[Senate Report 107-301]
[From the U.S. Government Publishing Office]
Calendar No. 638
107th Congress Report
SENATE
2d Session 107-301
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A BILL TO APPROVE THE SETTLEMENT OF THE WATER RIGHTS CLAIMS OF THE ZUNI
INDIAN TRIBE IN APACHE COUNTY, ARIZONA AND FOR OTHER PURPOSES
_______
October 8, 2002.--Ordered to be printed
_______
Mr. Inouye, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 2743]
The Committee on Indian Affairs, to which was referred the
bill (S. 2743) to approve the settlement of the water rights
claims of the Zuni Indian Tribe in Apache County, Arizona and
for other purposes, having considered the same, reports
favorably thereon with an amendment in the nature of a
substitute and recommends that the bill (as amended) do pass.
PURPOSE
The purpose of the bill is to resolve all claims in the
Zuni Indian Tribe to water rights in the Little Colorado River
basin and elsewhere in Arizona and to provide resources to
restore riparian wetlands on the Zuni Heaven Reservation that
are of great religious and cultural significance to the tribe
and its members.
BACKGROUND
Congress considered the history of the Zuni Indian Tribe in
detail when it enacted the Zuni Claims Settlement Act of 1990,
P.L. 101-486 (104 Stat. 1174). As the House Committee on
Interior and Insular Affairs noted in its report, H. Rep. 101-
727, 101st Cong., 2nd Sess. (1990), on a companion bill (H.R.
4143) to the legislation that was enacted into law (S. 2203),
the Zuni Tribe and its probable ancestors-the Anasazi and
Mogollon--inhabited an area as large as 15 million acres in
what is now the States of Arizona and New Mexico. This area was
inhabited as early as 5000 B.C., and between 1250 A.D. and 1540
A.D. large pueblos were constructed in this area. By 1450 A.D.,
this was a cultural and economic center for the Zuni, who used
the entire 15 million areas for hunting, gathering, and farming
as well as other life-sustaining activities.
Spanish explorers learned of the Zuni and the ``Kingdom of
Cibola'' in the late 1530s, and the first major contract with
Europeans took place when Coronado's expedition encountered the
Zuni as he searched for Cibola's ``Seven Cities of Gold.''
Spanish missionaries recorded the cultivation of corn by the
Zuni in 1581, and an expedition in 1583 noted the Zuni's
irrigation and hunting practices. In 1598, Spain officially
recognized the Zuni Province when the Zuni acknowledged Spanish
sovereignty over them. Under Spanish law, the Zuni retained
ownership of their lands and were treated as autonomous and
self-governing notwithstanding the overriding sovereignty of
Spain. The Zuni maintained their autonomy under the government
of Mexico after that nation achieved its independence from
Spain in 1821.
The 1848 Treaty of Guadalupe Hidalgo offered the Zuni the
same legal protections they had received under Spanish and
Mexican rule. Subsequently, however, the Zuni were deprived of
all but about 3% of the land they had earlier controlled. In
1877, the Zuni Reservation was established by executive order,
consisting of 408,000 acres of land in McKinley and Valencia
Counties in western New Mexico. Notwithstanding this diminution
of their lands, the Zuni have continued to make religious
pilgrimages from their reservation in New Mexico to the area
now included within the Zuni Heaven Reservation in Arizona. \1\
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\1\ See, United States on behalf of the Zuni Tribe of New Mexico v.
Platt, 730 F. Supp. 318, 318-21 (D. N.M. 1990).
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The Zuni Heaven Reservation was recognized by statute in
1984, P.L. 98-408, 98 State. 1533 (1984), as amended by P.L.
101-486, 104 Stat. 1174 (1990), to protect long-standing
religious and subsistence activities by the Zuni Indian Tribe
on certain lands in Apache County, Arizona, located upstream of
the confluence of the Little Colorado and Zuni Rivers. The
rights of all water users in the basin of the Little Colorado
River in Arizona have been in litigation since 1979 before the
Superior Court of the State of Arizona in and for the County of
Apache in an action encaptured In re The General Adjudication
of All Rights to Use Water in the Little Colorado River. Public
policy favors the resolution of such claims by means of
negotiated settlements, rather than through lenghty and costly
litigation.
After more than four years of negotiations amongst
representative of the United States, the Zuni Tribe, the State
of Arizona, the Salt River Project, Tucson Electric Power
Company, local irrigation companies, and neighboring non-Indian
communities located in the Little Colorado River basin, on June
7, 2002, the parties entered into a settlement agreement
(Settlement Agreement) to resolve all of the tribe's claims to
water rights, to assist the tribe in acquiring surface water
rights, to provide for the tribe's use of groundwater, and to
provide for the restoration of riparian wetlands of great
cultural and religious significance to the tribe. The proposed
legislation ratifies and confirms that Settlement Agreement,
and authorizes the appropriation of funds necessary to carry
out its terms. The legislation also approves, ratifies, and
confirms various related agreements among the parties.
Because of the unique nature of the Zuni Heaven Reservation
and the purposes for which it was established, the terms of the
Settlement Agreement and the provisions of S. 2743 which seek
to implement the Settlement Agreement in some instances
represent a departure from standard principles of Federal-
Indian law. The Committee recognizes these unique circumstances
and the history which gives rise to them, and further
recognizes that the provisions of the Settlement Agreement and
the implementing legislation are intended to address the
uniquecircumstances as well as the respective positions of the parties
to the Settlement Agreement, and are not intended to establish a
precedent for other settlements of tribal claims to land and water
rights.
LEGISLATIVE HISTORY
S. 2743 was introduced on July 17, 2002, by Senator Kyl,
for himself and Senator McCain, and was referred to the
Committee on Indian Affairs. The Committee held a hearing on S.
2743 on July 18, 2002. On October 1, 2002, the Committee, by
voice vote, ordered the bill favorably reported to the Senate
with an amendment in the nature of a substitute, with the
recommendation that the Senate do pass S. 2743 as reported.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
The Committee on Indian Affairs, in an open business
meeting on October 1, by voice vote approved S. 2743, with an
amendment in the nature of a substitute, and ordered the bill,
as amended, to be reported favorably to the Senate.
SECTION-BY-SECTION ANALYSIS
Section 1.--Short title
Section 1 cites the short title of the bill as the Zuni
Indian Tribe Water Rights Settlement Act of 2002.
Section 2.--Findings and purposes
Section 2(a) sets forth 9 Congressional findings that
provide the rationale and basis for the decision by all
parties, including the United States, to resolve the tribal
water claims by negotiated settlement.
Section 2(b) describes the purposes of S. 2743, which
include to approve, ratify, and confirm the Settlement
Agreement entered into by the tribe and neighboring non-
Indians, to authorize and direct the Secretary of the Interior
(Secretary) to execute and perform the Settlement Agreement and
related waivers, to authorize and direct the United States to
take legal title to certain lands and to hold such lands in
trust for the benefit of the tribe, and to authorize the
actions, agreements, and appropriations as provided for in the
Settlement agreement S. 2743.
Section 3.--Definitions
Section 3 provides 11 definitions for terms employed in the
bill. These terms are: ``Eastern LCR Basin,'' ``Fund,''
``Intergovernmental Agreement,'' ``Pumping Protection
Agreement,'' ``Reservation'' or ``Zuni Heaven Reservation,''
``Secretary,'' ``Settlement Agreement,'' ``SRP,'' ``TEP,''
``Tribe,'' ``Zuni Indian Tribe,'' or ``Zuni Indian Tribe,'' and
``Zuni Lands.''
Section 4.--Authorizations, ratifications, and confirmations
Section 4(a) approves, ratifies, confirms, and declares to
be valid the Settlement Agreement, to the extent it does not
conflict with the provisions of S. 2743. It also authorizes and
directs the Secretary to execute the Settlement Agreement and
any necessary amendments thereto to make the Settlement
Agreement consistent with this legislation.
Section 4(b) authorizes the appropriation, to the Zuni
Indian Tribe Water Rights Fund established in Sec. 6(a),
$19,250,000, to be allocated by the Secretary as follows:
$3,500,000 in FY 2004 for the acquisition of at least 2,350
acre-feet per year of water rights and associated lands and for
related activities, the acquisition to be completed by the
deadline set forth in Sec. 9(b), and $15,750,000, to be
appropriated in three equal installments in FY 2004, 2005, and
2006, to restore, rehabilitate, and maintain the Zuni Heaven
Reservation, including the Sacred Lake, wetlands, and riparian
acreas. The Committee has been advised by the parties that in
the event the deadline set forth in the Settlement Agreement is
in conflict with the schedule of funding set forth in this
subsection, the Settlement Agreement will be amended to conform
to the provisions of S. 2743.
