Utah and the Ute Tribe are at war
by Daniel Mccool
It all began with Abraham Lincoln and a promise. In the midst of history's greatest test of presidential mettle, Lincoln took time in 1861 to establish the Uintah Valley Reservation for the Ute Indians in Utah.
Before he wrote the order, however, the federal government asked Mormon leader Brigham Young if the Uintah Valley was appropriate for a reservation. Young reported that the land was so utterly useless that its only purpose was to hold the other parts of the world together. In other words, it was perfect for an Indian reservation.
Congress then passed a law that declared the new reservation was "for the permanent settlement and exclusive occupation" of the Ute Indians. In 1882 Congress authorized an addition, which created a homeland for the Utes of over 4 million acres. Finally, the Utes in Utah had a refuge from Anglo settlers.
Or so it seemed. Today the Uintah and Ouray Indian Reservation is one-fourth its original size. In a series of unilateral land takings by the U.S. Congress, the reservation was gradually reduced piece by piece in the early part of this century. Beginning at the turn of the century, parts of the reservation were allotted - carved into individual chunks of land - and much of the remaining land was sold as "surplus," including the best agricultural lands along the Duchesne River. Then the far western portion of the reservation was taken to build Strawberry Reservoir. At about the same time, the northern tier of the reservation was taken to create a national forest; today these former Ute forest lands comprise most of the High Uintas Wilderness Area.
Today, we are still breaking promises to the Utes. In 1965 the federal government and the Central Utah Water Conservancy District signed an agreement with the tribe. It said the Central Utah Project would proceed, using water from the reservation; in return, the tribe would receive a project for the reservation. The CUP went forward, but the Ute Indian project was never built (HCN, 3/30/87; 7/15/91). It took the government nearly 30 years to admit it had defrauded the Ute Tribe.
In recent years, the federal government has tried to resolve conflicts through consensual negotiations, rather than by imposing unilateral decisions. This has resulted in a dozen Indian water settlements and several land settlements.
In the 1980s, the state of Utah, federal representatives and the Central Utah Water Conservancy District began negotiations with the Northern Ute Tribe to settle outstanding water claims and compensate the tribe for the government's failure to live up to the 1965 water agreement. The negotiations bore fruit with the passage by Congress of the CUP Completion Act in 1992. It provided for completion of the giant water project and included a settlement of Ute water claims.
But the Ute settlement must be approved by both the state legislature and a tribal referendum, and thus far the tribe has not scheduled a vote on the proposed water compact. The vote hasn't been scheduled because of the distrust created by the broken agreements of the past. At a meeting called to explain the compact, an elderly Ute woman told the tribe's attorneys:
"You're like a rattlesnake on a hot rock. You've got the forked tongue."
Given the history of their reservation, it is understandable why some of them feel this way. But the Utes need not recall their past to be suspicious of Utah.
While negotiators were working on the water settlement, Utah was attempting to gain jurisdiction over 2.9 million acres of land within the exterior boundaries of the reservation. In 1985, in a case titled Ute Indian Tribe vs. State of Utah, a federal court ruled that the tribe had jurisdiction over all lands within the exterior boundaries of the reservation. These were the lands the tribe once owned but had lost in the late 19th and 20th centuries.
The state refused to accept that verdict, and challenged the case in 1989, when Robert Hagen, an Indian (but not a Ute), was arrested by Anglo police. Hagen's arrest occurred in a town that is outside the current boundaries of the reservation, but within the exterior boundaries of the original Ute reservation. Hagen's attorney argued that the state had no jurisdiction over Indians anywhere within these exterior boundaries.
The Supreme Court of Utah rejected Hagen's argument, and held that the opening of the reservation - when white settlers were invited to buy lands on the reservation - meant that all such lands had been returned to the public domain and were no longer part of Indian country. Therefore, Utah had legal jurisdiction over the opened land within the boundaries of the original reservation. In February of this year, the U.S. Supreme Court upheld that opinion, handing the Ute tribe a devastating defeat.
