Indian Water Rights Settlements | Tribal Law and Order Act | Native American Public Safety, Health, and Water | Indian Arts and Crafts Act | Off-Reservation Trust Land Acquisitions for Gambling Purposes
The courts and Congress have long acknowledged a trust relationship between the federal government and Indian tribes. With that in mind, I have worked hard to fulfill this legal obligation by promoting economic growth and opportunity for Native Americans; improving the administration of justice in Indian country; strengthening the government-to-government relationships that exist between the federal government and the tribes; and protecting the Native American culture that greatly enriches Arizona and our nation. These efforts also yield economic and public-safety benefits for Arizona’s non-Indian communities, many of which are located near tribal reservations.
I’ve helped secure the enactment of several Indian water settlements in Arizona, each of which provides much-needed certainty to our state’s Indian and non-Indian water users as they work to satisfy existing water needs and plan for future development. I hope to win passage of one more, the Navajo-Hopi Little Colorado River Water Rights Settlement Act, before the end of this year.
Arizona Water Settlements Act
The enactment of the Arizona Water Settlements Act, which I sponsored and which became law in 2004, capped 15 years of hard work by dozens of parties in Arizona to amicably resolve a long list of water-rights disputes. It became fully enforceable and effective in 2007, and settled the water-rights claims of the Gila River Indian Community and the Tohono O’odham Nation.
The law provides significant funding to enable both of these tribes to build water infrastructure to meet the needs of their reservations. In fact, all tribes in Arizona that can utilize Central Arizona Project water will benefit from the new law, since it creates a fund to pay yearly operation and maintenance costs for the water delivered to tribes through 2045. The law also sets aside more than $250 million to settle Arizona’s tribal water-rights claims in the future.
What’s more, the act enables American Indian tribes to utilize water rights that, until now, have existed only on paper. In addition, it brings long-sought certainty to cities and communities as they plan for their growth and development. The law also resolves a long-standing dispute between the State of Arizona and the federal government over nearly $2 billion in repayments for construction of the Central Arizona Project. Consequently, all of the people of Arizona will benefit from the legislation.
The settlement marks a milestone in Arizona’s history. It lays the foundation for future Indian water rights settlements, and could ultimately prove as important to the state’s future as the authorization of the Central Arizona Project itself.
The settlement is now being implemented, and the tribes are already receiving many of the benefits that were contemplated. In 2011, for example, $31.5 million in federal funding was provided for the construction and rehabilitation of a water-delivery project that will benefit the San Carlos Irrigation and Drainage District and the Gila River Indian Community.
Navajo-Hopi Little Colorado River Water Rights Settlement Act
This February, Senator McCain and I introduced legislation (S. 2109) that would settle the claims of the Navajo Nation and the Hopi Tribe and allow them to use water from the Little Colorado River and its sources (to view my introductory remarks about the settlement, click here). If enacted, the settlement would recognize the rights of both tribes to surface water that crosses their reservations and the groundwater that lies beneath those lands. In addition, the settlement would authorize construction of much-needed drinking water projects for impoverished areas of the reservations.
Non-Indian water users in the Little Colorado River basin (including the cities of Flagstaff and Winslow), as well as numerous ranchers and industrial water users, would also benefit. The settlement allows those entities and individuals to continue existing water uses while avoiding the uncertainty and expense of continued litigation.
Introduction of this bill is a significant step in the two-decades-long process to settle the claims, and I look forward to its approval before the end of the year.
White Mountain Apache Tribe Water Rights Quantification Act
In 2009, Senator McCain and I introduced legislation to ratify a settlement of the White Mountain Apache Tribe’s water claims, quantify the amount of water the tribe may legally use, and authorize funding for the construction of the Miner Flat Project, a vital drinking water project on the tribe’s reservation. That measure passed the House and Senate in November 2010, and was signed into law the following month.
As part of the settlement, the tribe will waive its water-related claims against the United States and a number of non-federal parties in Arizona. More importantly, it will also establish a clean, reliable source of drinking water for members of the White Mountain Apache Tribe. In September 2011, the Department of the Treasury transferred the funding for that drinking water project to the Bureau of Reclamation – a critical step in satisfying the settlement conditions.
This settlement followed enactment, in 2009, of the White Mountain Apache Tribe Rural Water System Loan Authorization Act, a bill I introduced to expedite the initial planning and design phases of the Miner Flat Project, thus reducing the ultimate cost of construction and the settlement legislation.
Fort McDowell Indian Community Water Rights Settlement Revision Act
I sponsored legislation with Senator McCain in 2006 that forgave a federal long-term, no-interest loan made to the Ft. McDowell Yavapai Nation to construct water-delivery infrastructure. In return, the U.S. government was relieved of its obligation to conduct environmental mitigation associated with that construction on the Nation’s reservation, as would otherwise have been required by the Fort McDowell Indian Community Water Rights Settlement Act of 1990.
This settlement revision, which was signed into law in November 2006, brought to a close the final stages of implementation of the tribe’s important water settlement. It still serves today as an example of how the federal government and American Indian tribes can work together to reach a solution that benefits both parties.