Section 4(c) provides that, except as provided in Sec. 9,
the following three agreements, including amendments, are
approved, ratified, confirmed, and declared to be valid: the
agreement between the Salt River Project Agricultural
Improvement and Power District, the tribe, and the United
States on behalf of the tribe dated June 7, 2002; the agreement
between Tucson Electric Power Company,the tribe, and the United
States on behalf of the tribe dated June 7, 2002; and the agreement
between the Arizona State Land Department, the tribe, and the United
States on behalf of the tribe dated June 7, 2002.
Section 5.--Trust lands
Section 5(a) provides that, upon satisfaction of conditions
set forth in paragraph 6.2 of the Settlement Agreement and the
requirements of Sec. 9(a), the Secretary shall take the legal
title to certain lands identified in this subsection into trust
for the benefit of the tribe.
Section 5(b) provides that, following the acquisition by
the tribe of certain lands identified in this subsection and
upon satisfaction of conditions set forth in paragraph 6.2 of
the Settlement Agreement and the requirements of Sec. 9(a), the
Secretarys shall take the legal title to those lands into trust
for the benefit of the tribe.
Section 5(c) provides that, following the acquisition by
the tribe of certain lands identified in this subsection and
upon satisfaction of conditions set forth in paragraph 6.2 of
the Settlement Agreement and the requirements of Sec. 9(a), the
Secretary shall take the legal title to those lands into trust
for the benefit of the tribe and shall make such lands part of
the Zuni Indian Tribe Reservation.
Section 5(d) provides that the Secretary shall have no
discretion regarding the acquisitions described in subsection
(a), (b), and (c).
Section 5(e) provides that no lands within Arizona, other
than the land described in subsection (a), (b), and (c), shall
hereafter be taken into trust by the United States for the
benefit of the tribe except by authority of an Act of Congress
enacted after the date of enacted of this legislation and
specifically authorizing the taking of lands into trust for the
benefit of the tribe.
Section 5(f) provides that any written certification by the
Secretary under subparagraph 6.2.B of the Settlement Agreement
constitutes final agency action under the Administrative
Procedures Act and is reviewable as provided under chapter 7 of
title 5, United States Code.
Section 5(g) provides that lands taken into trust pursuant
to subsection (a), (b), or (c) shall not have Federal reserved
rights to surface water or groundwater.
Section 5(h) provides that water rights and uses for lands
taken into trust pursuant to subsections (a) or (c) must be
determined under subparagraph 4.1.A and article 5 of the
Settlement Agreement. The tribe retains any rights or claims to
water associated with lands taken into trust pursuant to
subsection (b) under State law, subject to the terms of the
Settlement Agreement.
Section 5(i) provides that water rights appurtenant to
lands taken into trust pursuant to subsections (a), (b), or (c)
shall not be subject to forfeiture and abandonment.
Section 5(j) provides that, with respect to lands taken
into trust pursuant to subsection (a) and (b), the tribe shall
make payments in lieu of all current and future State, county,
and local ad valorem property taxes that would otherwise be
applicable to those lands if they were not in trust.
Section 5(k) provides that the tribe is authorized to enter
the Intergovernmental Agreement with Apache County, Arizona,
and the State of Arizona identified in Sec. 3(3) and any
intergovernmental agreement required to be entered into by the
tribe under the terms of the Intergovernmental Agreement. The
scope of the intergovernmental agreements to be entered into by
the tribe under the terms of the Intergovernmental Agreement is
as set forth in subparagraph 6.2.A of the Settlement Agreement.
Section 5(l) provides that the Secretary shall acknowledge
the terms of any intergovernmental agreement entered into by
the tribe under this section and shall not, in any
administrative or judicial action, seek to abrogate the terms
of any such intergovernmental agreement consistent with
subparagraph 6.2.A of the Settlement Agreement and S. 2743. The
subsection further provides that if the United States is
permitted to intervene in a judicial action commenced during a
dispute over any intergovernmental agreement entered under this
section, the United States shall not remove the action to the
Federal courts, except that the United States may seek removal
if the action concerns the Secretary's action regarding the
issuance of rights-of-way under Sec. 8(c), the authority of a
Federal agency to administer programs or the issuance of a
permit under the Federal Water Pollution ControlAct (33 U.S.C.
Sec. Sec. 1251 et seq.), the Safe Drinking Water Act (42 U.S.C.
Sec. Sec. 300f et seq.), the Clean Air Act (42 U.S.C. Sec. Sec. 7401 et
seq.), or any other Federal law specifically addressed in
intergovernmental agreements, or if the intergovernmental agreement is
inconsistent with a Federal law for the protection of civil rights,
public health, or welfare.
Section 5(m) provides that nothing in this legislation
shall be construed to affect the application of the Act of May
25, 1918 (25 U.S.C. Sec. 211) within the State of Arizona.
Section 5(m) does not affect the application of Jicarilla
Apache Tribe v. State of New Mexico, 742 F. Supp. 1487 (D. N.M.
1990), in the State of New Mexico, or the application of
Masayesva v. Zah, 792 F. Supp. 1165 (D. Ariz. 1992), in the
State of Arizona.
Section 5(n) provides that nothing in this section repeals,
modifies, amends, changes, or otherwise affects the Secretary's
obligation to the tribe pursuant to P.L. 98-408, 98 Stat. 1533,
as amended by the Zuni Claims Settlement Act of 1990, P.L. 101-
486, 104 Stat. 1174.
Section 6.--Development fund
Section 6(a) establishes the Zuni Indian Tribe Water Rights
Development Fund (Fund) in the Treasury of the United States,
to be managed and invested by the Secretary and to consist of
funds appropriated under section 4(b), the appropriation to be
contributed by the State of Arizona pursuant to paragraph 7.6
of the Settlement Agreement, and any other funds paid to the
Secretary on behalf of the Zuni Tribe pursuant to the
Settlement Agreement.
Section 6(b) provides that the Secretary, in the
management, investment, and disbursement of the Fund, shall
comply with the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. Sec. Sec. 4001 et seq.) (Trust Fund
Reform Act), S. 2743, and the Settlement Agreement.
Section 6(c) provides that investment of the assets of the
Fund by the Secretary shall comply with the Act of April 1,
1880 (25 U.S.C. Sec. 161), the first section of the Act of June
24, 1938 (25 U.S.C. Sec. 162a), and subsection (b).
Section 6(d) provides that funds appropriated pursuant to
Sec. 4(b)(2) and funds contributed by the State of Arizona
pursuant to paragraph 7.6 of the Settlement Agreement shall be
available for expenditure or withdrawal only after the
requirements of Sec. 9(a) have been met.
Section 6(e) provides that the tribe may make withdrawals
from the Fund only after the Secretary has approved a tribal
management plan as described in the Trust Fund Reform Act which
requires that funds be spent only for the purposes set forth in
Sec. 4(b). The Secretary is authorized to take judicial or
administrative action to enforce the requirement that the
assets of the Fund be used only in accordance with the
provisions of S. 2743. Neither the Secretary or the Secretary
of the Treasury shall have any liability for the expenditure or
investment of monies withdrawn from the Fund (the inclusion of
this provision is not intended to suggest, however, that
existing law does not fully protect the United States from
liability under these circumstances, as it is the Committee's
view that 25 U.S.C. Sec. 4022(c) would provide such
protection). The tribe is to submit an expenditure plan for
approval by the Secretary as to any monies held in the Fund
that are not withdrawn pursuant to this subsection. The plan is
to describe the manner in which, and the purposes for which,
such monies will be used. The Secretary is to approve the
tribal management plan if the Secretary determines that the
plan is reasonable and is consistent with the provisions of S.
2743. The tribe is to submit to the Secretary an annual report
describing all expenditures from the Fund during the period of
the report.
Section 6(f) provides that notwithstanding subsection (e),
funds authorized to be appropriated pursuant to Sec. 4(b)(1)
shall be available for use upon appropriation in accordance
with Sec. 4(b)(1) and shall be distributed by the Secretary to
the tribe upon receipt by the Secretary of a written notice
from the tribe and a tribal council resolution describing the
purposes for which the funds will be used. In the event the
requirements of Sec. 9(a) are not met and the Settlement
Agreement becomes null and void pursuant to Sec. 9(a), the
United States may set off any funds expended or withdrawn from
the amount appropriated pursuant to Sec. 4(b)(1), together with
any accrued interest, against any claims asserted by the tribe
against the United States relating to water rights of the Zuni
Heaven Reservation. Any water rights acquired with funds
described in this subsection are to be credited against any
water rights secured for the Zuni Heaven Reservation by the
tribe, or by the United States on behalf of the tribe, in the
Little Colorado River General Stream Adjudication or in any
future settlement of claimsfor those water rights.
Section 6(g) provides that no part of the Fund shall be
distributed on a per capita basis to members of the tribe.
