Water rights have special meaning during drought

David Melmer
9/27/06
BISMARCK, N.D. ñ Tribes in the Plains and elsewhere have an inherent right to water as has been defined by treaty, tribal officials say.
Precedent has been set that proves tribes have water rights under the 1908 Winters Doctrine. The state of North Dakota and other states, as well as the federal government, are pushing the tribes to quantify their water needs and determine the amount of water a reservation needs for agricultural purposes or for human consumption.
Over the years, tribes have lost ground with water issues. Huge rivers are now controlled by the federal government through the U.S. Army Corps of Engineers. Also, the Bureau of Land Management has negotiated irrigation rights for non-Indian ranchers and farmers without full approval from the tribes that hold the water rights.
Quantification now seems to be one of the last means to save what rightfully belongs to the tribes, especially in the northern Plains. Tribes in Western states have a vested interest in negotiating water rights as the demand increases and the supply decreases. The West has been hit with drought to near-drought conditions for several years while the human consumption of water has increased, which means more competition for water.
ìThe elders said there may be nothing to quantify,î said Tex Hall, chairman of the Mandan, Hidatsa and Arikara Nation.
ìThe Missouri River is the grandfather of mother earth, and since Lewis and Clark the river has changed. Tribes need to take more control over the management of the river,î Hall said.
There is more to the water rights than the Missouri River, which cuts through North and South Dakota. Surface water and underground water are up for quantification also. Water usage is important to the tribes because the Winters Doctrine, which arose from the 1908 Supreme Court case Winters v. the United States, confirmed the right of tribes to use water for agricultural use.
The state of North Dakota does not want to adjudicate water quantification; it wants to negotiate, according to Assistant Attorney General Charles Carvell.
ìIn the early 1990s, the state started talking about water rights because it wants to manage the resources to make sure the resource is preserved,î Carvell said.
The state of North Dakota and the Turtle Mountain Band of Chippewa have worked out an agreement, since Turtle Mountain does not have flowing water on the reservation. Turtle Mountain Band Chairman Ken Davis said the tribe indeed has water ñ that which flows off the reservation into the aquifers or is left as groundwater.
Turtle Mountainís agreement with the state is not what the other tribes want. Tribal leaders said they wanted compacts like those negotiated between the state of Montana and tribes in that state.
ìThe tribes would quantify their water rights and enter into compacts; legislators would not go forward without the tribeís approval,î said Steve Kelly, general counsel for the Mandan, Hidatsa and Arikara Nation.
He said the North Dakota engineer is waiting to work with what the tribes come up with.
He also questioned how the states could require the tribes to quantify water rights based on treaties and Winters Doctrine.
ìThere are a lot of areas that are unclear whether they are within tribal water rights or not, even with the Winters Doctrine,î Carvell said.
If the state or tribes decide to adjudicate the issue, Carvell said state courts may not be friendly to the tribes and negotiation would be cheaper and faster. The Winters Doctrine will be 100 years old in 2008 and if there is adjudication, that process will not be done in time.
ìWe can get environmental groups to the table and have an agreement that will stand up to challenge,î Carvell said.
Ground and surface water is not the only problem for tribes. The Missouri River, once the lifeblood of many current and ancient tribes along its banks is running dangerously low of water. Tribes along the river use the water for irrigation and human consumption, but currently intake pipes have to be moved in accordance with the receding shorelines. The Corps controls and operates the flow of water in the Missouri River and in the reservoirs that were created by the hydro dams that are mostly located on tribal lands.
ìThe Corps recognizes that tribes have reserved water rights and will consult with the tribes, but the Corps does not have the right to decide quantitative water rights,î said Mary Lee Johns, tribal liaison for the Corpsí Omaha District.
Johns, a member of the Cheyenne River Sioux Tribe, and her family were removed from the banks of the Missouri when the reservoirs were created in the late 1950s and early 1960s.
ìWith the 1949 Taken Act, tribes did not give up their water rights and the United States did not live up to the Taken Act,î Hall said. The 1949 Taken Act, part of the Pick-Sloan Act, established a settlement with the tribes over the land that was lost when the reservoirs were created.
There could be a problem with over allocation of water. The Big Horn River in Montana is 100 percent allocated and the Yellowstone, a major tributary to the Missouri, is 40 percent allocated.

