Indian tribes exercising water rights 

By Karl Puckett, USA TODAY

February 25, 2008 

GREAT FALLS , Mont. — For decades, ranchers and farmers across the West have tapped into rivers and streams on or near Indian reservations. Now, as drought conditions plague big parts of the region, they're concerned their access to those sources could dry up.

Although the U.S. Supreme Court gave tribes the primary rights to streams on their reservations in 1908, until recently, 19 tribes in the West had not exercised those rights. This year, tribes in Montana , New Mexico , Idaho , Nevada and California are on the verge of securing their claims.

That could result in less water, or higher water prices, for non-Indian agricultural producers and communities downstream, according to Victor Marshall, an attorney who represents irrigators in New Mexico 's San Juan Valley .

Marshall acknowledges that Indian tribes have more water coming to them. But he argues the amounts they are seeking are more than they can realistically use on the reservation.

Rivers, streams redirected

David Gover, an attorney for the Native American Rights Fund in Boulder , Colo. , argues that the diversion of Indian waters by non-Indians was "a direct attack on their resources."

"It's one of the most important resources we have available for the development of our economies," Gover said.

Because rainfall is so meager in much of the West, huge distribution systems made up of dams, reservoirs and canals, both privately and publicly constructed, redirect rivers and streams. This allows residents miles away to have water for drinking, fire protection, growing crops and raising livestock.

In most cases, non-Indians pay operation fees for government-owned storage and irrigation systems on reservations, but the water is free.

States and tribes must negotiate how much the tribes have coming before the federal rights are exercised, said Craig Bell, executive director of the Western States Water Council in Salt Lake City . He expects Congress to consider seven or eight settlements in 2008. Congress has ratified 21 Indian water rights deals in the past 25 years, Bell said.

After reaching an agreement with the states, tribes ask Congress for millions of dollars to build reservoirs and pipelines.

Give and take produced satisfactory results to both sides in the largest Indian water rights settlement in history in 2004 in Arizona , according to John Hestand, senior water counsel for the Gila River Indian Community, and John Sullivan of the Salt River Project, which delivers water to the Phoenix area.

The 40-year, $2.4 billion deal involved the Pima, Maricopa and Tohono O'odham tribes and non-Indian users.

The largest bill before Congress this year is the Navajo's claim to the New Mexico portion of the San Juan River , which would authorize $800 million over 20 years. Votes could come this spring in Senate and House committees.

New Mexico state engineer John D'Antonio said concerns being raised in some quarters about the Navajo bill are overblown. He said the deal would benefit non-Indians, too. "We've got to reconcile the sovereignty issue with the state-based rights," D'Antonio said. The Blackfeet Tribe in Montana , which reached a settlement with Montana in January, will ask Congress for more than $200 million, said Don Wilson, the tribe's water rights director.

Other cases are pending

Roger Running Crane, vice chairman of the Blackfeet Tribal Council, said the settlement will make more water available for irrigation. Reservoirs will be constructed to capture and store more water, he said. "Our water has been leaving the reservation for 90-plus years, " Running Crane said. "We've made everybody rich east of us. Now here's our chance."

In other pending cases:

•A bill giving Shoshone and Paiute —who share the Duck Valley Reservation straddling the Idaho-Nevada border — $60 million passed the Senate Committee on Indian Affairs in July 2007. It awaits action by the full Senate.

•A $21 million bill quantifying the water rights of the Soboba Band of Luiseño Indians in Riverside County , Calif. , was introduced in the House in December. A hearing before a subcommittee of the House Committee on Natural Resources is scheduled March 13.

Grain growers in Montana 's largest privately owned irrigation district are worried that the allocation sought by the Blackfeet Tribe will reduce the value of their 80,000 acres of irrigated land, said Bob Sill, who grows barley for beers produced by Anheuser-Busch.

To protect the non-Indians, Montana has agreed to contribute $14.5 million in exchange for the tribe deferring its use of the water for 25 years. To replace what they take, the Blackfeet have agreed to lease water to Sill and the others.

The grain growers want the state and federal governments to pay for the cost of leasing the water, which, Sill says, could double the cost of irrigation.

Concerns over climate change depleting the already scarce supplies are heating up the talks even more.

Researchers are forecasting higher temperatures and drops in precipitation of 10% to 20% by 2050 in the southwestern USA , said John Abatzoglou of the Western Regional Climate Center in Reno .

"It's made it all the more important to have that supply," Sill said.

Contributing: Puckett reports for the Great Falls ( Mont. ) Tribune.

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