TESTIMONY OF LESTER RANDALL, CHAIRMAN,
KICKAPOO TRIBE IN KANSAS, IN SUPPORT OF S. 2154,
THE KICKAPOO TRIBE IN KANSAS WATER RIGHTS
SETTLEMENT AGREEMENT ACT
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
JULY 18, 2018
Good afternoon, Chairman Hoeven, Senator Moran, and other members of the Committee. I’m Lester Randall, Chairman of the Kickapoo Tribe in Kansas. I’m here today to testify on behalf of my Tribal Council and Tribal members, in support of S. 2154, a bill to approve our Water Settlement Agreement, enacted in September 2016 with the State of Kansas. That Agreement accomplishes a number of critical steps in the Tribe’s decade’s long effort to achieve water security. I’ll provide an overview of those steps for you in a moment.
First, I wanted to express the Tribe’s appreciation to the State of Kansas and the leadership and technical staff in its Department of Agriculture and Division of Water Resources. A meaningful, respectful partnership was created between the Tribe and the State on water management in the Delaware River basin that we believe will have lasting value to both sovereigns. Thanks also to former Governor Sam Brownback and current Governor Jeff Colyer, and also to Attorney General Derek Schmidt.
I also want to express the Tribe’s appreciation to Senator Moran and his staff, for their commitment and leadership on this vital matter to the Tribe. And also, on the House side, to Congresswoman Jenkins and her staff for all of their support and assistance.
Attached as Exhibit 1 are copies of Federal and State of Kansas letters relevant to S. 2154.
Attached as Exhibit 2 are examples of copies of key local supporters of S. 2154.
Every Indian water settlement that comes to Congress is born of its own unique circumstances. The Kickapoo Water Settlement bill is no different. What makes this legislation, and the underlying Agreement between the Tribe and the State, unique is that we are asking the Congress to approve a water agreement evolving from a project the Congress blessed 20 years ago through the Department of Agriculture’s Small Watershed Program.
The Kickapoo Tribe in Kansas has lived in northeast Kansas since it entered into the 1832 Treaty of Castor Hill with the United States. In a later treaty in 1854 the Tribe ceded over 600,000 acres of land to the United States, retaining approximately 150,000 acres for our Reservation. An additional cession of land took place in 1862, which the Tribe opposed, opening our Reservation to allotment and homesteading.
The Kickapoo Tribe was the first of three other Indian tribes in northeast Kansas to compact with the state for their gaming operations called the “Golden Eagle Casino”, the largest employer in Brown County. Economic development is the top priority for the Kickapoo Tribe, to meet the growing needs of its community and to maximize its economic resources for the benefit of tribal members. The Kickapoo Tribe has a diverse workforce made up of over 130 professionals and technical staff members. The day-to-day operations include issues with environmental, health, road maintenance, compliance, financial, legal, gaming, and planning community growth.
Drought is no stranger to our Reservation in northeast Kansas, which is east of the 100th Meridian, often thought of as a dividing line between the drier western United States and the wetter Midwest. Governor Colyer issued a state-wide drought declaration in March of this year, which is still in effect. And the Division of Water Resources has notified water users in the Delaware River basin, where our Reservation sits, of impending cutbacks.
Water, while being sacred to the Kickapoo, is an essential cornerstone to a vibrant homeland. A dependable water supply is essential for us to meet our present and future housing, economic development, fire protection, and agricultural pursuits at the Tribal farming enterprise. By virtue of its 1832 Treaty with the United States, the Tribe possesses senior water rights under the Winters doctrine, which implicitly reserved sufficient water from the Delaware River and its tributaries to make the Reservation a viable, permanent homeland for the Kickapoo people.(FN 1)
The Tribal community’s drinking water needs are critical. The Reservation sits on a rock formation blocking access to groundwater. The only current water supply is the Delaware River, a modest sized river and its tributaries that flow through the Reservation. We’ve relied on a small dam and water treatment plant on the river, one that we built with a small grant from the United States government in the 1970’s. Over the years the dam and treatment plant have been repeatedly repaired, but both structures are old and inadequate for the current needs.
After construction of the small dam, pump house and treatment system, in the mid-1970s, the Tribe wanted to embark on a larger scale water development project. The Tribe sought the assistance of the Bureau of Indian Affairs in the early 1980s, who sent us to the Soil Conservation Service (“SCS”), which is now the Natural Resources Conservation Service (“NRCS”). Under the SCS Small Watershed Program, also known as the PL 83-566 Program, the Tribe in conjunction with a local watershed district, four local conservation districts, the State of Kansas, and SCS/NRCS, began in 1983 a decade long effort to design, plan and seek congressional approval of a water storage project known as the Upper Delaware and Tributaries Project. The centerpiece of the Project was a multi-purpose storage project to be built on Plum Creek.