Section 7.--Claims extinguishment; waivers and releases
Section 7(a) provides that the benefits realized by the
tribe and its members under this legislation, including
retention of any claims and rights, shall constitute full
satisfaction of all members' claims for water rights under
Federal, State, and other laws (including claims rights in
groundwater, surface water, and effluent) for Zuni Lands (as
defined in Sec. 3(11)) from time immemorial through the
effective date set forth in Sec. 9(a), and for injuries during
that period to such rights (including also claims for damages
for deprivation of water rights and for changes to underground
water tables) under Federal, State, and other laws. The
legislation is not intended to recognize or establish any right
of a member of the tribe to water on the Zuni Heaven
Reservation.
Section 7(b) authorizes the tribe, on behalf of itself and
its members, and the Secretary, on behalf of the United States
in its capacity as trustee for the tribe and its members, as
part of their obligations under the Settlement Agreement, to
execute a waiver and release of claims against the State of
Arizona, any agency or political subdivision thereof, or any
other person under Federal, State, or other law, for: (1) past,
present, and future claims (from time immemorial to the
effective date set forth in Sec. 9(a) and any time thereafter)
to water rights (including groundwater, surface water, and
effluent) for Zuni Lands, except as provided in article 5 of
the Settlement Agreement; (2) past and present claims (to the
effective date set forth in Sec. 9(a)) for injuries to water
rights (including also claims for damages for deprivation of
water rights and changes to underground water tables); and (3)
past, present, and future claims for water rights and injuries
to water rights (including also claims for damages for
deprivation of water rights and changes to underground water
tables) for lands outside of the Zuni Lands but located within
the Little Colorado River basin in Arizona and based upon
aboriginal occupancy of lands by the tribe and its
predecessors.
Section 7(c) authorities the tribe, as part of the
performance of its obligations under the Settlement Agreement,
to execute a waiver and release (subject to paragraphs 11.4 and
11.6 of the Settlement Agreement) for claims against the United
States (acting in its capacity as trustee for the tribe and its
members or otherwise acting on their behalf), its agencies,
officials, and employees, for: (1) past, present, and future
claims (from time immemorial to the effective date set forth in
Sec. 9(a) and any time thereafter) to water rights for Zuni
lands (including groundwater, surface water, and effluent) and
any claims for damages for deprivation of such water rights;
(2) past and present claims (to the effective date set forth in
Sec. 9(a)) for injuries to and deprivation of such water rights
for Zuni Lands; and (3) past, present, and future claims for
water rights (including groundwater, surface water, and
effluent) as well as for injuries to and claims for deprivation
of such water rights for lands outside the Zuni Lands but
located within the Little Colorado River basin in Arizona and
based upon aboriginal occupancy of lands by the tribe and its
predecessors.
Section 7(d)(1) authorizes the tribe, on behalf of itself
and its members, to waive and release all claims against the
State of Arizona, its agencies and political subdivisions, and
any other person under Federal, State, or other law for claims
of interference with the trust responsibility of the United
States to the tribe arising out of the negotiation of the
Settlement Agreement or S. 2743, as well as all claims against
those same entities (subject to paragraphs 11.4, 11.6, and 11.7
of the Settlement Agreement) for past and present claims,
including natural resource damage claims under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. Sec. Sec. 9601 et seq.)
(CERCLA), the Oil Pollution Act of 1990 (33 U.S.C.
Sec. Sec. 2701 et seq.) (OPA), or any other applicable statute,
for injury to water quality accruing from time immemorial
through the effective date set forth in Sec. 9(a) for lands
within the Little Colorado River basin in the State of Arizona.
The tribe is also authorized to waive future claims, including
natural resource claims under CERCLA, OPA, or any other
applicable statute, for lands within the Eastern Little
Colorado River [LCR] basin (as defined in Sec. 3(1) caused by
the lawful diversion or use of surface water, the lawful
withdrawal of water (except within the Zuni Protection Area as
provided in article 5 of the Settlement Agreement), the
parties' performance of any obligations under the Settlement
Agreement, the discharge of oil associated with routine
physical or mechanical maintenance of wells or diversion
structures not inconsistent with applicable law, the discharge
of oil associated with routine start-up and operation of well
pumps not inconsistent with applicable law, or any combination
thereof.
Section 7(d)(2) authorizes the tribe, on behalf of itself
and its members, to waive its right to request that the United
States bring any claims for injuries to water quality under the
natural resource damage provisions of CERCLA, OPA, or any other
applicable statute, for lands within the Little Colorado River
basin in the State of Arizona accruing from time immemorial
through the effective date set forth in Sec. 9(a), as well as
future claims for injuries or threat of injuries to water
quality under the natural resource damage provisions of CERCLA,
OPA, or any other applicable statute, for lands within the
Eastern LCR basin caused by the lawful diversion or use of
surface water, the lawful withdrawal of water (except within
the Zuni Protection Area as provided in article 5 of the
Settlement Agreement), the parties' performance of any
obligations under the Settlement Agreement, the discharge of
oil associated with routine physical or mechanical maintenance
of wells or diversion structures not inconsistent with
applicable law, the discharge of oil associated with routine
start-up and operation of well pumps not inconsistent with
applicable law, or any combination thereof.
Section 7(d)(3) provides that notwithstanding the waivers
of future water quality claims authorized in paragraphs (1)(B)
and (2)(B) of this subsection, the tribe, on behalf of itself
and its members, retains any statutory claims for injury or
threat of injury to water quality under CERCLA and OPA as
described in subparagraphs 11.4(D)(3) and (4) of the Settlement
Agreement that accrue at least 30 years after the effective
date set forth in Sec. 9(a).
Section 7(e) provides that the United States, as part of
the performance of its obligations under the Settlement
Agreement, waives and releases past and present claims (subject
to the limitations set forth in paragraphs 11.4, 11.6, and 11.7
of the Settlement Agreement) against the State of Arizona, its
agencies and political subdivisions, and any other entity for:
past and present common law claims accruing from time
immemorial to the effective date set forth in Sec. 9(a) arising
for or relating to water quality in which the injury asserted
is to the tribe's interest in water, trust land, and natural
resources in the Little Colorado River basin in the State of
Arizona; and all past and present natural resource damage
claims accruing through the effective date set forth in
Sec. 9(a) based on injury or threat to natural resources in the
Little Colorado River basin in Arizona, but only for those
cases in which the United States, or any Federal official,
would act on behalf of the tribe as a natural resource trustee
pursuant to the Natural Resource Contingency Plan as set forth
in 40 CFR Sec. 300.600(b)(2) on the effective date of this
legislation under Sec. 9(a). This subsection further provides
that the United States, subject to the retentions set forth in
paragraphs 11.4, 11.6, and 11.7 of the Settlement Agreement,
also waives and releases future common law claims against the
State of Arizona, its agencies and political subdivisions, and
any other entity arising from or relating to water quality in
which the injury asserted is to the tribe's interest in water,
trust land, and natural resources in the Eastern LCR basin in
Arizona accruing after the effective date described in
Sec. 9(a) and caused by the lawful diversion or use of surface
water, the lawful withdrawal of water (except within the Zuni
Protection Area as provided in article 5 of the Settlement
Agreement), the parties' performance of any obligations under
the Settlement Agreement, the discharge of oil associated with
routine physical or mechanical maintenance of wells or
diversion structures not inconsistent with applicable law, the
discharge of associated with routine start-up and operation of
well pumps not inconsistent with applicable law, or any
combination thereof.
Section 7(f) provides that, subject to subsection (b) and
(e), nothing in S. 2743 or the Settlement Agreement affects any
right of the United States, or the State of Arizona, to take
any actions (including enforcement actions) under any laws
(including regulations) relating to human health, safety, and
the environment.
Section 8.--Miscellaneous provisions
Section 8(a) provides for the waiver of the sovereign
immunity of the United States and the Tribe (except as to
claims for money damages not specifically provided for in the
Settlement Agreement) in the event any party to the Settlement
Agreement or a Pumping Protection Agreement files a lawsuit
only relating to the interpretation or enforcement of this
legislation, certain agreements identified in Sec. 4(c), or a
Pumping Protection Agreement. this subsection also provides for
a waiver of Federal and tribal immunity, with the same
limitation, if a landowner or water user in the Little Colorado
River basin in Arizona files a lawsuit only relating to
directly to the interpretation or enforcement of Article 11 of
the Settlement Agreement, the rights of de minimis users in
subparagraph 4.2.D of the Settlement Agreement, or the rights
of underground water users under Article 5 of the Settlement
Agreement. The tribe is authorized to waive its sovereign
immunity from suit in the superior Court of Apache County,
Arizona (except with claims for monetary awards not
specifically authorized in the Intergovernmental Agreement) for
the limited purposes of enforcing the terms ofthe
Intergovernmental Agreement and any intergovernmental agreement
required to be entered into by the tribe under the terms of the
Intergovernmental Agreement. Although the text of the legislation does
not address the issue of a waiver of the sovereign immunity of the
State of Arizona, the waiver of tribal sovereign immunity set forth
herein is grounded in assurances made to the Committee that the tribe
has adequate and reciprocal judicial remedies against the State. The
Committee views S. 2743 as a contract, and the availability to the
tribe of such remedies is a basic assumption of that contract.
