Hedden-Nicely, Dylan R.

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University of Idaho College of Law

UIdaho LawDigital Commons @ UIdaho LawArticles Faculty Works10-2014Coeur d'Alene Tribe's Enduring Relation to Water --A Legal HistoryDylan R. Hedden-NicelyUniversity of Idaho, College of Law, dhedden@uidaho.eduFollow this and additional works at: https://digitalcommons.law.uidaho.edu/faculty_scholarshipPart of the Indian and Aboriginal Law Commons, and the Water Law CommonsThis Article is brought to you for free and open access by the Faculty Works at Digital Commons @ UIdaho Law. It has been accepted for inclusion inArticles by an authorized administrator of Digital Commons @ UIdaho Law. For more information, please contact annablaine@uidaho.edu.Recommended Citation57(10) Advocate 54 (2014)The Coeur d'Alene Tribe's Enduring Relation to Water - A Legal HistoryDylan R. Hedden-Nicely"Water is the life of all of us.'T he Coeur d'Alene Tribe isinextricably linked to thewater flowing throughthe Coeur d'Alene IndianReservation. Document-ed and oral history demonstrate adeep connection between the Tribeand the water in the Coeur d'Alene-Spokane River Basin. Much of thathistory, in particular the history lead-ing up to and during the ReservationEra, has been recounted by the IdahoFederal District Court2 as well as theUnited States Supreme Court inIdaho v. United States. 3 The purposeof this article is to briefly highlightrelevant history to provide contextto the claims made on behalf of theTribe in the Coeur d'Alene-SpokaneRiver Basin Adjudication.4The Coeur d'Alene Tribe origi-nally inhabited an area of more than3.5 million acres, which included theentire Coeur d'Alene-Spokane RiverBasin within Idaho. I "[T]he Lakeand rivers provided resources thatwere essential to the Coeur d'Alenes'survival' 6 More specifically,"[tiribalmembers traditionally used the lakeand its related waterways for food,fiber, transportation, recreation, andcultural activities "7 Just as impor-tant, "[t]he Tribe's spiritual, religiousand social life centered around theLake and rivers "8  Tribal members"depended on watercourses in theirmanner of self-identification, lan-guage and religious practices "9 Ac-cordingly, "[a] right to control thelakebed and adjacent waters was tra-ditionally important to the Tribe... "'0The Tribe's efforts duringthe reservation eraThe Reservation Era began inCoeur d'Alene Country in 1867"A purpose of the 1873 agreement was to provide the Tribewith a reservation that granted tribal membersexclusive use of the water resource. 16- United States and Coeur d'Alene Tribe v. Idahowhen President Johnson set aside areservation for the Tribe without itsknowledge. The Tribe rejected thatreservation because of its "failure tomake adequate provision for fishingand other uses of important water-ways: 1' The Tribe sent a petition tothe U.S. government in which it "in-sisted" on a different reservation thatincluded key river valleys. 2In 1873, the United States andthe Tribe agreed on a reservationthat included the Hangman Valley,portions of the Coeur d'Alene andSt. Joe Rivers, and all but a smallsliver of Lake Coeur d'Alene. 3 Ar-ticle One of the 1873 Agreementguaranteed that "the water runninginto said reservation shall not beturned from their natural channelwhere they enter said reservation"' 4One U.S. negotiator noted that"[wlefound that the Indians demanded anextension of their reservation so asto include the Catholic Mission andfishing and mill privileges on theSpokane River s15 In other words, "apurpose of the 1873 agreement wasto provide the Tribe with a reserva-tion that granted tribal members ex-clusive use of the water resource."The 1873 Agreement was notratified by Congress. However,President Grant issued an ExecutiveOrder, with "[a]n object of the 1873Executive Order [being], in part, tocreate a reservation for the Coeurd'Alenes that mirrored the terms ofthe 1873 agreement' 17As of 1885, "Congress had nei-ther ratified the 1873 agreement norcompensated the Tribe" for cedingits aboriginal territory. 18 The Tribeonce again petitioned for an agree-ment, and renewed negotiationscommenced in 1887. The partiesreached an agreement, which reaf-firmed the 1873 reservation bound-aries and the cession of territory out-side that reservation. Article five ofthe 1887 Agreement states:[i]n consideration of theforegoing cession ... the Coeurd'Alene Reservation shall beheld forever as Indian land andas homes for the Coeur d'AleneIndians ... no part of said reser-vation shall ever be sold, occu-pied, open to white settlement,or otherwise disposed of with-out the consent of the Indiansresiding on said reservation." 