Whiteing, Jeanne S.

English

Colorado Law

University of Colorado Law School Colorado Law Scholarly Commons Dams: Water and Power in the New West (Summer Conference, June 2-4) 1997 6-2-1997 New Demands for Tribal Rights to Federal Water and Power Jeanne S. Whiteing Follow this and additional works at: https://scholar.law.colorado.edu/dams-water-and-power-in-new-west  Part of the Energy and Utilities Law Commons, Energy Policy Commons, Environmental Indicators and Impact Assessment Commons, Environmental Policy Commons, Hydraulic Engineering Commons, Hydrology Commons, Land Use Law Commons, Natural Resources Law Commons, Natural Resources Management and Policy Commons, Public Policy Commons, State and Local Government Law Commons, Water Law Commons, and the Water Resource Management Commons Citation Information Whiteing, Jeanne S., "New Demands for Tribal Rights to Federal Water and Power" (1997). Dams: Water and Power in the New West (Summer Conference, June 2-4). https://scholar.law.colorado.edu/dams-water-and-power-in-new-west/5 Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.     Jeanne S. Whiteing, New Demands for Tribal Rights to Federal Water and Power, in DAMS: WATER AND POWER IN THE NEW WEST (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law, 1997).  Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.  NEW DEMANDS FOR TRIBAL RIGHTS TOFEDERAL WATER AND POWERJeanne S. WhiteingWhiteing & Smith1136 Pearl Street, Suite 203Boulder, Colorado 80302(303) 444-2549DAMS: WATER AND POWER IN THE WESTJune 2-4, 1997Natural Resources Law CenterUniversity of ColoradoSchool of LawBoulder, Colorado 80309C)C)C)C.2NEW DEMANDS FOR TRIBAL RIGHTS TOFEDERAL WATER AND POWERby Jeanne S. WhiteingI.	 IntroductionUnder the Winters Doctrine, Indian Tribes possesssignificant rights and claims to water resources in the West,often with the earliest priority date on the stream system.Winters v. United States, 207 U.S. 564 (1908). Until fairlyrecently, however, tribal claims to water remainedunquantified for the most part and therefore undeveloped.Between the 1908 Winters decision, and the 1963 decision inArizona v. California, 373 U.S. 546, few decisions addressedIndian water rights, and even less attention was paid toIndian water rights in the development of the West.Even before the formal articulation of the WintersDoctrine in 1908, it was the intent of Congress to encourageand subsidize the development of irrigated agriculture andother water development outside of Indian reservationsbeginning with the passage of the Desert Land Act in 1877 andthe Reclamation Act of 1902. Much of the West was developedunder these fostering and encouraging federal policies, andwith the help of substantial federal subsidies. Other federalpolicies such as that embodied in the 1920 Federal Power Actand in various authorities prior to that, encouraged thedevelopment of water resources for power purposes. For themost part, this development was pursued without regard for, orconsideration of, Indian water rights and other Indian rights.With the encouragement, or at least thecooperation, of the Secretary of the Interior-- the very office entrusted with protectionof all Indian rights -- many large irrigationprojects were constructed on streams thatflowed through Or bordered IndianReservations, sometimes above and more oftenbelow the Reservations. With few exceptionsthe projects were planned and built by theFederal government without any attempt todefine, let alone protect, prior rights thatIndian tribes might have had in the watersused for the projects ... In the history ofthe United States Government's treatment ofIndian tribes, its failure to protect Indianwater rights for use of the Reservation it setaside for them is one of the sorrier chapters.