Section 8(b) provides that, with respect to water rights
made available under the Settlement Agreement and used on the
Zuni Heaven Reservation, such rights shall be held in trust by
the United States in perpetuity and shall not be subject to
forfeiture or abandonment. The subsection further provides that
State law shall not apply to water uses on the Zuni Heaven
Reservation, and that water rights and uses on the Zuni Heaven
Reservation shall not be subject to State law or regulation,
except that the court with jurisdiction over the decree entered
pursuant to the Settlement Agreement or the Norviel Decree
Court may assess administrative fees for delivery of this
water.
Section 8(c) provides that land taken into trust pursuant
to Sec. Sec. 5(a) and 5(b) shall be subject to existing
easements and rights-of-way and that, notwithstanding any other
provision of law, the Secretary, in consultation with the
tribe, shall grant additional rights-of-way or expansions of
existing rights-of-way for roads, utilities, and other
accommodations to adjoining landowners if the proposed right-
of-way: (1) is necessary to the needs of the applicant; (2)
will not cause significant and substantial harm to the Tribe's
wetland restoration project or religious practices; and (3)
will comply with the procedures in part 169 of title 25, Code
of Federal Regulations (where not inconsistent with this
subsection) and with other generally applicable Federal laws
unrelated to the acquisition of interests across trust lands.
Section 8(d) provides that the United States shall not seek
reimbursement of costs arising out of the implementation of S.
2743 or of the Settlement Agreement against any Indian-owned
land within the tribe's Reservation, or make any assessment
against such lands in regard to such costs.
Section 8(e) provides that, except as provided in paragraph
5.3 of the Settlement Agreement (recognizing the tribe's use of
1,500 acre-feet per annum of groundwater), neither S. 2743 nor
the Settlement Agreement create any vested right to groundwater
under Federal or State law, or any priority to the use of
groundwater under Federal or State law that would be superior
to any other right or use of groundwater. Notwithstanding this
limitation, the rights of parties to the intergovernmental
agreements referred to Sec. Sec. 4(c)(1), (2), or (3) and in
paragraph 5.8 of the Settlement Agreement, as among themselves
shall be as stated in those agreements.
Section 8(f) provides that nothing in the Settlement
Agreement or in S. 2743 quantifies or otherwise affects the
water rights, claims, or entitlements to water of any Indian
tribe, band, or community, other than the Zuni Indian Tribe.
Section 8(g) provides that execution of the Settlement
Agreement shall not constitute major Federal action under the
National Environmental Policy Act, 42 U.S.C. Sec. Sec. 4321 et
seq. (NEPA), however the Secretary shall comply with NEPA and
shall carry out any other necessary compliance during the
implementation of this settlement.
Section 9.--Effective date for waiver and release authorizations
Section 9(a) provides that the waiver and release
authorizations contained in Sec. Sec. 7(b) and 7(c) shall
become effective as of the date the Secretary publishes in the
Federal Register a statement of all of the following findings:
(1) that this legislation has been enacted in a form approved
by the parties in paragraph 3.1.A of the Settlement Agreement;
(2) that the funds authorized by Sec. 4(b) have been
appropriated and deposited into the Fund; (3) that the State of
Arizona has appropriated and deposited into the Fund the amount
required by paragraph 7.6 of the Settlement Agreement; (4) that
the tribe has either purchased or acquired the right to
purchase at least 2,350 acre-feet per annum or surface water
rights, or waived this condition pursuant to paragraph 3.2 of
the Settlement Agreement; (5) that, pursuant to subparagraph
3.1.D of the Settlement Agreement, the severance and transfer
of surface water rights that the tribe owns or has a right to
purchase have been conditionally approved, or that the tribe
has waived this condition as provided in paragraph 3.2 of the
Settlement Agreement; (6) that, pursuant to subparagraph 3.1.E
of the Settlement Agreement, the tribe and Lyman Water Company
have executed an agreement relating to the severance and
transfer ofsurface water rights acquired by the tribe and the
United States, the pass-through, use, or storage of the tribe's surface
water rights in Lyman Lake, and the operation of Lyman Dam; (7) that,
pursuant to subparagraph 3.1.F of the Settlement Agreement, all parties
to the Settlement Agreement have agreed and stipulated to certain
Arizona Game and Fish abstracts of water uses; (8) that, pursuant to
subparagraph 3.1.G of the Settlement Agreement, all parties to the
Settlement Agreement have agreed to the location of an observation well
and that well has been installed; (9) that, pursuant to subparagraph
3.1.H of the Settlement Agreement, the tribe, Apache County, Arizona,
and the State of Arizona have executed an Intergovernmental Agreement
that satisfies all of the conditions in paragraph 6.2 of the Settlement
Agreement; (10) that the tribe has acquired title to a particular
section of land adjacent to the Zuni Heaven Reservation; (11) that the
Settlement Agreement has been modified if and to the extent that it is
in conflict with this legislation and such modification has been agreed
to by all the parties to the Settlement Agreement; and (12) that a
court of competent jurisdiction has approved the Settlement Agreement
by a final judgment and decree.
Section 9(b) provides that if the publication in the
Federal Register required under subsection (a) has not occurred
by December 31, 2006, Sec. Sec. 4 and 5, and any agreements
entered into pursuant thereto (including the Settlement
Agreement and the Intergovernmental Agreement) shall not
thereafter be effective and shall be null and void. This
subsection further provides that any funds and the interest
accrued thereon appropriated pursuant to Sec. 4(b)(2) shall
revert to the Treasury, and any funds and the interest accrued
thereon appropriated pursuant to paragraph 7.6 of the
Settlement Agreement shall revert to the State of Arizona.
COST AND BUDGETARY CONSIDERATIONS
At the time of filing this report, the cost estimate of the
Congressional Budget Office on S. 2743 had yet been received.
Compliance with Senate Rule XXVI, paragraph 11(a) is therefore
impracticable at this time.
EXECUTIVE COMMUNICATIONS
The Committee received written testimony for the Bureau of
Indian Affairs, Department of the Interior, for the hearing on
S. 2743 held on July 18, 2002. The written testimony from the
Administration is set forth below:
Statement of Neal McCaleb, Assistant Secretary--Indian Affairs
Good morning. Mr. Chairman and members of the Committee. I
am Neal McCaleb, Assistant Secretary for Indian Affairs at the
Department of the Interior. I appreciate the opportunity to
appear before this Committee to discuss S. 2743, a bill to
authorize a water rights settlement for the Zuni Heaven
Reservation, in northeastern Arizona.
The Administration generally supports the bill but has some
concerns with certain provisions. The Administration has
concluded, however, that the unique context presented by the
Zuni lands in Arizona may warrant provisions of this nature
with some modifications. For three reasons, the Zuni Settlement
presents a unique situation. First, the tribal lands at issue
are primarily for ceremonial use and generally will not be used
as a homeland or to accommodate tribal members. Second, the
water rights and land area involved are relatively small.
Finally, the Settlement provides a benefit by allowing
additional lands to be taken into trust and provides
accompanying water rights. Based on the consideration of these
unique circumstances, the Administration supports S. 2743 in
concept. In general, many of the provisions found in S. 2743
are the exception rather than the rule and may not necessarily
be appropriate in other Indian water settlements.
In general, the settlement reached by the parties is the
product of a cooperative effort over the last five years among
the Zuni Tribe, the State of Arizona, the United States, the
Salt River Project and many other local water users. This
effort was aided greatly by the work of the Honorable Michael
C. Nelson, Presiding Judge for Apache County Superior Court,
who has mediated the settlement discussions. The Settlement
Agreement has been signed by the Tribe and is pending formal
signature by the other parties.
Background
The Little Colorado River (LCR) Basin covers an area of
approximately 17.2 million acres or 26,964 square miles in
northeastern Arizona and northwestern New Mexico. The main stem
of the Little Colorado River is entirely in Arizona. Therefore,
this adjudication deals only with claims inside the borders of
Arizona. Five different Indian tribes have reservations, or
pending claims to reservation lands, within the Basin: the
Navajo Nation, Hopi Tribe, Zuni Tribe, San Juan Southern Paiute
Tribe and the White Mountain Apache Tribe.
The settlement agreement at issue here concerns only the
Zuni Tribe's relatively small water right claims at the Zuni
Heaven Reservation located in the south eastern section of the
Basin, at the confluence of the Zuni and Little Colorado
Rivers. Zuni Heaven is a unique reservation created fairly
recently to accommodate the religious and cultural practices of
the Zuni. The main Zuni reservation, in contrast, is located in
New Mexico. The majority of the Zuni members reside on the main
reservation.
According to Zuni religious beliefs, a lake formerly
located on the Zuni Heaven Reservation is a window into heaven.
