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they shall continue to enjoy to the same extent as if this act had not been passed.”
We are taking the liberty of sending a copy of this letter to the House sponsors of the legislation, and to other congressional representatives of the tribes we represent, set forth above. Very respectfully yours,
JOHN W. CRAGUN. Senator WATKINS. Mr. Robert Morrison, attorney general of Arizona,
will be the next witness.
STATEMENT OF HON ROBERT MORRISON, ATTORNEY GENERAL OF
THE STATE OF ARIZONA
Mr. MORRISON. I am Robert Morrison, the attorney general of Arizona. This was a last minute getup for me to get here, and I have not prepared copies of what observations I shall make here today, but I wonder if the committee will permit me to file within the next few days a résumé of what I have to say.
Senator WATKINS. You may do that. It would be helpful if you cite cases as I just requested of Mr. Ely.
Mr. MORRISON. I shall do that.
(The résumé had not been received at the time the hearings were printed.)
Senator WATKINS. We are glad to have you with us even though you have not been able to prepare a written statement in advance.
Mr. MORRISON. Thank you. I wonder if it would be appropriate at this point to ask a question. I have not been at these hearings. I do not know whether the question of underground water has been raised, or whether this bill in the minds of the framers and Senator Barrett contemplates to cover underground water.
Senator BARRETT. Mr. Chairman, I might say that it has been discussed heretofore, and I think on the first day of the hearings I indicated to the State engineer from Nevada that I would be agreeable to amending my bill and making provision for underground water, as well as surface water. I think it could and should be done.
I might say I said then that in my judgment underground waters were included in the general terms of the bill but that there would be no harm at all in making it definite and certain. I am quite certain the committee will do just that.
Mr. MORRISON. I am glad to hear that, Senator, because I have been reading the bill, and I have been a little hesitant as to whether it does or does not. I would say it does. But I thought if it was the intention of the bill to cover underground water, it might be spelled out.
I shall this morning principally emphasize the underground water problem in Arizona rather than the surface water. I think that matter has been pretty thoroughly covered. To do that I would like to point out a listle bit about Arizona's history because I think Arizona's seriousness as far as water is concerned should be brought to the attention of this committee. I think all of you are familiar with the Arizona-California lawsuit dealing with the Colorado River, but we have other problems than that.
Senator WATKINS. There have been some slight references made to it in this hearing.
Senator BARRETT. We have heard about that directly or indirectly
. Mr. MORRISON. We have in Arizona a very serious underground water problam. For instance, our population since 1950, which indicated there was something under three-quarters of a million, has exceeded well the 1 million figure. For domestic as well as agricultural use, we have had a very serious problem in recent history insofar as underground water is concerned.
To emphasize that point, may I call attention of this committee to the fact that 73 percent of all of the land in Arizona which totals something like 72,838,000 acres is either owned by the Federal Government or is under the control of the Federal Government. Of that amount, 27 percent is Indian reservations. So the exercise by the United States--let us call it promiscuous exercise by the United States of their right to do as they see fit of underground water would have a very critical bearing on the State of Arizona. To point up and emphasize that point, I would like to point up the fact that the recent underground water history of Arizona is such that our agricultural economy is principally in the central Arizona, in the Yuma district, and Phoenix, and some in the Pima area, some in Graham County. The major portion of the agricultural area is found in Maricopa and Pinal Counties. We are farming something like 1,200,000 acres of land, of which 775,000 of it falls in the counties of Maricopa and Pinal, Phoenix being located in Maricopa County. Of that 775,000 acres that are being farmed, 301,000 acres are wholly dependent upon underground water. The other four-hundred-thousand-some-odd acres are being irrigated from reservoirs and other sources.
The pumping of water for the 301,000 acres in these two counties has resulted in a rapid decline of the water level. In the past 10 or 15 years, it has averaged something like 10 feet a year. As a result of many surveys, one by the United States Geological Survey– I say one, although the Survey has a continuing survey of our water resources in Arizona---together with Arizona's survey, it became evident that something had to be done to stop the rapid decline of water. Arizona in 1948 adopted an underground water code. This morning, while I was looking at our code, I thought it might be well that I read to you the declaration of policy in the adoption of that underground code.
