Offers opinions from natural resource allocation to the Akaka Bill
PHOENIX -- John McCain is a famous senator from Arizona, but few people
recognize the state's second senator, Jon Kyl. First elected to the U.S.
Senate in 1994 after serving four terms in the U.S. House of
Representatives, Kyl has a long history of seeking legislative solutions to
issues raised by Arizona's Indian tribes. He recently took time from his
hectic schedule to answer questions for Indian Country Today.
Kyl is proud of his contributions to Arizona's Indian community. Among the
most contentious battles he has fought was one waged over the allocation of
water to Indian and non-Indian parties, a precious commodity in the growing
Former Gov. Bruce Babbitt was embroiled with several tribes over how to
resolve the complicated water situation between the state and Arizona's
American Indians. Neither side would budge, so Babbitt prodded Kyl to
intervene. What eventually became known as the Arizona Water Settlements
Act (Public Law 108-451) was first introduced by Kyl more than 10 years
ago. That legislation was eventually signed into law in December 2004.
"It capped 15 years of hard work by dozens of parties in Arizona to
amicably resolve a long list of disputes that affects their [American
Indians'] livelihoods," said Kyl.
Not only will the Arizona Water Settlements Act bring confidence to Arizona
communities as they plan current and future growth -- a growth that shows
no sign of slowing down, it gives Indian tribes "wet water" which can be
used or leased to non-Indian parties off reservations, rather than a "right
to water" which existed only on paper. This is a significant gain for
tribes and, according to Kyl, "a major component of a long-term water plan
for Arizona." Arizona leaders, both tribal and state, need a sensible water
plan as they envision the state's future.
The Arizona Water Settlements Act settled water-rights claims of the Gila
River Indian Community of Maricopa County and the Tohono O'odham Nation in
southern Arizona. According to Kyl, "The law provides significant funding
to enable both tribes to build water infrastructure to meet reservation
needs." The Gila River and Tohono O'odham are situated in areas that
receive scant annual rainfall, as does much of Arizona's populated areas.
Arizona, like much of the western United States, has faced years of
A long-running dispute between state and local governments over nearly $2
billion in repayments for the construction of the Central Arizona Project
was also resolved by the act. As Kyl noted, the act also provides for other
Arizona tribes to utilize the Central Arizona Project water through
reaching settlements of their own current water issues. The act created a
fund by which payments for the yearly operation and maintenance of water
delivered to the tribes through 2045 is provided.
Furthermore, Kyl added, "The law set aside more than $250 million that
tribes may use to settle their water-rights claims in the future." The
Arizona Water Settlements Act does not become effective until certain
additional actions are taken by the various parties to each of the
settlements. Once completed, the Secretary of the Interior will publish in
the Federal Register that the actions have been completed. There is a
deadline of Dec. 31, 2007.
One issue not settled concerns the water rights of the San Carlos Apache
Tribe, which remain mired in litigation. Kyl expects this matter will be
resolved in the near future.
An additional complication to effectuating the settlements is related to
the recent American Smelting and Mining Co. bankruptcy filing. State and
tribal officials remain concerned about resolving ASARCO's issues in order
to meet the statutory deadlines. Kyl has worked hard to make sure ASARCO's
financial troubles do not upset the act's implementation. That would be a
major setback for all involved.
Kyl was instrumental in passing legislation (PL108-34) that settled the
Zuni's claims to water on sacred lands in northeastern Arizona. In June
2003, issues regarding the Zuni's spiritual beliefs in addition to
water-rights claims, a point of contention between the Zuni's and
non-Indians, were finally resolved.
"Since the late 19th century, communities upstream from the reservation had
fully appropriated all the water available," Kyl said, "leading to the
conflicting claims." The current agreement provides the Zuni Tribe with
sufficient financial resources to acquire water rights in the Little
Colorado River basin and to restore the riparian environment that existed
previously on the reservation. In exchange, the Zuni's waived future claims
to water rights, accepted current water uses by non-Indians and recognized
future water use by local communities.
"A total of $26.5 million will be used to settle claims, implement the
agreement and restore Zuni Reservation land," Kyl said. "The bulk of that
money will come from the federal government."
Aside from natural resource issues, in which many tribes felt a loss as a
result of non-Indian parties' consumption of resources that fairly belonged
to the tribes, the counterfeiting of American Indian art and crafts has
long concerned the senator. Many Indian artists reside in Arizona. The
world-famous Heard Museum -- devoted to American Indian culture, arts and
history -- is located in downtown Phoenix.
