New Senate committee incorporates tribes into policymaking

By Eastern Arizona Courier

Members of the new state Senate Ad-Hoc Committee on Indian Affairs met for the first time in Phoenix on July 15. On the committee is San Carlos Apache Tribal Chairman Terry Rambler, second from left.

Members of the new state Senate Ad-Hoc Committee on Indian Affairs met for the first time in Phoenix on July 15. On the committee is San Carlos Apache Tribal Chairman Terry Rambler, second from left.

PHOENIX — A new state Senate committee made its debut July 15.

The Senate Ad-Hoc Committee on Indian Affairs is designed as a joint undertaking between the state and the tribes. State Sen. Carlyle Begay, D-Ganado, said he launched the committee as a way to foster crucial relationships and open communication between tribal leaders and state government.

“There are 22 tribal communities in Arizona, and it’s essential that we bridge the gap between the tribes and state government so we can work together on some of Arizona’s prominent issues, such as Indian gaming and water rights,” Begay said. “This committee seeks to improve communications and build a sense of trust between Arizona’s tribal citizens, communities and governments.”

Tribal issues often cut across party lines, so with this in mind, the committee was formed with Democrats, Republicans and tribal leaders as members to ensure balanced views and perspectives.

“I want to thank the state Senate for establishing the Senate Ad-Hoc Committee on Indian Affairs and including tribal leaders. Today our discussions centered on Indian education, and I am hopeful that this is a new era of collaboration between the state of Arizona and Indian tribes. This will not only provide education and awareness, but a joint partnership on improving relations between governments,” said San Carlos Apache Tribal Chairman Terry Rambler,

During the first meeting, the committee received reports from the Arizona Department of Education on the status of Native American education, on the activities of the ADE Native American Advisory Council and from the Arizona State Board for Charter Schools.

The committee also heard presentations regarding Native American Joint Technical Education District (JTED) program funding and the Indian School Bus Routes Maintenance Program. Representatives from the Goldwater Institute updated the committee on the status of the Indian Child Welfare Act lawsuit. Finally, the committee heard testimony from the public.

The next Senate Ad-Hoc Committee on Indian Affairs will be in August.

California Indian Tribe Pursues Rights to Groundwater

Photo © Brent Stirton/Reportage by Getty Images for Circle of BlueA groundwater recharge facility for the Coachella Valley adds water imported from the Colorado River to the valley’s main aquifer and prevents the land from sinking and damaging the surrounding infrastructure.

Photo © Brent Stirton/Reportage by Getty Images for Circle of Blue
A groundwater recharge facility for the Coachella Valley adds water imported from the Colorado River to the valley’s main aquifer and prevents the land from sinking and damaging the surrounding infrastructure.

A court test of federal water law by the Agua Caliente Band of Cahuilla Indians has implications for the American West.

By Brett Walton, Circle of Blue

As California implements a landmark law to balance demand for groundwater with available supplies, an Indian tribe’s lawsuit in federal court has the potential to add new layers of complexity to managing a prized resource that is in short supply during California’s worst ever drought.

The Agua Caliente Band of Cahuilla Indians filed the suit on May 14, 2013 against the Coachella Valley Water District and the Desert Water Agency, two water suppliers in the tribe’s southern California desert region near Palm Springs. The case, straightforward in its goals, addresses two primary concerns: halting groundwater levels that have declined at an average rate of more than one meter per year since 2000, and stemming pollution in the groundwater beneath the 12,545-hectare (31,000-acre) reservation.

The Agua Caliente complaint reflects the growing willingness of Indian tribes across the American West to pursue, by court action or negotiated settlements, clear legal recognition of water rights that are held in trust by the U.S. government. The flexing of tribal legal muscle, which occurred first for surface water rights in the 1980s, has now expanded to seeking more authority over the use of groundwater. The result of these actions is that a new era of water management in the West is taking shape, one in which the old brokers — the cities, counties, and irrigation districts — will have to make room for another seat at the table.

Just like the tribal lawsuit, California’s 2014 law to fortify supplies and improve distribution of groundwater was prompted by rapidly diminishing aquifers and inadequate authority by local or state officials to curtail indiscriminate use. The convergence of the new state law and the federal lawsuit, along with helping to clarify who in California has access to and control of groundwater, has other wide-ranging implications. The Agua Caliente case could be a model for tribes in California that seek greater influence in water management decisions. And the tribe’s suit could set a precedent for how groundwater rights for Indian tribes are interpreted nationally.

Some see the case, now in the Ninth Circuit Court of Appeals, eventually reaching the U.S. Supreme Court. “The lawsuit is very significant,” Anecita Agustinez, tribal policy advisor for the California Department of Water Resources, told Circle of Blue, explaining that the case could prompt other tribes in California to file claims to groundwater. “I believe you can’t have groundwater management unless you have tribal participation. They live on significant rivers and watersheds.”

