Infrastructure Investment and Jobs Act

Floor Speech

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Ms. CANTWELL. Mr. President, I rise today to discuss an important provision I authored in the Infrastructure Investment and Jobs Act.

Section 40336 of the Infrastructure Investment and Jobs Act, H.R. 3684, includes several provisions relating to the Act of June 29, 1940, 54 Stat. 703, chapter 460; 16 U.S.C. 835d et seq., that facilitated the construction of the Grand Coulee Dam. The portion of the Columbia River that flows through the Colville and Spokane Indian Reservations formerly supported abundant anadromous salmon fisheries that were significant culturally and nutritionally to the Confederated Tribes of the Colville Reservation and the Spokane Tribe of Indians. Upon completion of the Grand Coulee Dam in 1942, these fisheries were destroyed, and the Columbia River upstream of the Grand Coulee Dam was inundated by its reservoir waters. In 1945, these reservoir waters were designated Franklin D. Roosevelt Lake and today are commonly referred to as Lake Roosevelt.

The 1940 Act instructed the Secretary of the Interior to ``set aside approximately one-quarter of the entire reservoir area for the paramount use of the Indians of the Spokane and Colville Reservations for hunting, fishing, and boating purposes, which rights shall be subject only to such reasonable regulations as the Secretary may prescribe for the protection and conservation of fish and wildlife . . . .'' 16 U.S.C. 835d (emphasis added). Congress authorized the Secretary in the 1940 Act ``to perform any and all acts and to prescribe such regulations as [it] may deem appropriate'' to protect these paramount use rights. 16 U.S.C. 835h. The portions of Lake Roosevelt ultimately set aside for the paramount use of the Colville and Spokane Tribes pursuant to the 1940 Act are within the Colville and Spokane Reservations and are called the ``Reservation Zone'' of Lake Roosevelt.

In a 1945 Opinion, Interior Solicitor Warner Gardner interpreted the 1940 Act and confirmed that the 1940 Act provided the Tribes ``special rights'' to hunt, fish and boat within the Reservation Zones. 59 I.D. 147 (Dec. 29, 1945). Solicitor Gardner also found that the Secretary has broad discretion to determine how to protect the Tribes' paramount rights, including the power to ``give the Indians exclusive rights of hunting, fishing, and boating'' in the Tribes' respective Reservation Zones.''

In 1990, Interior entered an agreement with the Colville and Spokane Tribes establishing the framework for cooperative management of Lake Roosevelt between the Tribes, Bureau of Reclamation, National Park Service and Bureau of Indian Affairs. The agreement, commonly referred to as the ``S-Party Agreement,'' provides for the Colville and Spokane Tribes to ``manage, plan and regulate all activities, development and uses that take place'' within the Tribes' applicable portion of the Reservation Zones. The 5-Party Agreement also directs that the Bureau of Indian Affairs ``shall assist the tribes in carrying out the tribes' management of the Reservation Zone, and undertake such other activities as are authorized by law in support of the tribes.''

At the Tribes' request, the Department of the Interior and its agency stakeholders previously initiated a process to consider potential solutions, including various possible Federal administrative actions to protect the Colville and Spokane Tribes' paramount rights. This process involved government-to-government meetings and communications with both Tribes and with the State of Washington. The Department of the Interior considered several options, including rulemaking. A summary of the parties' efforts in this regard were memorialized in a January 19, 2017, letter from Interior Solicitor Tompkins to the State of Washington and the Colville and Spokane Tribes.

The references to the Tribes' paramount use rights in section 40336 are intended to reaffirm the 1940 act's recognition of those rights and to recognize that the Secretary of the Interior has both a federal trust responsibility and broad discretion to protect the Tribes' paramount use rights.

Thank you.

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