"Fraudulent products compete daily with authentic Indian products in the
nationwide markets, which not only hurts buyers but erodes the livelihood
and culture of Indian artists, craftspeople and tribes." To crack down on
hucksters, Kyl wrote the Indian Arts and Crafts Act (PL101-644) along with
retired Sen. Ben Nighthorse Campbell (when both were members of the U.S.
House of Representatives.)
The law prohibits misrepresentation in the marketing of American Indian
arts and crafts within the United States. A truth-in-advertising law, it
provides criminal and civil penalties for marketing products as
"Indian-made" when in fact such products are not, as defined by the act.
Kyl introduced an update to the Indian Arts and Crafts Act on July 11,
2005, but that bill is stalled in Congress.
Kyl has made other notable contributions to Arizona's Indian community. For
example, in fiscal year 2005 he obtained $1 million in funding for the
planning and design of the San Carlos and Kayenta health care clinics.
Health care is a critical issue on reservations. Tribes have been
historically underserved by the health care system, a service for which the
U.S. government has a clear trust responsibility. The Phoenix Indian
Medical Center received $4 million for the design of its southeast and
southwest clinics due to the senator's intervention. The Red Mesa Health
Center, with the senator's help, got $19.4 million.
Education is also on the senator's agenda. He authored a provision to
include the Tohono O'odham Community College among those tribal colleges
that may obtain federal funds under the Tribally Controlled Colleges Act --
an important benchmark for the college as it arrives on the tribal higher
From his position on the Senate Finance Committee, did Kyl tackle Indian
sovereignty issues? The senator sidestepped the question by responding that
sovereignty issues are important to most tribes throughout the United
States and Canada.
"The U.S. Constitution assigns the federal government responsibility for
Indian tribes. It is a trust relationship, one that affirms the legal
status of tribes as sovereign governments." Kyl further added that this
sovereign status was further defined by the U.S. Supreme Court, which
stated: "Indian tribes are distinct, independent, political communities,
retaining their original natural rights in matters of local
self-government" (Santa Clara Pueblo v. Martinez, 1978).
A strong advocate of the nation's natural resources, including those on
tribal lands, Kyl made restoring the health of Arizona's forests the top of
his priorities. The buildup of excessive underbrush and small trees led to
devastating forest fires and must be prevented in the future.
"I support the promising techniques the U.S. Forest Service and Northern
Arizona University are utilizing to improve the health of Arizona's
forests." Among Kyl's other suggestions to improve Arizona's natural
resources are the Southwest Forest Health and Wildfire Prevention Act,
signed into law in October 2004. The act, which will benefit all of
Arizona, creates three institutes to promote adaptive ecosystem management
and work with land managers to design and implement science-based forest
The Akaka Bill (Senate Bill 147), introduced by Sen. Daniel Akaka,
D-Hawaii, in 2005, would extend self-governance and self-determination to
Native Hawaiians. The outcome of S. 147 remains uncertain. Several Senate
hearings on the bill were held, but many Native Hawaiians claim that S.
147, because of questionable local land transfer issues back to the federal
government, will only benefit private developers, not Native Hawaiians. Kyl
also opposes the Akaka Bill. No formal vote has ever been taken on S. 147.
If it does pass, it will likely face years of litigation by opponents.
Tribes such as the Pascua Yacqui, Tohono O'odham and Cocopah occupy land on
both sides of the U.S.-Mexico border. Tribal members report harassment from
Border Patrol and Homeland Security officials as they try to pass across
tribal lands. When asked about this issue, the senator declined to answer.
Nor did he comment about what recognition state and federal courts should
give to decisions made by tribal courts. Regarding tribes' ability to limit
access to their lands, Kyl offered no comment.
Kyl is seeking re-election this year. In 2000, he ran virtually
unchallenged. Arizona hasn't had a Democratic senator since 1995, when
Dennis DiConcini left office. Former Arizona Democratic Party Chairman Jim
Pederson is running against Kyl. Pederson is a formidable opponent with a
hefty contributor base and a long list of supporters. Will voters rebel
against the failed policies of the Bush administration, including the
increasingly unpopular war in Iraq, and unseat Kyl? Only Arizona voters can
decide that in November.