Tribal Water Rights – The Road to Securing Water
By David L Ganje

“Water is perhaps the most valuable tribal resource remaining and is one of the most significant potential forces of change. The potential size of tribal water rights should not be underestimated.” – Western Water Policy Review Advisory Commission

A Canadian Judge – in making a legal decision — recently recited two important principals of British law, both of which are found in US law. The Judge stated there are two legal maxims, one at common law and the other at the law of equity: First, the law comes to the aid of those who are vigilant, not those who sleep on their rights. Second the legal principle of equity comes to the aid of those who are vigilant, not those who sleep on their rights. Upper Great Plains tribes today must be vigilant in obtaining reserved but yet undetermined water rights. This involves two choices. Litigation or negotiation. In this article I argue that the Upper Great Plains tribes should undertake first, active, public and aggressive negotiation, and then if unsuccessful, litigation to recover water rights. But for the current water rights negotiation by the Standing Rock Sioux tribe, reserve language found in the successful Mni Wiconi Rural Water Supply Project and language found in some tribal water codes, Upper Great Plains tribes have not taken an official position with the BIA claiming reserved water rights. This silence is a mistake. My argument is this: treaties and case law have given Upper Great Plains tribes a property right, which is a right to use and access groundwater and surface water. However Upper Great Plains tribes have not fully sought and claimed that right. Both groundwater and surface water reserved rights must be championed by Upper Great Plains tribes.

While Standing Rock has taken the first step in opening negotiations with the State of South Dakota and North Dakota on the matter of water rights, the US Department of Interior has yet failed to assign a representative from its Indian water rights division to participate in these negotiations. Standing Rock is taking the right action; it is putting on the table the reservation’s water claims and doing it in a serious forum. Standing Rock has not by these negotiations abrogated its claims, and will preserve the tribe’s water rights throughout the negotiations without prejudice to its right to refuse any proposed terms or accept any proposed settlement terms. Having recognized this strategically proper first step by the tribe it is important to disclose the failure of the Department of Interior to participate in the negotiations. The DOI’s failure to participate in the ongoing talks is wrong and contradicts that department’s statutory duties regarding Indian tribes in the US. Interior Secretary Sally Jewell, who has publicly stated the administration’s commitment to resolving water rights, should immediately direct a staff person to actively participate in these water talks.

Some tribes have not yet adopted tribal water codes – legal guides for the tribal community for the management and use of water. Tribes should consider the creation of an official water code as a relevant step to securing water rights. Some tribes may have to amend the tribal constitution in order to properly pass a tribal water code. But it is worth the effort.

Tribal rights to water is a treaty right. It cannot be lost through non-assertion. Indian reserved water rights may be asserted at any time, cannot be lost by nonuse, and are assigned priority dates based on the date for the establishment of reservation. In legal theory the loss of water rights would require abrogation by a tribe or the federal government before the rights could be extinguished. Such an abrogation is in reality irrelevant because this has not and will not happen. Abrogation is not therefore the issue at hand.

It is a mistake to assume that any non-Indian interest group or government agency will make efforts to preserve, advocate for or even address these reserved yet undetermined tribal water rights. The US Army Corps of Engineers (Corps), for example, recognized in congressional testimony in 2004 that the tribes have claims to reserve water rights. Having taken that position, the Corps nevertheless in 2012 proposed a new program to produce revenue for the US government by selling what it called “surplus water” from Missouri River reservoirs. In proposing this new program for the sale of so-called surplus water the Corps created a 204-page report to support its argument for the proposed project. The Corp’s report provided statistics, projections and data but ignored and failed to discuss the existing water rights of tribes. Indian tribes are not subject to the Corps’ general authority to create or impose surplus water regulations.

It has not proven so historically, and it is not to be expected that non-tribal government agencies, whether trust-based or regulatory, have any strong reason to advance tribal water rights. No politician or bureaucrat will seriously address tribal water rights as long as the institution he represents have unchallenged bureaucratic control over water management. The only change preferred by a bureaucracy-in-charge is a change resulting in an expansion of the bureaucracy’s own power. That has been the case, for example, with the slow accretion of non-Indian interests and water demands placed on existing water in the Missouri River. As time goes on there will be less and less water to claim.

The Corp’s recent surplus money project is an example of an agency asserting itself over available water. It matters not whether the available water is called surplus water, water behind a damn, groundwater, or instream flows. A claim was made to the water. The claim did not exist before the Corps did the study and asserted the claim. Had the Corp’s project been successful, that water would have been that much more water taken away and earmarked for management and control by a bureaucracy.
Litigation of reserved water rights is one of the two alternative means to secure water rights discussed in this article. Water rights litigation is a complex, time consuming legal playing field. Much can be achieved, but the time, well known litigation risks and money involved must be kept in mind.

