NEZ PERCE TRIBE
DEPARTMENT OF NATURAL RESOURCES
365 Lapwai, ID 83540
Snake River Currents
July 2004 Volume 4 Issue 7
Upcoming SRBA Meetings for Tribal Members
Members of NPTEC and the SRBA Team will hold SRBA briefing
meetings for Tribal members in Lapwai, Orofino, and Kamiah at the following
locations and times.
Orofino: Aug. 10
5:30 pm Teweepuu Community Center.
Kamiah: Aug. 11
5:30 pm Wa-A-’Yas
Lapwai: Aug. 12
5:30 pm Lapwai High School Auditorium.
Refreshments will be served!
Federal Legislation to Authorize Proposed
SRBA Settlement Introduced in U.S. Senate.
Though the Tribe has not
agreed to settle its water claims yet, federal legislation known as the Snake
River Water Rights Act of 2004 was introduced by Idaho Senators Larry Craig and
Mike Crapo on June 24. It has been referred to the Senate Committee on Indian
Affairs and will be heard on July 20. The legislation is being introduced just
prior to the summer recess because of Congress’s hectic schedule. After the
recess, the presidential election will dominate the attention of Congressional
members, and it would be difficult to get a bill introduced and passed by the
March 31, 2006 deadline established in the proposed settlement. However, this
does not mean that Tribe has settled its claims and in no way does it affect the
Tribe’s ability to make a decision regarding the proposed settlement.
NPTEC Chairman Anthony
Johnson will testify before the Senate Committee and his testimony will appear
in the next edition of the Snake River Currents. Copies of both his oral and
written testimony will be available at the upcoming SRBA meetings in Lapwai,
Kamiah and Orofino.
State, Tribe and U.S. hit the road to educate Idahoans about
proposed settlement of the SRBA and the Tribe’s water right claims.
Officials from the state of
Idaho and federal and tribal representatives have spent the last few weeks
traveling around the state to educate Idahoans about the proposed settlement of
the Tribe’s water right claims in the SRBA. Just as members of the Tribe were
left out of the confidential negotiations, so were citizens of the state.
Two meetings were held
locally –in Lewiston and Orofino- and were well attended by local elected
officials, timber interests, and ordinary citizens. Members of the North
Central Idaho Jurisdictional Alliance attended the Orofino meeting and were
dismayed to hear the Governor’s Office refer to the Tribe as a sovereign entity
whose rights had to be respected in order to develop the proposed settlement.
Steve Moore of the Native American Rights Fund, who represents the Tribe in the
litigation and mediation of the its claims, described the Tribe’s position and
outlined the benefits contained in the term sheet.
Questions and Answers
about the Proposed Settlement of the Tribe’s Water Right Claims.
did the Tribe file its water right claims in state court?
Under the concept of sovereign immunity,
the federal government and tribes historically could not be brought into state
court to have their water rights determined. However, in 1952 Congress passed
the McCarran Amendment which allowed the federal government to be brought into
state general stream adjudications, thereby waiving its sovereign immunity in
The McCarran Amendment also
applies to state adjudications of Indian reserved rights, which are held in
trust by the U.S. The McCarran Amendment and related court rulings do not mean
that Winters rights (on-Rez consumptive use water rights) are quantified
according to state law, but only that the extent of the rights can be determined
in state court.
treaty rights would be affected if the proposed settlement is finalized?
As part of the proposed settlement,
the Tribe would release its treaty-based claims to access and use springs on
private and state land in the 1863 ceded area (the Tribe retains these rights on
federal land). In the Treaty of 1863, the Tribe and the United States expressly
reserved the right of tribal members to access and use springs in common with
non-Indians on land ceded in 1863 (the land between the current Reservation
boundary and the 1855 Reservation boundary). One of the reasons the Tribe would
receive federal compensation under the SRBA agreement is because of this
resolution of use of springs on private and state land vs. federal land in this
will make the final decision on the settlement for the Tribe?
According to the tribal constitution, the
governing body of the Nez Perce Tribe is NPTEC. As such, NPTEC has the
constitutional authority to enter into litigation and agree to settlements.
However, the NPTEC may decide to involve the General Council in the decision
Making the decision
regarding the proposed settlement of the Tribe’s water right claims in Idaho
will be difficult. NPTEC must review very complex information and evaluate the
chance of success if the issues are litigated rather than settled, as proposed.
It is extremely important that all members of the Nez Perce Tribe carefully
review the settlement proposal, ask questions, and convey your thoughts to the
NPTEC and the SRBA Team. It is vital that this decision be made with all the
facts available and with as much participation from members as possible. A
decision made in ignorance could be devastating for the Tribe.
What are the options
relative to the proposed settlement?
The Tribe can either accept the terms or
it can reject the settlement proposal and litigate Tribal water claims in state
court. This decision must be made by March 31, 2006. If the Tribe, the State
of Idaho, the United States and numerous water users accept the proposed
settlement, all the pieces must be in place by that date. BLM lands will be
appraised, a Dworshak flow augmentation agreement will be developed, management
agreements will be developed for the Dworshak and Kooskia hatcheries, the SRBA
Court will decree the Tribe’s water rights, State and Federal legislation will
be passed and federal dollars appropriated.
If the Tribe rejects the
proposed settlement, litigation of its water right claims will resume in the
Idaho Supreme Court and the SRBA Court.
In 1999, the SRBA Court ruled that the Tribe’s treaty fishing right did not
imply a water right and so dismissed the Tribe’s instream flow claims. In an
effort to distinguish between on-reservation and off-reservation water claims,
the SRBA Court ruled that the 1863 Reservation had been diminished. That
ruling is pending before the Idaho Supreme Court which has suspended the appeal
pending the outcome of the proposed settlement
Q. Do the Tribe’s water
rights expire after 30 years?
The agreement would recognize
Tribal water rights to 50,000 acre-feet of water on the Reservation, primarily
from the Clearwater River, and to springs on all federal land within the 1863
Treaty ceded area. Endangered Species Act portions of the agreement (upper
Snake Flow augmentation, and forestry practices on state and private land)
expire after 30 years.
Q. How will the 50,000
acre-feet of tribal water be administered?
The Tribe will develop a Water Code which will
detail how and where the water will be used. Potential uses could include
cultural purposes, irrigation of crops or golf courses, an aquatics park,
commercial or industrial development, or it could be left in the river to
benefit fish and aquatic life. The Tribe will be able to decide where and how
the water is used.
Currents is published by Greg Haller, SRBA Coordinator for the Nez Perce Tribe
Department of Natural Resources. For
information regarding this newsletter, please contact Greg at (208) 208-843-7368
ext. 2612. For additional
information about the SRBA and the proposed settlement of the Tribe’s claims,
please contact Heidi Gudgell, SRBA attorney for the Nez Perce Tribe Office of
Legal Council at (208) 208-843-7355 ext. 2381.
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