• • •United States National Water Comm'n, Water Policies for theFuture -- Final Report to the President and to the Congress ofthe United States, 474-75 (1973).Only in the last two decades has there been a concertedpush to quantify Indian rights through litigation and/orsettlement. Therefore, only recently has there been enoughcertainty about tribal water rights for tribes to consider anysignificant development. In any case, tribes have lacked the 	 7-)capacity without subsidies similar to those provided to non-Indians, to develop their water resources. This has changedonly with the advent of Congressionally approved water rightssettlements that have provided both encouragement and fundsfor tribal water development.Just as tribes are finally in a position to give seriousconsideration to the development of tribal water resources,however, changes in federal policies, driven in part by the"changing western landscape," as well as changes in thepolitical climate, may make such development of tribal waterresources difficult, if not impossible. Concerns for theenvironment and the ecosystem, and "new" values relating todevelopment in general, as well as federal budgetaryconstraints, have drastically altered the atmosphere and thepotential for tribal development.fl At the same time that tribal water development has cometo the fore, the clash of non-Indian development and tribalrights, in particular tribal fishing rights, is being playedout as part of the "changing western landscape." For example,the Elwha River Ecosystem and Fisheries Restoration Act,Public Law 102-495 (1992), authorizes the Secretary of theInterior to acquire and remove the Elwha and dines CanyonProjects on the Elwha River for the full restoration of theElwha River ecosystem and native anadromous fisheries. TheAct implements a settlement negotiated between the dam owners,resource agencies, local governments, environmental groups,and the Lower Elwha Klallam Tribe, who have treaty fishingrights that have been impacted by the dams.On the Missouri River, the Mni Sose Intertribal WaterRights Coalition, a coalition of 26 tribes in the MissouriRiver Basin, maintain that the policies of the federalgovernment that led to the construction of the massive dams onthe upper Missouri River for flood control purposes,intentionally suppressed development of Indian water rights bycommitting the water to other uses, and that these samepolicies have intentionally destroyed the culture and economyof the Indian people, including tribal subsistence economies,lifeways and sacred areas. Five of the Missouri Rivermainstem dams in North and South Dakota destroyed more than550 square miles of Indian land and displaced more than 99reservation families. The Fort Peck Dam in Montana displaced350 families on the Fort Peck Reservation. Now the tribes areseeking to ensure that tribal rights, including the protectionof sacred sites, cultural objects and the remains ofancestors, are considered in the operation of the projects.The tribes also seek to obtain some benefit from the projects,and have successfully obtained allocations of power from theprojects to benefit tribal members beginning in the year 2001.Indian tribes seek to address a variety of interests andissues involving dams "in the New West": 1) they seek todevelop tribal water resources in light of the establishmentof their rights to specific quantities of water throughlitigation and negotiation; 2) they seek to restrict or limitthe impact of existing projects on other rights such asfishing rights and cultural rights; and 3) they seek to obtainbenefits from existing projects that have significantlyimpacted Indian reservations and reservation life, includingenforcement of long ago promises of the federal government.II. Development of Tribal Water ResourcesA. Quantification of Indian Water Rights Through Litigation1. The first major quantification of Indian waterrights occurred in Arizona v. California, 373 U.S. 546(1963). Over the next two decades general streamadjudications were initiated in nearly every state in theWest under the 1952 McCarran Amendment, 66 Stat. 560, 43U.S.C. S 666. The primary litigation during this periodwas over the appropriate forum -- state or federal -- toadjudicate Indian water rights. See Colorado River WaterConservation District v. United States, 424 U.S. 800(1976); Arizona v. San Carlos Apache Tribe, 464 U.S. 545(1983). Since that time, only one major adjudication hasbeen completed. In re Rights to Use Water in the BigHorn River System, 753 P.2d 76, affirmed sub. nom.Wyoming v. United States, 492 U.S. 406 (1989).2. Although the two tribal parties in the Big Horncase, the Arapaho and Shoshone Tribes, were awardedapproximately 500,000 acre feet of water in thelitigation, they have no recognized storage rights, andhave not been able to coordinate releases from upstreamreservoirs to achieve adequate flows for fisherypurposes.B. Quantification of Indian Water Rights Through