Zuni Indian Tribe Water Rights Settlement Act
Legislation I introduced to settle the Zuni Tribe’s claims to water on its religious lands in northeastern Arizona – an area known as “the Zuni Heaven Reservation” – became law in 2003. The settlement honors the Zunis’ religious beliefs, resolves the tribe’s long-standing claims, and protects rural communities’ access to water. By resolving this decades-long dispute, the law has saved all parties – including the tribe and the State of Arizona – the expense of a protracted legal battle.
To avoid litigation, all of the parties involved – including the federal government and the State of Arizona – sought a legislative settlement that provided the Zuni Tribe with the financial resources to acquire water rights in the Little Colorado River basin and restored the riparian environment that previously existed on the Zuni reservation. In return, the Zuni agreed to waive future claims to water rights, accept current water uses by non-Indians, and recognize many future water uses by local water users and communities.
A total of $26.5 million is being used to settle claims, implement the agreement, and restore Zuni reservation land. The bulk of that money – $19.25 million – comes from the federal government.
Recognizing that tremendous needs exist in Indian country, I authored a measure with Senator John Thune in July 2008 that authorized: (1) $750 million for law enforcement in Indian country; (2) $250 million for Indian health care, including contract health services, Indian health facilities, and domestic and community sanitation facilities; and (3) $1 billion for water supply projects that are part of Indian water settlements approved by Congress. Congress adopted the measure as an amendment to a foreign aid bill, known as PEPFAR, which later became law on July 30, 2008. The $2 billion in funding for Indian country is money that would otherwise have been sent abroad as foreign aid.
Recognizing the tremendous needs that exist in Indian country, I authored a measure with Senator John Thune in 2008 that authorized: (1) $750 million for law enforcement in Indian country; (2) $250 million for Indian health care, including contract health services, Indian health facilities, and domestic and community sanitation facilities; and (3) $1 billion for water-supply projects that are part of Indian water settlements approved by Congress. The bill also requires the Department of Justice, the Department of Health and Human Services, and the Department of the Interior to develop a coordinated plan with Indian tribes regarding how those funds should be allocated. The Department of the Interior hosted four consultations in late 2011, and is working with the other departments to finalize the plan.
Congress adopted the Kyl-Thune initiative as an amendment to a foreign aid bill, known as PEPFAR, which became law on July 30, 2008. The funding for Indian country authorized in that measure is money that would otherwise have been sent abroad as foreign aid.
In 1990, while serving in the House of Representatives, then-Congressman Ben Nighthorse Campbell and I sponsored the Indian Arts and Crafts Act to prohibit misrepresentation in the marketing of Indian arts and crafts within the United States. It is a truth-in-advertising law that provides criminal and civil penalties for marketing products as “Indian-made” when such products are not, in fact, made by Indians. The law is intended to protect consumers, as well as Indian artisans, craftspeople, and tribes.
Misrepresentation of such products as Indian-style jewelry, pottery, baskets, woven rugs, kachina dolls, and clothing, to name a few, can result in civil penalties, or criminal penalties of up to a $250,000 fine or a five-year prison term, or both. Businesses that violate the Indian Arts and Crafts Act can face civil penalties or be prosecuted and fined up to $1 million. The Indian Arts and Crafts Board at the U.S. Department of the Interior has primary enforcement authority.
Senator McCain and I introduced legislation in 2009 to further strengthen the investigative and enforcement authorities of the Indian Arts and Crafts Act. That bill, which became law in July 2010, expands the investigative authority under the original act by allowing other federal law-enforcement entities besides the FBI – such as the Bureau of Indian Affairs’ Division of Law Enforcement – to investigate cases of misrepresentation, and to work with Department of Justice attorneys to prosecute cases.
Land has great spiritual and cultural significance to Indian tribes. Indeed, as the National Congress of American Indians put it, land is “critical for the exercise of tribal self-governance and self-determination.” In recognition of the important role that land plays in the life of Native American communities, the federal government holds land in a trust status for the benefit of the tribes and their members.
That special status means that the land falls under tribal government authority and is generally not subject to state laws. For a variety of reasons, including an interest in establishing gambling operations, some Indian tribes believe their existing landholdings are inadequate. As such, the tribes may petition the Department of the Interior to administratively expand their trust land pursuant to a 1934 congressional authorization.
The problem is that administrative trust acquisitions often lack the level of scrutiny necessary to determine the full impact of such trust decisions. I have, therefore, coauthored two pieces of legislation to ensure that there are more thorough policy deliberations during the off-reservation trust acquisition process.
Last April, Senator Feinstein and I introduced the Tribal Gaming Eligibility Act. It would end a practice known as reservation shopping, where Indian tribes acquire trust land hundreds or even thousands of miles from their existing reservations for the purpose of operating a casino. The Tribal Gaming Eligibility Act would require tribes to demonstrate a substantial connection to the trust land they propose to acquire.
Likewise, last July, Senator McCain and I introduced the Off-Reservation Land Acquisition Guidance Act, which would codify a policy-guidance memorandum previously used to analyze off-reservation trust land acquisitions (guidance that the Obama Administration withdrew in June 2011). Our bill would, among other things, require the Department of the Interior to give greater scrutiny to trust applications when the off-reservation acquisition is intended for gambling purposes. Importantly, it would also require a tribe to explicitly indicate at the time of acquisition whether it intends to operate a casino on the trust land.
