could be obtained by tribes in "Indian country," which under 18 U.S.C. 1151 is described as land within reservation boundaries, including allotments. The requirements to be eligible for TAS status are: 1) The tribe seeking TAS status must be a federally recognized tribe. 2) The tribe must have a governing body which carries out substantial governmental powers and duties. 3) The functions proposed to be carried out by the applicant tribe pertain to the management and protection of tribal water resources. 4) The Indian tribe is reasonably capable of carrying out the proposed functions - which he indicated is the criteria most often challenged by states (see Albuquerque v. Browner, WSW # 1177). Mr. McAllister indicated that of the 50 applications for TAS status received in Region 10 only about one in four is approved. He noted that it is very important to EPA to have its 518 approval upheld when sued. Due to the nature of water quality administration, Mr. McAllister related that border disputes are abundant, and typically stand in the way of 518 TAS status approval until dropped or settled between the state and tribe. He said that the EPA struggles to get states to recognize that EPA will work with tribes, and where there is no tribal water quality standard, EPA will promulgate a federal standard. He summarized by saying, "the United States is chicken about litigation," and it would really prefer to settle disputes where possible. Working on the Snake River TMDL (total maximum daily load) with 14 tribes, Mr. McAllister noted that Idaho has been very willing to work with EPA by dropping jurisdictional objections. He concluded that compromise is important, and that learning to maintain relationships is vital to settling claims. He noted that, in his view, EPA wants to facilitate such a relationship between EPA, tribes and states, sometimes via formal agreements.
Derrith Watchman-Moore, Deputy Secretary, New Mexico Environment Department, informed participants that New Mexico has a commitment to continue to treat water quantity and water quality together, since the two cannot really be separated. She noted that while tribes have many more hurdles to jump through in order to get TAS status than states do to regulate water quality, she said the state of New Mexico has been working to foster cooperation with tribes in water quality administration efforts. She also stated that in order to succeed, such cooperation often depends on people, not on the black and white of the law. The state is seeking to recognize similarities in water quality standards, enabling it to more easily coordinate water quality administration with the tribes. Ms. Watchman-Moore said that New Mexico wants to continue to work with municipalities to help them to meet downstream water quality standards. In the meantime, she noted that New Mexico is urging EPA to issue revised NPDES permits to Albuquerque.
Bud Ullman, Director of the Water Adjudication Project for the Klamath Tribes, addressed the severe water quality problems currently plaguing Upper Klamath Lake. The biggest problems are with ammonia, acidity, dissolved oxygen, and phosphorus. He said that for portions of the year, the lake is lethal to fish. Further illustrating the point, local tribes used to harvest what they consider a sacred sucker fish by the thousands per year. Now, due to water quality degradation, the fish are scarce, and each tribe is limited to only two fish per year, for ceremonial purposes. Mr. Ullman related that legislation has put the Oregon Department of Agriculture (ODOA) in charge of agricultural water pollution, which has been the main source of pollution to Upper Klamath Lake. To further the recovery process, 1995 legislation made the ODOA the exclusive agency for agricultural water quality administration, and 2003 legislation revised the method for setting load allocations for agricultural non-point sources. Mr. Ullman suggested that water quality needs to be better integrated into water rights settlements. This could be done by managing the state and federal timetable to fit into settlement timetables, improving scientific certainty, and using initiatives outside the CWA process to promote the integration of water quality safeguards into settlement agreements.
While disclaiming any intent to discuss "policy," Tim Glidden, Contractor to the U.S. Department of Interior, Secretary's Office of Indian Water Rights, provided an overview of the administration's process associated with settlements. He said that generally a stream adjudication is what gets the parties moving, then the states and tribes will typically create or appoint negotiation teams. The federal government will first do a fact-finding inquiry to determine whether or not to create a negotiation team for the settlement process. Once it has been determined that a federal negotiation team is to be created, a team is organized, consisting of personnel from the Bureau of Reclamation (BOR), someone from the Interior Solicitor's Office, U.S. Fish and Wildlife Service (FWS), and representatives from other agencies, such as the Department of Justice (DOJ), the U.S. Forest Service (USFS), and the Department of Defense (DOD), as appropriate. The negotiation team speaks through a chairman to avoid creating any confusion as to the federal position, and the procedures the team uses are outlined in the federal register. When asked about including environmental interests on the negotiation teams, Mr. Glidden said that it would be impossible to make progress in settlement if a variety of interest groups, including environmentalists, were made formal members. However, these interest groups have made their views known. He said that frequently a mediator is hired to work with the teams to see if middle-ground can be met. Once negotiation is complete, an official agreement is needed. He opined that this can be very difficult at times because often each party will want the other to agree first. On the federal side, the Solicitor, the Secretary of the Interior, and the DOJ, and finally the Office of Management and Budget (OMB) have to review and approve the agreement before it is drafted into federal legislation. A federal implementation team sees to it that all parties to the agreement perform according to the terms of the settlement. Mr. Glidden noted that with 20 negotiation teams, and 17 or 18 implementation teams, there is a lot of personnel carry-over between the two. He indicated that the implementation can be very time consuming. He also made it clear that no water rights settlement sets a precedent for any other negotiation because each is unique. Mr. Glidden opined that the pressure on Interior's budget resulting from the ongoing Cobell case, where tribal trust beneficiaries have alleged the mishandling of trust funds by the Interior Department, may make it more difficult to find funding for future Indian water rights settlements.