BISMARCK, N.D. ñ Tribes in the Plains and elsewhere have an inherent right to water as has been defined by treaty, tribal officials say. Precedent has been set that proves tribes have water rights under the 1908 Winters Doctrine. The state of North Dakota and other states, as well as the federal government, are pushing the tribes to quantify their water needs and determine the amount of water a reservation needs for agricultural purposes or for human consumption. Over the years, tribes have lost ground with water issues. Huge rivers are now controlled by the federal government through the U.S. Army Corps of Engineers. Also, the Bureau of Land Management has negotiated irrigation rights for non-Indian ranchers and farmers without full approval from the tribes that hold the water rights.  Quantification now seems to be one of the last means to save what rightfully belongs to the tribes, especially in the northern Plains. Tribes in Western states have a vested interest in negotiating water rights as the demand increases and the supply decreases. The West has been hit with drought to near-drought conditions for several years while the human consumption of water has increased, which means more competition for water. ìThe elders said there may be nothing to quantify,î said Tex Hall, chairman of the Mandan, Hidatsa and Arikara Nation. ìThe Missouri River is the grandfather of mother earth, and since Lewis and Clark the river has changed. Tribes need to take more control over the management of the river,î Hall said. There is more to the water rights than the Missouri River, which cuts through North and South Dakota. Surface water and underground water are up for quantification also. Water usage is important to the tribes because the Winters Doctrine, which arose from the 1908 Supreme Court case Winters v. the United States, confirmed the right of tribes to use water for agricultural use. The state of North Dakota does not want to adjudicate water quantification; it wants to negotiate, according to Assistant Attorney General Charles Carvell.  ìIn the early 1990s, the state started talking about water rights because it wants to manage the resources to make sure the resource is preserved,î Carvell said. The state of North Dakota and the Turtle Mountain Band of Chippewa have worked out an agreement, since Turtle Mountain does not have flowing water on the reservation. Turtle Mountain Band Chairman Ken Davis said the tribe indeed has water ñ that which flows off the reservation into the aquifers or is left as groundwater. Turtle Mountainís agreement with the state is not what the other tribes want. Tribal leaders said they wanted compacts like those negotiated between the state of Montana and tribes in that state. ìThe tribes would quantify their water rights and enter into compacts; legislators would not go forward without the tribeís approval,î said Steve Kelly, general counsel for the Mandan, Hidatsa and Arikara Nation. He said the North Dakota engineer is waiting to work with what the tribes come up with. He also questioned how the states could require the tribes to quantify water rights based on treaties and Winters Doctrine. ìThere are a lot of areas that are unclear whether they are within tribal water rights or not, even with the Winters Doctrine,î Carvell said. If the state or tribes decide to adjudicate the issue, Carvell said state courts may not be friendly to the tribes and negotiation would be cheaper and faster. The Winters Doctrine will be 100 years old in 2008 and if there is adjudication, that process will not be done in time. ìWe can get environmental groups to the table and have an agreement that will stand up to challenge,î Carvell said. Ground and surface water is not the only problem for tribes. The Missouri River, once the lifeblood of many current and ancient tribes along its banks is running dangerously low of water. Tribes along the river use the water for irrigation and human consumption, but currently intake pipes have to be moved in accordance with the receding shorelines. The Corps controls and operates the flow of water in the Missouri River and in the reservoirs that were created by the hydro dams that are mostly located on tribal lands. ìThe Corps recognizes that tribes have reserved water rights and will consult with the tribes, but the Corps does not have the right to decide quantitative water rights,î said Mary Lee Johns, tribal liaison for the Corpsí Omaha District. Johns, a member of the Cheyenne River Sioux Tribe, and her family were removed from the banks of the Missouri when the reservoirs were created in the late 1950s and early 1960s. ìWith the 1949 Taken Act, tribes did not give up their water rights and the United States did not live up to the Taken Act,î Hall said. The 1949 Taken Act, part of the Pick-Sloan Act, established a settlement with the tribes over the land that was lost when the reservoirs were created. There could be a problem with over allocation of water. The Big Horn River in Montana is 100 percent allocated and the Yellowstone, a major tributary to the Missouri, is 40 percent allocated.

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