That lake and the surrounding wetlands disappeared in recent
history due to upstream diversions and groundwater pumping in
the surrounding areas. The Settlement provides the Tribe with
the water and land to restore the lake for use in future
religious ceremonies.
The Zuni Heaven Reservation was established by Congress in
1984 through Public Law 98-498 and expanded in 1990 through
Public Law 101-486 to further the religious and cultural needs
of the Tribe. That legislation established the land base of the
Reservation within the Tribe's aboriginal territory and
facilitated the Tribe's regular pilgrimage from New Mexico to
Arizona by authorizing the United States to obtain easements
along the pilgrimage route.
Since 1979, water rights in the Little Colorado river basin
have been the subject of an Arizona state general stream
adjudication. The United States file a water rights claim on
behalf of the Zuni Tribe in the state proceeding for water
rights to Zuni Heaven. Mirroring most general stream
adjudications, the litigation has moved very slowly.
Recognizing that the Zuni claims lent themselves to settlement,
the parties devoted significant effort to negotiations. The
Settlement Agreement and S. 2743, which would ratify that
agreement, are the fruits of that negotiation.
The draft legislation (S. 2743)
S. 2743 approves and authorizes federal participation in
the main settlement agreement, which includes three subsidiary
agreements with individual parties. When fully implemented,
this agreement would constitute a final settlement of the water
rights claims of the Zuni Tribe and the United States' claims
on behalf of Zuni. The settlement agreement will secure a water
budget of approximately 5,500 acre-feet per year, including
both surface water and groundwater, for the rehabilitation and
restoration of the Sacred Lake, wetlands and riparian areas of
the Reservation. The surface water component of this water
budget would be secured through the purchase of state law base
water rights from willing sellers, as well as through flood
flows of the Little Colorado River. To supplement surface flows
in times of drought and to allow for the initiation of
restoration activities while surface water rights are acquired,
the settlement provides for a groundwater right of 1,500 acre
feet per year.
The settlement involves significant cost sharing and
cooperation among the federal government and the state and
local parties. The Tribe's non-Indian neighbors have agreed to
assist in the acquisition of water rights, to store surface
water supplies for the Tribe, and to make other contributions
to carry out the settlement. In addition, some water supplies
for the settlement will be secured through up to $6 million in
water protection grants funded by the State of Arizona. The
federal contribution of $19.25 million to the settlement would
be authorized. These federal funds would be used for the
acquisition of water rights, as well as other actions necessary
to restore the Sacred Lake, the wetlands and riparian areas of
the Zuni Heaven Reservation.
We believe the federal contribution contemplated in S. 2743
is appropriate to facilitate resolution of the Zuni Tribe's
claims. The settlement is designed to release the United States
from any potential damage claims that might be asserted by the
Tribe and to relieve the government of the obligation to
litigate, at significant cost and over many years, the Tribe's
water rights claims. At the same time, a final resolution of
the Tribe's water rights claims would provide certainty to its
neighbors, enabling them to plan and make necessary investments
based on the assurance that they have secure and stable water
rights.
Concerns with the draft legislation
The Administration in concept supports the settlement set
forth in S. 2743, but has a few areas of concern with the bill
as drafted. We are committed to working with the Committee,
Senator Kyl, and the settlement parties during the upcoming
August recess in this regard to reach a mutually agreeable
solution.
We believe through working with the Committee and Senator
Kyl, we can improve the following areas of the bill: Our first
area of concern are the water quality waivers. The broad
waivers within S. 2743 need to be clarified to avoid future
litigation regarding the distinction between the sovereign
capacity and trust capacity of the United States and to
safeguard the authority of the United States enforcement
authority. Second, the provisions regarding rights-of-way
across tribal trust land conflict with established law and may
lead to unnecessary litigation. Third, the United States
opposes any additional waiver of its sovereign immunity as
there exist sufficient avenues to address the interpretation or
enforcement of S. 2743. Fourth, S. 2743 raises a concern
regarding the authority of the United States to remove actions
to a federal court. Finally, S. 2743 treats land taken into
trust as state lands for purposes of environmental regulation
and permitting, contrary to current law and practice. The
United States believes, however, that the intentions of the
parties to the Settlement Agreement can be addressed thorough
alternative language while reducing litigation risk.
Conclusion
Negotiated agreements among Indian tribes, states, local
parties, and the federal government, in general, are the most
effective way to resolve reserved water right claims in a
manner that secures tribal rights to assured water supplies for
present and future generations while at the same time providing
for sound management of an increasingly scare resource. The
known benefits of settlement generally outweigh the
uncertainties that are inherent in litigation to the Tribe, the
state, other interested parties and the United States. On
balance, the very unique circumstances of the Zuni and their
lands and the benefits of this settlement, with certain
modifications, outweigh concerns regarding these unusual
aspects of this settlement.
We appreciate Senator Kyl's commitment to working with us
and look forward to working closely with the Committee and the
settlement parties to refine and clarify the language of S.
2743 to ensure that this legislation can be enacted into a law
that advances the interests of all parties.
On August 15, 2002, the Committee submitted several
questions to the Secretary of the Interior regarding the
proposed legislation, and on September 20, 2002, the
Administration submitted its response to the Committee's August
15, 2002, letter. The Committee's questions and the
Administration's response are set forth below:
U.S. Senate,
Committee on Indian Affairs,
Washington, DC, August 15, 2002.
Hon. Gale Norton,
Secretary, Department of the Interior,
Washington, DC.
Dear Secretary Norton: I am writing to enclose questions
from the U.S. Senate Committee on Indian Affairs in following
up to the Committee's hearing on S. 2743, a bill to approve the
settlement of water rights claims of the Zuni Indian Tribe in
Apache County, Arizona, and for other purposes.
The Committee would very much appreciate the Department's
views on the legal issues implicated by a number of provisions
of the bill.
Sincerely,
Daniel K. Inouye,
Chairman.
Enclosure.
Questions Regarding S. 2473
1. Section 5(j)
Section 5 of the proposed legislation directs that certain
lands shall be taken into trust by the United States on behalf
of the Zuni Tribe. Section 5(j)(1) provides that ``such lands
shall not be considered lands within an Indian reservation or
lands owned or held by any Indian for the purposes of Article
20, paragraph 5 of the Arizona Constitution, for the purpose of
paying in lieu taxes pursuant to this subsection and the
Intergovernmental Agreement between the Zuni Tribe, Apache
County, Arizona, and the State of Arizona.'' Section 5(j)(2)
provides that ``the Zuni Tribe shall make payments in lieu of
all current and future State, county, and local ad valorem
property taxes that would otherwise be applicable to those
lands if they were not in trust.''
Article 20, paragraph 5, of the Constitution of the State
of Arizona provides in relevant part that ``no taxes shall be
imposed by this State on any lands or other property within an
Indian reservation owned or held by any Indian; but nothing
herein shall preclude the State from taxing as other lands and
other property are taxed, any lands and other property outside
of an Indian Reservation owned or held by any Indian, save and
except lands as have been granted or acquired as aforesaid, or
as may be granted or confirmed to any Indian or Indians under
any act of Congress.''
Congress certainly has the authority to allow a state to
tax Indian lands that would otherwise be free from tax, and it
can authorize states to impose payments in lieu of taxes as S.
2743 does in Section 5(j)(2). Congress can also determine
whether or not particular lands shall be considered ``lands
within an Indian reservation or lands owned or held by any
Indian'' for purposes of Federal law. It does not however
appear that Congress holds the power, under the Constitution,
to direct the State of Arizona to characterize these lands in
any particular manner for purposes of determining the
applicability of provisions of the Arizona Constitution, as
Section 5(j)(1) purports to do, where none of the possible
interpretations would infringe on any Federal law or right.
While Congress can authorize Arizona to impose such a burden on
Indian lands, it cannot override a prohibition on the exercise
of such authority set forth in state law, if such exists,
because ``to the extent that a claimed bar to state
jurisdiction * * * is premised on the [] state Constitution[],
that is a question of state law over which the state courts
have binding authority.'' Arizona v. San Carlos Apache Tribe of
Arizona, 463 U.S. 545, 561 (1983). The present wording of
Section 5(j)(1) thus appears to intrude impermissibly into an
area of state authority.
Question. In light of the above, is it the position of the
United States that the proposed language of section 5(j)(1) is
consistent with all constitutional limitations on the power of
Congress?
Question. If Section 5(j)(1) as drafted is constitutionally
inform, is substitute language (``notwithstanding the
provisions of the Arizona Enabling Act * * *'' or some similar
language?) necessary to authorize the State of Arizona and its
political subdivisions to require the Zuni Tribe to make
payments in lieu of taxes on theselands (assuming but not
determining that such authority would exist under Arizona law), or is
the present language of Section 5(j)(2) sufficient to provide such
authority?