Ron Carlson, Watermaster for Idaho's Water District No. 1, provided an overview of the hydrological system and the water works in his water district. Addressing issues from the Fort Hall settlement, he indicated that one of the biggest dilemmas is that most of the state's streams are already fully appropriated, so there remains very little wiggle room for negotiations. In negotiating the Fort Hall settlement, tribal and non-Indian water user issues were resolved by the identification of reserved rights, provisions to store water under state water rights, and a subordination clause for times of scarcity. In implementing settlements, Mr. Carlson noted several issues that had to be resolved. There was significant concern over tribal administration of water, drought issues, uncertainty created by a turnover in personnel. Further, many non-Indians believed that they had been injured by the settlement. Administration issues include: preserving relationships, the need for mechanisms for administration, and using a language that is easily understood by engineers, but also usable by the attorneys involved. Tribes face difficulties in implementation as well. Many tribes have never managed water as non-Indians have for some time. Mr. Carlson said that success depends on trust, understanding, flexibility, competence, dependability, and most of all on people who can agree. "Indian agreements do not depend on governments to be successful...they depend on people."
Richard Narcia, Governor of the Gila River Indian Community, shared words of encouragement with the group. He has witnessed a lot of progress on settlement negotiations. After working for decades on the settlement of his tribe's claims, he referenced the recent congressional hearings on the Arizona Water Settlement Act (S. 437, H.Q. 885), the biggest settlement in history if approved, as a milestone for all involved. Governor Narcia agreed with Mr. Dreher's comment that the federal government can be a "rigid frustrator." He has felt considerable frustration with the turnover in personnel at the federal level.
Rodney Lewis, General Counsel for the Gila River Indian Community, also addressed settlement progress in the Arizona water settlement . He provided insight into how the Indian tribes handle the settlement negotiations. Tribes have worked to keep a nucleus of the negotiation team in tact, seeking to obtain a total commitment from affected communities and tribal members to maintain focus on the ultimate goal. Noting that Arizona deals with Indian reserved water rights claims on an ad hoc basis, he complemented Montana on its more structured approach to settling these claims. He said he had been asked several times, "Why not litigate to the end?" He said in response that the tribe wants wet water, and settlement appears to be the fastest and surest way of obtaining such. Mr. Lewis predicted that with water provided by way of the settlement, the Gila River Indian Community will be the "breadbasket of central Arizona." Mr. Lewis said that having one federal attorney per tribe is a must, and that there could be a conflict of interest where one attorney represents several tribes. Likewise, he agreed with the comment that having an overlap of personnel on both the negotiation and implementation teams creates a conflict of interest, and that the teams should be composed of entirely separate groups of people.
Sterling Grogan, a Biologist and Planner for the Middle Rio Grande Conservancy District, shared three main points from his experience working on the 150 miles of the Middle Rio Grande River. First, he recommends that settlement negotiations use a multi-governmental, multi-organizational approach to dealing with endangered species. Second, he urged, "We need to get used to the fact that we live in the desert." Third, even without a formal adjudication on the Middle Rio Grande, the parties have been able to provide water for each other's interests. He noted that success has been seen only because the parties have respected each other's jurisdiction.
