Conflict comes to roost! The Bureau of Reclamation and the federal Indian trust responsibility.

• Author: Shepherd, Harold

1. INTRODUCTION

   A recent federal district court decision rejecting irrigators' pleas to keep water flowing to fields in the Klamath Basin of Southwestern Oregon (1) filled the front pages in newspapers statewide. Irrigators asked the court to stop the Bureau of Reclamation (Reclamation) from prohibiting water deliveries to nearly 200,000 acres of farmland as part of the federal Klamath Project. (2) The agency's decision was based on the requirement, under section 7(b)(3) of the federal Endangered Species Act (ESA), (3) to implement "reasonable and prudent alternatives" to minimize impacts to endangered sucker fish and threatened coho salmon. The farmers sought declaratory and injunctive relief, including a request that the court order Reclamation to deliver water to the affected irrigators during the 2001 irrigation season. (4) They claimed that the Reclamation's actions breached federal water service contracts with the irrigators and violated the ESA, the Reclamation Act of 1902, (5) the National Environmental Policy Act (NEPA), (6) and the Administrative Procedure Act (APA). (7) Although the lack of water affected approximately 6000 water users during the summer of 2001, the court ultimately determined that the farmers' needs did not preempt the ESA's requirement to avoid jeopardy to species or the federal government's trust duty to the Klamath Tribes. (8)

   This situation has resulted in an outcry against the ESA and tribal interests that have not been seen since the battles over tribal fishing rights that took place over thirty years ago in the Pacific Northwest (9) and the northern spotted owl in the early 1990s. (10) Conservative lawmakers and commentators are embracing the plight of Klamath farmers as the best example to date of the need to dramatically revise the ESA. They recently asked the Interior Secretary to convene the Endangered Species Committee--informally known as the "God Squad"--to reverse the consequences of the court's decision.

   Controversy is also nothing new to tribes that have attempted to protect their water rights as necessary for the continued pursuit of traditional practices and develop reservation economic uses. During the last two decades of the twentieth century, over fifty major Indian water rights law suits and settlement agreements transpired in state and federal courts, at administrative hearings, and at negotiating tables across the United States. (11) The majority of these suits and administrative proceedings remain unresolved to this date, and may take two decades or more to reach their conclusion (12)--at major expense to the parties involved. For example, litigation regarding the use of Colorado river water, which began in 1952, for example, continues to this day, and involves seven states and five Indian reservations and their water rights. (13) In addition, settlement agreements between tribes and western states have been known to cost taxpayers. $25 million or more (14) and can take years before results are realized. (15)

   These circumstances are amplified by the fact that the judicial climate is not particularly responsive to those attempting to protect treaty rights. Tribes are becoming more reluctant to seek enforcement of what might otherwise be ironclad treaty-reserved water rights because they fear that a court challenge could result in the permanent loss of those rights. (16)

   The controversy over water rights partially stems from the practices of Reclamation operating under the Reclamation Act of 1902, which authorizes the agency to use federal funds for the purpose of constructing and maintaining large irrigation projects in western states. (17) In its effort to develop the West for irrigation purposes, the agency often failed to consider, or outright ignored, Indian water rights reserved by treaty, statutes, and executive orders and water flows needed for fish. (18) Not only were these rights repeatedly upheld by federal court decisions of the late nineteenth and early twentieth centuries, (19) they are also the very rights that the federal government, through its trust responsibility, is obligated to protect. (20) In fact, Reclamation's decision to prohibit water deliveries to farmers in the Klamath came only after conservationists, fishermen, and tribes took the agency to court for failing to comply with the ESA. (21) In April 2001, the United States District Court for the Northern District of California enjoined the agency from delivering Klamath Project water to irrigators until it adopted an acceptable plan and complied with the required consultation. (22)

   The irony of these situations is that, more and more often, non-Indians are becoming victims of poor management of federal water projects. This is illustrated by expensive, protracted litigation involving tribal water rights and related issues, and by the stunning realization of many that have built homes and businesses dependent on water that is not legally theirs. The implications of this dilemma are huge, and the stakes are high for both tribes and local water users.

   Despite this rather bleak picture, alternatives exist that can result in the resolution of potential tribal water right disputes at a much lower cost--in terms of resources, time, and economic hardship--to all involved and, in some cases, may even eliminate the need for tribes to place treaty rights on the line. This Article discusses the effect that Reclamation's mismanagement of its trust responsibility regarding tribal water rights has had on tribal communities, and examines ways in which federal agencies have implemented, and may potentially implement, the federal trust obligation, so as to avoid environmental and human crises, such as in the Klamath Project. Part II of this Article provides background on the federal trust responsibility, and Part III discusses reserved water rights as a basis for that trust duty. Part IV examines Reclamation's management practices and their impact on tribal water resources. Part V looks at the various federal statutes, federal case law, and other mechanisms that may be used by tribes to enforce and encourage agency compliance with this trust responsibility. The Article concludes by examining the future of Reclamation's trust management and calling on the agency to take a proactive approach in recognizing and protecting tribal water interests.

2. THE FEDERAL TRUST RESPONSIBILITY

   Generally, the trust concept is interpreted as a "guardian and ward" relationship between the federal government and tribes, requiring the government to take certain measures in relation to tribal assets. (23) These actions include everything from ensuring fair exchange of monies and goods to the management of natural resources both on and off reservation lands for the benefit of Indians. (24) This special relationship has been traced to the American Revolution and the U.S. Constitution when, to avoid costly conflicts with tribes, Indian affairs were kept in the hands of the federal government. (25) This trust duty to tribes was also memorialized in the

   Northwest Ordinance, which provided:

   The utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in justified and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them. (26) The United States Supreme Court, in Cherokee Nations v. Georgia, (27) established the first judicial recognition of this concept, when Chief Justice Marshall characterized Indians as "domestic dependent nations" with a right of occupancy to the land until and unless the federal government extinguished their title. (28) Among the early cases, Worcester v. Georgia (29) provides perhaps the best description of the trust concept:

   This relation [between the Cherokee Nation and the United States] was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, and submitting, as subjects, to the laws of a master.... [The Treaty of Hopewell] thus explicitly recognizes the national character of the Cherokee, and their right of self-government; thus guaranteeing their lands; assuming the duty of protection, and, of course, pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force. (30) The trust duty was largely forgotten during the allotment and assimilation era from 1871 to 1928 when parcels of tribal lands were allotted to individual Indians and that land not so allocated was opened for homesteading by non-Indians. (31) The primary effect of this policy was the decrease of tribal land holdings from 138 million acres in 1887 to 48 million acres in 1934 and the "checkerboard" pattern of ownership by tribes, individual Indians and non-Indians, causing serious jurisdiction and management problems. (32)

   With the passage of the Indian Reorganization Act of 1934 (IRA), (33) Congress attempted to reverse the destruction of tribal governments by eliminating new allotments and promoting self government structures modeled after the federal system, including constitutions (34) and federally chartered corporations. (35) The IRA era, therefore, assisted the trust relationship between the United States and tribes by providing a bases tribal political influence. (36)

   Shortly after the adoption of the IRA, the Supreme Court described the relationship between the United States and the tribes as being in the nature of a "guardian and ward" (37) and one in which the United States "has charged itself with moral obligations of the highest responsibility and trust." (38) From 1953 to 1960, however, Congress adopted a policy of largely terminating its relationship with...