Plum Creek is a tributary to the Upper Delaware River. A federal Watershed Agreement was executed by all the parties in 1994, following a full NEPA Environmental Impact Statement review, and a final Record of Decision issued by NRCS. Congressional authorization was secured for the Plum Creek Project in 1996 by the Senate, and in 1998 by the House. We have been told by NRCS’ legal counsel that the USDA considers the congressional authorization of the Project to still be valid. See Exhibit 3.
As a project sponsor, it is the Tribe’s responsibility under the PL-566 Program to secure two things – first, the land rights for the Project, and, second, the water rights.
As for the land rights, the Tribe over the past decade has purchased about 250 acres of land in the Plum Creek drainage – with its own money – where the Project would be located. It will continue those efforts, offering fair market value or land exchanges where possible. Depending on the final size of the Project, the Tribe already owns over half of the needed land.
As for the water rights, in September of 2016, after several years of technical negotiations, the Tribe and the State of Kansas’ Department of Agriculture and Attorney General entered into the Agreement that quantifies the Tribe’s water right, and how that water right is to be administered by the State on the Delaware River and its tributaries. The U.S. Departments of Interior, Justice and Agriculture were involved in the negotiation of the Settlement Agreement.
An important next step is to have Congress approve the Tribal-State Settlement Agreement. By enacting S. 2154, and approving the Settlement Agreement, the Congress:
• Approves the water right of 4,705 acre feet per year as a federal reserved water right;
• Directs the federal Interior Department to execute the Settlement Agreement and to carry out the terms of the Agreement consistent with this Act;
• Establishes the storage, seepage and evaporation components of the Tribal water right;
• Establishes the administration of the right by the State as the senior water right in the river basin;
• Establishes the Tribe’s monitoring and reporting requirements for water consumption on the Reservation;
• Directs the Tribe to enact a water code that recognizes and protects the interests of Kickapoo Tribal members who own interests in allotted land on the Reservation, and who have an interest in the water right;
• Directs NRCS, in consultation with the Interior Department, to commence a study of and make recommendations for alterations to the Plum Creek Project to effectuate, in part, the Tribe’s water right;
• Splits the waiver of claims by the Tribe against the United States, consistent with the fact that S.2154 does not authorize the appropriations of funding to construct water storage at the Plum Creek Project or anywhere else on the Reservation, and consistent with a settlement agreement between the Tribe and the United States in a tribal trust lawsuit resolved in April of 2012;
• As set out in more detail below, the Settlement Agreement and S. 2154 are in compliance with the Interior Department’s 1990 Criteria and Procedures, to the extent relevant, given the unique nature of the Settlement Agreement;
• S. 2154 does not authorize the appropriation of, or appropriate funds, for a water storage project for the Tribe at the Plum Creek Project site or elsewhere. Once reviewed by NRCS, the Tribe contemplates the parties will come back to Congress with recommendations for water storage and the costs associated therewith;
• Though not relevant on the Senate side, the Tribe has been cognizant of the “Bishop” process on the House side, and has worked with Congresswoman Jenkins’ office to engage the House Natural Resources Committee staff on the unique, phased nature of this settlement.
The Tribe, Its Membership and Its Reservation, and the Consequences to the Tribal Community from a Lack of Access to a Dependable Water Supply
The Tribe has an enrolled membership of 1,600, about 400 of whom live on or near its 30 square mile Reservation in northeast Kansas. The Tribe is organized under the Indian Reorganization Act of 1934, and its government operates under a constitution approved by the Secretary of the Interior in 1937. The Tribe was moved in the 19th century several times by the United States government – from the Fox River Valley in Wisconsin to multiple locations in Illinois, Missouri and Kansas – pursuant to nine treaties spanning a fifty-year period between 1809 and 1862.(FN 2) See Exhibit 4. The Tribe has lived in its present territory in Kansas since 1832, twenty-nine years prior to Kansas Statehood in 1861. See Exhibit 5.
The Tribe presently holds equitable title to 4,859 acres, and fee title to another 2,189 acres, of land within its Reservation boundaries located within Brown County, Kansas. Tribal members own equitable title to another 2,861 acres of allotted land. See Exhibit 6. Under Federal law the underlying legal title to this land is held in trust for the Tribe and its members by the United States.
The Tribe created the Kickapoo Housing Authority in 1966-67. The federal Housing and Urban Development HUD awarded the Tribe and its Housing Authority a grant to construct tribal homes in 1967-68. Prior to that, our homes on the Reservation – about 20 in number – were served through individual shallow wells at each home. These homes were scattered throughout the Reservation on individual allotment lands.