Tribes Pursue Water Rights

California is an important legal testing ground. The state is home to more than 100 federally recognized Indian tribes, from the Karuk reservation near Oregon to the Campo reservation on the Mexican border. The Agua Caliente is perhaps the first in the state to seek official recognition and quantification of its legal rights to groundwater. The tribe, by suing for its rights, wants a greater say in how water is managed in the valley.

“These practices are not acceptable for long-term health and viability of the Coachella Valley water supply,” Tribal Chairman Jeff Grubbe said in a statement in March, referring to the shrinking aquifer and decline in water quality. “We called out this detrimental practice and brought it to the attention of the water districts over and over for years simply to be ignored.”

The Lawsuit

The Agua Caliente lawsuit covers a few exacting points of jurisprudence — legal ownership, for example, of the space between soil particles that could be used for storing water underground. But the lawsuit makes two broad claims about water quantity and quality that could rebalance current management practices in the region and state.

The first claim is that the tribe has a federal reserved right to groundwater from two basins beneath the Coachella Valley. A federal reserved right was established in the seminal 1908 Winters decision in the U.S. Supreme Court, which found that the U.S. government, by establishing a reservation, implicitly set aside enough water for the tribe to make a living from the land. On March 20, 2015, the U.S. District Court of the Central District of California ruled that the Agua Caliente do have a reserved right to groundwater. An appeal of that ruling is being heard by the Ninth Circuit.

The second broad claim is that the valley’s two water agencies — Coachella Valley Water District and Desert Water Agency — are polluting the aquifer with imported Colorado River water, which is saltier than the local sources. The agencies pour Colorado River water, which is delivered by canals, into sandy-bottomed percolation basins throughout the valley to bolster sagging groundwater levels. The agencies acknowledge that the Colorado River supplies are saltier but do not admit that the practice of recharging the aquifer has increased its salinity. The Agua Caliente argue that their groundwater rights entitle them to water without added salts. This claim is being litigated in a second phase of the lawsuit.

A third phase of the lawsuit will consider numbers: How much groundwater do the Agua Caliente own? Do they have a right to water of a certain quality? What should the standard be? Only phase one — the determination that the tribe does indeed have a right to groundwater – has been completed by the district court.

Local and State Implications

The lawsuit makes the Coachella Valley water agencies nervous. The changes that are in store if the Agua Caliente are granted rights to a significant portion of the aquifer could be substantial.

Photo © Brent Stirton/Reportage by Getty Images for Circle of BlueChris Thomas, 44, works as a zanjero, or ditchrider, who regulates waterflow to agriculture in the Coachella Valley. Zanjeros deliver irrigated water to farmers and other users, adjusting flow according to calculations from the Coachella Valley Water District Authority. Click image to enlarge.

Photo © Brent Stirton/Reportage by Getty Images for Circle of Blue
Chris Thomas, 44, works as a zanjero, or ditchrider, who regulates waterflow to agriculture in the Coachella Valley. Zanjeros deliver irrigated water to farmers and other users, adjusting flow according to calculations from the Coachella Valley Water District Authority. 

“There’s a great deal of speculation,” Katie Ruark, spokeswoman for Desert Water Agency, told Circle of Blue. “The tribe hasn’t said what they plan to do with their rights.” Ruark mentioned water rate increases — if the agency was forced to buy back water from the tribe — as one potential effect. Then there is the tribe’s well-documented displeasure with the decline in groundwater levels, which could prompt a reduction in pumping.

Agua Caliente’s spokeswoman Kate Anderson referred Circle of Blue to the tribe’s website and did not respond to follow up questions about the tribe’s role in managing the region’s aquifers and what changes it would like to see.

The lawsuit coincides with a transition in California’s groundwater practices. The state’s groundwater reserves plunged to record lows in the last four years of drought. Little snowmelt or rainfall percolated into the ground while prodigious amounts of water were pumped out to sustain the country’s largest agricultural economy. Thousands of rural wells have gone dry.

Farmers and cities in most of the state were allowed to pump without limits because there was no authority to regulate groundwater. That changed last September when Gov. Jerry Brown signed the Sustainable Groundwater Management Act, which requires the state’s most important groundwater basins to form management agencies by 2017 and align water withdrawals with water availability by 2040.

Anecita Agustinez, the state’s tribal policy advisor for water, said that how the tribes fit into the evolving management picture is still being discussed. Tribes are not allowed to form their own groundwater management agency, but they can participate in a joint effort with cities, farm districts, and other local agencies. She called the integration of tribal authority a “potential hurdle.”

“It’s all very new,” Agustinez said. “We’re working on guidelines now.” She said that the documents that local agencies must fill out when they form a management body asks whether they consulted with tribes.

