NEZ PERCE TRIBE

DEPARTMENT OF NATURAL RESOURCES

P.O. BOX 365 Lapwai, ID 83540

Snake River Currents

October  2004 Volume 4 Issue 10

 Weather Outlook for September
(supplied by CRITFC Weather Wizard Kyle Martin).

For October, expect above normal temperatures (+0.5 to- +1.5  deg. F) and  below normal precipitation (70 –90% of normal). 

Definitions of Terms Used in the Snake River Basin Adjudication

Adjudication.  The word adjudication comes from the word adjudge meaning to decide, or to judge, issues that are before the court.  In the SRBA, the only issues the court can decide relate to water rights in the Snake River Basin in Idaho; that basin includes the Salmon River, the Clearwater River, and all of their tributaries.

Appeal.  The process of asking a higher court to decide whether the decision of a lower court is correct.  In the SRBA, appeals from decisions of the SRBA Court go to the Idaho Supreme Court.  Decisions of the Idaho Supreme Court may then be appealed to the United States Supreme Court.

BLM – stands for Bureau of Land Management, an agency within the United States Department of the Interior, that manages much of the land in the west that is owned by the United States (including some land on the Nez Perce Reservation).  The BLM manages public lands for a wide variety of resources and uses that range from grazing and mining leases to maintaining fish and wildlife habitat.

Briefs.  A brief is a document, usually written by an attorney, that explains a party’s position on particular legal issues and summarizes the law on those issues for the court

Claim.  The filing of a Notice of Claim is what starts the procedure for establishing water rights in the SRBA – claims can be based on state law, federal law, or an Indian treaty.  The Notice of Claim is filed with the Idaho Department of Water Resources (IDWR), and the Director of IDWR then reports the claims that have been filed to the SRBA Court.  Approximately 185,000 claims have been filed with IDWR covering 85% of the state

CWA – stands for the Clean Water Act, a federal law intended to protect water quality and to protect fish, shellfish, and wildlife.  33 U.S.C. Section 1251. 

Decree.  A decree, also called a judgment, is an order in which a court announces its decision in a legal proceeding.

Diminishment.  This term means that a court has decided that the boundaries of an Indian reservation are reduced to the amount of land owned by the tribe and held in trust by the United States.  Diminishment becomes an issue when, as is the case on the Nez Perce Reservation, not all the land within a reservation is owned by that tribe.  That kind of land ownership is referred to as a “checkerboard” and it provides the basis for non-Indians to object to the sovereignty of tribes and their jurisdiction over activities on non-tribal land.  When Judge Wood dismissed the Tribe’s off-reservation instream flow claims, he also concluded that the Nez Perce Reservation had been diminished – that decision has been appealed to the Idaho Supreme Court.

ESA – stands for Endangered Species Act, a federal law intended to protect various species of fish, wildlife, and plants that are endangered or threatened with extinction.  16 U.S.C. Section 1531.

Fee Land.  Fee land is land that is owned entirely by the property owner and can be sold or managed without getting permission from the United States.

Instream Flow Claims.  These claims are based on the Tribe’s fishing rights which were reserved in Article 3 of the 1855 Treaty.  These claims are located throughout the Tribe’s aboriginal territory to keep water in the rivers and streams for the fish habitat that is necessary for both anadromous fish (such as salmon and steelhead) and resident fish (such as trout).  There are approximately 1,100 instream flow claims which were consolidated into one subcase.  The off-reservation instream flow claims were all dismissed by Judge Wood – that dismissal, and his conclusion that the Nez Perce Reservation had been diminished, are on appeal to the Idaho Supreme Court.

LOID – stands for Lewiston Orchards Irrigation District which gets its irrigation water from Craig Mountain by way of Webb and Sweetwater Creeks.  The Tribe’s instream flow claims included claims for those creeks, and LOID filed objections to the Tribe’s claims.  The Bureau of Reclamation owns the LOID system and has filed water right claims with the Idaho Department of Water Resources for the LOID system.  Their water right claims will be reported to the SRBA court in the Fall of 2004, and the Tribe will have an opportunity to object to the LOID claims at that time.

Litigation.  After the Director of IDWR reports a claim to the SRBA Court, anyone else who has filed a claim in the SRBA may object to anything contained in the report by filing an “objection” with the SRBA Court.  If no one objects to a claim, a partial decree is granted subject to any general provisions that the Court may later order.  If any objections to a claim are filed, litigation – the legal process of proving the claim – begins

McCarran Amendment.   The McCarran Amendment, 45 U.S.C. § 666, is a law adopted by Congress in 1952 that allows state courts to determine federal water rights so long as all the water rights in a particular river basin are being considered.  The original law addressed only federal water rights, but the United States Supreme Court later said that the McCarran Amendment also applies to water rights held in trust by the United States on behalf of Indian tribes, as well as to water rights held by tribes themselves.

