<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:90127.wais]
S. Hrg. 108-383
MISSOURI RIVER MASTER MANUAL
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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
90-127 U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2003
____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
BEN NIGHTHORSE CAMPBELL, Colorado, Chairman
DANIEL K. INOUYE, Hawaii, Vice Chairman
JOHN McCAIN, Arizona, KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico HARRY REID, Nevada
CRAIG THOMAS, Wyoming DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma TIM JOHNSON, South Dakota
GORDON SMITH, Oregon MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska
Paul Moorehead, Majority Staff Director/Chief Counsel
Patricia M. Zell, Minority Staff Director/Chief Counsel
(ii)
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
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 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 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 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.
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.
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 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 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, 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?
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 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.
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 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.
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 understanding 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 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 uniform. 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 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 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 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. 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 acre-feet, 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 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 well-intended 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.
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 expended 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
remains 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.
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 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 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.
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 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 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 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 intentions. 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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A P P E N D I X
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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 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 once-thriving 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.
______
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 become ``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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