NEZ PERCE TRIBE

DEPARTMENT OF NATURAL RESOURCES

P.O. BOX 365 Lapwai, ID 83540

Snake River Currents

June 2004 Volume 4 Issue 6

SRBA Key Facts

The Tribe has not settled its water claims yet. NPTEC has until March 31, 2005 to determine if the Tribe should settle its water claims as detailed in the term sheet.

The SRBA agreement would not change the Tribe’s treaty fishing, gathering, hunting or pasturing rights. 

The 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. 

The proposed agreement does not affect the right to access all usual and accustomed fishing places.

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 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. 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, 2005. 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 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. 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 in 1999).

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 development allowed.

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 dams.

Q. Dworshak Dam is on the Reservation. Why is the Tribe not getting more compensation for that in the proposed settlement?
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 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.

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 do so.

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 the NPTEC.

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.

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) 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) 843-7355 ext. 2381.

 

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