2. Sections 5(k), 5(l)
Section 5(k) authorizes the Zuni Tribe to enter into an
Intergovernmental Agreement with the State of Arizona and
Apache County and ``any intergovernmental agreement required to
be entered into by the Tribe under the terms of the
Intergovernmental Agreement.'' Section 5(l) provides that the
Secretary of the Interior shall ``acknowledge the terms'' of
these agreements and prohibits the Secretary from seeking to
abrogate their terms. Nothing in Section 5(k) limits the scope
of the subject matter of these agreements. These documents have
not been made available to the Committee, and it is unclear
whether any binding agreement has yet been executed by the
parties as to their content. Congressional authorization of the
execution of these Intergovernmental Agreements, in advance of
any final determination of their scope and contents, could
deprive Congress of the ability to review Intergovernmental
Agreements that, as ultimately negotiated by the parties, may
have an impact on tribal lands or resources to which the United
States hold legal title.
Question. Please provide copies of any agreements to be
authorized by section 5(k), including evidence, if available,
that the parties have entered into binding agreements as to
their terms.
Question. If the parties to the agreements to be authorized
by section 5(k) have not yet entered into binding agreements as
to their terms, please identify any legally binding
restrictions upon which Congress can rely to insure that its
advance approval of agreements the terms of which are yet to be
established does not subject the Zuni Tribe to the risk that
other prospective parties to these agreements will refuse to
bargain in good faith. Alternatively, please propose new
statutory language that would preclude such a result.
3. Section 5(l)
Section 5(l)(3) prohibits the United States from removing
an action to Federal court if the United States intervenes in
an action regarding an intergovernmental agreement. The effect
of this provision is closely linked to issues of sovereign
immunity addressed below with regard to section 8(a), and
questions regarding removal appear with the discussion of that
provision.
4. Section 6(e)
Section 6(e) of the bill provides that neither the
Secretary of the Interior nor the Secretary of the Treasury
shall have any liability ``for the expenditure of investment of
the monies withdrawn'' by the tribe from the Water Rights
Development Fund. No mention is made of the liability of the
United States itself.
Question. Is the language insulating the two Secretaries
from liability also intended to protect the United States from
liability and, if so, does it in fact have that effect?
Question. Does 25 U.S.C. 4022(c) already provide the
protection from liability Section 6(e) is intended to provide?
5. Section 7(b)
Section 7(b)(5) waives the claims of the Zuni Tribe and of
the United States in its capacity as trustee for the tribe for
certain ``future claims for injuries to water quality''
accruing after the effective date of the legislation.
Question. Does the waiver of certain future claims for
injuries to water quality contained in section 7(b), or any
other provision of the bill, limit the authority of the
Environmental Protection Agency, or any other Federal agency,
to regulate water quality under the Clean Water Act or other
legal authority or to seek compensation for damages to natural
resources? If not, is the present language narrowly tailored
and does it express that intention with sufficient clarity and
specificity?
Question. What precedents exist in other legislation for a
statutory waiver for future claims of this kind?
6. Section 7(c)(5)
Section 7(c)(5) of the bill authorizes the tribe to waive
``claims for breach of the trust responsibility of the United
States to the Zuni Tribe arising out of the negotiation of the
Settlement Agreement or this Act.''
The Restatement (Second) of Trust, 216(2) states that ``The
consent of the beneficiary does not preclude him from holding
the trustee liable for a breach of trust, if * * * (b) the
beneficiary, when he gave his consent, did not know of his
rights and of the material facts which the trustee knew or
should have known and which the trustee did not reasonably
believe that the beneficiary knew[.]'' Furthermore, ``where the
trustee has an adverse interest in the transaction, the consent
of the beneficiary does not preclude him from holding the
trustee liable for a breach of trust not only under the
circumstances stated in Subsection (2), but also if the
transaction to which the beneficiary consented involved a
bargain which was not fair and reasonable.'' Id., 216(3).
S. 2743 does not identify any particular breaches of trust
that may have occurred or that may occur in the course of the
negotiation of the Settlement Agreement or the enactment of
this legislation, and it is not evident that any particular
actions by the United States have beenbrought to the attention
of the tribe as potentially giving rise to a breach of trust action
against the United States in this regard. Under these circumstances, it
is not immediately apparent whether the proposed waiver would have any
effect, as a demand for a general waiver of this sort, not limited to
particular identified circumstances giving rise to the need for such a
waiver, might well be inconsistent with the United States' trust
responsibilities to the tribe.
Question. Please identify representative published judicial
opinions in which the Department is or has been involved in
which the validity of such a waiver of liability as to
undisclosed breaches of trust has been upheld or rejected. If
no published opinion is available adopting one or the other of
these positions, please identify relevant unpublished opinions
and provide copies for the use of the Committee.
Question. Please identify any particular circumstances or
any general public policy justifying the proposed waiver of
liability for unspecified breaches of trust with regard to the
negotiation of the Settlement Agreement and the enactment of
the proposed legislation that is now included in S. 2743.
7. Section 8(a)
Waiver of Federal and tribal sovereign immunity
Section 8(a)(1) of the bill waives the sovereign immunity
of the United States and the tribe (except as to claims for
money damages) to allow other parties to this settlement
agreement to enforce certain rights against the United States
and the Zuni Tribe. This provision does not specify, however,
whether the waiver is applicable in state court as well as in
Federal court. Section 8(a)(2) allows the tribe to waive its
sovereign immunity (except with regard to money damages) in a
particular state court for the purposes of enforcing various
intergovernmental agreements. Waivers of sovereign immunity are
interpreted narrowly. Accordingly, it could perhaps be argued
that in the absence of any explicit mention of a waiver of
immunity in state court, section 8(a)(1) should be interpreted
as allowing suit to be brought in Federal court only. Cf.
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 (1985)
(``in order for a state statute or constitutional provision to
constitute a waiver of Eleventh Amendment immunity, it must
specify the State's intention to subject itself to suit in
federal court'').
Question. If it is intended that Section 8(a)(1) waives
sovereign immunity to allow suits to be brought in state court,
should the text be modified to make it explicit that state
court jurisdiction is contemplated?
Waiver of tribal immunity to allow suits in State court
The McCarran Amendment, 43 U.S.C. Sec. 666, has been
interpreted as subjecting tribal water rights to the
jurisdiction of state courts under certain circumstances. In
general, however, public policy disfavors the adjudication of
tribal rights in state courts. For the reason stated above, the
extent to which S. 2743 would expand state court jurisdiction
over tribal rights is unclear; nevertheless it appears that at
least some limitation on the ability the tribe would otherwise
have to litigate its rights in Federal court is contemplated
beyond that imposed by the McCarran Amendment itself.
Question. If it is indeed the intent that state court
jurisdiction be extended over tribal rights beyond that granted
in the McCarran Amendment, what public policy supports that
extension of state authority?
Waiver of State sovereign immunity
Section 8(a)(1) of the bill waives the sovereign immunity
of the United States and the Zuni Tribe to allow other parties
to the settlement agreement to enforce certain rights against
the United States and the tribe. There is, however, no
reciprocal provision that waives the sovereign immunity of the
State of Arizona to allow the tribe to enforce its rights
against the State or its agencies. Although the Zuni Tribe's
attorney did not express concerns about the tribe's ability to
enforce its rights against the State based on existing law, the
testimony of the Deputy Attorney General of the State of
Arizona was contradictory as to whether or not the tribe could
obtain judicial relief against the State. Furthermore, even if
current Arizona law clearly allows the tribe all necessary
enforcement rights in the courts of the State, changes in
Arizona law could hinder the tribe's ability to enforce such
rights in the future. Any waiver of tribal immunity should be
fully reciprocated by the State, both now and in the future,
and consideration should be given to whether the wavier should
apply in the Federal courts.
While Congress cannot unilaterally abrogate the Eleventh
Amendment immunity of the State of Arizona, Seminole Tribe of
Florida v. Florida, 517 U.S. 44 (1996), it can condition the
granting of a benefit on the waiver of such immunity by the
State where, as here, the waiver is germane to the purpose of
giving the benefit. South Dakota v. Dole, 483 U.S. 203 (1987).
The State of Arizona will receive substantial benefits with the
enactment of this legislation, in that it will receive certain
authority over Indian lands that would otherwise be denied to
it and will achieve the extinguishment of tribal claims to
water that could otherwise be asserted against it. Under such
circumstances, Congress can require the State to offer an
irrevocable waiver of its sovereign immunity as a condition of
receiving the benefits provided under this legislation.
Question. What additional language would be necessary to
ensure that the tribe's right to enforce its rights against the
State of Arizona in all appropriate courts is not restricted by
the State's sovereign immunity, either now or in the future?
Non-water related matters in intergovernmental agreements
Although the Committee staff has not been provided with
drafts of the intergovernmental agreements, it may be that some
provisions of these agreements may relate to matters that are
not directly related to the water rights issues that are the
subject of the general stream adjudication inthe Apache County
court. The language in section 5(l)(3) prohibiting the United States
from seeking Federal court removal of litigation over such
intergovernmental agreements indicates that at least some such cases
will be litigated in the Arizona courts. Even if it is considered
desirable to extend the waiver of tribal or Federal sovereign immunity
beyond that provided by the McCarran Amendment to allow all water-
related issues to be litigated in the state courts, that does not
necessarily mean that matters that do not directly relate to water
rights should also be litigated in those courts.
