The Nez Perce water rights settlement and the revolution in Indian country.

AuthorHays, V, Alexander
  1. INTRODUCTION II. THE VALLEYS AND CANYONS OF THE WINDING WATERS A. The Treaty of 1855 B. The Treaty of 1863 III. NEZ PERCE TREATY RIGHTS AND THE COURTS A. Nez Perce Tribe v. Idaho Power Co. B. In re SRBA, No. 39576 IV. THE NEZ PERCE WATER RIGHTS SETTLEMENT A. The Settlement Process B. Terms of the Settlement 1. Nez Perce Tribal Component 2. Salmon/Clearwater Component 3. Snake River Flow Component V. THE REVOLUTION IN INDIAN COUNTRY A. Land and Self-Determination B. Salmon VI. CONCLUSION I. INTRODUCTION

    On March 29, 2005, a six-member majority of the Nez Perce Tribal Executive Committee (Executive Committee) ratified a settlement for one of the West's largest and longest-running water rights disputes. (1) The agreement recognizes and quantifies Nez Perce water rights in the Snake River Basin, whose rivers and streams supply water for most uses in Idaho. (2) A "major victory" for the Nez Perce, in the words of one observer, the agreement creates a tribal water right to 50,000 acre-feet from the Clearwater River with a priority date of 1855, transfers over 11,000 acres of federal land within the Nez Perce reservation from the Bureau of Land Management to the Bureau of Indian Affairs who will hold the land in trust for the Tribe, devolves management authority at two federal fish hatcheries to the Tribe, and sets instream flows on select stream reaches in the Clearwater and Salmon Basins to improve salmon habitat. (3)

    The Tribe secured these terms by waiving water rights claims in the Snake River Basin Adjudication (SRBA), including substantial claims to off-reservation instream flows. (4) Originally filed in 1993, (5) the Tribe's claims arose from treaties signed by the Nez Perce and United States in 1855 and 1863. (6) These treaties reserved for the Nez Perce both on and off-reservation fishing rights, which imply a variety of rights beyond the express right of taking fish at usual and accustomed places, (7) Courts have interpreted similarly worded provisions in other Indian treaties and have held that fishing rights necessarily include instream water rights sufficient to sustain the native fishery, (8) Thus, the waiver of treaty-based claims to water under the Nez Perce fishing right represented a major concession by the Tribe. These claims, if recognized, promised comprehensive, significant improvement to river conditions for Snake River salmon and represented an important component of the Tribe's on-going effort to effect wholesale change in the management of salmon by federal and state governments. (9) The waiver of these claims by the Executive Committee caused one former chairman to question the wisdom of the decision. (10) This sentiment has been echoed by other tribal members. (11)

    The Nez Perce case is but the latest episode in the West's decades long struggle with Indian water rights. (12) Indian water rights prove problematic to many western states because state governments generally failed to account for unquantified water rights held by Indians under federal law when issuing water rights under the prior appropriation doctrine. (13) As a result, water users authorized by state law developed expectations under priority-based systems that failed to recognize Indian tribes as senior rights holders. (14) The seminal Indian water rights case is Winters v. United States, (15) and it proved these expectations to be unjustified and recognized that Indian treaties impliedly reserved water to fulfill their purposes. (16) These reserved water rights, or Winters rights, carry priority dates senior to the vast majority of water rights held under state law. (17)

    Water allocation by western states in the post-Winters era continued without abatement. (18) As permitted water use resulted in over-appropriation of many western streams and rivers, the federal government exacerbated conflicts between prior appropriation systems and Indian water rights by failing to assert and protect tribal claims before appropriate tribunals. (19) Consequently, contemporary tribes claiming reserved water rights under nineteenth century treaties must do so in landscapes of diminished stream flows and entrenched water users. (20) And tribes asserting reserved water rights must also do so in state courts during comprehensive stream adjudications under the McCarran Amendment. (21) Because many states, including Idaho, elect state court judges by popular vote, political pressure bears on decision makers and accusations of partisanship often arise when state courts adjudicate Indian water rights claims. (22) The Snake River Basin Adjudication Court (SRBA Court) is unexceptional in this regard. (23)