The first housing project was developed on tribal lands, homes were closer together and required a larger water supply. That first housing project involved the construction of 40 homes. Second and third housing projects followed in the next few years. Because the Tribe did not have its own water source, it had to create a means to hook up to the City of Horton’s water supply, a distance of 5 miles from the housing projects. This was a very expensive alternative, and was only viewed as a stop-gap measure. It was the only viable alternative, since HUD would not provide funding for housing without an assurance of water availability.
The current Kickapoo Water Treatment Plant currently supplies water to both Indian members and non-Indians – about 60 persons – who live within Reservation boundaries. The Tribe operates its own Tribal School – grades K through 12 – and would like to supply water to this facility, but is unable to supply the school with water from its own system.
The Tribe also provides basic fire protection to all Reservation residents, both Kickapoo tribal members and non-Indians alike, under mutual aid agreements executed with neighboring jurisdictions. The Tribe’s ability to do so, however, is limited by an unreliable water supply. Reservation residents and numerous Tribal structures are in constant danger. In March of 2005, an arsonist set a large fire on Kickapoo lands, destroying 1,500 acres. Without the aid of neighboring communities, a larger land area, including homes and other structures, would likely have been destroyed due to the shortage of water.
Several housing and economic development opportunities for the Kickapoo people have been lost over time because the Kickapoo Tribe could not ensure that the Tribe’s water works could meet their water needs. Several years ago the Kickapoo Tribe was granted, but had to reject, a 25-unit housing project awarded by the State of Kansas Housing Resources Corporation due to the lack of a stable water source. And a constrained water supply restricts economic development opportunities on the Reservation, which in turn restricts the prosperity of the Tribe and the Kickapoo people.
The Hydrology of the Kickapoo Reservation, and the Crippling Effects of Drought and Drought Sensitivity
East of the 100th Meridian, the Delaware River in northeast Kansas traverses the Kickapoo Reservation and benefits from more than 35 inches of precipitation annually, with a total average runoff for the entire river of about 200,000 acre feet, about 60,000 acre feet of which is annually available to the Reservation, about 8,750 acre feet from the Plum Creek drainage alone. Unfortunately, despite its location, drought and water shortage are not an unknown or unexpected part of living in northeast Kansas. The Reservation faces off-again–on-again drought conditions resulting in a continual challenge in obtaining an adequate and reliable water source to meet the basic health and sanitary needs of its residents. Indeed, northeast Kansas including our Reservation has been identified by the Kansas Water Office as a “drought sensitive” area of the State.
In 2003, for instance, the Delaware River and its tributaries were completely without flow for over 60 days due to the severe drought conditions in the Midwest. The Tribe was forced to severely ration water and truck over 7,000,000 gallons of drinking water to the Reservation. The Bureau of Indian Affairs provided the Tribe $186,000 for water-hauling assistance. The Tribe’s commercial operations, as well families and non-Indian residents, were forced to cut water consumption by almost 60%. Droughts since 2003 continue to beset the Tribe and its members.
In times of natural drought, such as that experienced in the summer of 2003, the combined effect of the drought and the man-made impoundments and other land treatment actions in the watershed have caused the Upper Delaware River to run dry for long periods of time. A generation ago and earlier the watershed was far more reliable for meeting the Tribe’s needs. Now the water shortages come with increasing frequency, and are not just connected to drought events. Developments upriver have altered the hydrology.
On a year-in and year-out basis, the Tribal Council has to issue periodic notices to the customers served by its water company that the system is in a shortage situation, and voluntary restrictions go into effect. In the most challenging conditions the cutbacks are mandatory. Indeed, in March of this year the Kansas Water Office announced that the water rights above the Muscotah gage on the Delaware River were put under State administration due to drought conditions in the watershed. See https://kwo.ks.gov/docs/default-source/drought/rpt_09_midjune2018_drought_ 061218_dk.pdf?sfvrsn=0 Governor Colyer also issued a statewide drought declaration at the same time, which is still in effect. See https://kwo.ks.gov/docs/default-source/drought/exec-order-18-11-final.pdf?sfvrsn=2
The Kickapoo Tribe’s Forty-Five Year Effort to Develop a Water Supply under Federal Law
Water security is an essential element of tribal sovereignty, and for more than 45 years the Tribe has been on a quest to achieve water security and stability. Despite best efforts, the Tribe’s long-term goal of water security for itself and all Reservation residents has to date fallen short.
In the mid-1970s the Tribe constructed its own rudimentary water diversion, treatment and supply system with financial assistance from the Federal government. In 1976-77, the Tribe was awarded a grant from what was then called the Economic Development Administration, or EDA, of the U.S. Department of Commerce. The grant, in the amount of $1.3 million, was for the construction of a low water impoundment dam on the Delaware River, an intake and raw water pump station, water treatment plant, distribution system, and sewage treatment plant. It supplies water to both Indians and non-Indians alike who live within the Reservation boundaries and within the reach of the delivery system. See Exhibit 7.