Integrating tribal claims represent a new demand in the system and could displace existing water uses, not just for California but for all western states, according to Steve Greetham, chief general counsel for the Chickasaw Nation, in Oklahoma. “It’s a challenge when looking at potentially thousands of property owners who have a stake in the outcome,” he told Circle of Blue.

In Arizona, which has settled more Indian water claims than any other state, the tribes have emerged as co-managers and essential partners with the state’s cities and water agencies.

If the Agua Caliente are granted rights to a certain quantity and quality of water, as they seek in the lawsuit, they will force the issue in the Coachella Valley and potentially open a door for other groundwater claims in California.

Federal Implications

How a groundwater right would work in practice in California, where “pump as you please” is the current operating principle, is an unresolved question. Courts elsewhere have faced the same issue and have ruled in favor of tribes. In the last 15 years, the Arizona and Montana Supreme Courts, and a U.S. district court in Washington State determined that Indian tribes do have rights to groundwater based on the reserved rights doctrine. The U.S. district court decision in the Agua Caliente case follows that precedent.

“There’s a trend toward the courts finding that tribes have a right to groundwater,” Ryan Smith, a lawyer at Brownstein, Hyatt, Farber, and Schreck who specializes in Indian law, told Circle of Blue.

The U.S. Supreme Court has not heard a case pertaining to groundwater for tribes. Though it ruled in 1976, in Cappaert v. United States, that groundwater is a reserved right, the nation’s highest court has not set a national standard for applying the reserved right doctrine to groundwater. Without a clear national definition, each state divides its groundwater for tribes in a different way. Arizona, for instance, says that tribes have groundwater rights only when surface water is insufficient for the reservation.

The lack of a standard has “muddied the waters” at the state level, Greetham asserted. “As a tribal advocate, I think that’s terrible,” Greetham told Circle of Blue. “[The states] don’t all apply the doctrine with the same rigor.”

The variability is one reason that the U.S. Supreme Court could take up the Agua Caliente case. Roderick Walston, the attorney representing Desert Water Agency, told Circle of Blue he thinks that the losing side will appeal to the U.S. Supreme Court and there is a good chance the justices will review it. Smith agreed, saying that the court might want to conclusively settle the matter.

Others argue that the precedent set by the lower courts is compelling evidence that a groundwater right does exist and that any U.S. Supreme Court decision would refine the definition of how to apply it.

“I think there is a certain level of optimism on the part of non-tribal actors that the Supreme Court will address Winters rights and more narrowly define them,” Greetham said. “Non-tribal actors are fooling themselves if they think the Supreme Court will issue more restrictive rights.”

The legal right to groundwater, in other words, is likely to be upheld. For California agencies, it is another factor to consider as they follow the long path toward groundwater sustainability.

Washington Court Rules Against Landowners In Skagit Water Rights Case

Richard Fox on his Skagit County property. On Tuesday a judge dismissed a lawsuit brought by Fox and his wife, Marnie, challenging a rule that prevents them from drilling a well. The rule is meant to provide water for spawning salmon during dry months. | credit: Ashley Ahearn / KUOW

Richard Fox on his Skagit County property. On Tuesday a judge dismissed a lawsuit brought by Fox and his wife, Marnie, challenging a rule that prevents them from drilling a well. The rule is meant to provide water for spawning salmon during dry months. | credit: Ashley Ahearn / KUOW

 

By Ashley Ahearn, KUOW

EVERETT, Wash. — A judge ruled against a couple Tuesday after they sued for the right to drill a well and build a new home on their property in Skagit County.

The case marks the latest battle in the ongoing fight over water rights in Washington’s Skagit River valley.

Snohomish County Superior Court Judge George Appel dismissed the case brought by property owners Richard and Marnie Fox. He told the couple that they can’t build a home on their property because they don’t have legal access to water.

That’s because of a 2001 rule that basically says there has to be enough water left in the Skagit River to protect spawning salmon

The courtroom was packed. There were a lot of people who had come in from rural parts of the county because this rule affects a lot of property owners. More than 450 property owners stand to have their property values decreased because of this rule — because they no longer have legal access to water.

Critics of the rule said they are calling on state legislators to reexamine this 2001 rule to see what can be done to reset the balance the interests of property owners with the interests of protecting fish.

S.D. tribes gather to talk about ensuring water rights

By: Scott Feldman, July 29, 2014, Argus Leader

RAPID CITY – More than 100 years ago, a treaty established that all water on Native American land or that naturally flowed to Native American land was to be held by the sovereign tribes.

But tribal governments say they still are fighting to make sure their water rights and, by extension, rights of sovereignty are protected.