Settlements1. Since 1983, there have been approximately fourteennegotiated settlements of Indian water rights. A list ofthese settlements is attached.2. Most of these settlements contain provisionsconcerning storage rights in existing projects, theconstruction of new projects or a change in operation ofexisting projects to benefit the tribal rights. Forexample:a. Fort Hall Indian Water Rights Settlement, P.L.101-602 (1990), provides that in times ofshortage, the Tribes will augment their flowswith federal storage rights. Storage space ismade available in the existing federalBlackfoot Reservoir, Grays Lake, and otherreservoirs on the Snake River system. Otherstorage rights are also made available.b. Northern Cheyenne Indian Reserved Water RightsSettlement, P.L. 102-374 (1992), provides thatin addition to surface flow rights, the Tribewill receive 20,000 acre-feet of water from anenlarged and repaired Tongue River Reservoir,a dam owned by the State of Montana. TheTribe also received an allocation of 30,000acre feet of water from the Yellowtail Dam.c. Colorado Ute Indian Water Rights Settlement,(Th	P.L. 100-585 (1988), provides for theconstruction of the Animas-La Plata Project	rThand completion of certain facilities on theDolores Project. The Animas-La Plata Projectwould provide additional storage and watersupply for future needs of the Tribes.d. Pyramid Lake Water Rights Settlement, P.L.101-618 (1990), provides for a change in theoperating criteria of the Newlands Project toprovide for reservoir releases for fisherypurposes and other purposes.e. Ute Indian Water Rights Settlement (Uintah andOuray Reservation), P.L. 102-575 (1992),provides funds for reservoir repair and clean-up of storage facilities associated with theexisting Indian Irrigation Project. Inaddition, in return for the Tribe's pastcontribution of water to the Bonneville Unitof the CUP, the 1992 Settlement Act requiresthe United States to pay the Tribe 26 percentof the annual Bonneville M&I capital repaymentobligation of 50 years which is attributableto 35,500 af annually of tribal water thatshould have been supplied to the Tribe fromthe CUP. The settlement also allows the Tribeto utilize the "unused capacity" of existingdiversion facilities to transport Tribal waterfrom the Uintah Basin to the Bonneville Unit.f. Many of the Indian water rights settlements inArizona, of which there are five, include as apart of the settlements, water from theCentral Arizona Project, in some cases throughcomplicated transfers or exchanges. Certainof these settlements also provide for newstorage arrangements for tribal water. In1983, the Secretary of the Interiorspecifically allocated a block of CAP waterfor settlement of Indian water rights.3. The majority of Indian water rights settlementsalso include the ability to market water withvarying restrictions. In many cases, the abilityto take advantage of these provisions depends onaccess to storage. Water marketing requires astable water supply and ability to release waterwhen needed by the lessee.C. Federal funding for Indian irrigation projects is almostnon-existent, and the Bureau of Indian Affairs has pushedtribes to contract these projects through the IndianSelf-Determination and Education Assistance Act, P.L. 93-638 (1975), 25 U.S.C. S 450 et seq. As tribes contractthese projects, they take on the responsibility of thestorage facilities that are a part of these projects.D. As tribes develop the necessary infrastructure andfinancing for economic development projects,hydroelectric generation is being considered by a numberof tribes.III. Impacts From Existing ProjectsA. All over the West, Indian reservations, like othercommunities, have been impacted by the construction ofdams. Changes in the operating criteria of these damsor, in the case of the Lower Elwha Klallam Tribe,complete removal of a dam, are being sought by tribes.7B. Changes or modification of operating criteria have beensignificant components of negotiated Indian water rightssettlements. Such changes benefit tribal fisheries,cultural interests and other significant tribalinterests.1. The Mni Sose Coalition Tribes have sought to changethe operating criteria of the mainstem MissouriRiver dams which is set forth in the Master ControlManual of the Army Corps of Engineers. The primarypurpose of the effort is to get the Army Corps ofEngineers to recognize the