Issue Position: Native Americans

Issue Position

By: Jon Kyl
By: Jon Kyl
Date: Jan. 1, 2011

The U.S. Constitution, treaties with Indian tribes, and other federal laws vest the United States with a trust responsibility for the provision of public safety, water, and health care to Indian people. I have worked to secure funding and pass legislation to meet these trust responsibilities. Since tribal land represents more than a quarter of all Arizona lands and is often near non-Indian communities, all of Arizona benefits from funding in areas such as tribal law enforcement.

I have also been privileged to help secure the enactment of a number of historic Indian water settlements in Arizona. The settlements provide much needed certainty to the state's non-Indian water users as they plan for the future. Each settlement resolves major tribal claims against the United States and countless Arizona water users, and permanently quantifies the amount of water a tribe may legally use.

I have worked to promote economic growth and opportunity for American Indians and to preserve and protect their culture and traditions by helping to pass such bills as the Indian Arts and Crafts Act and the Zuni Indian Tribe Water Rights Settlement Act.

Arizona Water Settlements Act

The enactment of the Arizona Water Settlements Act capped 15 years of hard work by dozens of parties in Arizona that worked together to resolve amicably a long list of disputes concerning their water rights. This bill, which I sponsored and which became law in December of 2004, settles the water-rights claims of the Gila River Indian Community and the Tohono O'odham Nation. The bill became fully enforceable and effective in 2007.

The legislation provides significant funding to enable both tribes to build water infrastructure to meet the needs of their reservations. In fact, all tribes in Arizona that can utilize Central Arizona Project water will benefit from the new law, since it creates a fund to pay the yearly operation and maintenance costs for the water delivered to tribes through 2045. The law also sets aside more than $250 million to settle Arizona tribal water-rights claims in the future.

The Act enables Indian tribes to use water rights that thus far have existed only on paper. In addition, it brings long-sought certainty to cities and communities as they plan their growth and development. The law also resolves a long-standing dispute between the state of Arizona and the federal government over nearly $2 billion in repayments for construction of the Central Arizona Project. Consequently, all of the people of Arizona will benefit from the legislation.

The settlement marks a milestone in Arizona's history and could ultimately prove as important to the state's future as the authorization of the Central Arizona Project itself.

The settlement is now being implemented, and the tribes are already receiving many of the benefits that were contemplated. In fiscal year 2010, for example, $1.328 million in federal funding is being used for the design and environmental compliance associated with the construction and rehabilitation of a water delivery project that will benefit the San Carlos Irrigation and Drainage District and the Gila River Indian Community.

White Mountain Apache Tribe Water Rights

In 2009, Senator McCain and I introduced legislation to ratify a settlement of the White Mountain Apache Tribe's water claims, quantify the amount of water the tribe may legally use, and authorize funding for the construction of the Miner Flat Project, a vital drinking water project on the tribe's reservation. That measure passed the House and Senate in November 2010 and was signed into law the following month.

In exchange for the funding authorized in the legislation, the tribe waives its water-related claims against the United States and a number of non-federal parties in Arizona. The bill also resolves some of the largest tribal water claims in Arizona and provides certainty to water users in Arizona regarding their future water supplies. And, more importantly, it establishes a clean, reliable source of drinking water for members of the White Mountain Apache Tribe.

The settlement act followed enactment of the White Mountain Apache Tribe Rural Water System Loan Authorization Act in 2009, legislation I introduced to expedite the initial planning and design phases of the Miner Flat Project and thus reduce the ultimate cost of construction and the settlement legislation.

Native American Public Safety, Health, and Water

Recognizing the tremendous needs in Indian country, I authored a measure with Senator John Thune in July 2008 that authorized (1) $750 million for law enforcement in Indian Country, (2) $250 million for Indian health care, including contract health services, Indian health facilities, and domestic and community sanitation facilities, and (3) $1 billion for water supply projects that are part of Indian water settlements approved by Congress. Congress adopted the measure as an amendment to a foreign aid bill, known as PEPFAR, which later became law on July 30, 2008. The $2 billion in funding for Indian country is money that would otherwise have been sent abroad as foreign aid.

The amount of PEPFAR funding actually allocated for use in Indian Country under this new authorization will be determined later this year during Senate action on various appropriations bills.

Indian Arts and Crafts Act

In 1990, while serving in the House of Representatives, then-Congressman Ben Nighthorse Campbell and I sponsored the Indian Arts and Crafts Act to prohibit misrepresentation in the marketing of Indian arts and crafts within the United States. It is a truth-in-advertising law that provides criminal and civil penalties for marketing products as "Indian-made" when such products are not, in fact, made by Indians, as defined by the Act. The law is intended to protect unsuspecting buyers from fraudulent works, as well as Indian artisans, craftspeople, and tribes.

The kinds of products that are copied by non-Indians vary from region to region, but include Indian-style jewelry, pottery, baskets, woven rugs, kachina dolls, and clothing. Misrepresentation of products can result in civil penalties or criminal penalties of up to a $250,000 fine or a five-year prison term, or both. If a business violates the Indian Arts and Crafts Act, it can face civil penalties or be prosecuted and fined up to $1 million. The Indian Arts and Crafts Board at the U.S. Department of the Interior has primary enforcement authority.

Senator McCain and I introduced legislation in 2009 to further strengthen the investigative and enforcement authorities of the Indian Arts and Crafts Act. The legislation, which became law in July 2010, expands the investigative authority under the original act by allowing other federal law enforcement entities besides the FBI, such as the Bureau of Indian Affairs' Office of Law Enforcement, to investigate cases of misrepresentation and work with Department of Justice attorneys to prosecute cases.

Fort McDowell Indian Community Water Rights Settlement Revision Act of 2006

I sponsored legislation with Senator McCain in 2006 that forgave a federal long-term, no-interest loan made to the Ft. McDowell Yavapai Nation. In return, the U.S. government was relieved of the obligation to conduct environmental mitigation on the Nation's reservation, as otherwise required by the Fort McDowell Indian Community Water Rights Settlement Act of 1990.

The settlement revision act, which was signed into law in November 2006, brings to a close the final stages of implementation of the tribe's important water settlement. It also shows how the federal government and Native American tribes can work together to reach a solution that benefits both parties.

Zuni Indian Tribe Water Rights Settlement Act

Legislation I introduced to settle the Zuni Tribe's claims to water on its religious lands in northeastern Arizona became law in June of 2003. The settlement honors the Zunis' religious beliefs, resolves its long-standing claims, and protects rural communities' access to water. By resolving this decades-long dispute, the law saves all parties -- including the tribe and the state of Arizona -- the expense of a protracted legal battle.

The law settles competing water-rights claims by small, non-Indian communities, and the Zuni Indian Tribe with respect to "the Zuni Heaven Reservation" created by Congress in 1984. Since the late 19th century, communities upstream from the Reservation had fully appropriated all the water available, leading to conflicting claims.

To avoid litigation, all of the parties involved -- including the federal government and the state of Arizona -- sought a legislative settlement that provided the Zuni Tribe with the financial resources to acquire water rights in the Little Colorado River basin and restore the riparian environment that existed previously on the Zuni Reservation. In return, the Zuni agreed to waive future claims to water rights, accept current water uses by non-Indians, and recognize many future water uses by local water users and communities.

A total of $26.5 million is being used to settle claims, implement the agreement, and restore Zuni Reservation land. The bulk of that money -- $19.25 million -- comes from the federal government.