Representatives from the Standing Rock Sioux Tribe, the Oglala Sioux Tribe and the Rosebud Sioux Tribe, all members of the Great Plains Water Alliance, gathered last week for the Missouri River & Ogallala Aquifer Indian Water Rights Conference in Rapid City to discuss those rights, how they are being undermined and what can be done to protect what is theirs.

The purpose of the conference was to figure out how to prevent federal and state governments from infringing on the water rights legally held by the tribes, said Dennis “Charlie” Spotted Tail, Solider Creek Council representative of the Rosebud Sioux Tribe and chairman of the Great Plains Water Alliance.

Presentations at the conference included an explanation of the dangers of uranium mining in the Black Hills, the potentially damaging effect the Keystone XL Pipeline could cause to the Rosebud Sioux Reservation and an explanation of the history of tribal water law.

Spotted Tail claimed that as the conference was being held, the U.S. Army Corps of Engineers was navigating waters from the Missouri River that naturally would flow to the tribes of the Sioux Nation to other users.

“They are totally disregarding our treaty rights,” Spotted Tail said.

He said engineers are following rules established by the 1944 Flood Control Act but are ignoring the Winters Doctrine precedent that has been in place since 1908.

The Winters doctrine came from the case of Winters v. United States in 1908, when the Supreme Court ruled that when the United States creates an Indian reservation, it implicitly reserves sufficient water to fulfill the purposes of the reservation, with the water claim priority date established as of the date of the reservation, according to a presentation by David Ganje of the Ganje Law Office in Rapid City.

The Supreme Court ruled that the right to use water flowing through or adjacent to the Fort Berthold Indian Reservation was reserved by the treaty establishing the reservation. Although the treaty did not mention water rights, the court ruled that the federal government intended to deal fairly with Native Americans by preserving their water, Ganje wrote in his presentation.

“We need enough water to supply the reservation for what it was created for and to preserve enough for future use,” he said.

The Great Plains Tribal Water Alliance and the The Seven Council Fires of the Great Sioux Nation are working toward a federal congressional hearing to lay claim to what is rightfully theirs, using the help of water law experts and lawyers, Spotted Tail said.

“The theme of this whole meeting is to formulate a strategy after the meeting for a hearing, utilizing the knowledge provided by our water rights experts and attorneys,” he said.

Senate panel takes up plan to settle Bill Williams River water dispute

By Julianne DeFilippis , Cronkite News

 

Hualapai Chairwoman Sherry Counts told a Senate committee that the northwestern Arizona tribe supports a bill that would formalize two water-rights agreements between it, Freeport Minerals Corp. and the government.Photo by Julianne DeFilippis

Hualapai Chairwoman Sherry Counts told a Senate committee that the northwestern Arizona tribe supports a bill that would formalize two water-rights agreements between it, Freeport Minerals Corp. and the government.
Photo by Julianne DeFilippis

WASHINGTON – Tribal and state lawmakers urged a Senate panel Wednesday to approve a water-rights agreement between the Hualapai tribe and Freeport Minerals Corp., saying time is fast running out on a deal.

Witnesses told the Senate Indian Affairs Committee that the Bill Williams River Water Rights Settlement Act of 2014, which would guarantee the tribe certain levels of water use in the area, has been years in the making. But statutory limits on Freeport’s water rights mean it could all be undone if Congress does not act this year, the bill’s supporters said.

“We need to have this done before that deadline or the whole thing goes away,” Hualapai Chairwoman Sherry Counts said at the hearing.

The bill is sponsored by Arizona Republican Sens. John McCain and Jeff Flake, while a companion measure in the House has been co-sponsored by all nine members of the state’s House delegation.

“It’s rare to find a piece of legislation that can garner bipartisan and bicameral support from the entire state congressional delegation,” said Flake, who called the bill an important piece of legislation for the whole state, not just the tribe.

But not everyone supports the bill.

Flake said officials in Mohave and La Paz counties have raised questions about the deal. And Bureau of Indian Affairs Director Michael Black testified Wednesday that while his agency supports the goals of the bill, it has “significant concerns” about provisions that waive sovereign immunity.

Black said those concerns “must be resolved before the administration can support the bill,” and assured the committee that the bureau is working to find a solution.

But Flake said a waiver of immunity is not unprecedented in such agreements and that parties in the deal “must have the ability to enforce the terms of the agreement.” The waiver “must be expressed and unequivocal,” he said.

Besides having the backing of the entire congressional delegation, Flake introduced letters of support from Gov. Jan Brewer, the Arizona Chamber of Commerce and Industry, Freeport Minerals and the Nature Conservancy.

In addition to guaranteeing water-rights for the tribe, the deal calls on Freeport to give the tribe $1 million toward a water infrastructure study, to transfer land to the state for a conservation program and to stop pumping water near a spring that is sacred to the tribe, among other provisions.