It reads as follows: Declaration of policy: The United States Geological Survey reports based on studies covering a long period of years indicate that large areas of rich agricultural lands in Arizona are dependent in whole or in part upon ground water basins underlying such lands for their water supply and that in a number of such basins withdrawals of ground water greatly in excess of the safe annual yield thereof is converting the lands of rich farming communities into critical ground water areas to the serious injury of the general economy and welfare of the State and its citizens. It is therefore declared to be the public policy of the State in the interest of agricultural stability, general economy and welfare of the State and citizens to preserve and protect the water resources of the State from destruction and to provide reasonable regulations for the designation and establishment of such critical ground water areas as may now or hereafter exist within the State.
That was a declaration of policy of our State in 1948 and consistent with that certain statutes were enacted to the end that water would be conserved. Certain areas were declared to be critical. New wells
if I can.
were prohibited from being brought into existence. New land was prohibited from being farmed. In other words, no further reclamation in Arizona was permitted in these areas.
As I pointed out earlier, Maricopa County and Pinel County areas were the most critical, Pinel by far the most. The reason I emphasize Pinel is because you have here about the Pelton case, and the Hawthorne case. I understand the engineer from Nevada has made his appearance before you and what the attitude of the commandant of the 12th Naval District has been in Nevada. I want to point out that we have a similar experience in Arizona dealing with Indian reservations and the attitude of the Bureau of Indian Affairs in our State.
Incidentally, I am told that the Interior Department has endorsed this bill. However, evidently in some cases the left hand has been doing things that the right hand was not for because that has happened in the State of Arizona. I shall dwell on that in a moment. I know it is getting close to lunch time, and I shall go through my observations quite rapidly, but I do want to touch upon it and emphasize it,
Senator WATKINS. I may advise you that if you do not finish before we recess for lunch period, that we will give you an opportunity after we resume this afternoon. Mr. MORRISON. I think I can do it in 10 minutes more, if I
may. Senator WATKINS. I didn't want you to neglect any part of your presentation because of the lunch period.
Mr. MORRISON. I am here to gain all the sympathy that I can gain from you gentlemen, and I want to emphasize that, but I will not lengthen my observations.
As I pointed out, we have a situation in Arizona that was created subsequent to the Pelton Dam case which I shall now discuss. I think that all of you are familiar with the Hawthorne case.
Senator WATKINS. We are. It has been discussed. Mr. MORRISON. May I say this, that the question has been raised here while I have been here this morning as to whether the meaning of the Pelton Dam case is or what it means or what it says. As I see that case, it is not very much what the Supreme Court of the United States had to say about that case, but it is what interpretation that the Federal agencies have placed upon it. The attorneys for the Bureau of Indian Affairs, the attorneys for the Justice Department and others. I think that the Hawthorne trouble crops up from the interpretation that the commandant of the 12th Naval District placed upon the Pelton case. They contend that in all likelihood the action taken in Arizona is also the result of the Pelton case, and the interpretation placed upon it.
Some may disagree with me, and I shall refer to the Winters case just briefly in my observations.
In Arizona, as I pointed out, 27 percent of our land consists of Indian reservations. I emphasize that, because an incident occurred on an Indian reservoir. The challenge that we see in the Pelton Dam case is that here are 73 percent of all of our territory under Federal jurisdiction, and if the Federal Government or its agencies should step in and do'as they please with our underground water, we are going to be in bad trouble.
We, of course, are for that reason wholeheartedly endorsing without any equivocation or qualification of the bill. We want to go on record in doing that.
The problem that we have now in Arizona is simply this: Up until the Pelton Dam case as far as we could tell—I say we could tell in discussions with the Bureau of Indian Affairs—there was no effort made to do anything inconsistent with the underground code of Arizona. In other words, up to that point the Federal agencies involved followed—let us put it this way, did nothing that was inconsistent with our underground water code. Shortly after the Pelton Dam case-if I recall correctly that case was decided in June of 1955– somewhere in August or September of 1955 the Bureau of Indian Affairs authorized and approved a well-drilling reclamation project on the Indian reservation. The particular reservation happens to be located in the Sacaton area, and it is right in the heart of the Pinel County critical area.