    Nez Perce instream flow claims threatened an irrigated agricultural economy in Idaho created and sustained by water diversions in the Snake River Basin. (24) That Nez Perce would dedicate these water rights to provide non-consumptive flows for Idaho's imperiled salmon runs whipped agricultural and municipal water users into a frenzy. (25) A 1999 SRBA Court decision pacified these interests, concluding that Nez Perce treaty rights to off-reservation fishing implied no instream flow rights to protect salmon. (26) Several commentators criticized this opinion for fundamental misapprehensions of federal Indian law and noted Judge Barry Wood's apparent conflict of interest as both adjudicator and party to SRBA proceedings. (27) The Tribe appealed the SRBA Court decision to the Idaho Supreme Court, a forum recently hostile to federal reserved water rights, (28) while simultaneously participating in formal mediation with Idaho, water users, and the United States pursuant to a 1998 SRBA Court order. (29) Ultimately, the cost and legal risk of maintaining its appeal before the Idaho Supreme Court proved too substantial for the Tribe. The Nez Perce withdrew its appeal and agreed to the settlement, which the Executive Committee approved on behalf of the Tribe in March 2005.

    Tribal sovereignty represented a separate but equally influential factor in the Executive Committee's decision to ratify the settlement. In a decades-long process that Professor Charles F. Wilkinson described as "the revolution in Indian Country," (30) the Nez Perce system of governance evolved into a relatively sophisticated body with a mandate to provide for the general welfare of tribal members. (31) To carry out this responsibility, the Nez Perce people authorized the Executive Committee to manage tribal lands and resources and to represent the Tribe during inter-governmental negotiation. (32) The Executive Committee exercised this authority during the water rights settlement, which secured significant financial commitments from the federal government to improve infrastructure on the reservation. (33) Additional terms expanded tribal control over reservation land and natural resources. (34) These material benefits increase sovereign independence for the Nez Perce, an aspiration of apparent importance in the Executive Committee's decision to approve the settlement.

    This Comment argues that the Nez Perce water rights settlement is a direct byproduct of two forces: the lingering effect of adverse judicial decisions in 1994 and 1999, and the tribal goal to achieve sovereign control over on-reservation natural resources. Part II provides historical context for the Nez Perce people, their relationship to water, and the Nez Perce treaties of 1855 and 1863. Part III analyzes the central holdings of the two recent court decisions adverse to Nez Perce treaty rights and explains their effect on the Executive Committee's decision to accept the agreement in exchange for waivers of water rights claims. Part IV discusses the several year long mediation process that led to the settlement agreement and the agreement's central terms. Part V argues that the "revolution in Indian Country" described by Professor Wilkinson played a compelling role in the decision of the Executive Committee to accept an agreement that waives Nez Perce claims to instream flows and fails to fulfill the off-reservation promise of the treaty fishing right. This Comment concludes by maintaining that the settlement, in part a product of narrow interpretations of Nez Perce treaty fishing rights by the courts, nevertheless furthers the tribal aim to achieve sovereign control over land and natural resources on the reservation.

  2. THE VALLEYS AND CANYONS OF THE WINDING WATERS

    Water permeates the myths and history of the Nez Perce people. (35) According to tribal legend, the Monster whose girth filled the arid plateau between the Cascade Range and the Bitterroot Mountains before the time of Indians lay dead through the devices of Coyote. (36) His deed done, Coyote washed his hands and "with the wash-water (bloody) he sprinkled the land." (37) The Nez Perce, a "powerful" and "manly" people, grew from the water and settled the Clearwater River country of Idaho, Washington, and Oregon. (38)

    The Nez Perce originally lived in small fishing villages along the rivers and streams that form the valleys and canyons of the Snake, Salmon, and Clearwater rivers. (39) Abundant game, edible plants, and the temperate climate of places like the Wallowa Valley of northeastern Oregon and the Kamiah Valley of central Idaho fixed Nez Perce into sedentary lifestyles prior to introduction of the horse in the 1700s. (40) These locations also afforded the Tribe ready access to water, which played an important role in tribal steambath rituals (41) and permitted many villages to run Appaloosa herds numbering in the thousands. (42) And the waters, unadulterated and unappropriated, supported the salmon runs. The salmon runs, a "silver horde" that filled the streams, constituted the Tribe's principal source of food (43) and an abiding source of cultural renewal. (44)

    1. The Treaty of 1855

      An emigrant tide flooded the Pacific Northwest in the decades following the Lewis and Clark expedition. (45) The new arrivals fished out streams. (46) Settlers...

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