Washington (CNN) – Democratic Party officials are blasting out emails accusing the Senate's second ranking Republican of backtracking on his pledge not to seek earmarks, but a closer look by CNN shows their accusations appear unfounded.
At issue – a $200 million project to provide drinking water for an Indian tribe in Senate Minority Whip Jon Kyl's home state of Arizona.
Democrats say Kyl violated his GOP caucus' newly-pledged ban on earmarks by inserting funds into legislation last week, in order to settle a decades-old land dispute between the White Mountain Apache Tribe and the federal government.
Democrats were seizing on a report from the Associated Press which said Kyl slipped the money into a larger settlement for black farmers and American Indians.
"Jon Kyl's hypocrisy knows no bounds. It only took three short days for politician Jon Kyl to hypocritically break his no-earmarks pledge by 'slipping' a $200 million earmark into a larger bill," said Democratic Senatorial Campaign Committee Press Secretary Deirdre Murphy.
A spokesman for Kyl is defending his support for the "White Mountain Apache Tribe Water Rights Quantification Act of 2010," as it is officially known, saying it has been a long-negotiated deal between federal agencies and the tribe that has the backing of President Barack Obama.
"What is not accurate is to call the United States government's settlement of a claim against it an earmark," said Kyl spokesman Andrew Wilder.
"Saying we 'slipped' it into the package is nonsense designed to insinuate something untoward. Kyl first introduced the settlement on behalf of the parties in 2008 and has worked to get it through ever since. But even though it passed with unanimous support Friday, some wish to play political games with it," Wilder said
In fact, some in the Obama administration agree with Kyl.
Dan DuBray, a spokesman for the Bureau of Reclamation, part of the Interior Department, says the $200 million was part of a settlement they negotiated with the tribe, and that everyone agreed it was a good idea to pair it with the black farmers' legislation, because by law settlements such as this must be approved by Congress.
"We don't see it as an earmark at all," said Dan DuBray.
Also included in the 272-page legislation are settlements for other Native American groups outside Kyl's state of Arizona: Montana's Crow Tribe and New Mexico's Taos Pueblo and Pojoaque River Basin communities. Democrats Max Baucus (Montana) and Jeff Bingaman (New Mexico) championed funding for those projects.
Anti-earmark crusaders also say the Democrats' claim falls short.
"There's no way Congress (Republican or Democrat) would consider this an official earmark," said Steve Ellis, spokesman for the anti-earmark group Taxpayers for Common Sense, in an email to CNN. "This does deal with a pay me now or pay me later settlement issue, so Uncle Sam was going to be coming up with the cash whether or not Sen. Kyl got it in."
The Democratic National Committee, which insists Kyl submitted an earmark, believes the discrepancy comes down to how one defines the term.
A 2007 bill sponsored by Sen. Jim DeMint (R-SC), one of the most ardent earmark foes in Congress, defines an earmark as any spending outside "a statutory or administrative formula-driven" process. Kyl's funding for the Apache Tribe's program was negotiated by the executive branch and supported by federal statute.
If approved by the House of Representatives, the law would give the White Mountain Apache water rights to thousand of acres and provide funding for a dam and reservoir.