The low water impoundment dam was developed as a temporary supply measure to serve the Tribe until a larger, permanent reservoir could be developed on the Reservation. A 1970s 25- year comprehensive plan for Reservation growth and development, funded by a grant from the Administration for Native Americans (ANA), of the U.S. Department of Health and Human Services, revealed that the small project funded by EDA would only be the first of several steps taken by the Tribe to secure water for long-term needs. It also found that without impoundment the surface water from the Delaware River system would not meet long term water needs, and that the groundwater sources within our Reservation boundaries were insufficient.(FN 3)
Construction began on the EDA-funded dam and water treatment facility in 1977, with completion in 1978. Then-Kansas Governor Bob Bennett attended the ribbon-cutting ceremony. Given our Winters rights to water, the Tribe appreciated that the State of Kansas never challenged our diversion of water from the Delaware River into our fledgling treatment plant and water delivery system.
At the same time, in 1978, the local watershed district – the Nemaha Brown Joint Watershed District #7 – submitted to the SCS a General Plan for the development of the Upper Delaware River and Tributaries Watershed for the development of various water storage, flood control, soil erosion and land treatment activities. Kansas law required Nemaha Brown to prepare their General Plan, in order to be eligible to secure funding for water and soil conservation programs from the Kansas State Conservation Commission. SCS also required the watershed district to have an approved General Plan. See Exhibit 8.
The General Plan expressly mentioned the Tribe’s fervent intent to develop a municipal, commercial, industrial and fire protection water supply for its Reservation. The Plan identified 5 possible sites within the reservation for the development of a reservoir storage project. One of those sites was on Plum Creek, a tributary to the Delaware; the other four were on other Delaware tributaries. Id.
In the early 1980s the Tribe first learned of the federal PL-566 Small Watershed Program, funded and administered by SCS. The PL-566 Program law was amended by Congress in 1981 to enable Indian tribes for the first time to become local sponsors of watershed development plans, and to be eligible for funding from SCS for those purposes. Early on the Tribe wrote SCS and inquired whether it could become a local project sponsor under the PL-566 program. The Tribe was told it could not be an exclusive sponsor, because it did not have jurisdiction over the entire Delaware River watershed. Under Kansas law Nemaha Brown shared responsibility for the watershed with the Tribe. Neither the Tribe nor Nemaha Brown would have exclusive authority to operate federal flood and soil erosion control programs in the Delaware River watershed. Officials from the Tribe and Nemaha Brown then traveled to Washington, D.C. together in February of 1983 to work out more of the details of a joint sponsorship with SCS officials.
This led to the Tribe and Nemaha Brown formally creating a Joint Watershed Board in 1983. Exhibit 9. The Agreement states that "[i]t is the understanding of the District and the Tribe that the goal of the two local agencies is the ultimate construction of all needed structures within the watershed." The Plum Creek project was one of the key water storage projects contemplated by the parties to the Joint Agreement. Both the SCS and the Kansas State Conservation Commission officially endorsed the joint co-sponsorship agreement, as did then Senator Nancy Landon Kassenbaum.
The Tribe was then able to secure $156,000 from the Bureau of Indian Affairs to retain a Topeka engineering firm to conduct the preliminary engineering analysis to initiate the PL 566 application process. This was a highly unusual step for the BIA, to expend Indian trust funds for the technical services of an engineering firm to be used not only to benefit Indian reservation lands but also off-Reservation, non-Indian interests. Ultimately, it enabled the Kickapoo-Namaha Brown PL-566 application to receive priority ranking in the 1990s by SCS.
Between 1983 and 1994, the Tribe, the Namaha Brown and SCS analyzed and selected viable sites for flood retention dams and related land treatment activities to be part of the final Watershed Plan. Public meetings sponsored jointly by the Kickapoo Tribe and Nemaha Brown were held in 1990 and 1991 to explain the nature and scope of the project to interested individuals and communities in Brown County. Those meetings kicked off the formal EIS process under the National Environmental Policy Act (“NEPA”).
In June of 1994, the Kickapoo Tribe entered into the Watershed Agreement with the watershed district, four local conservation districts, the State of Kansas Department of Agriculture, and the SCS to jointly develop the Watershed Plan. The Agreement allowed cost-sharing of flood control and water supply projects under the PL-566 Program. It set forth an express plan to control erosion, provide drinking water and reduce flooding for the entire watershed, through the construction of 20 small flood retention dams and one large, multi-purpose water storage project, the Plum Creek dam and reservoir, designed to provide a reliable long-term water supply for the Kickapoo reservation. The Plum Creek Project was designed to be a 400 acre water surface area and 1200 acre land area, multi-use reservoir that will provide for sufficient water to meet the present and future needs of the Kickapoo Reservation and its Indian and non-Indian residents. See Exhibit 10.
