Hearings and Business Meetings

SD-366 Energy Committee Hearing Room 10:00 AM

Harold Frazier

Chairman, Cheyenne River Sioux Tribe

 

Testimony of Harold Frazier

Chairman, Cheyenne River Sioux Tribe

On S. 895, the Rural Water Supply Act of 2005

Presented to the Senate Committee on Energy and Natural Resources

May 11, 2005

 

            Chairman Domenici, Senator Bingaman and honorable members of the Energy and Natural Resources Committee.  My name is Harold Frazier, and I am the Chairman of the Cheyenne River Sioux Tribe located in South Dakota. I want to extend my sincere appreciation to Senators Domenici and Bingaman for taking the lead and introducing this extremely important bill and I wish to thank Senators Bennett, Murkowski and our own Tim Johnson for co-sponsoring the Rural Water Supply Act of 2005. It is certainly legislation that is needed in the western United States.

 

            Before discussing details, I want to tell you about my homeland as it relates to S. 895.   Through federal actions over a period of about 150 years millions of acres were taken from the Sioux Nation by the United States, often without compensation of any kind. Many people are aware of that aspect of US history. What many are not familiar with is the astonishing degree of land that was subsequently taken from us WITHIN the boundaries of our reservations via the Indian Allotment Act of the late 1800s and the forced fee patenting of our lands.  It is a history that should be shocking to members of this Committee but unfortunately it does not stop even there.

 

            In 1944 Congress passed the Pick Sloan Act to build dams on the Missouri River including the Oahe Dam.  This Project resulted in the flooding of 104,000 acres of land at Cheyenne River and the dislocation of the largest settlement of people on the Missouri.  In the flooding, Cheyenne River lost 90 percent of its timber and over 75 percent of its wildlife habitat.  The entire Cheyenne River Agency was moved to Eagle Butte, over 40 miles from the Missouri River, instead of our preferred location at Swiftbird right next to the River.  The Tribe was not even informed of the Oahe project until 1947 – three years after Congress authorized it. The Project was called a “balanced project” by the Corps and Congress, because, in exchange for the flooding of the best farmlands, irrigation projects would be built to make the arid plains farmable.  Not one irrigation project was ever built by the Corps of Engineers on Indian lands at Cheyenne River.  The economic loss of the best 104,000 acres of Cheyenne River lands is still being felt today.

 

            That it is even possible for 104,000 acres of the Cheyenne River Sioux Reservation to have been flooded by Lake Oahe and that my people TODAY do not have enough water to drink, much less thrive, is to me one of the darkest chapters in the history of the United States. That the United States government spent hundreds of billions of dollars in the “greening of the West” through BOR and Corps Projects but managed to bypass Indian country is nothing short of disgraceful. Our lands were taken and they were flooded .  But water supply for our people was not built so that the people whose lands were flooded could benefit like our non-Indian neighbors from clean water.  Neither the BOR nor the Corps of Engineers ever built a water supply system at Cheyenne River, despite repeated requests to Congress and these agencies.  The Tribe and surrounding communities cobbled together funds from HUD, IHS, BIA, and FMHA to build a small water system which is now breaking down and wholly inadequate.  

 

            The water intake in the Cheyenne River Arm of the Oahe Reservoir that serves Dewey and Ziebach Counties on our reservation, as well parts of northeastern Meade County off our reservation, may very well stop working this August. This is due to the drought and scheduled draw downs of the Missouri River for down state barge traffic. At that point, 14,000 people - Indian and non-Indian alike - in an area the size of Connecticut, will be without water. All businesses will be affected, as will our schools, our health clinics and the only hospital within 100 miles.  16 communities will be without water!

 

            Today, as I sit here, even with the intake under water, we have serious problems with a lack of water quantity and quality.  Last year, we ran out of water in fighting a house fire. Four children died in that fire. Last year, we ran out of water and had to pump water out of a sewage lagoon to fight a prairie fire that threatened Eagle Butte – the headquarters of the Tribe. With the severe drought continuing, this fire protection problem will worsen this year.

 

            We have a severe housing shortage and overcrowded homes where as many as 20 people live under the same roof. The shortage is not due solely to a lack of money to construct homes; we actually have funds from HUD and are ready to construct new homes. Senators, we can’t build another home because we have no water available to send to a new home. The only way we can get water to a new home is to take an existing home off the water system.

 

            The Banner Engineering firm of Brookings, South Dakota has completed a technical engineering study that indicates that we need a water system capable of processing 13.5 million gallons of water a day. Our present water treatment plant has a maximum capacity of 1.2 million gallons a day.

 

            As if this isn’t serious enough, our water intake is in the Cheyenne River Arm of the Oahe Reservoir and the Cheyenne River has at least two serious problems. The first is that it is silting in fast. We can’t lower the intake any more.  Secondly, the Cheyenne River has millions of tons of mine tailings in it including heavy metals, arsenic and mercury.  On our reservation, we have had 18 cases of brain cancers since 1996 in a service population of 11,583.  Eleven of those 18 are now dead. The national incidence of brain cancers ranges from 3.5 to 6 per 100,000 according to the National Cancer Institute.  There have also been 7 cases of Scleroderma including four deaths on the reservation since 1996 whereas the incidence of those cases in the US population is 1 in 100,000.  There are high rates of other auto-immune diseases as well.

