April 2004
Organization Established to Resolve Indian and Non-Indian Water Issues
by Harold Shepherd
Harold Shepherd is an attorney located in Pendleton, Oregon, specializing in litigation, advocacy and other legal issues regarding water rights as they relate to Indian tribes.
Water is one of the most precious and overused commodities in the western United States. In addition to being a basic component for sustaining life, water connects nature, cultures and prosperity throughout the West. In less than a century, the abundant water resources in the West have rapidly lost the ability to satisfy the competing needs of farms, cities, industries, Indian tribes and the natural world, and today have become one of the most endangered resources in the Northwest. The Center for Tribal Water Advocacy has been established to serve as a resource to tribes that do not have access to adequate legal representation and scientific professionals in relation to water rights and quality issues.
Conflicts between Indian tribes and non-Indian water users have been a common component of the Northwest ever since white settlers moved into the area beginning in the early nineteenth century. During the last two decades of the twentieth century, over 50 major Indian water rights lawsuits and settlement agreements were ongoing in state and federal courts, administrative hearings, and at negotiating tables across the United States.1 The majority of these suits and administrative proceedings remain unresolved to this date and typically take two decades or more to reach resolution at major expense to the parties involved.
Competition for water has given rise to bitter divisions resulting in water wars as seen by the increase in legal challenges over who has the right to use this resource. Management of water resources by federal and state water agencies increasingly results in conflicts related to water uses in the Northwest and threatens tribal culture by jeopardizing the long-term sustainability of water resources and aquatic habitat.
As a result of these issues, several attorneys and other water professionals in the Northwest who work with tribes on a regular basis created the Center for Tribal Water Advocacy (CTWA). This nonprofit public interest law firm assists federally recognized Indian tribes located in the Northwestern United States in protecting their interests related to water resources. CTWA recognizes that tribes often have substantial difficulty effectively protecting their water and fishery interests due to the lack of resources for participating in agency public notice and comment, litigation and other processes. Tribes also, more often than not, reject litigation or administrative appeals because they do not have the financial basis to hire attorneys or expert consultants and witnesses to assist in such matters.
Imminent Risk of Conflict
Tribes and groups like CTWA have their work cut out for them, as illustrated by Interior Secretary Gale Norton’s recent adoption of the “Water 2025” initiative, which identifies several areas in the Northwest that face imminent or substantial risk of erupting into conflict between states, tribes, local governments, affected communities and environmentalists over water use and protection. The Department of Interior’s familiarity with conflicts over water is no surprise as the evolution of water management under the Reclamation Act has created a conflict of interest for the government that continues to significantly affect Indian tribes.
The Bureau of Reclamation, for example, encouraged appropriation of water and development of water projects by non-Indians at the same time that it was suppose to be preserving such water for the needs of tribes. While Indian water rights, therefore, are protected “on paper” by the courts and have been occasionally enforced by the Department of Justice, historically tribes have had little support from Reclamation or Congress. As a result, without political power to obtain budgetary appropriations for tribal reclamation programs, tribes have been largely unable to realize the same access to water as has the non-Indian community.
One of the most vivid examples of the damage from Bureau of Reclamation activities to tribes is the Salt River Reclamation Project, located in Arizona, which encompasses the Salt River Pima-Maricopa Indian Reservation established by Congress on June 14, 1879. The reservation community, however, has yet to be included in the substantial amounts of subsidized water delivered to those located outside the reservation including the cities of Phoenix and Scottsdale.2 In fact, according to the tribe, with the sole exception of the Pima-Maricopas, every other agricultural district within the project’s boundaries has been getting cheap Colorado River water.3 This means that until the tribes finally took their case to court, the cost of farming its lands was $130 per acre compared to $40 per acre literally across the street.4
Tribes throughout the West and others have made similar charges that the federal government, operating as guardian and trustee bargained away tribal water resources under terms which were often seriously lopsided in favor of non-tribal water users. In a lawsuit against the Department of Interior brought by the Pyramid Lake Piaute Tribe in the early 1970s, for example, the court agreed with the tribe’s claim that a regulation promulgated by the Department of Interior delivered more water to a local irrigation district than required by applicable court decrees and statutes.5
Courts Less Responsive to Tribes
Furthermore, federal courts have become less responsive to tribes in water rights claims. In commenting, for example, on a determination by the Wind River Indian Reservation Tribes not to appeal an adverse decision of the Wyoming state Supreme Court on water rights, Charles Wilkinson, professor of water law at the University of Colorado, stated the tribe’s case is “very compelling...(and) supported by a century of Western water law. But this U.S. Supreme Court, with the recent appointments, is, in its own way, probably the most radical court we’ve had since the late nineteenth century—in terms of overturning and moving away from existing, settled principles....” 6
Next Month — Part Two
Privatization and Commodification of Water
Endnotes
1 Lloyd Burton, “American Indian Water Rights and the Limits of the Law 2.” (1991); Steve. Hinchman, “West Faces a Time Bomb,” High Country News, August 27, 1990, reprinted in Char Miller, “Water in the West, A High Country News Reader 246” (2000).
2 See, James Bishop, “Tribes Win Back Stolen Water,” High Country News, June 15, 1992, reprinted in Miller, supra note 3, at 262.
3 Ibid.
4 Ibid.
5 See e.g., Pyramid Lake Piaute Tribe of Indians v. Morton, 354 F.Supp. 252 (D.D.C.1972), modified on other grounds, 360 F. Supp. 669 (D.D.C. 1973), rev’d in part on other grounds, 499 F.2d 1095 (D.C. Cir. 1974), cert. denied, 420 U.S. 962 (1975). See also, Burton, supra note 3 at 2, 23, 47; Folk-Williams, “What Indian Water Means to the West 7-8.”
6 See Katherine Collins, “Water: Fear of Supreme Court Leads Tribes to Accept an Adverse Decision,” High Country News, October 19, 1992, reprinted in Miller, supra note 3, at 251 (2000).