A notice of publication of the final EIS was published in the Federal Register on May 13, 1994. See Exhibit 11. NRCS issued a Record of Decision in 1994, approving the project’s compliance with NEPA, and recommending authorization by the Office of Management and Budget and the Congress. See Exhibit 12. On June 30, 1994, the United States Army Corps of Engineers (“ACE”) issued a § 404 Clean Water Act permit – Permit # DA-199401028 – for the Plum Creek project to Nemaha Brown. Revised special conditions for the permit to Nemaha Brown were issued by the Corps of Engineers on October 16, 2002.
In 1998, the parties to the 1994 Watershed Agreement obtained final Congressional authorization for the development of the Project, including Plum Creek, under the Federal PL-566 program. See Exhibit 13 and Exhibit 14.
The Plum Creek storage project is the largest storage site on the Reservation. It was designed in 1994 by NRCS to hold about 10,500 acre feet of storage capacity, about 3,500 acre feet of which is for flood control, and about 7,000 feet of which is for storage of water for consumptive uses. The Plum Creek sub-drainage provides sufficient water to fill a project of that capacity. On average, over the past 35-year period of record, about 8,570 acre feet of water per year flows out of Plum Creek into the Delaware River. In most years this will provide the Tribe with a reliable source of water. Extended drought cycles may make complete annual refill impossible year in and year out, and so the project’s storage will have to be managed with that in mind. There are smaller storage project sites on the Reservation, and those also will be kept in mind in future water planning efforts. But the Tribe does not own as much of the land area at those smaller alternative sites.
Overview of the September 2016 Kickapoo Tribe Water Rights Settlement Agreement
The Water Right Settlement Agreement establishes the nature, extent and characteristics of the Tribal Water Right and the respective rights, duties and obligations of other parties to the agreement. Under the Agreement, the Tribe may divert or redivert, as available, up to 4,705 acre-feet of water per year with a priority date of October 24, 1832 for any direct use for the Tribe. Domestic use by members and allottees does not count against the Tribal Water Right. Kansas domestic water rights are exempt from administration to protect the Tribal Water Right. The Tribe may store in one or more reservoirs, for the purpose of subsequent direct use, up to a combined volume of 18,520 acre-feet. The combined volume may be increased if seepage characteristics of the reservoir or reservoirs requires. Direct use and storage allowances of the agreement were determined based on municipal build-out concept, using methods consistent with the Kansas law for Kansas water users. See Exhibit 15.
The Settlement Agreement includes an attached Memorandum of Agreement which establishes clear and transparent procedures for communication, monitoring and protection of the Tribal Water Right. The MOA provides for a process of annual reviews by the State and Tribe to insure it remains current, especially as the Tribe develops storage.
Under the Settlement Agreement, the Kansas Department of Agriculture - Division of Water Resources and the Chief Engineer have the following responsibilities:
- Agree to recognize the Tribal Water Right with a priority date of October 24, 1832.
- Review applications of Kansas water rights to ensure prevention of injury to the Tribal Water Right and to provide notice of applications to the Tribe.
- Monitor the basin as prescribed in the attached Memorandum of Agreement.
- Respond to notices of impairment through evaluation and administration, as needed.
- Review annually, with the Tribe, the Memorandum of Agreement to insure it remains appropriate as the Tribe develops its demand and constructs storage.
Under the Settlement Agreement, the Kickapoo Tribe of Kansas has the following responsibilities:
- Construct and maintain dams and other water structures.
- Provide the Chief Engineer copies of inspection reports and notice of signification changes in construction and operation, any structural problems of dams or reservoirs and proposed remedies, and any serious problems such as dam failure.
- Enact a Tribal Water Code.
- Meter all diversion and annually report water use.
- Provide additional data required by the Chief Engineer to administer water rights to protect the Tribal Water Right.
- Review annually, with KDA-DWR, the Memorandum of Agreement.
It is generally believed that the Delaware River Basin has sufficient water supplies to satisfy the rights of the Kickapoo Tribe without reducing the established water rights of Kansas water right holders.
Key Provisions of S. 2154, Kickapoo Water Rights Settlement Legislation
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
SECTION 2. PURPOSES. – to approve and authorize the Kickapoo Tribe Water Rights Settlement Agreement between the Tribe and the State. Direct Interior and Agriculture Departments to execute the provisions of the Agreement and the Act.
SECTION 3. DEFINITIONS.