Question. What matters not relating directly to water
rights, if any, are to be addressed in intergovernmental
agreements executed pursuant to the proposed legislation?
Question. If matters not directly relating to water rights
are to be litigated in the Arizona courts, what policy
considerations justify this limitation on the right the tribe
would otherwise have to litigate those issues in Federal court?
Federal removal
If the United States intervenes in an action regarding a
dispute over an intergovernmental agreement executed pursuant
to section 5, section 5(l)(3) prohibits the United States from
removing that action to Federal court. Section 8(a), on the
other hand, imposes no restriction on the right of the United
States to remove actions to Federal court.
Question. If it is intended that all litigation on matters
set forth in section 8(a) is to take place in the Apache County
court, should section 8(a) be modified to impose restrictions
on the right of the United States to seek removal to Federal
court if an action described in that subsection is filed
against it?
8. Section 8(b)
Section 8(b)(1)(F)(i) requires the Zuni Tribe to adopt a
tribal water code ``that is reasonably equivalent to State
water law (including statutes relating to dam safety and
groundwater management)[.]'' Section 8(b)(1)(F)(ii), in turn,
provides that until a tribal water code is adopted, the
Secretary, in consultation with the State, ``shall administer
water use and water regulation'' on particular lands. While it
is apparently the intent of the parties that ``dam safety''
would be regulated by the Secretary until such time as the
tribal water code is adopted, regulation of ``dam safety'' is
not unambiguously included within the authority over ``water
use and water regulation'' granted to the Secretary in section
8(b)(1)(F)(ii).
Does section 8(b)(1)(F)(ii) need to be amended to more
closely track the language of section 8(b)(1)(F)(i) with regard
to ``dam safety'' so as to ensure that no gap in regulatory
authority exists until the tribal water code is adopted, or is
it necessary to include an explicit reference to dam safety in
section 8(b)(1)(F)(ii)?
9. Section 8(c)
Section 8(c) provides that the United States and the Zuni
Tribe ``shall not unreasonably withhold consent for easements
and rights-of-way for roads, utilities, and other necessary
accommodations for adjoining landowners across [certain of its]
lands * * * unless such easements and rights-of-way will cause
significant and substantial harm to the Tribe's wetland
restoration project or religious practices.''
This provision does not provide any limiting principle to
define the tribe's obligations and could be interpreted to
impose substantial burdens on the tribe's lands. The Zuni
Governor's testimony indicated that he viewed this as a simple
matter of ``neighborliness'' to accommodate purely local uses
by existing adjoining landowners whose properties would
otherwise be landlocked. The effect of the present broad
language, however, is not limited to such matters and could,
for example, require the tribe to acquiesce in the construction
of major regional transportation corridors (highways, power
lines, pipelines, etc.) across its lands, since the State or a
gas or electric utility could become an ``adjoining landowner''
at some time in the future through purchase of adjoining lands
or by the exercise of the power of eminent domain. There does
not seem to be any justification for subjecting the tribe's
sovereignty and property rights to such a limitation, unlike
other tribal landowners. Nor does it seem desirable to restrict
the authority of the Secretary of the Interior to exercise
discretion in approving such potential future uses.
Question. Would it not be desirable to modify section 8(c)
to place reasonable limits on the scope of this obligation so
that the tribe is not permanently subjected to an unbounded and
unreciprocated duty to provide others with access across its
lands for uses that cannot now be anticipated?
------
Department of the Interior,
Office of the Secretary,
Washington, DC, September 20, 2002.
Hon. Daniel K. Inouye,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Enclosed are the Administration's
response to questions submitted following the July 18, 2002,
hearing on S. 2743, Zuni Heaven Water Rights Settlement Act.
Thank you for the opportunity to provide this material to
the Committee.
Sincerely,
Jane M. Lyder,
Legislative Counsel, Office of
Legislative Affairs.
Enclosure.
Administration Response to Indian Affairs Committee Questions
1. Section 5(j)
Question. In light of the above, is the position of the
United States that the proposed language of section 5(j)(1) is
consistent with all constitutional limitations on the power of
Congress?
Section 5(j)(1) of S. 2743 as introduced is
constitutionally infirm. Under the U.S. Constitution, Congress
has the legislative power to regulate commerce with the Indian
tribes, but has no power to direct a State on how the State
shall construe the State's constitution, which Section 5(j)(1)
purports to do.
Question. If Section 5(j)(1) as drafted is constitutionally
infirm, is substitute language (``notwithstanding the
provisions of the Arizona Enabling Act * * *'' or some similar
language?) necessary to authorize the State of Arizona and its
political subdivisions to require the Zuni Tribe to make
payments in lieu of taxes on these lands (assuming but not
determining that such authority would exist under Arizona law),
or is the present language of Section 5(j)(2) sufficient to
provide such authority?
Section 5(j)(2) would direct the Zuni Tribe to make certain
payments to States, counties, and localities in lieu of taxes
that would otherwise have been applicable with respect to the
land. Section 5(j)(2) is consistent with the legislative power
of Congress under the Constitution to regulate commerce with
Indian tribes. Section 5(j)(2) would not expand or contract the
power of Arizona or its political subdivisions to impose or
collect taxes, would not pre-empt Section 20 of the Arizona
Constitution, and would not constitute the consent of the
United States for purposes of Section 20 of the Arizona
Enabling Act (Act of Congress of June 20, 1910). In other
words, section 5(j)(2) appears to be sufficient to bind the
Tribe to its agreement to make payments in lieu of taxes to the
extent taxes would otherwise be owed under Arizona law if the
land had not been taken into trust under this bill.
2. Sections 5(k), 5(l)
Question. Please provide copies of any agreements to be
authorized by section 5(k), including evidence, if available,
that the parties have entered into binding agreements as to
their terms.
To the best of our knowledge, the parties have not entered
into any intergovernmental agreements.
Question. If the parties to the agreements to be authorized
by section 5(k) have not yet entered into binding agreements as
to their terms, please identify any legally binding
restrictions upon which Congress can rely to insure that its
advance approval ofagreements the terms of which are yet to be
established does not subject the Zuni Tribe to the risk that other
prospective parties to these agreements will refuse to bargain in good
faith. Alternatively, please propose new statutory language that would
preclude such a result.
By our reading, sections 5(k) and 5(l) have four effects.
First, section 5(k) authorizes the Tribe to enter into certain
intergovernmental agreements, but otherwise expresses no
congressional intent with respect to the content of these
agreements. Second, section 5(l)(1) requires the Secretary of
the Interior to acknowledge the terms of any intergovernmental
agreement. Under the bill, the United States will not be a
party to these agreements and any acknowledgment does not bind
the Secretary to the terms of the agreements, but merely
requires that she take notice of the agreements under the
procedures for taking these lands into trust.
Third, Section 5(l)(2) of the bill states that the
Secretary of the Interior ``shall not seek to abrogate, in any
administrative or judicial action, the terms of any
intergovernmental agreement that are consistent with
subparagraph 6.2.A of the Settlement Agreement and this Act.''
This section limits its affect to the particular provisions set
forth in subparagraph 6.2A of the settlement agreement.
Subparagraph 6.2A delineates the operative provisions to be
contained in any intergovernmental agreement. In this way, the
Secretary is only bound to those provisions currently set forth
in the settlement agreement, rather than being subject to
unknown future provisions. In the same manner, subparagraph
6.2A provides certainty to the Tribe and the other parties as
to the operative provisions of any intergovernmental agreement,
thus limiting the extent of the future negotiations concerning
these agreements.
Fourth, section 5(l)(3) of the bill provides that if the
United States becomes a party-intervenor in a judicial action
commenced during a dispute over any intergovernmental agreement
entered into under the legislation, the United States cannot
remove the judicial action to a Federal court. The
Administration recommends that section 5(l)(3) be deleted from
the bill. Federal policy, expressed in existing removal
statutes, that allow the United States to litigate in Federal
courts, should not be overridden by the bill.
3. Section 5(l)
This section did not direct a question to the Department
for response. With respect to the removal provision in section
5(l)(3), see the above discussion.
4. Section 6(e)
Question. Is the language insulating the two Secretaries
from liability also intended to protect the United States from
liability and, if so, does it in fact have that effect?
We believe that the intent of section 6(e) is to protect
the United States from liability after moneys are withdrawn by
the Tribe. This language mirrors section 11(f) of the Shivwits
Band of the Paiute Indian Tribe of Utah Water Rights Settlement
Act, Public Law 106-263, 114 Stat. 737 (2000), and section
104(b)(2)(A) of the Chippewa Cree Tribe of the Rocky Boy's
Reservation Indian Reserved Water Rights Settlement and Water
Supply Enhancement Act, Public Law 106-163, 113 Stat. 1778
(1999).
