Native American water rights on the line - It's not just happening here!

Felice Pace

February 14, 2008

One of many contentious issues in the proposed Klamath Water Deal is tribal water rights. Because they have reservations, the Klamath, Yurok and Hoopa Tribes have rights to enough water to support a moderate standard of living for tribal members living on the respective reservations. The priority date for these rights is the date the reservation was established. The Karuk Tribe has no water rights because there is no Karuk Reservation.

The Klamath Tribes went all the way to the Supreme Court to have their water rights affirmed. The high court ruled those rights were not terminated when the reservation was terminated.

But having rights and having water are not the same thing. So to some tribal officials limiting water rights - or as in the Klamath River Basin case the ability to sue the federal government for not protecting those rights - makes sense. As usual the devil may be in the details and perhaps only history will be the final judge of whether those tribes who trade rights for other considerations are acting in the true interest of their people.

But deals with states, the federal government and white irrigators are not just an issue on the Klamath. According to the Native American Rights Fund over the past 25 years, states, tribes and federal administrations have sent 21 deals to Congress for ratification and funding.

Maybe those of us pondering whether tribal leaders in the Klamath River Basin are acting wisely when they propose limiting their peoples' water rights - and especially the members of those tribes - can gain needed perspective by studying what has been done in this regard in other river basins. To this end an article from a Montana newspaper about a proposed water deal involving the Blackfeet Tribe is reprinted below.

The article also gives useful general background on tribal reserved water rights. The issues are not clearcut; securing actual water can be a long process for a right holder that does not physically control the water. In the case of the Klamath, one must also judge whether the water granted in the deal is sufficient to provide for tribal members the "moderate living" contemplated in the right.

KlamBlog invites Native Americans and especially members of Klamath River Basin tribes - whether federally recognized or not - to publish their thoughts on Indigenous Water Rights on the Klamath, in the US or in the world. Send your comments on this or any Klamath topic to unofelice@gmail.com and put "for KlamBlog on the subject line. Comments that are not offensive will be published on KlamBlog.

Here's the article from Montana ~

http://www.greatfallstribune.com/apps/pbcs.dll/article?AID=/20080120/NEWS01/801200302/1002/NEWS17&template=printart

From the Great Falls Montana Tribune
Article published Jan 20, 2008
Stakes high in Blackfeet water pact
By KARL PUCKETT
Tribune Staff Writer

More than 1 million acre-feet of water — enough to cover a million football fields a foot deep — are on the line in semi-arid northcentral Montana.

Over the past century, much of the water has been put to use by white settlers and townspeople, often through federally funded irrigation projects.

Now the Blackfeet Tribe is exercising its federal right to use a bigger share.

In a new deal it has reached with the state, the tribe would gain control of a significantly larger portion of 1.2 million acre-feet of annual flow that leaves the reservation in streams and rivers. A bill that would set the amount of water and allocate funding is expected to be introduced in Congress later this year.

With the newfound cash and water, the tribe envisions building new storage and irrigation, marketing water off the reservation and maybe even building an ethanol fuel plant.

"It's for future generations, to use what we've fought for," said Don Wilson, the tribe's water-rights director.

The state has worked to protect off-reservation users, but downstream ranchers and farmers such as Bob Sill say the tribe's additional claim from Birch Creek, one of the main drainages involved, could come at a high price.

Those producers are opposed to the compact as it's currently written.

"If one of my sons decided he was going to farm, I certainly couldn't encourage him to buy (the ranch) at irrigated value and find out 25 years from now the water isn't going to be there," Sill said.

A vocal group of tribal members is also concerned, but for a different reason. The group fears the tribal government is giving up too much water in the agreement.

Negotiators with the tribe and state say the pact would, in fact, provide the tribe with millions of dollars in funding to develop and market the newly acquired assets.

The state describes the pact as "historic" since negotiations have proceeded in fits and starts for almost 30 years.

Across the West, negotiations over water are under way between states and tribes. In each case, negotiators are facing the same conundrum — how much water should tribes get? And how can existing users be protected?

In recent years, population growth, drought and climate change have ramped up interest in what happens to scarce water resources.

"It's made it all the more important to have that supply," said Sill, who grows barley in the Valier area and sells it to beer giant Anheuser-Busch.

The water is needed to grow crops and supply cattle and community water systems — and vast quantities are at stake.

"It's an enormous amount," Wilson said.

Today's water fight between states and tribes has its genesis in the late 1800s and the early 1900s, when the federal government began constructing huge water diversion systems to get water from streams and rivers to areas where settlers grew crops.

Federal policy encouraged private irrigation companies to do the same. States decided who was able to use the water and how much of it they received.

"They forgot about the Indians," said the Blackfeet's Wilson .

Then came the 1908 U.S. Supreme Court Winters decision. The ruling, known as the Winters Doctrine, continues to guide Indian water-rights policy a century later. The gist of the ruling was that tribes had implied — or automatic — federally reserved water rights when reservations were created.

In the 21st century, the hen has come home to roost, with tribes invoking the Winters Doctrine to claim large amounts of water that nonIndians have long come to rely on.

"Here we find ourselves in a situation now where virtually all the water has been allocated," said Craig Bell, executive director of the Salt Lake City-based Western States Water Council.

Despite the obstacles to divvying up water, several breakthroughs are possible this year, which marks the 100-year anniversary of the Winters Doctrine.