SECTION 4. – authorizes, ratifies and confirms the Settlement Agreement. Secretary of the Department of the Interior directed to execute the Agreement. Key provisions of the Agreement affecting the Department and the U.S. include:
- approval of tribal water code [Article 6],
- monitor State administration of state water law in the Delaware River Basin [Article 7],
- publish findings in the Federal Register when all conditions necessary for completion of the Agreement have been fulfilled [Article 10],
- waivers and release of claims [Article 12],
- Compliance with all federal laws, no exceptions of waivers.
SECTION 5. KICKAPOO TRIBE WATER RIGHTS. – tribal water rights confirmed and held in trust, allottee due process protections, tribal water code to allocate and administer tribal water rights to allottees and members, Secretarial approval of tribal water code.
SECTION 6. EFFECT OF KICKAPOO TRIBE WATER RIGHTS SETTLEMENT AGREEMENT AND ACT . – does not affect the State’s administration of state water rights, does not affect the ability of the U.S. to enforce federal law, does not affect ability of U.S. to fulfill obligations as trustee to other tribes or allottees, does not confer jurisdiction on state courts, enforceability date.
SECTION 7. WATER FACILITIES. – NRCS PL-566 Small Watershed Program and Upper Delaware River Watershed Plan. Congressional approval in 1996 and 1998, authorizing a water storage project for the Tribe. Study and make recommendations to Congress to possibly alter plan to effectuate, in part, the Tribal water rights.
SECTION 8. WAIVER AND RELEASE OF CLAIMS; RETENTION OF CLAIMS. – Tribe and the U.S. waive claims to water rights, Tribe waives claims against U.S. for failure to establish water rights, but not damages resulting from failure to establish, quantify, acquire, develop, enforce or protect such water rights. See Exhibit 16.
SECTION 9. JUDICIAL PROCEEDINGS. – on enactment of Act, proceedings to bind all water rights in the Delaware River Basin to the Agreement and the Tribe’s water rights, so that Kickapoo water rights become enforceable.
SECTION 10. – MISCELLANEOUS PROVISIONS. – limited waiver of immunity, other tribes not affected, limitation on claims for reimbursement, nothing affects current law, no use of condemnation or eminent domain.
Compliance with the Federal Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims
The Kickapoo Settlement is consistent with the United States’ responsibility as trustee to Indians, and will secure to the Tribe the right to use and obtain benefits from Reservation water resources, thus ensuring that the Tribe will receive equivalent benefits for claims it will waive as part of the settlement. The settlement resolves all outstanding Kickapoo water right claims, quantifies a tribal right to 4,705 acre-feet for all present and future needs on the reservation, and does so while creating a mechanism for administering the tribal water right vis-à-vis the established water rights of Kansas water right holders, thereby creating a framework that will encourage long-term cooperation among local water interests, the State, the Tribe and the United States. The settlement includes a process that will specify who may use the tribal water right, where, and under what conditions. Finally, this settlement is a crucial and long-awaited step towards achieving a permanent tribal homeland promised to the Kickapoo Tribe in the treaties and agreements ratified by Congress in in the 19th century that serve as the foundation of the relationship between the Tribe and the United States.
The Tribe doesn’t disagree that as a general proposition the Federal Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims, 55 FR 9223-01 (“C&Ps”) provide important guidance to the Department in settling Indian reserved water rights, which involve claims by the Tribe and third parties, and necessarily involve the Department as trustee. And the Tribe doesn’t disagree that the C&Ps have a role to play in the implementation of S.2154, once enacted. But, as in all things, context matters. Behind S. 2154, and the Settlement Agreement it approves, is an extraordinarily long history of struggle by the Tribe to attain water security and equity in the Delaware River watershed, with the knowledge of the Interior Department and the Bureau of Indian Affairs, but without the trustee’s involvement, until very recent years. This struggle included the resolution of legal claims in an expensive federal court lawsuit brought by the Tribe to which the United States was a party. Key representatives of the Interior, Agriculture and Justice Departments, as well as water engineering consultants, played an integral role in the resolution of the litigation and the negotiation of the Settlement Agreement.
By letter dated April 6, 2018, the Interior Secretary’s Indian Water Rights Settlement Office notified the Tribe of its appointment of a federal negotiation team under the C&Ps. See Exhibit 17. The team’s formal appointment (though the members of the team have not all been identified as of the date of the writing of this testimony) at this point in the settlement process represents another unique aspect of this Settlement. S. 2154 is a settlement of the Tribe’s water right and the myriad details concerning administration of the right in the Delaware River watershed. It was negotiated and signed by the Tribe and the State in September of 2016. The Tribe does not see the utility of a federal negotiation team in relation to the Settlement Agreement that S. 2154 approves, with one exception. As noted below in relation to criteria #4, however, Section 7 of S. 2154 contains a key direction to the Natural Resources Conservation Service to study and make recommendations to Congress for changes and improvements to the previous watershed plan authorized by Congress in 1998 that included a multi-purpose storage project on Plum Creek, a tributary to the Delaware River. The federal negotiation team will most certainly play an instrumental role in that process, and it should include as a team member an official from the Kansas office of the NRCS.
