Snake River Currents

Volume 1, Issue 8

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Current Events—Mediation

Things have been very quiet in the SRBA mediation. Basically all parties are waiting to get meetings set up with the new Department of Interior officials.

Federal Role in the Negotiations

With the change in administration, there is great interest in the approach the new federal team will take in the negotiations. The federal team is important because the federal government filed water rights claims in the SRBA on behalf of the Nez Perce Tribe, and so can be a strong advocate for the Tribe.

The lead responsibility for negotiating Indian water claims typically rests with the Department of the Interior. The other bureaus on the negotiating team are the Bureau of Indian Affairs, Bureau of Reclamation, the Fish and Wildlife Service and the Bureau of Land Management. Each of these bureaus has a representative on the federal team in the SRBA.

The Secretary of the Interior has legal obligations to protect Indian rights to water, to fulfill existing water contracts and to protect certain fish and wildlife resources. Disagreements can occur among the various Department of Interior bureaus because the enhancement of one activity may come at the expense of another.

The BIA is the trustee of the Tribe’s rights and has an obligation to protect and defend those rights. The federal team attempts to fulfill the BIA mission to the Nez Perce Tribe and also maintain a single voice to represent the other parts of the federal government.

Although the National Marine Fisheries Service (NMFS) is not part of the SRBA federal negotiating team, they have been involved in the negotiation process. They are concerned with water in the Snake River Basin because they are the agency that has jurisdiction over marine species listed under the Endangered Species Act including

anadromous species, such as steelhead and chinook, that spend part of their life cycle in the basin and part in the ocean. NMFS and the Tribe share the desire to obtain instream flows sufficient to support both anadromous and resident fish.

Other federal agencies are also involved in Indian water claim negotiations and settlements. These include the Army Corps of Engineers and the Forest Service.

Members of the Federal Team

Mike Connor—interim chair, Secretary of Interior’s Water Rights Office

Duane Mecham—Solicitor’s office

Peter Monson—Department of Justice

Jim LeBret—Bureau of Indian Affairs

John Peterson—Bureau of Reclamation

Chuck Lobdell—Fish and Wildlife Service

This list may change with the new administration.

Irrigation and Indian Water Rights

As we wrote in an earlier issue, the legal basis for Indian reserved water rights rests on the 1908 U.S. Supreme Court decision known as the Winters decision. In Winters, the Court held that when reservations were established, Indian tribes implicitly reserved, along with the land, sufficient water to fulfill the purpose of the reservation. This is known as the Winters Doctrine. While clearly recognizing the right of Indian tribes to reserved waters, however, the Winters decision did not specify a method for quantifying Indian water rights.

In its 1963 decision Arizona v. California, the U.S. Supreme Court reaffirmed the Winters doctrine and established the “practicably irrigable acreage” (PIA) as a standard for quantifying reserved water rights on a reservation. Under the PIA standard, tribes are legally entitled to the amount of water needed to irrigate all practicably irrigable acreage within their reservation boundaries.

A typical PIA analysis can involve an assessment of the water supplies of the reservation; identification of all arable lands on the reservation (land that is amenable to sustained agricultural use); an assessment of the amount of arable land that is irrigable; development of cropping patterns for the irrigable land; calculation of the amount of water needed to support the crops; design of irrigation systems to deliver the needed water; and economic analysis to determine the total acreage that is economical to irrigate.

Although advocated by the courts, the PIA standard is frequently criticized. The standard forces tribes to devote enormous resources to analyze new irrigation development. Soils and engineering experts must be hired to determine the amount of irrigable land on the reservation and calculate the amount of water necessary to irrigate crops.  This may leave limited resources to assess the many other potential water uses.

Another disadvantage of the PIA approach is that many tribes are seeking ways to create skilled jobs on reservations, and modern irrigated agriculture creates relatively few skilled jobs. In addition, where agriculture can be successful without irrigation, a strict PIA analysis can unreasonably limit a tribe’s Converting lands to irrigated agriculture may disrupt wildlife habitat, archaeological sites, air and water quality and other reservation resources. The reliance on PIA also detracts from exploration of water use alternatives that may yield higher economic returns, provide better employment opportunities, and are more compatible with tribal values and protection of the reservation environment

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Water Rights Claims and Priority Dates

A key attribute of a state law water right in Idaho and most of the western U.S. is the priority date. The priority date determines the order in which water rights will be fulfilled – “first in time is first in right.” The priority date for a state law water right is the date when a source of water was first diverted and put to a beneficial use.

Indian claims to water are federal reserved water rights. The priority date for an Indian federal reserved water right is the date when a particular reservation was established or the date when a use began if it began before the reservation was established. Unlike state law water rights, no diversion is necessary to establish a priority date for a federal reserved water right.

The Nez Perce Treaties of 1855 and 1863 establish both the legal basis and priority dates for all NPT water claims.

On-reservation Claims – the 1855 Treaty established a permanent Nez Perce homeland and reserved for use by the Nez Perce enough water to fulfill the purposes of the reservation. Therefore all on-reservation claims have a priority date of 1855.

Instream Flow Claims – the 1855 Treaty also reserved the Tribe’s fishing rights throughout the ceded area at all usual and accustomed places. This treaty provision reserves a tribal right to conduct activities that have occurred for thousands of years in Nez Perce history. The priority date for instream flow claims is therefore time immemorial.

Springs and Fountains – the 1863 Treaty reserves access to and the right to use all springs and fountains located in the 1863 ceded area. All claims to these springs and fountains therefore have a priority date of 1863.

Because the Nez Perce Reservation was established prior to extensive non-Indian settlement, NPT claims have an earlier priority date than nearly all water rights acquired under state law.

History of the Nez Perce Treaties

We’ve written about the Treaties of 1855 and 1863 and their importance to the Nez Perce water rights claims. We thought that some background information on how the treaties came about and subsequent relevant court decisions would be useful.

The sovereign status of Indian tribes was recognized by the United State and even earlier by foreign governments that entered into treaties with tribes. Treaties, by definition, are agreements between sovereign governments. An 1876 court decision, U.S. v. 43 Gallons of Whiskey, stated that Indian treaties are accorded the same dignity as that given to treaties with foreign nations. At least, that was the official stance.

In 1853, Isaac Stevens was appointed governor of the Washington Territory, parts of which are now the states of Idaho, Oregon, and Washington. Although Stevens did not dislike the Indians, he believed that the highest priority was for white people to settle the region, and so obtaining Indian land was essential. He realized that the northwest Indian tribes would never cede any of their land to the United States unless they were able to keep their fishing rights, and so he conceded this right. Without it he knew there would be no treaties.

At that time the rivers were completely intact, and so were the great salmon runs. William Clark had written in his journal that the river “was crowded with salmon.” No one foresaw the devastation the salmon runs would suffer, certainly not Isaac Stevens.

The 1855 Treaty with the Nez Perce Tribe guaranteed the Tribe, in addition to exclusive right to take fish on the reservation, “the right to take fish at all usual and accustomed places in common with citizens of the Territory; and of erecting temporary buildings for curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.”

In addition to the rights expressly reserved by this treaty, established case law recognizes that the Tribe reserved whatever tribal rights existed at the time that were not conveyed away. The U.S. Supreme Court had ruled in the case U.S. v. Winans (1905) that “the treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted.”

to be continued ...

Reminder: SRBA Court Proceedings Grangeville, April 10, 2001 Idaho County Courthouse Lewiston, October 16, 2001 Nez Perce County Courthouse 10:00 a.m. IDWR information meeting; 1:30 p.m. status conference