On July 20, NPTEC Chairman Anthony Johnson testified to the Senate Committee on Indian Affairs on   federal legislation known as the Snake River Water Rights Act of 2004.   Introduced by Idaho Senators Larry Craig and Mike Crapo on June 24, this legislation would ratify the proposed settlement of the Tribe’s water right claims. Representative Butch Otter introduced companion legislation in the House, although that Bill contains two elements (unrelated to the Tribe’s water claims) not contained in the Senate Bill. 

NPTEC Conducts Public Meetings on Proposed Settlement of the Tribe’s Water Right Claims.

During the week of August 9th, NPTEC, along with members of the SRBA Team, hosted public meetings with Tribal members and the Circle of Elders to discuss the proposed settlement of the Tribe’s water right claims.  Tribal members asked many important questions, some of which are listed below, followed by answers to those questions supplied by NPTEC members and the SRBA Team.  More questions and answers will appear in future editions of this newsletter.

Questions and Answers

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

A.  The Tribe, and other parties, 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, federal dollars authorized, and a payment schedule established. 

If any of the parties rejects the proposed settlement, litigation of the Tribe’s  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.  Has any party to the proposed settlement agreement decided to oppose it?

A.  No party to the agreement has made that decision.  The state of Idaho is making a strong effort to gain the support from its citizens and various water users for the proposed settlement.  However, some members of the North Central Idaho Jurisdictional Alliance are opposed to the deal because the settlement recognizes tribal sovereignty and tribal rights and also because federal land will be transferred to the Tribe in trust, which directly challenges the Alliance’s argument that the Reservation has been diminished.   

Q. The proposed settlement transfers BLM land to the Tribe.  Will non-Indians be able to access and use this land, much like they do on the Precious Lands in northeastern Oregon?

A.  Existing grazing leases will be honored by the Tribe when the land is transferred until those leases expire.  After that, the Tribe can decide what, if any, uses by non-Indians will occur.

Q. Representative Butch Otter has introduced congressional legislation regarding the proposed settlement that contains two riders not in the Senate Bill.  Does the Tribe support these additional provisions?

A.  Representative Otter introduced legislation that contains two provisions that are not in the Senate Bill introduced by Senators Craig and Crapo.  The provisions include a water right for an old gravel pit that is now a small lake in southern Idaho and a request for the Bureau of Reclamation to study additional storage projects on the upper Snake River.   NPTEC has conveyed to Representative Otter and others that the Tribe does not support these provisions and that they should be removed from the final legislation.   

Q.  If the Tribe rejects the proposed settlement agreement and litigates its claims in State Court and wins, what will the Tribe get?

A.  There are three answers because the Tribe filed three types of water claims.  If the Tribe wins the appeal of its instream flow claims, that case will go back to the SRBA Court.  The SRBA Court will then decide what amount of instream flows in the Salmon and Clearwater Basins will decreed and held by the Tribe. The proposed settlement decrees instream flows in these Basins but these water rights will be held by the Idaho Water Resources Board.  If the Tribe’s wins the litigation of the springs claims, the Tribe will retain the right to access and use springs in common with non-Indians on all land in the 1863 ceded area, as stipulated in the 1863 Treaty.  In the proposed settlement, the Tribe waives its claims to springs on state and private land but retains the right to access and use springs on federal land in the 1863 ceded area.  The consumptive use water claims for the Reservation would be determined on the amount of trust land currently within the Reservation.  This amount of water could be less than the 50,000 acre-feet consumptive use right detailed in the proposed settlement.   

Q.  If the Tribe accepts the proposed settlement, will the Tribe be restricted from asserting its water right claims in other states?

A.  Settlements do not set precedent in other legal settings and cannot be cited in court as evidence of anything.  The Tribe can and will assert water claims in Oregon and Washington when those states begin a general stream adjudication process.

Q.  If the Tribe buys more land, will the Tribe get more water rights?

A.  If the Tribe buys land with water rights, the Tribe will get the water right in addition to the land.  However, the priority date for using that water would be the priority date held by the previous land owner, not 1855.

Q.  The Klamath Tribe won water rights to restore their fishery based on their treaty fishing right even though their Reservation had been terminated.  How come the Nez Perce Tribe lost its claims for instream flows for fish based on its Treaty fishing right?

A.  Judge Wood, former judge of the SRBA Court, refused to consider the Klamath case or the Webb case when he ruled that the treaty fishing right did not imply a water right for off-Reservation instream flows. He also ruled that the Reservation was diminished because of the 1893 Agreement with the United States.  Legally, this decision was wrong and the Tribe appealed.  The appeal has been stayed pending the resolution of the proposed settlement. 

Q. Who will fund the management of Kooskia and Dworshak hatcheries when management authority is transferred to the Tribe?

A.  Existing federal funding for hatchery management will continue after the Tribe gains management control of the hatcheries (sole management of Kooskia and joint management of Dworshak).

Q.  Will water for the hatcheries come out of the Tribe’s 50,000 acre-feet consumptive use right?

A.  No.  The hatcheries have their own separate water right, which is unrelated to the Tribe’s 50,000 acre-feet consumptive use right.

Q.  According to the proposed settlement, the Tribe can access and use springs on federal land in the 1863 ceded area.  How can Tribal members use those springs?

A.  Tribal members can access and use these  springs for “watering purposes” which include watering stock or for cultural purposes.

Q.  What water rights does the Tribe have now?

A.  None.  Until the SRA Court recognizes and decrees official “water right,” any treaty right to water cannot be enforced.

Q.  Doesn’t the Treaty fishing right give the Tribe a water right for fish?

A.  The Tribe relied on the Treaty fishing right to make its claim for instream flows for fish.  Unfortunately, the SRBA Court ruled that the Treaty fishing right did not imply a water right for off-Reservation instream flows.  The Tribe has appealed that decision.

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 United States Supreme Court has said that the McCarran Amendment also applies to state adjudications of Indian reserved rights, which are held in trust by the U.S, and to rights held by the Tribes themselves.

Q. Why don’t tribal members get free water and sewer services as part of the settlement?

A. As part of the proposed settlement, the Tribe will get $23 million for the design and construction of water and sewer systems in tribal communities on the Reservation.  While this does not mean that tribal members will get free water and sewer, it does mean that badly needed infrastructure will be developed to supply reliable and safe drinking water and to treat wastewater.

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.

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