NEZ PERCE TRIBE
DEPARTMENT OF NATURAL RESOURCES
365 Lapwai, ID 83540
Snake River Currents
June 2004 Volume 4 Issue 6
has not settled its water claims yet. NPTEC
has until March 31, 2006 to determine if the Tribe should settle its water
claims as detailed in the term sheet.
agreement would not change the
Tribe’s treaty fishing, gathering, hunting or pasturing rights.
agreement would recognize permanent tribal water rights to 50,000 acre-feet of
water on the Reservation, and to springs on all federal land within the 1863
Treaty ceded area.
agreement does not affect the right to access all usual and accustomed fishing
NPTEC Holds Community Meetings About Proposed Settlement of Tribe’s Water
Right Claims in Idaho
In early June, the NPTEC held community meetings in
Lapwai, Kamiah and Orofino to discuss with tribal members the proposed
settlement of the Tribe’s water right claims. The series of meetings, the first of many to be held throughout the year,
provided an opportunity for tribal members to learn and ask questions about the
proposed deal. NPTEC Chairman
Anthony Johnson hosted the meetings and NPTEC members Rebecca Miles, Samuel
Penney, Allen Slickpoo Jr, and Levi Holt participated as well. Tribal attorney
Heidi Gudgell, consulting attorney Geoff Whiting, consultant Jean Baldrige and
SRBA Coordinator Greg Haller presented details of the settlement framework.
Below is a list of questions that tribal members asked
during the meetings, followed by answers supplied by the SRBA team.
Q. Who will make the final decision on the settlement for the
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. 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. However, 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 General Council.
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 deal, 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 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
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. Why are the BLM land transfer, hatcheries management,
Dworshak flow augmentation
agreement, money for water and sewer development and funds for salmon and
habitat restoration included in a settlement of water right claims?
A. Indian water right settlements often include non-water related terms,
although no other settlement has included a land transfer. In many cases, these terms are designed to promote Native economies and
culture and control of resources. This
is the case with the proposed Nez Perce settlement. Transferring BLM lands to the Tribe helps restore Tribal ownership of the
Reservation. The $23 million water
and sewer fund will provide much needed water supply and sewage infrastructure
on the Reservation, which in turn will promote economic development. The $50 million water and salmon fund could be used to generate numerous
projects, including land acquisition, that enhance tribal sovereignty, culture
and economy. Controlling
approximately $13 million of a habitat restoration fund allows the Tribe to
exert its expertise in salmon
recovery in the Clearwater and Salmon River Basins. The $10.1 million Payette fund can be used for a variety of purposes
including land and water acquisition. Transferring management of Kooskia and
Dworshak National hatcheries and a Dworshak flow augmentation agreement gives
the Tribe a measure of control of resources on its Reservation.
Q. What would the Tribe give up to receive the benefits
described in the Term Sheet?
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 1863
ceded area). The Tribe would
withdraw its claims to water for instream flow (which the SRBA Court dismissed
Q. Will salmon be protected as part of this deal?
A. Instream flows of various amounts in the Salmon and Clearwater River
Basins will be decreed by the SRBA Court and held by the Idaho Water Resources
Board. These flows are intended to
provide habitat for fish and aquatic life and maintain a functioning stream
channel. However, the instream flow
rights will be subordinated to future uses of water including domestic,
municipal, commercial, and industrial development. Streams and rivers in federal wilderness areas will have the highest
level of protection –very good instream flows with very limited future
development allowed. Streams and
rivers on federal non-wilderness lands will have the next highest level of
protection –decent instream flows but a greater amount of water will be
available for future development. Streams
and rivers that flow primarily through state and private land will have the
lowest amount of protection –minimal instream flows and a high level of future
Many scientists and conservation groups have said the
proposed 487,000 acre-feet of flow
augmentation water called for from Bureau of Reclamation dams in the upper Snake
River is inadequate to flush juvenile salmon safely and quickly to the ocean,
with the lower four Snake River dams in place. While their contention may be correct, the Hells Canyon Complex (HCC)
also is significant part of the problem (and solution) to salmon recovery in the
Snake Basin. The Tribe and others are working in the relicensing process to make
Idaho Power install a temperature control structure (TCS) on Brownlee Reservoir
to improve the temperature of the flow augmentation water. Currently, the water leaving the HCC can be either
too warm (summer,
early fall) which stresses juveniles and increases the metabolism of predators,
or too cold (spring), which delays incubation and hatching of the eggs. Both of these situations are harmful to fish.
The upper Snake term can be modified within five years if a TCS is not
installed at the HCC. This should
help ensure that the 487,000 acre-feet of flow augmentation water is providing a benefit to fish. The Tribe can also
continue to press for the removal of the lower Snake
Q. Dworshak Dam is on the Reservation. Why is the Tribe not getting more compensation for that in the proposed
A. Not all issues regarding
Dworshak Dam will be resolved by the
proposed settlement. The Tribe has reserved the ability in the proposed
settlement to make other potential claims regarding damages from Dworshak Dam.
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
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.
Q. How come the proposed settlement doesn’t deal with
L.O.I.D or Idaho Power issues?
A. The L.O.I.D and Idaho Power were involved in the mediation but dropped
out of the process before the proposed settlement was finalized. The Tribe
continues to address Idaho Power issues in the Hells Canyon Complex relicensing
process and with L.O.I.D. and the Bureau of Reclamation in a separate
consultation process regarding the dams and diversions on Sweetwater and Webb
creeks. Both of these entities could
return to the settlement discussions if they felt it was in their interests to
Q. Will there be a per-capita payment of settlement dollars?
A. No. There are
three pots of money for the Tribe in the settlement. One pot is for water and sewer development on the
Reservation. The second is a habitat restoration fund for projects in the Salmon and
Clearwater Basins. The third pot of
money is a water and salmon fund that the Tribe can use for a variety of things
including land and water right acquisition, cultural resource development and
protection (which could include things such as a new long house or a tribal
radio station), or other measures related to salmon or fish recovery.
Q. What involvement has NPTEC had in the SRBA process?
A. NPTEC members have been involved in the litigation and
mediation processes since the inception of the SRBA in 1987. Various members were assigned to a negotiating team during the
mediation phase and NPTEC provided
guidance to the SRBA attorneys representing the Tribe. All decisions regarding the development of the term sheet were made by
Q. If the Tribe agrees to the proposed settlement, how should
we prepare for the future?
A. A good start would be to prepare a strategic plan that
addresses the water-based human, economic, land and resource needs of the Nez
Perce Tribe. The Tribe will also
need to develop a Water Code which will allocate the 50,000 acre-feet of water.
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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