existence and scope ofIndian water rights in its operation of themainstem dams. There are 28 tribes in the MissouriRiver Basin, each of which has reserved waterrights. Some of these water rights are quantified,and some are not.2. The Ten Tribes Partnership which is made up ofTribes with decreed rights to the Colorado River ortributaries are similarly monitoring thedevelopment of regulations by the Bureau ofReclamation for the operation of the ColoradoRiver. The most closely watched provisions relateto the conditions for water marketing on the River.The Ten Tribes also have significant interests in,and concerns about, changes in the operation of theRiver for purposes of endangered fish and otherendangered species, and what impacts such changesmay have on existing water rights.C. Many dams licensed by FERC particularly in the Northwestare located on or near Indian reservations. As part ofthe relicensing of existing facilities by FERC, tribes8will have a significant role in the development ofconditions of licenses if the dam is located on federalland. 16 U.S.C. S 797 (e). In all cases, affectedtribes are required to be consulted. 18 C.F.R. S 4.38(a) (2) and S16.8 (a) (2).D The subject of the impacts of federal dams on fisheriesin the Snake River is the subject of another presentationat this conference by Don B. Miller from the NativeAmerican Rights Fund.IV. Tribal Demands for PowerA. Much of the tribal land taken for construction of damsand reservoirs on the Missouri River were taken with thepledge that the Tribes would gain access to low-costhydroelectric power and irrigation projects. The Tribeshave successfully negotiated an allocation of directpower from the Western Area Power Administration, themarketing agency for Missouri River Basin power. Thisallocation was made pursuant to the Energy Policy Act of1992. Tribes are considered preference customers for thepower under section 9 (c) of the Reclamation Project Actof 1939. Contracts are for 20 year periods beginning2001. The power allocated is for individual tribalconsumers.B. As part of water settlements, many tribes have sought aportion of the power revenues from the generation ofpower associates with water projects located on Indianreservations or that impact tribal water rights. Todate, I am unaware of any settlements that have includedsuch provisions.9V. ConclusionDams in the West are inextricably related to Indian waterrights and other tribal rights. On one hand, tribes look tosuch projects to protect tribal rights. On the other hand,such projects are seen as destroying tribal rights. Bothviews are probably correct. Indian tribes, like othercommunities, have varied issues and concerns that willcontinue to play out against the changing policies relating todams in the West.10Indian Water Settlement LegislationTribe1. .kk-Chin Indian Community of Arizona2. Tohor.o O'odham Nation of Arizona3. Assiniboine & Sioux Tribes of the Ft.Peck Reservation in Montana4. Salt River Pima-Maricopa IndianCommunity of Arizona5. Southern the & the Mountain Tribesof Colorado6. La Jolla, Rincon. San Pasqua!. Pauma& Pala Bands of Mission Indians ofCalifornia7. Pyramid Lake Paiute and Fallon PaiuteShoshone Tribes of Nevada8. Shoshone-Bannock Tribes of the FortHail Reservation in Idaho9. Fort McDowell Indian Community ofArizona10. Jicariila Apache Tribe of New Mexico11. Northern Cheyenne Tribe of Montana12. San Carlos Apache Tribe of Arizona13. Lite Tribe of the Uintah and OurayReservation in UtahPublic Law Number and Statutes atLarge CiteP.L. No. 95-328 92 Star. 409 (1978;amended by P.L. No. 98-530. 98 Stat.2698 (1984)P.L. No. 97-293. 96 Stat. 1261 (1982)Senate Bill No. 467, Chapter 735, Laws ofMontana 1985Pi. No. 100-512, 102 Stat. 2549 (1988)P.L. No. 100-585, 102 Stat. 2973 (1988)P.L. No. 100-675, 102 Stat. 4000 (1988)P.L. No. 101-618. 104 Stat. 3284 (1990)P.L. No. 101-62. 104 Scat. 3059 (1990)Pt. No. 101-628, 104 Star. 4469 (1990) -P.L. No. 102-441, 106 Star. 2237 (Oct.23, 1992)P.L. No. 102-374, 106 Star. 1186 (Sept30. 1992)Title LTharciTE of P.L. No. 102-575, 106Stat. 4600 (Oct 30, 1992)Title V of P.L. No. 102-575, 106 Stat.4600 (Oct. 30, 1992)C\1C-

New Demands for Tribal Rights to Federal Water and Power

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New Demands for Tribal Rights to Federal Water and Power

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