Notably, the settlement does not include a Federal financial contribution. Instead, it is focused on the Federal government’s programmatic responsibilities, including assistance by the Bureau of Indian Affairs (BIA) to work with the SCS/NRCS to fulfill storage needs promised in the early 1990s. The Settlement and this Act resolve some but not all of the Tribe’s damages claims against the Federal government, as explained earlier. Importantly, the Settlement provides resolution to a primary tribal claim against the federal government, that of the failure to secure and protect the federal reserved water rights of the tribe in a basin that has seen considerable federal investment on private lands (but not on the Tribe’s trust lands).
An important component of the settlement involves progress towards development of storage. The SCS now NRCS completed a study in the mid-1990s of a proposed storage project on Plum Creek that was found to be economically feasible and consistent with federal guidelines at the time. S. 2154 directs NRCS, the Tribe and the Interior Department to revisit the 1994 Plan and make recommendations to Congress for further action.
The following is a description of how the process employed to settle the Tribe’s water rights complies with the Criteria and Procedures.
1. The Criteria and Procedures are applicable to all negotiations involving Indian water rights claims settlements.
The Criteria and Procedures are applicable as the Tribe and the United States government seek to quantify reserved Indian water rights through a negotiated framework.
2. The Department of the Interior will support legislation authorizing those agreements to which it is a signatory party.
The Department of Interior is not yet a signatory party to the Kickapoo Global Settlement Agreement ("Agreement"). However, it has participated actively through the negotiations that have been an outgrowth of the Tribe’s lawsuit. The Department cannot become a party to the settlement agreement until authorized to do so by Congress via ratifying legislation.
3. Settlements should be completed in such a way that all outstanding water claims are resolved and finality is achieved.
The Agreement will resolve all the outstanding Kickapoo water claims on the Delaware River and its tributaries that flow through the Kickapoo Reservation. The Settlement Agreement secures the water rights of all the water users in the Delaware River Basin vis-à-vis the Kickapoo rights, and creates a mechanism for administration of all federal and state water rights.
The Agreement outlines the Tribe's allocation, use, timing and potential locations of use.
Finality respecting the Tribal Water Right is achieved through the Agreement. In doing so each party thereby agrees to abide by its terms. The Tribe has agreed to waive all claims against state law based water users and the United States Government relating to the water rights the Agreement recognizes, in exchange for federal legislation approving the Agreement and directing the Secretaries of Interior and Agriculture to effectuate the terms of the Agreement.
4. The total cost of the settlement to all parties should not exceed the value of the existing claims as calculated by the Federal Government.
The Settlement Agreement does not authorize appropriations and therefore this C&P element is not relevant at this stage. As explained earlier in this testimony, Congress in 1996 and 1998 authorized the Delaware River Project, subject to the availability of appropriations, under the authority of the PL-566 Small Watershed Program. Following receipt of recommendations from the Natural Resources Conservation Service per Section 7 of S. 2154, the Tribe will ask Congress to take up the funding authority and mechanism at that time. It is possible that the appropriations process may proceed through the agriculture committees of the House and Senate, as would occur under the PL-566 program.
5. Federal contributions to a settlement should not exceed the sum of the following two elements, (1) United States liability if the claims were litigated and if the case is lost; federal and non-federal exposure in present value based on the size of the claims, value of the water, timing of the award, and likelihood of loss and (2) additional costs related to federal trust or programmatic responsibilities (justification for why such contributions cannot be funded through the normal budget process)
See #4, above. This criteria is not relevant to S. 2154 and the Settlement Agreement.
6. Settlements should include non-Federal cost-sharing proportionate to the benefits received by the non-federal parties.
See #4, above. This criteria is not relevant to S. 2154 and the Settlement Agreement.
7. Settlements should be structured to promote economic efficiency on reservations and tribal self-sufficiency.
The Tribe, the State of Kansas and the United States have negotiated a unique settlement that works to promote efficient use of the water resources of the Delaware River in northeast Kansas, and thereby promoting economic development on the Kickapoo Reservation, tribal self-sufficiency, and the economy of northeast Kansas.
For over 40 years the Tribe has been working to secure an adequate and clean water supply. During this time the Tribe has conducted various studies regarding economic development projects, housing developments, public safety requirements and community development projects. The studies consistently demonstrate a need for a reliable water supply to be successful.