The Crow Creek Reservation recently started water rights litigation in the United States Court of Federal Claims asking for both money damages as well as a request for a ruling quantifying the tribe’s reserved surface water rights to the Missouri River. The Crow Creek complaint calls for money damages, as mentioned, and for a judgment that the tribe is ‘entitled to declaratory and injunctive relief including judgment requiring Defendant (the United States) to establish and measure the reserved water rights held by the tribe, and to quantify the reserved water rights held by the tribe, and to assert water rights on behalf of the tribe and to record legal title to water held in trust for the benefit of the tribe.’

The complaint lists the type of relief that should be requested in reserved water rights litigation. The complaint filed by Crow Creek, however, has problems:

1. The court in which the complaint was filed does not have full jurisdiction to award the complete relief requested in the complaint. By the reorganization statutes of the Court of Federal Claims is has authority to render declaratory judgments only in matters regarding contract or procurement disputes.
2. The court is unlikely to get into its main jurisdictional issue: money damages in favor of the tribe. It is unlikely to do this because there is no existing water rights determination or quantification by statute, final decree, or water agreement from which the court could calculate a money damages amount. And, further, the important matter of Indian water rights under the Winter’s doctrine is beyond the general expertise of the Court of Claims.
3. One of the important requests in the complaint is for injunctive relief. This is also beyond the jurisdiction of the Court of Claims. Bowen v. Massachusetts, 487 U.S. 879, 905 (1988) (“[W]e have stated categorically that ‘the Court of Claims has no power to grant equitable relief.’’
4. The relevant requests in the Crow Creek complaint are requests for an injunction, for a declaration of rights, for the establishment of water rights and for quantification of water rights. The Court of Claims however has only incidental or collateral jurisdiction over these requests making it unlikely that the court would take on such important, significant and historical remedies.
5. The complaint does not include a necessary party if it is attempting to finalize tribal surface water rights. The state of South Dakota also has water rights to the river. The state is not named in the lawsuit. The Court of Claims cannot impose duties or obligations regarding water rights or the allocation of the tribe’s claim when a relevant party is not included in the suit.
6. Any adjudication against or settlement with the United States under the pending complaint would be incomplete as stated in the complaint. Groundwater is an integral part of all Indian reserved water claims. The majority of courts in the United States addressing Indian reserved water rights have acknowledged that Indian reserved water rights also apply to groundwater. The reserved water claims of the Crow Creek reservation, one must assume, also include groundwater. However, the Crow Creek complaint for damages for loss of water resources makes no claim for reserved tribal groundwater rights.

Tribes in the US have found success through water rights negotiations with State and Federal bodies. With an appreciation for the uncertainty of litigation, negotiating is the best first step. Negotiations should be pursued in the following fashion. The master water rights Settlement Agreement should include: an agreement setting forth rights to use and administer waters; and an agreement quantifying reserved water rights for historic and current as well as planned uses; and if there is a specific project planned by a tribe, then that project is to be negotiated and drafted as a separate agreement but integrated as a part of the master Settlement Agreement. Any Settlement Agreement would become effective if the Congress passes a Settlement Act and the President signs the act into law. Once the Settlement Act becomes law, the Secretary of the Interior must execute the Settlement Agreement and the Settlement Contract.

An advantage of multiple party negotiations: actual representatives are present sitting across the table. These face to face negotiations bring out the real differences between the parties without hiding behind silence, animosity or evasive politics. If the negotiated terms do not satisfy the rights of tribes, they are not bound to accept the terms. The final outcome of the negotiations is to be decided by the tribe.

The Snake River Water Settlement Act is a recent example of successful Indian water right’s negotiations. Although the US Senate is not an owíčhota of wisdom and justice, the Senate report discussing the Snake River Water Settlement Act addresses the issue of litigation of water rights versus negotiated water agreements:

“The shortcomings of the general stream adjudication process [this is a fancy phrase for litigation] as a device for water rights dispute resolution have led to an increasing number of agreed-to water rights settlements on streams in the western States where the parties, including Indian tribes, negotiate and compromise among themselves as to quantity, priority dates and other issues, and where the Federal government contributes money to the settlement in order to achieve various goals that could not otherwise be achieved within the confines of a general stream adjudication.”
Sen. Rep. 108-389, at 2-3

The Snake River water agreements provided, among other terms, designated water for a variety of tribal uses on the reservation; recognition of allotment water rights and a due process requirement for tribal regulation of such rights; a right to access and use of springs and fountains on federal lands in off-reservation areas; and instream flow minimums at over two hundred locations. When protecting a people’s rights, it is good to hesitate and think. However, it is not good to hesitate and think and then not act.

Water rights granted to tribes are the most important example in American law of treaty-based reserved rights. Tribes do not however dwell alone in the world of water rights. Tribes should abandon silence on the subject, stick their elbows in the table now and publicly assert their water rights. A tribe cannot secure what it does not itself assert.

by David Ganje.