Carol D. Angel, Assistant Attorney General for Colorado, working in the Federal & Interstate Water Unit, provided attendees with a summary of the negotiations involved in the Colorado Ute settlement. She pointed out how costly and lengthy litigation can become by referencing the Wind River litigation out of Wyoming. Settlements have promoted good relationships between the Ute tribes and non-Indians. Colorado also has a well-developed water court, with tried and refined procedures, which aided the process. The tribes were familiar with the state water adjudication, and had great leadership to guide them through the settlement process. Initially, there were many unanswered questions about reserved Indian water rights. Ms. Angel said that Colorado was concerned that the reserved right could take most of the local water, but was also concerned about tribal administration procedures. It was also difficult to maintain a local solution to the local problem. Under the terms of the settlement, entered into in 1986, the Ute Mountain Ute tribe would receive 25,000 acre-feet (af) from the Dolores project, and 35,000 af from the Animas-La Plata project, subject to a shortage sharing provision. The Southern Ute tribe was to receive 30,000 af from the Animas-La Plata project, with a provision allowing for future domestic and livestock wells. She indicated that the settlement agreement also contained a provision stating that disputes over water allocations or administration under the settlement would be resolved in Colorado's state water court, and not in federal court. Currently, the water administration changes hands at the headgates just above the reservation. $40.5M for the Ute Mountain Ute tribe, and $20M for the Southern Ute tribe has been appropriated for needed economic and infrastructure developments.
Scott McElroy, an Attorney for the Southern Ute Tribe, discussed the implementation of the Colorado Ute settlement. He related that the most difficult obstacles were dealing with opponents, such as environmentalists, who were not involved in the negotiations and had nothing to lose by thwarting the settlement's implementation. Settlement legislation passed in 1988. The endangered Pike Minnow caused problems with the Animas-La Plata project, but after seven years of research, creating a recovery plan for the fish, and changing the Navajo dam operations on the San Juan River, these problems have been dealt with. Complications also arose with obtaining EPA approval of the needed Environmental Impact Statement (EIS). Environmentalist lobbying was also able to stop funding from passing in the House of Representatives in 1996. After two more years of negotiations, a 120,000 af project was approved, and is now under construction. Mr. McElroy reemphasized two main suggestions for tribes in the process of settlement negotiation or implementation: first, be very conscious and thoughtful about what it is you would like to ultimately accomplish; second, be patient.
Dan Israel, an Attorney for the Ute Mountain Ute Tribe, added his praise for great leadership that helped to make the Colorado Ute settlement a reality. He provided the group with an overview of the facilities that the group would tour that afternoon. Symposium attendees enjoyed a field trip tour of the facilities described by Mr. Israel. The pumping station on the Animas River will pump high-flow water from a receiving pool, adjacent to the river, up to a storage reservoir through a 6-foot diameter pipe traveling 2.1 miles and raising in elevation 511 feet. The reservoir, also under construction, with an estimated completion date of October 2007, will eventually hold 120,000 af of water. From the reservoir, when it is needed for trade or augmentation, water will be released from the reservoir through a canal that empties back into the Animas River. The land that will be inundated by the filling of the reservoir contains 225 archaeological sites which crews are digging in an effort to document these sites before they are lost. The sites included ancient Anasazi dwellings, estimated to have been used between 750 and 850 A.D. Archeologists on site estimated that about 100 of the 225 sites will be partially studied before the reservoir is filled. The field trip concluded near the Ute Sky Casino, on the Southern Ute Reservation, where participants were treated to a fine dinner, and enjoyed a cultural presentation of several traditional dances. Addressing the group, Howard Richard Sr., Southern Ute Tribe Chairman, praised the efforts of all involved in settling Indian reserved water rights claims. He gave a brief history and demographic overview of the tribe and the reservation, and encouraged others to give negotiations a chance, commenting that it will save money in the long run.
Josh Johnson, representing the House Resources Committee, commented via speaker phone on the progress of the Arizona Water Settlement bill which is currently working its way through Congress. It is the largest settlement he can remember in the House of Representatives. He pledged Chairman Pombo's open-door policy to resolving concerns about the proposed legislation.
David Mullon, Majority Senior Counsel for the Senate Committee on Indian Affairs, who joined by phone also shared his thoughts on the benefits of settlements. He feels that settlements are the preferred approach, in that they provide more certainty for planners and managers, typically take less time and money than litigation, and more effectively turn water rights into wet water. Funding is often the key component that enables tribes to fulfil the ultimate goal of bringing water to their communities. Mr. Mullon said that the greater the perceived liability of the United States to the tribe, and the more the settlement appears to benefit all involved, the easier it is to obtain funding. Since funds are not unlimited, he expressed the mounting need to explore other possible sources. He said that the Arizona Water Settlement Act is a good one to look at as an example of creative ways of dealing with funding, in that it does not solely rely on appropriated funds. He added that as this legislation and others in the future rely on various sources for funding, they are more likely to pass.
