Tribal Water Rights
There have been long standing disputes regarding Tribal water rights with most court decisions upholding Tribal rights. Some of those cases are outlined in this article. However, there are a few court decisions that have determined the principle of Tribal water rights.
The 1908 Supreme Court decision, Winters v United States, was the most significant case regarding Tribal water rights. The court determined that designated reservation lands included reserved water rights. Expanding on that case in 1963, the court held that water rights included all federal reservations of land, such as national parks and forests. This decision took over 87% of Idaho water.
The 1983 case, United States v. Adair, gave senior water rights to Tribes “…with a priority date of time immemorial” (148) meaning from the time the reservation was established into the future. Arizona v. California is a set of different cases but the 1983 case increased water allotment to reservations. In the 1985 Montana case, Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, the court determined that appropriators outside of reservation boundaries could not deplete stream waters where non-consumptive (fishing/hunting) rights apply.
Based on the Winters and Arizona cases, Indian water rights are commonly held to principles known as the Winters Doctrine. These rights include Congress holding the right to reserve water for federal lands, including Indian reservations; reservations have the right to water sources within or bordering the reservation; reservation water rights are reserved as of the date of the reservation’s creation; and the amount of water reserved for Indian use is the amount necessary to irrigate all of the practically irrigable land on the reservation with state laws being secondary to federally reserved water rights. These rights apply to both surface and groundwater, and to other federal reserved land. To determine the amount of water needed for Tribal land a water quantification, or practicably irrigable acreage (PIA), was created.
Because of years of litigation and costs associated with these disputes, water rights are now negotiated between the Tribe, organizations, and the state and federal government for a settlement agreement, with specific criteria and procedures set forth in 1990, thanks to GHWB. If federal funding is involved it then goes through Congress for approval.
What started out as an attempt to quantify water rights for the Confederated Salish and Kootenai Tribes of the Flathead reservation, ultimately turned into the most egregious federal take over of water and elimination of water rights for Montana citizens. Instead of quantifying water allotment to the Tribe, the Confederated Salish and Kootenai Tribes Federal Reserved Water Compact (CSKT) was created through negotiations between the federal government, Tribes, and the State. This compact puts all water rights in 11 counties under Tribal control. Yes, ALL water rights including municipal and private well water. In doing so, the federal government now holds those rights in trust. In this case the Environmental Protection Agency (EPA) used the 1948 Indian country definition (c) “all Indian allotments, the Indian titles to which have not been extinguished…”.
The Aamodt settlement is another classic example of how the federal government uses previous treaties to give land back to Tribes and gain control over water. This settlement calls for diverting water to four New Mexico Tribes, creating a regional water system which will take water away from New Mexico citizens and who will then be forced to pay for it. As part of the 2010 Claims Resolution Act Pub. L. No. 111-291 this settlement was put into law along with other settlements.
The Bureau of Indian Affairs (BIA), serving Idaho Tribes in the northwest region, has a department that specifically assists with tribal water issues, including funds for negotiations and litigation, your tax dollar being used against you to support Tribes in water disputes. The Department of the Interior (DOI) has an Indian Water Rights Office for the same as well as the Bureau of Reclamation. The DOI also provides personnel, technical, and financial assistance to tribes on water rights issues.
Through EPA regulation 131.8(a)(3), the CDA Tribe was authorized to administer and determine water quality standards (WQS) within the reservation boundary. However, any water from non-members flowing into reservation boundaries can be held to any WQS the tribe sets, which a tribe can make more stringent.
Prior to officially granting TAS status to the CDA Tribe, concerns about Tribal authority over waters and non-members were answered by the EPA. The EPA cited the reservation boundaries in the Act of March 3, 1891, 26 Stat. at 1027 as the basis by which current water could be governed by the Tribe. The Act determined that land not ceded by the CDA Tribe but held by the U.S. would now officially be ceded by the Tribe, relinquishing all right and title. The government compensated the Tribe $150,000 along with other provisions with the DOI managing those funds for the Tribe. Not cited by the EPA, Article 2, page 1030, outlines the ceded land description for which they were paid $500,000. The EPA also referenced Act of August 15, 1894, 28 Stat. at 322. The CDA Tribe was paid $15,000 in 1894 for an additional tract of land on the northern boundary of the reservation. The 1867 CDA Tribe boundaries can be found here. So the EPA is using land decisions from 124 years ago and older to justify extension of Tribal water rights, along with the 1983 “time immemorial” during current settlement negotiations.
The question as to whether or not non-ceded land should be given back to Tribes under the same 1894 Act was considered then refused in the 2011 Yankton Sioux Tribe vs South Dakota Supreme Court case. These same concerns about Tribal extension over non-members arise over air quality. Under the CAA, the EPA included previously negotiated Wind River land for the Tribe to regulate air quality in Wyoming. The Wyoming Supreme Court determined in 2008 that Congress “intended to diminish” reservation land in 1905. Land ceded by Tribes in 1905 became the EPA’s justification under the CAA to extend Tribal boundaries which took the town of Riverton. The DOI Solicitor took part in this malfeasance by supporting the extension of reservation boundaries in 2011 using selective decisions and laws to substantiate the final decision for the Tribe. Why not, DOI uses your tax dollar to support Tribes. The U.S. Department of Justice (DOJ) also supported this action. And why not, DOJ established the Office of Tribal Justice to “…coordinate policy towards Indian Tribes…” in 1995, partnering with multiple other federal agencies to achieve the same.
Recognizing this boundary issue as a potential barrier to their agenda, in August, 2015 the EPA brought forth a Revised Interpretation of CWA Tribal Provision which would give Tribes the ability to extend reservation boundaries as done in the CAA. The EPA is also working on streamlining the process to obtain TAS status which would in turn hasten EPA policy enforcement.
Bottom line is that the federal government is exploiting Tribes for the purpose of taking land, water, and other rights away from American citizens and putting those resources directly into their hands through the Tribal trust arrangement. America citizens who are not members of the Tribe lose all rights to a representative government as they then fall under Tribal jurisdiction and government. From the 6 to 9 minute mark in this video, Elaine Willman explains how the federal government is using Tribes to take control of land, or the full 30 minute video can be seen here.
In this New American article, Exploiting Indians, the Wind River Reservation issue is explained which is really one methodology the federal government uses to take land and water away from American citizens. From these cases to what has been happening across the U.S. for years, it is clear the EPA as well as other federal agencies are in bed with Tribes to usurp land and water rights. The Tribal advantage is amassing millions in federal funds and for the federal government increased ownership and control of resources. With those funds the Tribes are then able to buy more land, hire lobbyists, and fund politicians to further advance their power.
So what does any of this have to do with the UN? Conclusion in Part 3.