NEZ PERCE TRIBE

DEPARTMENT OF NATURAL RESOURCES

P.O. BOX 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.

Q. Why did the Tribe file its water right claims in state court?

A.  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 such matters. 

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.

Q.  What treaty rights would be affected if the proposed settlement is finalized?

A.  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 area.

Q.  Who will make the final decision on the settlement for the Tribe?

A.  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 process. 

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.  

Q. What are the options relative to the proposed settlement?

A.  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.  Note:  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?

A.  The agreement would recognize permanent 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?

A.  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. 

Snake River 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.