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Know the West

Water thieves or water saviors?


If you missed Paul VanDevelder’s essay “This house of thieves” in the March 1st HCN go to your recycling stash now, reclaim that issue – it’s the one with the machine gunner on the cover - and read the essay. Or you can read it online. In the article VanDevelder explores the settlement agreement that ended a decades-long federal lawsuit over unpaid royalties for mineral extraction on Indian reservations.

The case is known as Cobell after Eloise Cobell, the Blackfeet tribal member and community organizer who initiated it in 1994. Over the years, Cobell grew to become one of the largest and most complex class action lawsuits ever involving the claims of indigenous Americans against their “trustee” – the U.S. government.

After banging heads with the Bush-Cheney Administration for eight years, Eloise Cobell decided to settle the case soon after Barack Obama was elected. While he sympathizes with Cobell’s desire for an end to the long legal struggle, VanDevelder is clearly unhappy with the settlement which he says will deliver only “pennies on the dollar” - amounting to about $1,000 each -  to the case’s many plaintiffs. His view contrasts with that of most mainstream media outlets which heralded the settlement as historic justice for long-suffering Native Americans.

While Cobell has garnered the attention of mainstream media, a raft of settlements involving the water rights of Western tribes have also been negotiated and are making their way through Congress. Since the Native American Rights Fund and Western Governors Association convinced Congress back in the late 1980s to encourage and fund tribal water rights settlement efforts, dozens of settlement deals have been inked by tribes, states and non-Indian water users. Many have been blessed and funded by Congress and are beginning to be implemented. Other settlements are complete and wait only for federal legislation to finalize and implement the deals.

Water rights settlements since 1990 which are either completed, pending federal legislation or in process involve the Colorado Utes, Taos Pueblo, Crow, Blackfeet, Nez Perce, Gila River Indian Community, Zuni, Lummi Nation, Chippewa Creek of the Rocky Boy Reservation, Warm Springs Tribe, Tohono O’Odham, Navajo, Kickapoo, Mandan, Hidastsa and Acara Tribes (Fort Bertold Reservation), Yurok and Klamath Tribes.  These are the settlements I’ve been able to find in a quick search; it is not a complete list.

Negotiated settlement of tribal water rights claims makes sense in theory. Water rights cases are expensive, difficult and regularly take decades before final judgment is tendered. Furthermore most tribes do not posses the resources to develop the water once their right to the water is established. It has proven easier to settle with states and non-Native water users and thereby to secure Congressional funding to develop tribal water pursuant to a settlement agreement that is supported by non-tribal water users. In addition, the dominant view among tribal lawyers is that the federal courts have become much less friendly toward tribal water claims than they had been previously.

While every settlement is unique, the general pattern of these settlements is clear: Indian water rights are either reduced or subjected to forbearance in order to accommodate non-Indian water users who would likely lose water if the tribal rights were fully implemented. In exchange for giving up water, the tribes receive funding which is typically earmarked for development of water delivery systems or other water infrastructure. Financial support for tribal government departments and funding for aquatic restoration projects is often also included. Contributions to general tribal accounts have sometimes been included as well but at times Congress has resisted settlements that provide unrestricted funds to tribes.

Also typically included in water rights settlement agreements is a waiver which tribes grant to the federal government. Tribes have often had success in water right claims when they have persuaded the Department of Justice to pursue the claims on their behalf. This has often required filing lawsuits to compel the Department of Interior to fulfill its trust responsibilities. It is this right to sue and compel the federal government to litigate on behalf of tribal water rights that is typically waived going forward. This often amounts to a de facto tribal decision not to litigate water rights in the future since such litigation is typically beyond the means of most tribes.

To summarize, what we are seeing in the first decades of the 21st century is a concentrated state and federal government effort to settle outstanding tribal water claims in the American West. In essence these settlements trade water rights – or the right to use water rights – for money. And while government people at the state, federal and tribal levels universally praise the deals, Native Rights activists and a few academics have questioned whether these settlements are truly in the interest of the Native people whom tribal governments represent.

One of these academics is Daniel McCool, a political science professor at the University of Utah. McCool’s paper “Intergovernmental Conflict and Indian Water Rights: An Assessment of Negotiated Settlements” took an in-depth look at settlements completed or in process in 1993. It is worth quoting McCool’s conclusions at length:

Just a few years ago, negotiated settlements were seen as the wave of the future--a new era in Indian-Anglo relations that would heal centuries-old wounds and permit tribes and non-Indians to work together as neighbors. Now a more realistic attitude prevails. Some tribes have become disillusioned, realizing that negotiation means not only gaining something, but also giving up something. The chairwoman of the Ute Mountain Utes alluded to this recently: “We had language in the settlement that gave us what we wanted, but that got watered down because so many people wanted something.” Another Indian spokesperson made an even blunter statement: “If we want something done for our lands, we have come to the conclusion that we must do it ourselves.”

Despite the problems with implementation, funding cuts, and environmental conflicts, tribes will continue to be interested in negotiation because the courts are much less receptive to Indian water claims than they were in the past. . Today it is very risky to take a reserved water rights claim to court, either at the state level or to the U.S. Supreme Court. Indian attorney Jeanne Whiteing spelled out this stark reality: “While the results of settlements are not completely encouraging, the risks of litigation appear much more significant than they have in the past. In some cases, tribal decisions are being driven not by the fact that negotiations are so much better, but because the results of litigation are potentially so much worse.” Ultimately, the settlements are much more than just water settlements; they are, in a larger sense, sovereignty settlements because they decide issues of control and destiny. They involve water marketing, land acquisition and use, administrative control, and culturally sensitive water uses. And in nearly every settlement, the tribes must relinquish their right to future claims to reserved water rights--forever. Thus, the settlement era is, in effect, a second treaty-making era. The first treaty-making era was concerned with land; this one involves water. If reservations are going to serve as viable homelands, they must have both.

Professor McCloud subsequently published a book on the subject in 2002 titled  Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era. An excerpt can be read on line.

When it comes to tribal water settlements the devil is clearly in the details and it is on those specifics that each individual settlement must be judged. I cannot help but wonder, however, whether historians will look back at the last two decades of the 20th century and the first two decades of the 21st Century and conclude that this was a time of great loss for the Native peoples of the American West.

Water is without question the West’s preeminent scarce resource and therefore destined to become more valuable over time. Any agreement which gives up rights to water for a few million or even a few billion dollars may be judged by history to be foolish if not criminal. The leaders and lawyers who promoted and negotiated such agreements could then be seen as thieves. But for those living on Western reservations who will no longer need to haul water, those same leaders and lawyers may be considered saviors.