“We’ve been on the Colorado River since time immemorial and we have no water rights,” said Counts, who said securing those rights is a key goal for tribe.

But she also noted that water rights are also critical for any economic development plans the tribe has, for building resort facilities for tourists or housing for tribal members.

McCain said he and Flake are willing to work with anyone who has concerns about the proposal. But a bill needs to be approved to protect water rights for everyone, he said.

“We have to conclude our native water-rights settlements if we are going to have a predictable supply of water for Indians and non-Indians alike,” McCain said.

 

US government supports Agua Caliente in water case

Barrett Newkirk and Ian James

Originally posted by The Desert Sun | 10:40 p.m. PDT May 13, 2014

Agua Caliente tribal chairman Jeff Grubbe talks about the Coachella Valley's aquifer and the tribe's related lawsuit in the Indian Canyons, Thursday, June 27th, 2013. The United States Justice Department on Tuesday voiced support for the Agua Caliente Band of Cahuilla Indians’ lawsuit against two local water authorities that claims mismanagement of the Coachella Valley’s underground water supply.(Photo: Jay Calderon/The Desert Sun )

Agua Caliente tribal chairman Jeff Grubbe talks about the Coachella Valley’s aquifer and the tribe’s related lawsuit in the Indian Canyons, Thursday, June 27th, 2013. The United States Justice Department on Tuesday voiced support for the Agua Caliente Band of Cahuilla Indians’ lawsuit against two local water authorities that claims mismanagement of the Coachella Valley’s underground water supply.
(Photo: Jay Calderon/The Desert Sun )

The U.S. Justice Department on Tuesday weighed in to support the Agua Caliente Band of Cahuilla Indians in its lawsuit against two water districts, backing the tribe’s claims that the local agencies are infringing upon its rights by over-pumping groundwater from the Coachella Valley’s aquifer.

In the motion filed in U.S. District Court, attorneys for the Justice Department are seeking approval to join the lawsuit, saying the government has a significant interest in ensuring water rights for the tribe.

“Here, the United States shares the Tribe’s interest in protecting its water,” the motion states. “The United States recognizes that water is the ‘lifeblood’ of the Tribe’s desert homeland.”

In the motion, government lawyers said the U.S. government has an interest “in protecting the federal reserved rights to groundwater” associated with the tribe’s reservation. They said the tribe notified the federal government of the lawsuit and requested that it intervene.

In a separate complaint, the government’s attorneys asked that the court quantify the tribe’s right to groundwater “necessary to satisfy the purposes of the Reservation,” and noted that for decades, more water has been pumped from the Coachella Valley’s aquifer than has flowed back in — a condition known as “overdraft.” They said the water agencies’ use of groundwater “infringes upon the senior reserved rights of the Tribe.”

The federal government asked the court for an injunction to protect the tribe’s rights to groundwater and prevent the water districts from “injuring the Tribe … by overdrafting the groundwater.”

The tribe filed its lawsuit in May 2013 against the Desert Water Agency and the Coachella Valley Water District, the two largest water suppliers in the Coachella Valley.

“This action comes as no surprise to us as the federal government holds land in trust for the Tribe,” DWA Board President Craig Ewing said in an emailed statement. “DWA and CVWD, since their inception, have worked to ensure a safe, reliable drinking water supply for all of the residents of the Coachella Valley. We will continue to work to protect our customers as we have for decades.”

A spokeswoman for Coachella Valley Water District said the agency’s general manager and board members had not had time to review the motion and could not comment.

Robert Anderson, a professor at the University of Washington School of Law with experience in tribal water cases, called the government’s motion a significant development.

“It’s huge for tribal interests involved in the case that they’ve got the U.S. on their side now,” Anderson said.

The U.S. government will routinely get involved in lawsuits like this, Anderson said, but only when officials believe a tribe’s case has merit.

Anderson said he has no doubts the court will support the government’s request to intervene in the case. The added expertise and legal experience the federal government brings to the arguments could end up helping the tribe’s case, Anderson said.

In a statement, Jeff Grubbe, chairman of the Agua Caliente tribe, called the motion “a significant step in our fight to protect the future of Coachella Valley’s water supply.”

“For more than 20 years, the Tribe and the United States have raised concerns about the overdraft of the valley’s aquifer and degradation of the drinking water,” Grubbe said in the statement. “We are working to ensure the valley has a clean, abundant drinking water supply for generations. This move by the United States further proves the value and importance of our case against the water districts.”

A Desert Sun analysis of groundwater data determined that water levels in wells across the Coachella Valley declined by an average of 55 feet between 1970 and 2013. Those declines have been especially pronounced in the middle of the valley, with drops of more than 100 feet since the 1950s in some areas of Palm Desert and Rancho Mirage.