The loss of the case and the conflict over the water compact have created great tension between the tribe, the state, and especially the Anglo residents of the Uintah Basin, who comprise 85 percent of the area's population.
In public meetings right after the Supreme Court decision, threats and counter-threats were exchanged. Some Anglos argued that the tribe should be disestablished; some Utes threatened to boycott Anglo businesses in Roosevelt, an Anglo enclave in the middle of the reservation. The tribal headquarters received a bomb threat. According to Ron Wopsock, a member of the tribal council, some Utes considered pulling their children out of local schools.
Many of the concerns voiced by Anglos living in the Uintah Basin are legitimate; they outnumber the Indians eight to one - a factor cited by the U.S. Supreme Court. And non-Indians resented being taxed and regulated by a government that did not permit them to vote. Brad Hancock, city manager of Roosevelt, says the Hagen decision is the first step toward solving these problems: "We can now clarify our jurisdictional boundaries. Then, the healing process can begin and a peaceful coexistence can happen."
But to the Utes, the case is just one more betrayal. Luke Duncan of the tribal council says, "We feel like we just can't trust white people. The jurisdiction case is far from over; it's going to affect everything we do for a long time."
Duncan and other tribal members believe that the tribe will find new ways to regain control of its destiny. There is talk of new taxes on non-Indians, and the tribe refuses to recognize county rights-of-way. But its most far-reaching muscle-flexing concerns water.
The builders of the CUP have known for years that the project could not proceed without settlement of Ute claims to reserved water rights. That is why the 1965 water agreement and the 1992 water settlement were negotiated. But many tribal members, bitter over the jurisdiction case, are concerned about language in the compact that gives the state greater control over their water. Luke Duncan and Curtis Cesspooch, tribal chairman and vice-chairman when the compact was negotiated, initially supported it. Now they are opposed. "After losing so much land in the jurisdiction case, it is tough to give up any rights to water," says Cesspooch.
Jonas Grant, tribal director of natural resources, is also bitter: "The people feel a lack of trust about the state; they keep trying to control what we have."
Because there is no compact, the massive project is left without a clear title to the water it is diverting from the reservation. Just when it appeared that the CUP was finally going to be completed, the tribe may be in a position to bring parts of it to a halt.
The tribe is lashing out at the CUP and Anglo water users in a number of ways. Last January the tribal council presented a bill to the Central Utah Water Conservancy District for $33 million for the "unauthorized diversion" of tribal water "pending resolution of the tribe's water rights claims." Until the water compact is ratified, the tribe can make a convincing argument that the Conservancy District does not have a contract for the water it is diverting from the reservation.
The tribe is also challenging the state by trying to lease water to the lower basin of the Colorado River. In January, tribal representatives met with Las Vegas water officials to discuss a water lease. At a recent meeting with the governor, the tribal council stated that out-of-state water marketing was a high priority.
Some of the Anglos in the basin believe the Utes are spoiling their chances for more federal water development funding under the CUP Completion Act. In a recent scoping report, the written comments reflected this sentiment. One local Anglo wrote that a dam in their area "was promised and we feel the government should live up to their end of the bargain. Don't let the environmentalists and Indians beat us out of this." Another concerned local wrote: "My biggest concern is being able to work together with the Indians. If we can't, we're wasting our time."
Overall, the long history of broken promises is making it nearly impossible to develop a viable water policy in the Uintah Basin. Water has become a weapon, and use of the weapon could spread. Other tribes and states are carefully monitoring developments in Utah.
Tribal council member Ron Wopsock talked about the damage done: "History tells us we can't trust white people. The trust just isn't there, and probably never will be."
As a result of the loss of trust, we in Utah may build a $3 billion water project but not have a right to the water in it.
Daniel McCool is an associate professor of political science at the University of Utah.
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