May I just exhibit the particular chart that has been prepared by the United States Department of Interior, Geological Survey, in the particular area involved. This chart covers from the years
1940 to 1954, and indicates the drop.
This is the chart showing the drop that starts from zero and it is the minus of this particular area. This is the most critical area we have in Arizona. Right in the heart of this critical basin, the Bureau of Indian Affairs authorized the drilling of wells.
Senator WATKINS. Did they attempt to comply with the State law!
Mr. MORRISON. They made no attempt. They told us that State law did not apply. I discussed the matter with the regional director of the Bureau of Indian Affairs. I have had correspondence with Mr. McKay's office. I took a little threatening attitude about it that I was going to get injunctive relief, and any other kind of relief I could think of, but up to this point we have not taken any active court action to try to assert our position.
I do want to call to the committee's attention the fact that we did object to it. We had many conversations. We felt not only from a legal standpoint, but from the standpoint that whatever was good for the nonreservation people of Arizona was good for the Indians, because in the end result, if we didn't have a drink of water, the Indians would not have a drink of water. It was absolutely necessary that if water conservation indeed had any basis or standing in our State, that it was important that the conservation program be followed.
May I inject this. The explanation I got from the local Bureau head in the State of Arizona was to the effect that they felt that they were trustees of Indian land and that it could be construed, and it is my understanding in some areas in actions by the Indian tribes against the United States, the charge has been that the trusteeship has resulted in negligence, and damage had been done to Indian tribes, and it is my understanding that such recovery has been made.
Senator WATKINS. We had a case in the Menominee Reservation where they thought the United States did not manage the timberlands the way they should, and they won a suit for $8 million.
Mr. MORRISON. That is right. They gave that argument to us that if they did not go ahead with this project that they might conceivably some day be charged with negligence. They recognized the fact that
in this particular area—this is their statement and not mine, and I don't stand by it—we agree in probably 10 years the water basin there as a result of both nonreservation and reservation pumping, if that plan continues, will be completely emptied, and the area will go to desert. That was their statement, and not my statement in my office.
It seems to me that the exercise by the Federal Government and its agencies of any action that would hurt the economy of the State and welfare of the State of Arizona would likewise also hurt the economy of the Indians and their welfare. Strange as it may seem, I woulă probably take a more sympathetic attitude about this matter if the Indians themselves were farming this land for their own use.
But on the contrary, what has been done is that the land has been leased or some arrangement has been made where nonreservation white farmers who cannot reclaim any further land, living outside of the reservation, and who cannot expand any further, are the ones that are going to farm this land, and are
the ones that are carrying on this activity and for a pittance. The Indians are getting a pittance out of it.
Together with that fact, I just want to call your attention to the fact that actually in the end result the Indians are not going to get any great benefit.
I don't want it understood here that I am adverse to helping the Indians and to try to integrate them in our community to become fullfledged Arizonians because we are striving very hard for that, and I want to go on record that I am in favor of assisting them. I think we owe them a lot, and I am certainly in accord with doing anything that would be of benefit to Indian tribes in Arizona, and everywhere else in the country.
On the other hand, it seems that if this action by the Federal Government is going to ultimately not only result in their destruction but the other people of the State, in the end result they have not done any good. For that reason, I think the Barrett bill, if it includes underground water-whether it does or not-we are going to be for it because we think it is a policy and philosophy that is consistent with past activities by the United States Government.
In that connection may I call this to your attention. The Reclamation Act of 1902 no doubt has been called to your attention, and the Flood Control Act of 1944, and the Federal Power Act, and the other acts which carry the same basic policy and philosophy. This gets into another field, but let us go back to Daniel Webster's day, and see what they did.
They did not have any water problems at that time. They had problems dealing with individuals and personal conduct. They adopted the Assimilative Crimes Act. I don't want to illustrate this to be on point here, but to give you the same policy and same philosophy. The United States Government recognized that because of its large ownership of territory within the States that there would be chaos and a ridiculous situation would result if State laws dealing with crime were not followed to prevent that sort of thing. What we know as the Assimilative Crimes Act was adopted before 1800, which made an act committed on Federal property and Federal jurisdiction a crime if that act was a crime in State jurisdiction. In other words, by reference it made it a crime of the United States if it was a crime of the State involved.