Currently, the Tribe has a need for increased housing on the Reservation. However, the Tribe has been limited in its ability to build homes, in part because it does not have an adequate water supply necessary for housing developments. The Agreement will provide for sufficient water for the Tribe to build homes for members. The same holds true for economic develop enterprises on the Reservation.
In addition, the water supply will increase public safety on the Reservation. The Reservation has been subjected to fires, which have threatened Tribal member’s homes and the Reservation’s natural resources. An adequate water supply will assist the Tribe in achieving its fire safety goals.
8. Operating capabilities and various resources of the Federal and non-Federal parties to the claim negotiations should be considered in structuring a settlement.
Throughout the multi-year process of negotiations the parties – Tribal, State and Federal – have built strong relationships with one another that have fostered a willingness to achieve a positive settlement. Each party has contributed its unique resources to the Agreement. During the negotiation process the parties’ strengths and weakness were considered and each party contributed to the Agreement in a complimentary manner. The final Agreement is a manifestation of each party's contribution to the Agreement.
9. The U.S. shall not bear any obligations or liability regarding the investment, management or use of such funds.
See #4, above. This criteria is not relevant to S. 2154 and the Settlement Agreement.
10. Federal participation in Indian water rights negotiations should be conducive to long-term harmony and cooperation among all interested parties through respect for the sovereignty of the of the States and tribes in their respective jurisdictions.
The Tribe appreciates the relationships it established with the other negotiating parties through this process. In particular, the Tribe appreciates the closer ties it’s developed with the State Department of Agriculture, Attorney General, and Congressional delegation on water related matters. These closer ties build stronger channels of communication on other substantive topics.
Moreover, the terms of the Agreement facilitate long-term harmony among all the signatories through providing stability by securing the parties water rights. The Agreement also provides detailed processes for implementing the provisions of the Agreement. Through the process of agreeing to the rules, all the parties carefully considered their obligations in the Agreement. As a result, all the parties are aware of their obligations and have willingly accepted such obligations. This provides for long term harmony and stability among the water users on the Delaware River.
11. Settlements should not include a list of provisions, subparagraphs a-j.
See #4, above. These criteria are not relevant to S. 2154 and the Settlement Agreement.
12-14. Specific cost/financial considerations.
See #4, above. These criteria are not relevant to S. 2154 and the Settlement Agreement.
15. Settlement agreements should include the following standard language: Federal Financial contributions to a settlement will normally be budgeted for, subject to the availability of funds, by October 1 of the year following the year of enactment of the authorizing legislation.
See #4, above. This criteria is not relevant to S. 2154 and the Settlement Agreement.
16. Settlements requiring the payment of a substantial Federal contribution should include standard language providing for the costs to be spread-out over more than one year.
See #4, above. This criteria is not relevant to S. 2154 and the Settlement Agreement.
The Settlement and proposed legislation do not include financial authorizations for claims already settled by Congress. The claims that will be settled have a legal basis, have not been previously resolved by Congress, and were not settled in prior cases against the United States. The Settlement carries over damages claims not waived in an earlier, 2012 Settlement Agreement between the Tribe and the United States. See Exhibit 16. The Settlement does not resolve additional claims against the United States brought by the Tribe; the legal assessment, and potential financial contribution of the United States to their resolution, are forthcoming and not included as part of this Settlement.
Thank you again for convening this hearing on S. 2154. It is a unique piece of legislation driven by unique circumstances. It is important that Congress act now to approve the Kickapoo Water Right Settlement Agreement through the enactment of this Act, to enable these sovereign entities, with assistance from the United States, to continue to build on the momentum gained in the Agreement and the Act. Indian water settlements typically are built in increments, and this is no different in that respect.
INDEX OF EXHIBITS*
* A full set of these Exhibits is available at https://www.narf.org/nill/documents/20180711_kickapoo_testimony_s2154.html
1 The Winters doctrine is aptly named after the seminal reserved water case Winters v. United States, 207 U.S. 564 (1908), reaffirmed in subsequent Supreme Court decisions and followed by numerous lower federal and state courts over the past century. See, generally, Cohen, Felix, HANDBOOK OF FEDERAL INDIAN LAW (2012 Ed.), § 19.03 at 1210-1227.
3 The Indian Health Service and the BIA funded exploratory investigations for groundwater at about that same time, which found that there were no reliable sources of groundwater within the Reservation boundaries. A similar study was conducted by the Kansas Geological Survey in subsequent years, producing the same results. http://www.kgs.ku.edu/Hydro/Publications/OFR00_31/index.html Consequently, the Tribe has to rely exclusively on surface water for tribal domestic and commercial needs.