9Rather than immediately ratifythe 1887 Agreement, the Senate di-rected the Secretary of Interior "toinform the Senate as to the presentarea and boundaries of the Coeurd'Alene Indian Reservation ... [and]whether such area includes any por-tion .. .of the navigable waters of54 The Advocate . October 2014Lake Coeur d'Alene, and of Coeurd'Alene and St. Joseph Rivers ... 2The Commissioner of Indian Affairs,responding for the Secretary, statedthat "the [1873] reservation appearsto embrace [almost] all the navigablewaters of Lake Coeur d'Alene," andthat "[t]he St.Joseph River also flowsthrough the reservation." 21  In re-sponse, Congress directed the Secre-tary of the Interior to negotiate "forthe purchase and release ... of suchportions of its reservation ... as suchtribe shall consent to sell "'2In 1889, the Tribe and the UnitedStates negotiated for the reductionof the 1873 Reservation. While mostterms were reached, including thecession of the northern third of theReservation's uplands, there was nev-er agreement regarding price or theacreage to be sold. Nonetheless, the1887 Agreement and 1889 Agree-ment (as drafted by the U.S. negotia-tors) were ratified together by Con-gress in 1890.23Allotment comes to theCoeur d'Alene ReservationNotwithstanding non-Indian en-croachment and federal pressure forland, the Tribe flourished during thisera. In 1887, U.S. negotiating agentstold the Tribe they "did not expectto see [tribal children] ahead of thewhites as I see them here" and that theTribe had "the finest schools, the bestcommunity that I have seen amongIndians' 24  The agents concludedthat "[y]ou will soon need nothingfrom the government ... [y]ou willhave no use for Government farmers,smiths, doctors, or agents; you can getthings without aid' 2 In 1889, U.S.agents observed "[tribal farms] sur-rounded by better fences than theirneighbors, the whites, burdenedwith golden grain that gave promiseof a rich harvest; horses and cattlein large numbers peacefully grazingupon hills covered with bunch-grass,made a picture truly pleasant to con-template'216Things came to an abrupt changein 1906 when Congress unilater-ally allotted the Reservation despiteunanimous and vehement objectionby the Tribe. 27 Through allotment,the collective ownership of the reser-vation was dissolved and each tribalmember was allotted 160 acres.28 Ofthe roughly 345,000 acres within the1889 Reservation, 104,000 acres wereallotted to tribal members. The re-maining 241,000 acres were declared"surplus" and made available to non-Indians under the Homestead Act. 29Despite the promise by the UnitedStates that "no part of said reserva-tion shall ever be sold, occupied,open to white settlement, or other-wise disposed of without the con-sent of the Indians residing on saidreservation' 3 ° the Tribe lost almosttwo-thirds of its reservation land by1909.The Tribe was devastated by thedisruption and poverty caused byallotment.3 It took many years toreassert its sovereignty, particularlyover water within the reservation.32In 1907 Washington Water PowerCompany (now Avista) flooded LakeCoeur d'Alene, the Spokane River,the Coeur d'Alene River, and the St.Joe River with six and a half feet ofwater without notice to the Tribe. 33Flooding was increased to eight feetin 1941.14 During this era the Stateof Idaho also began issuing waterrights in the Basin pursuant to statelaw, including within the Reserva-tion.The tribe reasserts its rightto control and protect waterwithin the reservationDespite allotment and its subse-quent effects, the Tribe continuedto assert its reserved rights. A majormilestone in that effort occurred in1991 when, after overtures for ne-.gotiation were rejected, the Tribefiled suit against the State of Idahoin U.S. District Court claiming own-ership of the submerged lands ofCoeur d'Alene Lake and its tribu-taries within the original 1873 Res-ervation boundary.3 The DistrictCourt held that 1 1 th Amendmentimmunity barred suit and the U.S.Supreme Court affirmed.36  How-ever, the Supreme Court made clear"[o]ur recitation of the ties betweenthe submerged lands and the State'sown sovereignty . .. is not in dero-gation of the Tribe's own claim. Asthe Tribe views the case, the lands arejust as necessary, perhaps even moreso, to its own dignity and ancientright.'37Through allotment, the collective ownershipof the reservation was dissolved andeach tribal member was allotted 160 acres."The Advocate . October 2014 55The United States, as trusteefor the Tribe, brought its own caseagainst Idaho in 1998 seeking to qui-et title to the southern third of LakeCoeur d'Alene and the portion of theSt. Joe River within the 1889 Reser-vation boundary.38 The Tribe inter-vened and the Federal District Courtquieted title in favor of the UnitedStates as trustee for the benefit ofthe Tribe, "to the beds and banks ofthe Coeur d'Alene Lake and the St.Joe River lying within the currentboundaries of the Coeur d'AleneIndian Reservation "39 Additionally,the Court found that the U.S. andTribe are "entitled to the exclusiveuse, [and] occupancy" of those sub-merged lands and that "the Stateof Idaho is permanently enjoinedfrom asserting any right, title or oth-erwise interest in or to [those] bedand banks ... "40 The United StatesSupreme Court affirmed, recognizingthat "the submerged lands and relatedwater rights had been continuouslyimportant to the Tribe...'Simultaneous to its initial lakecase in 1991, the Tribe opened a sec-ond front to address contaminationflowing into the Lake from the SilverValley.42 After requests for negotia-tions were rejected, the Tribe filed aNatural Resources Damages (NRD)suit against the 10 largest pollutersin the Valley.43 The United Statesfiled its own suit in 1996, which wasconsolidated with the Tribe's. 44 In2003, the Federal District Court ap-portioned liability among the pol-luters based upon their respectivecontribution to the hazardous wastestream.4  The court subsequentlydetermined the Tribe is a trustee"for the purposes of CERCLA overthe federal and tribal land as well asthe migratory natural resources of:fish, wildlife, birds, biota, water andgroundwater based on their involve-ment in the management and con-trol of such natural resources' 46 Theeventual consent decree settlementsresulted in approximately $1 billionto restore natural resources and pro-tect human health in the regionIn 2005 the Tribe was grantedTreatment in the Same Manner asa State (TAS) status by the EPA, 47which allows the Tribe to "admin-ister the water quality standards forthose waters of Coeur d'Alene Lakeand the St. Joe River within theCoeur d'Alene Reservation... ,48 TheEPA approved the Tribe's water qual-After requests for negotiationswere rejected, the Tribe fileda Natural Resources Damages(NRD) suit against the10 largest pollutersin the Valley.43ity standards on June 12, 2014. 41 TheTribe also jointly developed a LakeManagement Plan in 2009 with theIdaho Department of Environmen-tal Quality. The purpose of the LMPis to limit nutrients introduced tothe Lake in an effort to manage insitu metals contamination from theSilver Valley."°In 2009, as part of its relicens-ing process for the Spokane RiverProject, Avista entered into a com-prehensive agreement with theTribe to resolve a range of issuesrelated to Avista's storage of wateron Lake Coeur d'Alene. Those is-sues included Avista's historic tres-pass by flooding tribal submergedlands without permission from theTribe, as well as its current and fu-ture use of tribal waters, submergedlands, and other lands within theReservation. 51 Among other things,that agreement provides funding toprotect and restore trust resources,including lands, river bank erosion,cultural resources, aquatic weed con-trol, wetland/riparian habitat, andwater quality.5 2 Avista also appliedfor a Water Storage/Use Permit fromthe Tribe, issued pursuant to TribalCode, to store and use water for hy-dropower generation and other pur-poses on the Lake and St. Joe Riverwithin the Reservation.53This history demonstrates theTribe's commitment, from beforefirst contact with non-Indians topresent, to the continued manage-ment, protection, and enhance-ment of the water within the Coeurd'Alene Reservation, particularlythe Lake and St. Joe River. Now theTribe must address the issues in theCSRBA: the latest chapter of thislong history.Endnotes1. Felix Aripa, Coeur d'Alene Tribal Elder.2. United States and Coeur dAlene Tribe v.Idaho, 95 F.Supp.2d 1094, 1101 (D. Idaho1998) [hereinafter D. Idaho Opinion].3. Idaho v. United