S. 2154

Statement of 
Alan Mikkelsen
Senior Advisor to the Secretary
Water and Western Resource Issues
Chair, Working Group on Indian Water Settlements
U.S. Department of the Interior
Before the
Committee on Indian Affairs 
United States Senate
S. 2154, Kickapoo Tribe in Kansas Water Rights Settlement Agreement Act

July 18, 2018

Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of the Committee.  My name is Alan Mikkelsen, and I am the Senior Advisor to Secretary Zinke for Water and Western Resource Issues and Chair of the Working Group on Indian Water Settlements at the Department of the Interior (Department).  I am pleased to appear before you today to discuss Indian water rights settlements.

Thank you for the opportunity to provide the Department’s views on S. 2154, the Kickapoo Tribe in Kansas Water Rights Settlement Agreement Act, which would approve and provide authorizations related to a settlement agreement involving the water rights of the Kickapoo Tribe in Kansas (Tribe).  The Tribe and the State of Kansas (State) executed this settlement agreement in September 2016.  The Department has significant concerns about the scope of the settlement agreement between the Tribe and the State.  As executed, the settlement agreement only partially resolves the Tribe’s water rights and leaves unresolved critical aspects necessary to achieve a final settlement, such as anticipated federal funding, cost-sharing by the State or local parties, and waivers of claims against the United States.

For these and other reasons, the Department cannot support S. 2154 as introduced.  That being said, the Department remains eager to work with all interested parties to develop and support a settlement that adheres to the principles outlined in the Department’s 1990 Criteria and Procedures regarding the negotiation and resolution of Indian water rights claims.

I. Introduction

Before I begin discussing the Kickapoo settlement, I want to note that the Department continues to support the policy that negotiated Indian water rights settlements are preferable to protracted and divisive litigation.  Indian water rights settlements can resolve long-standing claims to water, provide certainty to water users, foster cooperation among water users within a watershed, allow for the development of water infrastructure, promote tribal sovereignty and self-sufficiency, and improve environmental and health conditions on reservations.  Congress also plays an important role through reviewing and approving Indian water rights settlements as they typically involve federal spending, the ultimate resolution of the Tribe’s reserved water rights, and the waiver of the United States’ sovereign immunity.  We stand ready to work with this Committee and Members of Congress to advance Indian water rights settlements that adhere to the principles outlined in the Department’s 1990 Criteria and Procedures regarding the negotiation and resolution of Indian water rights claims.

The policy framework the Department follows to guide the negotiation of Indian water rights settlements - and to support legislation authorizing these settlements - includes four general principles set forth in the Criteria and Procedures published in the Federal Register in 1990:

1. the Department participates in water settlements consistent with the federal government’s responsibilities as trustee;
2. Indian tribes receive equivalent benefits in exchange for the rights they, and the United States as trustee, release as part of a settlement;
3. Indian tribes obtain the ability to realize value from confirmed water rights resulting from settlement, which ensures they do not receive legal rights to water supplies that never materialize in the delivery of water;
4. settlements contain an appropriate cost-share by all parties benefiting from the settlement.

The Criteria and Procedures also contain guidelines that the Department follows in determining whether to support a proposed settlement.  One important guideline is the concept of finality contained in Criteria 3 discussed below.

Disputes over Indian water rights can be expensive and divisive.  In many instances, these disputes last for decades, represent a tangible barrier to progress for tribes, and significantly hinder the rational and beneficial management of water resources.  Indian water rights settlements can break down these barriers and help create conditions that improve water resources management by providing finality and certainty for all affected water users.  When settlements can be reached, they often provide opportunities for economic development, improve relationships, and encourage collaboration among neighboring communities.  Successful settlements are also consistent with the Federal trust responsibility to American Indians and with Federal policy promoting Indian self-determination and economic self-sufficiency.  These ultimate outcomes and opportunities have been the basis for which the United States has pursued a policy of resolving Indian water rights disputes through negotiated settlements rather than litigation whenever possible.

II. Background

1. The Kickapoo Reservation and the Kickapoo Tribe

The Kickapoo Tribe originated in the Great Lakes region, but moved southwest over time.  In 1832, the Tribe and United States entered into the Treaty of Castor Hill, which established the original Kickapoo Reservation in present-day northeast Kansas.

The current Reservation, reduced in size after subsequent treaties, encompasses about 30 square miles and has its headquarters in Horton, Kansas, roughly an hour north of the State capital in Topeka.  Of the lands within the boundaries of the Reservation, nearly 8,000 of the approximately 19,000 acres within the Reservation are currently owned either by the Tribe or individual Indians in trust or fee status, and the vast majority of these lands are used for agricultural purposes.  The remaining 11,000 acres are owned by non-Indians, often interspersed in a “checker-boarded” pattern with lands held by the Tribe or individual Indians.