 

            Right now, there are over 30 tribal members from Cheyenne River in active military service, and many more veterans of foreign wars at home.  Some served in Iraq and Afghanistan and participated in rebuilding vital infrastructure in those nations.  Yet, they are coming home, after proudly serving this Nation, to a lack of that same infrastructure they built for other nations. Something is very wrong with that picture.  

 

            We have an emergency Mr. Chairman and we hope that when you are wearing your other hat, as Chairman of the Appropriations Subcommittee on Energy and Water, that you will direct the Corps of Engineers to use any and all funds they have available to assist us in securing good quality water. .

 

            Senator Domenici, when you introduced this bill, your introductory remarks in the Congressional Record indicated that the deteriorating water infrastructure combined with the inability to raise the capital necessary to build new water systems was leading to “substantial want” and leaving a number of western communities in a “dire situation.” It pains me to say that the Cheyenne River Sioux Tribe is probably the poster child for the situation you describe – a situation worse than anything most Americans could envision.

           

            We view S. 895 as a wake up call to the nation and we also view it as a very good start. This bill essentially does three or four things. First it creates an important authorization for a rural water program at BOR. It expedites authorizations and non-reimbursable appropriations for appraisals and feasibility studies. It also allows the BOR to accept private studies that communities have undertaken on their own (or funds such studies) and it creates a federal loan guarantee program for the construction of rural water systems.  Ziebach County, wholly enclosed in the Reservation, is the fifth poorest county in the entire United States.  The unemployment rate at Cheyenne River is 78% with 96% of families working living below the national poverty level according to BIA 2000 Reports.  We are therefore somewhat concerned as to how we or the other impoverished Sioux Tribes – including those desperately in need of rural water systems - could qualify for loans even with low interest federal loan guarantees authorized in this bill. We ask the Committee to consider working with my Tribe and others and with the Senate Indian Affairs Committee to consider amendments that might authorize BOR programs to provide direct assistance to tribes in need or water systems. We will check with other tribes in the Dakotas and solicit their input and endeavor to get back to you on this question within the next two weeks.

 

            Additionally, and while we understand that this may be outside the jurisdiction of the Energy Committee, we think the bill should be amended to include a role for the Army Corps of Engineers. We have just begun working with the Corps on the crisis surrounding our water intake and have found them to be extremely professional and very helpful. The total need in the west for rural water projects is simply too large for the Bureau of Reclamation to handle this problem on its own. This is going to take a multi-agency approach and we believe the Corps has significant expertise in this area and could be most helpful to Indian reservations. I don’t mean to be cynical, but since the Corps did such an effective job flooding lands on a number of reservations, the least they could do now would be to help tribes put all that water to good use and restore the Pick Sloan Project to the balanced project it was intended to be!  Again I would think in the case of impoverished Indian reservations, the Corps and the BOR should be authorized and funded to directly do the work. Many Indian Tribes may not be able to participate in this program if they have to repay millions of dollars in loans even at low interest rates.

 

            There are some provisions in S. 895 that require the Secretary to consider how a project may affect Indian trust responsibilities but we think it needs to go further and ensure that Indian treaty rights are protected and fulfilled.  The language in the bill discusses Indian trust responsibility as if it is merely one factor for the Secretary to take into account and that consideration of it is discretionary. The trust responsibility of the United States to protect tribal water rights and tribal lands is not discretionary and should not be lumped together with other sections as merely one of many factors to weigh. 

 

            Other sections of the bill reference the fact that nothing in the bill is intended to preempt or affect State water rights and stipulate that State water law must be complied with in carrying out the bill. That does not protect our water rights which are not founded in state water law.  In fact, it may be harmful to tribal water rights as this language grants primacy to state water law and rights.   We have federally reserved rights recognized through federal court cases, treaties, statutes and executive orders. A similar savings clause should be added to the bill, as Congress has done in many other statutes, ensuring that nothing in the bill will diminish, divest, alter, or be contrary to any Indian reserved water rights, treaties or statutory obligations.

 

            Again Senators, thank you for the opportunity to talk with you today and to offer our support for expanding access to vital water resources in the West.  We appreciated the numerous provisions in the legislation where the sponsors have clearly endeavored to include Indian reservations in the scope of the bill.

 

The Lakota people say “Mni Wiconi” which means “Water is Life.”  We must have water to complete a new hospital and nursing home already ready to construct that will bring good health care to our people for the first time in the history of our Nation and over 200 new jobs with them.  We must have access to water for our planned economic development projects and new businesses that cannot open their doors without water.  We must have water if we are to become economically self-sufficient.  And soon, we must have water just to drink for survival.  We hope that you are successful in your efforts to secure access to the water that is needed to allow the people of Cheyenne River, and all communities and peoples of the West to live.