States, 533 U.S. 262(2001) [hereinafter Idaho II].4.Those claims, as well as a discussion onthe fundamentals of Indian water rightsin general, is the subject of a companionpiece found in this edition of The Advo-cate entitled "The Coeur d'Alene Tribe'sClaims in the Coeur d'Alene-SpokaneRiver Basin Adjudication.'5. Idaho II, 533 U.S. at 265.6. D. Idaho Opinion, 95 F.Supp.2d at 1101.7. Idaho I/ at 265.8. D. Idaho Opinion at 1101.56 The Advocate- October 20149. Id. at 1102.10. Idaho /I at 274.11. Id. at 266.12. Id.13. D. Idaho Opinion at 1095-96.14. Id. at 1105.15. T.W. Bennett, Letter to the Editor ofthe Idaho Signal (September 18th, 1873)(emphasis in original) (on file with au-thor).16. D. Idaho Opinion at 1109.17.Id.18. Idaho II at 267.19. Id. at 267-68 (quoting the 1887Agreement).20. Id. at 268; D. Idaho Opinion at 1111-12.21. Idaho II at 268.22. Act of Mar. 2, 1889, ch. 412 § 4, 25.Stat. 1002.23. Idaho // at 270.24. United States. Congress. House. Re-duction of Indian Reservations. House Ex-ecutive Document No. 63. 5 0 1h Congress,1V Session. Washington D.C.: Govern-ment Printing Office, 1888.25. /d.26. Report of the Coeur d'Alene IndianCommission (1889) (on file with the au-thor).27.34 Stat. 325, 334 (1906).28. Id.29. Id.30. Idaho II at 267-68 (quoting the 1887Agreement).31. For an in-depth account of the ef-fects of the Allotment Policy on Indiantribes throughout the United States, seeJudith Royster, The Legacy of Allotment27 Ariz. St. L. J. 1, 10-14 (1995).32. See e.g., Petition to Intervene byCoeur d'Alene Tribe Before the FederalPower Commission 9 (1973) (availablewith the author), Federal Energy Regu-latory Commission, Order on Remand,Determining Lack of Authority, and Vacat-ing Prior Orders (1988) (available with theauthor).33. See Idaho Department of Water Re-sources, Claim to a Water Right No. 95-9115 (2002).34. See id.35. See Coeur d'Alene Tribe v. Idaho, 798F.Supp. 1443 (D. Idaho 1992).36. U.S. v. Idaho, 521 U.S. 261 (1997).37. Id. at 287.38. D. Idaho Opinion at 1094. That casedid not place the northern two-thirds ofthe Lake or the submerged lands withinHeyburn State Park at issue.39. /d. at 1117.40. Id.41. Idaho // at 275.42. Dept. of Envtl. Quality and Coeurd'Alene Tribe, Coeur d'Alene Lake Man-agement Plan 5 (2009).43. Coeur d'Alene Tribe v. Gulf Resources,No. 3:1991 cv00342 (1991).44. Coeur dAlene Tribe v. Asarco Inc., 280F.Supp.2d 1094 (D. Idaho 2003).45. Id.46. United States v. Asarco Inc., 471F.Supp.2d 1063 (D. Idaho 2005).47. Letter from Ronald A. Kreizenbeck,Acting Regional Administrator for EPARegion 10, to Chief J. Allan, Chairman ofthe Coeur d'Alene Tribe (August 5, 2005)(on file with author).48. Id.49. Letter from Daniel D Opalski, Direc-tor, EPA Office of Water and Watersheds,to Chief J. Allan, Chairman of the Coeurd'AleneTribe (June 12,2014) (on file withauthor).50. DEPT. OF ENVTL. QUALITY ANDCOEUR D'ALENE TRIBE, COEUR D'ALENELAKE MANAGEMENT PLAN (2009). Seealso, Dylan R. Hedden-Nicely, Gaugingthe Success of the Coeur dAlene Lake Man-agement Plan: an Example of Tribal-StateCooperation, The Advocate, Vol. 56, No. 8(August 2013) at 23.51. Order Issuing New License andApprov-ing Annual Charges for Use of ReservationLands, 127 FERC 61,265 (2009).52. Id. at Appendix D.53. Coeur d'Alene Tribe, Department ofLake Management, Water Storage/UsePermit No. 2008-01 (2008) (on file withauthor).About the AuthorDylan R. Hedden-Nicely is anattorney with Howard Funke & Associ-ates, P.C. He practices in the areas ofNative American natural resources andwater law. He is admitted to practice inIdaho and in the United States DistrictCourt, District of Idaho. He receivedhis J.D., magna cum laude, from theUniversity of Idaho with Emphases inNative American Law and Environ-mental and Natural Resources Law inNovember 2011. Healso received an M.S.from the Universityof Idaho in WaterResources - Scienceand Engineering inNovember 2012.The Advocate. October 2014 57~ HO LEGAL RESEARCH0'Consulting & Services LLCLegal Research Specialist - 25+ years of experienceExpert at online searchingAccess to national database/%.v 208.724.8817 '/,tzywicki@cableone.netMediation and Arbitration ServicesD. Duff McKeePractice limited to alternative dispute resolution services120 E Mallard Dr Ste 309 Telephone: (208) 381-0060Boise, Idaho 83706 Facsimile: (208) 381-0083Email: ddmckee@ddmckee.com

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