Total tribal membership, including members living off-Reservation, exceeds 1,600.  According to the Tribe, roughly one-third of its members reside on-Reservation.  The Tribe’s Golden Eagle Casino, its governmental operations, and farming activities provide the primary sources of employment for Tribal members.  The Tribe lists economic development as its top priority.

2. Water Resources of the Kickapoo Reservation

The Reservation lies within the Upper Delaware River watershed, a basin that covers portions of Nemaha and Brown Counties in northeast Kansas.  The basin's waters flow into Perry Lake, a U.S. Army Corps of Engineers facility, which then flow into the Kansas (or Kaw) River between Topeka and Lawrence (which then flow into the Missouri River at Kansas City).  Precipitation averages between 35 to 37 inches per year, the vast majority of which falls as rain between April and October.

No reservoir or other storage facility currently exists on the Reservation.  A low-head weir (dam) and associated water treatment facilities on the Delaware River built in the 1970s provide the primary water supply for the Reservation, diverting on average just over 100,000 gallons per day.

Drought conditions have occasionally led to crisis conditions on the Reservation.  For example, the Department - through the Bureau of Indian Affairs and Bureau of Reclamation - provided nearly $300,000 in 2003 to the Tribe to haul over 7 million gallons of water to the Reservation for domestic and fire prevention needs because the Delaware River and its tributaries were without flow for over sixty (60) days that year due to severe weather conditions.

3. 1994 Agreement and Subsequent Litigation

Between the 1970s and the 1990s, the Tribe worked with the State of Kansas and a local watershed district to develop a plan under the auspices of the Watershed Protection and Flood Prevention Act, Public Law 83-566 (PL-566 program, codified at 16 U.S.C. §1001 et seq.), now administered by USDA's Natural Resources Conservation Service (NRCS).  In 1994, the parties completed an environmental impact statement and signed a Watershed Plan (1994 Agreement), which envisioned twenty (20) floodwater retarding dams off-Reservation and one multi-purpose dam (Plum Creek Reservoir) that would provide 5,700 acre-feet of water supply and recreation use for the Tribe's present and future needs.  Congress authorized funding to implement portions of the 1994 Agreement in both 1996 and 1998, and the off-reservation dams have since been built.

Plum Creek Reservoir was not constructed, however, as it would have required the acquisition of more than 1,000 acres of non-Indian lands checker-boarded with Tribal lands.  Most affected non-Indian landowners refused purchase offers, and the local district refused to use its eminent domain authority.

In June 2006, the Tribe filed a complaint in federal district court against the Bureau of Indian Affairs, U.S. Department of Agriculture’s Natural Resource Conservation Service (NRCS), the Kansas Department of Agriculture’s State Conservation Commission, and the local watershed district.  The complaint alleged that the Federal and State defendants had affirmative trust obligations to protect and preserve the Tribe’s Federal Indian reserved water rights (Winters rights) and failed to do so.  The complaint also alleged that the local watershed district breached its obligations under the 1994 Agreement.  The complaint sought, among other things, a declaration of the existence and priority of the Tribe’s Winters rights; an injunction preventing all defendants from violating the Tribe’s Winters rights; and specific performance of the 1994 Agreement.

After the United States and other defendants filed motions to dismiss, the parties agreed to stay the litigation and to seek a negotiated settlement.  The parties made significant progress toward resolving both the water and land acquisitions issues, but the local watershed district ultimately voted to reject the key land acquisition piece in 2011.  The parties then agreed to restructure the litigation and focus on the district's obligations under the 1994 Agreement.  In 2013, the federal district court ruled against the Tribe and found that the 1994 Agreement did not obligate the district to exercise its eminent domain authority to secure the land for Plum Creek Reservoir.

III. Proposed Kickapoo Legislation

As noted above, the Tribe’s 2006 complaint asserted various claims related to its Winters rights in the Delaware River basin.  Although the district court dismissed other claims related to the 1994 Agreement and the need to secure land for Plum Creek Reservoir, the Tribe, the State, and the United States (through the Department of Justice (DOJ) and the Department’s Solicitor’s Office (SOL)) continued working to resolve the underlying water rights issues and negotiated a potential water rights settlement.  As directed by the court, the parties shared a draft settlement with the magistrate judge in December 2015.  In September 2016, the Tribe and State - after making some critical revisions not shared with the United States - executed a revised settlement that forms the basis of S. 2154 and the subject of this hearing.