Water agency officials have said the tribe’s lawsuit seems to be an attempt to take away the public’s water rights, and have also suggested the tribe could be trying to make money off the water rights. The tribe has denied those accusations.

The Agua Caliente tribe has a reservation stretching across parts of Palm Springs, Cathedral City and Rancho Mirage, and owns two casinos and hotels. The tribe is preparing to develop a 577-acre piece of vacant land near its Agua Caliente Casino Resort Spa in Rancho Mirage into a 55-and-over residential community.

Leaders of the tribe have raised concerns about declining water levels in the aquifer and about worsening water quality due to inflows of imported water from the Colorado River with higher salinity levels. Water agency officials have stressed that the imported water is well within drinking water standards, and have said that treating the Colorado River water would lead to substantial rate increases for customers.

In February, lawyers for the water agencies and tribes appeared in federal court in Riverside, and District Judge Jesus Bernal set a timetable for pretrial procedures and motions, as well as a trial date of Feb. 3, 2015.

Attorneys for the Justice Department said in their motion that the government should be permitted to intervene in the case partly because “the United States asserts interests on behalf of all federally recognized tribes and all federal lands” relating to water.

A judge is scheduled to consider the government’s request at a hearing in Riverside on June 16.

Reach Barrett Newkirk at (760)778-4767, or by email at barrett.newkirk@desertsun.com

Tribes in Western U.S. Use Water to Assert Sovereignty

The Confederated Salish and Kootenai Tribes in Montana stand to become the first tribes in the country to own a major hydroelectric dam. In Colorado, tribes are managing parts of hydro projects. All are examples of tribes regaining control of resources on their land. Aspen Public Radio’s Marci Krivonen reports.

Credit Marci KrivonenThe Kerr Dam in Northwest Montana was built in the 1930's on the Flathead Indian Reservation. It's been owned by non-tribal companies since it was built.

Credit Marci Krivonen
The Kerr Dam in Northwest Montana was built in the 1930’s on the Flathead Indian Reservation. It’s been owned by non-tribal companies since it was built.

By MARCI KRIVONEN

July 15, 2013

Aspen Public Radio

In Colorado’s southwest, the Ute Mountain Ute tribe co-manages part of the Dolores Water Project. And, near Durango, the Animas/La Plata project is partially managed by the state’s two tribes. Ernest House directs the Colorado Commission of Indian Affairs.

“Not only do these water projects strengthen tribal sovereignty, but they also solidify a treaty obligation to the Utes here in Colorado. I think that by the tribe’s involvement in a lot of these projects, it provides a very important tool for future economic development, especially, specifically, water,” he says.

While the project is different, the goals are similar in Montana. When the tribes take over the dam there, they say, their sovereignty will be strengthened.

Jordan Thompson of Energy Keepers Inc. stands high above the Kerr Dam outside of Polson, Montana. The tribes in this area are preparing to take over the hydro project in 2015.

The massive Kerr Dam in Montana is near snowcapped mountains, close to ancient buffalo hunting grounds. Emerald green water violently sloshes over the lip of the dam and into the Flathead River. To say the area’s beautiful, is an understatement.

A 19th century treaty created the Flathead Indian Reservation, and later, white settlement brought agriculture. The massive dam was built on tribal land by a local power company in the 1930’s to quench the thirst of newly planted farms.

“This is a place of great spiritual significance for the tribes, and so when the dam was being built, they really resisted, they were trying to not have that dam built,” says Jordan Thompson.

Thompson’s with the tribally-run company that’s preparing to take over ownership of the dam. Despite tribal protests in the 30’s the dam was built and has been producing electricity ever since..

“There were just a bunch of people who built it, over 1200 people at one point. Ten tribal members were killed during the construction of it. It was built because the tribes were just powerless to do anything to stop it,” Thompson says.

Over the years, the dam supplied millions of dollars worth of power. The tribes received a small portion, as rent. Fish habitats were damaged, as the dam continued to generate electricity.

Now, the dam is about to change hands. A treaty signed in 1985 transfers ownership of the dam to the Salish and Kootenai.

“This is significant because it’s an assertion of the tribes sovereignty over the resources they’ve used for their entire existence,” says Sarah Bates with the University of Montana.

She studies water, natural resources and tribal lands. She says what the Salish and Kootenai are doing is a model for other tribes in the U.S.

“It’s happening around the country, this is something that tribes have the capacity to step up and play not just a stakeholder role, but actually an owner and management role. When they aren’t just participants in a process, but actually gain authority over those facilities, that’s a major step forward in asserting and realizing their sovereignty.”

Tribes in Oregon and New York state are now attempting to gain control of hydroelectric projects.

The 1000 foot boardwalk takes you to an overlook of the Kerr Dam, which stretches 540 feet across and 200 feet high.