More than 15 negotiations between states and tribes are under way in Montana , New Mexico , Idaho , Nevada , California and Washington that involve quantifying water rights, according to the Water Council, which tracks negotiations.

Over the past 25 years, states and tribes have sent 21 deals to Congress for ratification and funding.

Montana 's Rocky Boy's Indian Reservation received $50 million in 1999, which the tribe is using to partner with area communities on a huge drinking-water system for northcentral Montana .

The funds help the tribes turn a "paper" right into a "wet" right — building storage reservoirs and irrigation systems so they can use the increased allocation of water.

This year, seven or eight water-rights settlements could be introduced in Congress, including two from Montana , Bell said. In addition to the Blackfeet, the Assiniboine and Gros Ventre tribes on the Fort Belknap Reservation are working with the state on federal legislation.

Water-rights experts said it's not uncommon for election years to bring forth a rash of Indian water-rights legislation.

In New Mexico , the Navajo Nation has reached a compact with the state that would give the Navajo 56 percent of the flows from the San Juan River . The tribe is seeking an $800 million settlement from Congress. That would make it the largest Indian water-rights settlement ever, said George Hardeen, spokesman for Navajo Nation President Joe Shirley, Jr.

The money would be used to build a 200-mile pipeline. Hardeen said people on the Navajo Reservation are in a "time warp" because of the lack of good water.

"You can't put up an office building if you can't put a bathroom in it," he said. "It sounds like small potatoes, but it's really a very fundamental piece of any kind of development."

Funding isn't guaranteed for any water-rights deal.

"The congressional piece is the hard one," said Susan Cottingham, the program director for the Montana Reserved Water Rights Compact Commission, which negotiates on behalf of the state.

State and Blackfeet officials are planning to travel to Washington , D.C. , later this month to speak with the Montana 's congressional delegation about introducing a bill asking for money to implement the proposed compact.

The state Legislature also would have to sign off when it meets again in 2009. Tribal members also have to approve the compact.

In the past, said Wilson, the tribe's water-rights director, the tribe has taken the stance that, "This is our water and nobody has a right to tell us how much we can use and how."

Some reservation residents still feel that way. Alvin Reevis Sr., who heads the Southern Blackfeet, an elders group, contends the state of Montana does not even have the authority to negotiate a treaty, which he considers the compact to be, with a sovereign nation such as the Blackfeet.

"We're not just going to let them steal our water, because once they steal our water, our lands are next," he said.

Wilson , however, said the state has been willing to listen to the tribe, and the tribal council prefers negotiating a deal as opposed to fighting it out in court, in which case the U.S. government would represent the tribe. There's no love lost between the federal government and the Blackfeet.

"We don't want them representing us," Wilson said.

David Gover, a staff attorney for the Native American Rights Fund based in Boulder , Colo. , which represents tribes in water-rights cases, said early Indian water-rights cases often were fought in court. Today, the trend is to negotiate to avoid costly litigation, which leaves little funding to build infrastructure even if the tribes win, he said.

"In the end, you ultimately have winners and losers," he said.

On the Blackfeet Indian Reservation, which has about 10,000 residents, ranchers are sometimes forced to haul water to livestock, and domestic wells continually dry up, Wilson said. The Babb school sometimes is forced to shut down because its well goes dry.

"We have all these unusual situations like that," Wilson said. "At the same time, we have all this water."

The water being discussed in the negotiations between the Blackfeet and state flows in the St. Mary, Milk and Two Medicine rivers and Cut Bank, Two Medicine, Badger and Birch creeks.

Precipitation in Glacier National Park and nearby forestland fuels the drainages, which then cut across or near the reservation. After that, the remaining flows east off the reservation, where it's used for irrigation, drinking water and other things.

The Blackfeet Tribe is utilizing a relatively small portion of the 1.2 million acre-feet of water that flows in the streams, Wilson said. Under the agreement with the state, the tribe is looking to significantly increase its use and storage of the water.

If the compact fails, Wilson said, "We're back to square one."

Grain growers such as Sill don't argue that the tribe has a right to more water, but they're worried that too much could be granted from Birch Creek, and at a heavy price to their livelihoods and communities. Irrigated acreage is much more valuable, providing $15 million in additional profit a year to Sill and the 494 other shareholders of the Pondera County Canal and Reservoir Co.

Pondera Canal and Reservoir is the largest private irrigation company in Montana , providing irrigation to 83,000 acres of prime land that's used to produce hay and small grains.

The tribe is seeking a significant increase in water from Birch Creek, the main source of water for the company, and shareholders are worried. With less water, less land can be irrigated.

"It's a huge loss," Sill said.

"We could potentially lose over 40,000 acres of irrigated ground, or water for that ground," said John Bloomquist, the attorney for Pondera County Canal and Reservoir.

In the compact, the tribe has agreed to delay using any increased allocation, possibly for up 25 years. In the meantime, it would seek funding to improve Four Horns Reservoir. Water from the reservoir could then be piped to Birch Creek and sold to Pondera County Canal and Reservoir shareholders, replacing what they lose in the agreement. The state of Montana has agreed to contribute $14.5 million to the tribe to compensate for the deferral.

Bloomquist said shareholders want additional assurances they won't lose water after the deferral period is up. The company wants the state and federal governments to place money in a "mitigation fund" that the company could tap after 25 years in order to lease water from the tribe.

"We need a longer-term solution to have a successful compact," he said.

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Source:  http://klamblog.blogspot.com/2008/02/native-american-water-rights-on-line.html