Mediation.   Mediation is a process for settling disputes by using someone not involved in the dispute (a neutral person) to assist in the settlement of the dispute.  Mediation can be voluntary (where the parties choose to have someone mediate their dispute) or involuntary (such as where a court orders the parties to mediate their dispute.  In the SRBA, the parties agreed to mediate and chose a mediator who was acceptable to everyone, and there is also a court order.  On December 30, 1998, the SRBA court ordered the parties to mediate the Tribe’s instream flow claims and appointed Professor McGovern, an internationally-recognized mediator and law professor chosen by the parties, as the mediator.  The mediation included all categories of the Tribe’s water rights claims, as well as other region-wide issues related to the Endangered Species Act and protection of habitat for various species of anadromous and resident fish.

On-reservation Claims.  The claims in this category are for a variety of purposes, including: domestic, commercial, municipal, and industrial (DCMI) uses; springs and ponds for livestock and wildlife; irrigation from surface water and from groundwater; water to develop wildlife habitat; recreation; and hydroelectric power production.  There are approximately 2,700 claims in this category.  Tribal members who have an interest in an allotment will receive a portion of the water the Tribe eventually receives for its on-reservation water claims. 

Practicably Irrigable Acreage (PIA).  This is the standard used in a 1963 United States Supreme Court decision for deciding the amount of water to which a tribe is entitled under the Winters Doctrine for consumptive uses.  Arizona v. California, 373 U.S. 546 (1963).  The PIA standard is based on the number of acres of trust land within the reservation, what kinds of crops can be grown on the reservation, and whether it is cost-effective to irrigate those crops.  Once the amount of water has been determined, however, tribes are not limited to using that water for agricultural purposes – they can change the purpose of the use and the place of the use within the reservation.

Snake River Basin Adjudication (SRBA).  The Idaho Legislature passed legislation in 1987 requiring a state district court in Twin Falls to determine all the water rights in the Snake River Basin whether based on state law or federal law.  The Tribe’s claims were developed over the next few years by a technical advisory team composed of experts retained by the Tribe and the United States, who worked closely with Tribal staff, along with a team of attorneys from the Office of Legal Counsel, the Native American Rights Fund (NARF), and the United States.  In March of 1993, the United States filed water rights claims in the SRBA on behalf of the Tribe as to the legal interest in those rights, and the Tribe filed identical claims on its own behalf as to the beneficial interest. The Tribe has three categories of claims in the SRBA: (1) instream flow claims to support fish habitat; (2) springs and fountains claims located in the 1863 ceded area; and (3) on-reservation claims for water for a variety of uses.

Springs and Fountains Claims.  These claims are based on Article 8 of the 1863 Treaty in which the United States expressly reserved springs and fountains in the 1863 ceded area (the area between the 1863 boundary and the 1855 boundary) for use as watering places in common with non-Indians. There are approximately 1,900 claims in this category which also have been consolidated into one subcase.

Stay.  To stay something means to stop it; when litigation is stayed, it means the court has postponed the litigation.  Courts usually enter stays when some other legal proceeding is pending, or there are settlement discussions such as mediation, that could affect the outcome of the proceeding, or even resolve the dispute, that is before the court.

Summary Judgment.  At the end of any litigation or law suit, the court enters an order called a judgment which contains the results of the litigation – who won, who lost, and what they get.  A summary judgment occurs during the litigation and may apply to only part of a claim or some of the issues – it is a procedure that is commonly used to limit the number of claims or issues that will eventually go to trial.  Sometimes a summary judgment actually resolves all of the issues, and no trial is necessary

Trust Land.  There are generally two kinds of trust land.  Land that was allotted to individual Indians and is held for them in trust by the United States is referred to as trust land.  The allottees have the right to use the land (which is called the beneficial interest in the land), but the land cannot be sold without the permission of the United States which holds the legal interest in the land.  Tribal land can also be held in trust by the United States.

Winters Doctrine.  The Winters Doctrine is named for a 1908 legal decision in which the United States Supreme Court concluded that, even though treaties do not expressly mention water rights, courts must recognize that rights to water were implied by treaties.  The Court also determined that treaties must be interpreted in the way the Indians understood them and that the tribes of the Fort Belknap Reservation would not have agreed to a land reservation without the water that would be necessary for them to survive there.  Winters v. United States, 207 U.S. 564 (1908). 

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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