The Kerr Dam is run by the company PPL Montana and the tribes are still negotiating the purchase price. PPL Montana values the dam at about $51 million, while the tribes say the number is closer to $16 million. Once the issue is resolved, tribal members plan to take over the dam in September of 2015.

This story is the result of an environmental fellowship put on by the Institutes for Journalism and Natural Resources.

Klamath Tribes Historic Treaty Right Water Call

Native News Network

CHILOQUIN, OREGON – Yesterday, June 10, the Klamath Tribes delivered to the Oregon Water Resources Department a “call” requesting that the Department take action to enforce the Tribes’ water rights that have been determined in the Klamath Basin Adjudication.

Klamath Tribes

The Tribal Water Rights have been in litigation since 1975.

 

A “call” is a request that the Department’s Water master reduce illegal water uses and water uses whose priority date is junior to the calling party, until enough water becomes available to meet the party’s rights. Other calls are also expected from Irrigation Districts and others with senior water rights. These are the first such “calls” of their type in the Klamath Basin because prior to the Department’s recent order in the Adjudication determining the pre-1909 and federal and tribal rights in the Basin, Oregon Water Resources Department did not have a basis to enforce for or against junior or senior water rights.

The Klamath Tribes’ rights are based on the needs of plant, wildlife, and fish species the Tribes reserved the right to harvest in the Treaty of 1864, including fish in several rivers, lakes and marshes of the Upper Klamath Basin. The Tribes’ water rights have been affirmed in the courts to have a “time immemorial” priority date, and are the most senior in the Basin. The rights provide that specific quantities of water are to be maintained in stream to provide for fisheries and other treaty resources. Because the stream flows are currently lower than the Tribes’ rights, the Tribes have asked for illegal uses and junio ruses to be restricted until the flows are met.

Klamath Tribes Chairman Don Gentry explained

“Our water rights are essential to the protection of our Treaty resources. I think everyone knows the Tribes are committed to protecting our Treaty fisheries, and this is an important step in that direction. These are not rights granted to the Tribes by the state or the federal government; they are rights our ancestors reserved in the Treaty of 1864.”

The tribal water rights have been in litigation in the Adjudication since it began in 1975.

Most people in the Basin have long known that the Tribes’ senior water rights would one day be enforced, and there would be a transition from unregulated water use. Gentry observed

“Everyone has known this day was coming. It is unfortunate that more people did not join in our cooperative effort to resolve water issues without litigation and calls, but that was their choice. Currently this is the only path available to us to protect our resources.”

Water use in the Basin has not been closely monitored or measured in the past, so it is difficult to say specifically what the impacts of the call will be. But it seems safe to predict that enforcement of the Tribes’ rights will bring changes to Basin water management.

The call is partly due to the shortage of water resulting from the drought plaguing the Basin this year. The water supply is well below normal. Will Hatcher, Director of the Klamath Tribes Natural Resource Department and member of the of the Tribes’ Negotiating Team observed

“A drought emergency has been officially declared, and that provides some flexibility. But in the end, the Water master is required to allocate water according to the priority-date system.”

How long the call will remain in effect is difficult to predict because there has never been a call of this type in the Basin before. Also, the result depends in part on the weather and duration of the drought.

Water Rights Tear at an Indian Reservation

Tony Demin for The New York TimesJack and Susan Lake, who support the water bill, at their potato farm on the Flathead Reservation. Mr. Lake’s family moved there from Idaho in 1934.

Tony Demin for The New York Times
Jack and Susan Lake, who support the water bill, at their potato farm on the Flathead Reservation. Mr. Lake’s family moved there from Idaho in 1934.

 

By Jack Healy, The New York Times, April 21, 2013

RONAN, Mont. — In a place where the lives and histories of Indian tribes and white settlers intertwine like mingling mountain streams, a bitter battle has erupted on this land over the rivers running through it.

A water war is roiling the Flathead Indian Reservation here in western Montana, and it stretches from farms, ranches and mountains to the highest levels of state government, cracking open old divisions between the tribes and descendants of homesteaders who were part of a government-led land rush into Indian country a century ago.

Tony Demin for The New York TimesA billboard at an entrance to the Flathead Reservation in western Montana, where a bitter dispute has divided the residents.

Tony Demin for The New York Times
A billboard at an entrance to the Flathead Reservation in western Montana, where a bitter dispute has divided the residents.

“Generations of misunderstanding have come to a head,” said Robert McDonald, the communications director for the Confederated Salish and Kootenai Tribes. “It’s starting to tear the fabric of our community apart.”

Dependable water supplies mean the difference between dead fields and a full harvest throughout the arid West, and the Flathead is no exception. Snowmelt flows down from the ragged peaks to irrigate fields of potatoes and wheat. It feeds thirsty cantaloupes and honeydew melons. Cutthroat trout splash in the rivers. Elk drink from the streams.