Question. Does 25 U.S.C. Sec. 4022(c) already provide the
protection from liability Section 6(e) is intended to provide?
Section 6(e) and 25 U.S.C. Sec. 4022(c) may provide similar
protection, however, section 6(e) would mirror provisions that
the Congress determined were necessary in previous Indian water
settlements and would ensure that no additional liability would
attach to the United States as a result of the Zuni Heaven
settlement.
5. Section 7(b)
Question. Does the waiver of certain future claims for
injuries to water quality contained in section 7(b), or any
other provision of the bill, limit the authority of the
Environmental Protection Agency, or any other Federal agency,
to regulate water quality under the Clean Water Act or other
legal authority or to seek compensation for damages to natural
resources? If not, is the present language narrowly tailored
and does it express that intention with sufficient clarity and
specificity?
Section 7(b) as currently drafted can be read as limiting
the Environmental Protection Agency's enforcement authority.
Based on revisions to this section made by the parties during
the August recess, all authorities of the Environmental
Protection Agency and other federal agencies under the Clean
Water Act or any other federal statute have been preserved. A
limited future waiver of claims under the natural resource
damages provisions of CERCLA is included in the new language.
This waiver is limited, however, to those natural resource
damage claims, caused by a defined list of otherwise lawful
activities, that the Zuni Tribe could have brought itself or
requested the United States to bring on its behalf as a natural
resource trustee. This provision does not affect the United
State authority to bring natural resources damage claims in
other contexts as a natural resource trustee. The intent of
this provision is to protect water users who are otherwise
complying with the law from claims for natural resource damages
brought by the Tribe or by the United States as a natural
resource trustee on its behalf. However, even the limited
waiver of the United States's authorities is troubling in this
context. This provision departs from current Indian law and
policy. We concluded that the unique nature of this
settlement--particularly that the Zuni lands in Arizona
involved in this settlement will not be used as a homeland,
that the lands at issue are primarily for ceremonial use, that
the water rights and land involved is relatively small and the
fact that the Tribe negotiated and supports the agreement--
weighs in favor of departure from otherwise settled law and
policy.
Question. What precedents exist in other legislation for a
statutory waiver for future claims of this kind?
We are unaware of any precedent for these sorts of water
quality waivers. These waivers are workable in this settlement
because of the unique context of the Zuni lands in Arizona.
6. Section 7(c)(5)
Question. Please identify representative published judicial
opinions in which the Department is or has been involved in
which the validity of such a waiver of liability as to
undisclosed breaches of trust has been upheld or rejected. If
no published opinion is available adopting one or the other of
these positions, please identify relevant unpublished opinions
and provide copies for the use of the Committee.
Since 1993, every Indian water rights settlement entered
into by the United States has included such a waiver, including
section 9.4 of the Shivwits Band of the Paiute Indian Tribe of
Utah Water Rights Settlement Agreement, ratified by the
Shivwits Band of the Paiute Indian Tribe of Utah Water Rights
Settlement Act, Public Law 106-263, 114 Stat. 737 (2000),
section 5(c) of the Chippewa Cree Tribe of the Rocky Boy's
Reservation Indian Reserved Water Rights Settlement and Water
Supply Enhancement Act, Public Law 106-163, 113 Stat. 1778
(1999), and the Confederated Tribes of the Warm Springs
Reservation Indian Water Rights Settlement Agreement (Nov.
1997) (settled without federal legislation).
Question. Please identify any particular circumstances or
any general public policy justifying the proposed waiver of
liability for unspecified breaches of trust with regard to the
negotiation of the Settlement Agreement and the enactment of
the proposed legislation that is now included in S. 2743.
The provisions of the proposed settlement of the Zuni
Tribe's water rights claims represent agreements that have been
reached between the Zuni Tribe and the state parties. The
general willingness of the Administration to support agreements
reached between the Tribe and its neighbors is consistent with
the cornerstone of modern Indian law and policy to facilitate
tribal self-determination by ``giv[ing] the Indians control of
their own affairs and their own property.'' See Mescalero
Apache Tribe v. Jones, 411 U.S. 145, 152 (1973) (quoting 78
Cong. Rec. 11,125 (1934) (Rep. Howard)). Along with such
control and self-determination comes the need to take
responsibility for agreements entered into and decisions made.
The policy of including these waivers in Indian water
settlements over the last decade is consistent with this
responsibility.
7. Section 8(a)
Question. If it is intended that Section 8(a)(1) waives
sovereign immunity to allow suits to be brought in state court,
should the text be modified to make it explicit that state
court jurisdiction is contemplated?
The Administration objects to that portion of Section
8(a)(1) that waives the sovereign immunity of the United States
and purports to make the U.S. subject to suit in state courts.
With respect to the jurisdiction of state courts, State law
defines the jurisdictions of State courts. State courts of
general jurisdiction would have the authority, if otherwise
applicable sovereign immunity is waived, to exercise
jurisdiction of the claims Section 8 addresses. Along the same
lines, we note that the waiver in S. 2743 does not broaden the
McCarren Amendment's waiver of the United States' sovereign
immunity in state court.
Question. If it is indeed the intent that state court
jurisdiction be extended over tribal rights beyond that granted
in the McCarren Amendment, what public policy supports that
extension of state authority?
The United States does not support the broad waiver of
sovereign immunity in S. 2743. We believe that existing
statutory waivers of the United States' sovereign immunity are
sufficient to ensure that the United States is accountable for
agreements entered into in this settlement concerning tribal
rights.
Question. What additional language would be necessary to
ensure that the tribe's right to enforce its rights against the
state of Arizona in all appropriate courts is not restricted by
the State's sovereign immunity, either now or in the future?
This question perhaps should be directed to the State of
Arizona.
Question. What matters not relating to water rights, if
any, are to be addressed in intergovernmental agreements
executed pursuant to the proposed legislation?
The provisions to be addressed in the intergovernmental
agreements are set forth in subparagraph 6.2A of the Settlement
Agreement, and include payment of in lieu of taxes; provisions
related to rights-of-way; wildlife management; agreements by
the Tribe with respect to the delegation of programs under
federal environmental statutes; tribal waiver of sovereign
immunity; recognition of Zuni religious practices by the State
and local governments and their agreement not to unreasonably
withhold any necessary approvals for activities on Zuni fee
lands related to the Tribe's religious practices.
Question. If matters not directly relating to water rights
are to be litigated in the Arizona courts what policy
considerations justify this limitation on the right the tribe
would otherwise have to litigate those issues in Federal court?
The removal authority of the United States in S. 2743 was
modified during the August recess to allow removal by the
United States where federal issues are raised. The remaining
provisions were agreed to by the Zuni Tribe and the State
parties.
Question. If it is intended that all litigation on matters
set forth in section 8(a) is to take place in the Apache County
court, should section 8(a) be modified to impose restrictions
on the right of the United States to seek removal to Federal
court if an action described in that subsection is filed
against it?
The removal authority of the United States in S. 2743 was
modified during the August recess to allow removal by the
United States where federal issues are raised. The remaining
provisions were agreed to by the Zuni Tribe and the State
parties.
8. Section 8(b)
Question. Does section 8(b)(1)(F)(ii) need to be amended to
more closely track the language of section 8(b)(1)(F)(i) with
regard to ``dam safety'' so as to ensure that no gap in
regulatory authority exists until the tribal water code is
adopted or is it necessary to include an explicit reference to
dam safety in section 8(b)(1)(F)(ii)?
The intent of that provision appears to be that the
Secretary's authority would cover all water related matters on
these lands.
9. Section 8(c)
Question. Would it not be desirable to modify section 8(c)
to place reasonable limits on the scope of this obligation so
that the Tribe is not permanently subjected to an unbounded and
unreciprocated duty to provide others with access across its
lands for uses that cannot now be anticipated?
We agree that modifications to the current language of
section 8(c) are needed. During the August recess, we worked
out new language for the rights-of-way provision. The new
right-of-way provision clarifies that existing federal
regulations with respect to the granting of rights-of-way will
remain in place, with the exception that the Zuni Tribe has
agreed to limit its objections to rights-of-way so long as they
do not substantially or significantly harm the Tribe's wetlands
rehabilitation project and the Tribe's uses of the land for
cultural and religious practices. This protects the Zuni from
significant impacts to their lands. Pursuant to these
modifications, the Secretary would retain authority to grant
rights-of-way. The Tribe would need to inform the Secretary
about encroachment on its cultural and religious practices.
This process is not intended to allow the United States to
second guess the religious beliefs of the Zuni or to require
detailed or public inquiry into the nature of those beliefs.
REGULATORY IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory paperwork impact that would be incurred in
carrying out the bill. The Committee believes that the
regulatory impact of S. 2743 will be minimal.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 2743 will not result in any changes in existing
law.