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.