So when the government and the reservation’s tribal leaders devised an agreement that would specify who was entitled to the water, and how much they could take from the reservoirs and ditches, there was bound to be some discord. But few people expected this.

There have been accusations of racism and sweetheart deals, secret meetings and influence-peddling in Helena, the state capital. Lawsuits have been threatened. Competing Web sites have sprung up. Some farmers have refused to sell oats to those on the other side of the argument.

For months, local newspapers have published letters from people who support the water deal — known as a compact — and from opponents who see it as a power play by the tribes to seize a scarce and precious resource from largely non-Indian farmers and water users.

The proposed compact is 1,400 pages long, a decade in the making and bewilderingly complex. Essentially, it helps to lay out the water rights of the tribe and water users like farmers and ranchers. It provides $55 million in state money to upgrade the reservation’s water systems. And it settles questions about water claims that go back to 1855, when the government guaranteed the tribes wide-reaching fishing rights across much of western Montana.

The tribes say they have given up claims to millions of gallons of water to reach the deal. They say it is the only way to avoid expensive legal battles that could tie up the state’s western water resources in court for decades to come.

But the deal has rankled farmers and ranchers on the reservation, who fear they could lose half the water they need to grow wheat and hay and to water their cattle. Under the compact, each year farmers and ranchers would get 456,400 gallons of water for every acre they irrigate. Tribal officials say that is more than enough, but farmers say the sandy soil is just too thirsty. They fear they will be left dry.

“They’ve literally thrown us under the bus, and we’ve had to fight this thing ourselves,” said Jerry Laskody, who has joined a group of farmers and ranchers in opposing any deal. The group has held meetings and taken out advertisements to spread the word.

As visitors drive onto the reservation, a bright orange billboard declares, “Your Water & Property Rights Are in Jeopardy.” The pact has also angered some conservative residents around the valley, who accuse the tribe and Montana officials of colluding in what they characterize as legalized theft.

“There’s a lot of coercion, a lot of threats,” said Michael Gale, who retired here looking for beauty, and has spent hundreds of hours attending meetings, writing letters and poring over documents in the hope of killing the compact. “Like they always say: Whiskey’s for drinking. Water’s for fighting.”

At the heart of the dispute is a question that has haunted the United States’ relations with indigenous people for centuries and provoked countless killings, dislocations, treaties and court battles: Who has a claim to the land and its resources?

It is an emotional issue, especially here.

In the early 1900s, the federal government opened up millions of acres on the Flathead and other reservations to white homesteaders, a decision that echoes today across the Great Plains and the West. Tribal members were allotted specific parcels, and the rest was put up for sale. Homesteaders came in droves, to stake farms, open sawmills and grocery stores, plant wheat and build roads.

Within a decade, settlers outnumbered tribal members on the Flathead. Today, resorts and million-dollar homes line the shores of Flathead Lake, the reservation’s largest body of water. Of the reservation’s more than 28,000 residents, about 7,000 are American Indians, according to census data.

“We are minorities on our homeland,” said Mr. McDonald, the communications director.

Over the years, tribal members married homesteaders’ children. Families blended. Children from Salish and Kootenai families attended the same schools as those who had moved in from Missoula or Washington State. Residents say that today, the bonds and friendships are wide and deep.

Until they are not. A report by the Montana Human Rights Network once described the reservation as home to “the most aggressive anti-Indian activity in Montana” because of its patchwork settlement. Conflicts have flared over tribal control of a major dam on Flathead Lake, and over whether tribal police officers should be able to arrest or detain non-Indians on the reservation. In the late 1980s, a dispute over hunting and fishing regulations led to screaming matches and death threats.

“They painted their fence posts orange and let it be known they’d shoot you if you walked on their land,” said Joe McDonald, who for nearly three decades was the president of Salish Kootenai College here on the reservation.

This time, the fight appears bound for court. After years of public meetings and deliberation, the full compact finally arrived in the Montana State Capitol this spring. It was supported by the state’s first-term governor, Steve Bullock, a Democrat, as well as by some Republican lawmakers from the area. But with farmers showing up to denounce the compact measure, the Republican-led Legislature killed the bill.

For Susan and Jack Lake, that decision cast a shadow over their potatoes. Mr. Lake’s family moved here from Idaho in 1934. Today, the family farms 1,000 acres, 85 percent of it irrigated. They grow seed potatoes that are ultimately used to make chips and instant mashed potatoes.

The Lakes agonized over the water deal, but eventually decided to support it. They worried about losing water, but said that going to court against a tribe with older, stronger claims to the reservation’s water supplies felt like a suicide mission.

Sometimes, Ms. Lake said, it just felt absurd: so many years of tangled fights over something so simple and pure.

“It’s beautiful,” she said. “You turn it on and make things grow.”