In attendance at the meeting, Patricia Zell, Democratic Staff Director and Chief Legal Counsel for the Senate Committee on Indian Affairs, voiced support and encouragement for settling Indian water right claims. She said that it is Washington's general perception that the interests of states, tribes, and non-Indians are at odds with each other, and inasmuch as settlements benefit all involved, Congress is usually inclined to help make necessary money available. Ms. Zell reviewed two factors that are essential to every settlement. First, there must be an appropriate balance in the way the parties to the agreement are benefitted. This provides unity. Second, every settlement agreement needs a "champion in Congress." Every settlement needs consistent and tireless efforts to gather support from Congress and the administration. She said that with the perseverance of a Congressman in your corner, you will find ready allies in Congress. She also noted hope for an amendment to budget legislation that will help ensure funding for settlements. Ms. Zell also pointed out a notable change in the president's budget priority, alluding to the conclusion that it will become even more difficult to obtain funding for settlements. She also pointed to a possible trend of reducing the breadth of federal trust responsibilities, which would be very negative for Indian country.
Chris Kenney, Director of the Native American Affairs Office in the U.S. Bureau of Reclamation, again addressed the attendees, providing an overview of what happens when settlement legislation goes to Washington, emphasizing that once the parties have come to an agreement, the ball has only just begun rolling. He noted that once a bill is brought to Congress, undoubtedly other issues and interests will surely arise. He said that it is OMB's responsibility to achieve consensus within the federal government. Mr. Kenney added that Congress has been faithful to settlements, in that if there is an agreement, Congress will fund it. He provided a word of advice; not to go to Washington with any remaining issues, but go prepared to educate Congress, and to get that "champion in Congress."
Edward Wemytewa, Zuni Tribal Councilman, gave a background of a very modern Zuni Pueblo with a strong theocratic society. He shared the history of his tribe's efforts to protect the Zuni Heaven, a spiritual and sacred riparian area with many springs and vegetation. Mr. Wemytewa noted some hesitation on the part of non-Indian interests, but after years of negotiations, the settlement was finalized by an agreement in 2002, and then by legislation in June this year.
Mike Connor, Senate Energy and Natural Resources Committee, said that there has been a recent loss of momentum in reaching settlements. Commenting on past legislative efforts to guarantee funding, he responded that there have not been enough settlements recently to emphasize the need for funding legislation. He added that budget deficits will likely cause many congressional representatives that deal with these settlements to once again support funding legislation. Mr. Connor said that the overall reduction of $3M in the combined budgets of BIA and BOR from 2003 to 2004 is influenced by the lack of settlements in the pipeline. He opined that settlement parties can expect increased scrutiny due to budget deficits, and perhaps closer scrutiny regarding the contributions of non-Indian interests.
Bill Hume, Director of Policy and Strategic Planning in the New Mexico Governor's Office, concluded from what he had heard at the symposium that a settlement cannot be pursued without an accompanying lawsuit. He also raised the question of determining the priority dates for Pueblo water rights, which were established by Spanish and Mexican law, but later recognized by the United States. Mr. Hume assured the group that New Mexico Governor Richardson's administration is ready and willing to work on settlements.
Steven Malloch, Executive Director of the Western Water Alliance, pointed out that all water is political, because it is too important to be left in the hands of attorneys and hydrologists. He recognized several daunting issues for settlements; namely, negotiations, the demands of growing populations, the Endangered Species Act, clean reliable water sources, CWA issues, non-point source pollution, restoring degraded waters and waterways, and adjudicating state water rights. From an environmentalist's perspective, Mr. Malloch says that there are three options regarding Indian reserved water rights settlements: 1) to leave them alone, 2) lobby the parties involved to get their views recognized, or 3) to litigate using the environmentalists' "holy trinity" of the ESA, CWA, and NEPA (the National Environmental Protection Act). He urged parties to be ready to educate congressional staff, noting that it is hard to underestimate congressional staff's lack of knowledge regarding many of the issues they deal with. He cited the importance of using stories, using the adage, "a compelling story is worth a whole lot more than a dry recitation of the facts."
Mike Brophy, an attorney at Ryley, Carlock & Applewhite, and former WSWC Chairman, provided a wrap-up summary of the symposium. As one who has long been associated with both litigation and the settlement of Indian water rights claims, he stressed the importance of persistence and a strong will, together with a lot of patience in this process. He praised the efforts of the WSWC and NARF, as well as others dedicated to bring about more success in settling these claims. He highlighted the points made by the symposium speakers. He also noted that the invocations given by tribal participants to begin each day indicate the seriousness of settling Indian reserved water rights claims. He underscored the importance of addressing water quality concerns along with the quantity concerns in settlement negotiations, and concluded that the job of funding these settlements will inevitably grow more difficult.