As introduced, S. 2154 would authorize and ratify the revised settlement executed by the Tribe and the State in September 2016; quantify the Tribe’s water rights as outlined in the 2016 settlement; direct the Secretary of the Interior to enter into the 2016 settlement and take related actions consistent with the legislation; and direct the Secretary of Agriculture, through NRCS, to complete a study and make recommendations within two (2) years related to Plum Creek Project.  S. 2154 would waive the Tribe’s and United States’ claims to water rights within the Delaware River Basin upon enactment, yet would retain the Tribe’s claims against the United States related to its water rights.  S. 2154 includes no federal appropriations at this time.

IV. Department of the Interior Positions on S. 2154

While the Department strongly supports Indian water rights settlements generally, the Department has significant concerns about S. 2154 and cannot support the bill as introduced.

As noted above, representatives from DOI and DOJ negotiated the basic structure of a proposed settlement in December 2015, one that the three sovereign parties submitted to the magistrate judge overseeing the litigation that began in 2006.  The federal representatives cautioned the other parties and the magistrate judge, however, that any settlement would need to be submitted to and approved by the Working Group on Indian Water Rights and the Administration as a whole and that outstanding issues remained to be resolved, such as federal funding and associated cost-sharing as envisioned by the 1990 Criteria and Procedures.  Rather than pursuing this course, the Tribe embarked on a separate process with the State, revising the December 2015 agreement -- without the involvement or approval of the United States -- and executing this revised settlement agreement in September 2016.

The Administration has significant concerns about the 2016 agreement and S. 2154.  Criteria 3 of the 1990 Criteria and Procedures provides that “Settlements should be completed in such a way that all outstanding water claims are resolved and finality is achieved.”  A critical goal for all Indian water rights settlements is achieving finality: resolving an Indian tribe’s water and related claims once and for all and providing certainty both to the Indian tribe and to affected State and non-Indian parties with respect to water allocations within a basin and related costs to achieve the settlement.  Although S. 2154 and the underlying agreement take steps in this direction, they leave unresolved the ultimate cost of the settlement, how those costs should be shared, and how the water right will be realized for the Tribe.  Moreover, S. 2154 explicitly retains the Tribe’s claims against the United States related to the issues this settlement is meant to resolve, the exact opposite of what an Indian water rights settlement is meant to achieve.

A critical piece of this puzzle, one that S. 2154 recognizes as unresolved, relates to the Plum Creek Project or similar infrastructure to meet the Tribe’s water right. The 2016 agreement defines the Tribal Water Right as the right to divert or redivert 4,705 acre feet year and gives the Tribe a right to store at least 18,520 acre feet in one or more yet to be constructed reservoirs.  As introduced, S. 2154 would direct the Secretary of Agriculture and NRCS to commence a study and, within two (2) years, make recommendations on potential alterations to the Plan that authorized Plum Creek Project.  It is unknown if such alterations will increase or reduce the amount of water that could be delivered to meet the Tribe’s water right, thus leaving uncertainty as to whether this project or other projects will be needed to address the Tribe’s water needs based on a reasonably foreseeable planning horizon.  Although we generally support the amount of water quantified for the Tribe in the 2016 settlement executed between the Tribe and the State, the infrastructure needed to deliver reasonably foreseeable necessary water is unknown, and neither the United States nor anyone else should be exposed to unknown costs or potential liability as S. 2154 would allow.

In addition to the matters noted above, S. 2154 and the underlying agreement would alter other considerations developed as part of the original agreement - such as the timing of court proceedings and settlement enforceability - that had been structured based on previously enacted Indian water settlements.

After the Tribe and the State executed the revised agreement in September 2016, the Department and DOJ communicated concerns to the Tribe regarding these revisions, recommended that the Tribe follow the Indian water rights settlement process set forth in the Criteria and Procedures (including formation of a negotiation team), and urged the Tribe to dismiss the litigation.  The Tribe agreed to dismiss the pending lawsuit, and the remaining parties to the litigation filed a joint stipulation requesting dismissal without prejudice, which the court approved in February 2017.  The Department stands ready to work with the Tribe and the State through a Federal Negotiation Team and our established processes.

V.  Conclusion

The Department recognizes that the Tribe and the State of Kansas want to achieve a Kickapoo water settlement and have devoted substantial efforts to reach that goal.  The Department shares this goal and is committed to working with the Tribe and the State to reach a final and fair settlement of the Tribe’s water rights claims that adheres to the principles of the Criteria and Procedures and that we can fully support.  As proposed, however, the Department cannot support S. 2154.