Tribes must consider issues claiming water rights

Tribes must consider issues claiming water rights

By Will Chavez
Staff Writer

OKLAHOMA CITY – As Oklahoma tribes begin to assert water rights, constructing water rights claims will become important, said David Gover, an attorney for the Native American Rights Fund, during the recent 2009 Sovereignty Symposium.

Gover described water rights claims in a discussion titled “The Issues of Water Law in the Twenty-First Century – Oklahoma and the West,” saying that Indians and non-Indians should work together to survive potential future water shortages.

“Water is life and life is water. It doesn’t matter what color we are, what community we’re from – all of our communities need water,” he said.

As states and tribes increasingly face water rights issues, Gover said he encourages tribal leaders to prepare for coming negotiations.

“Water is becoming more and more scarce. It’s time to get prepared if you’re not already,” he said, while offering NARF assistance to tribes regarding water rights claims.

Gover said some Indian water cases have been litigated 20 to 30 years, and even if potential cases are not resolved quickly, tribes should prepare future generations to assert their rights.

To assert water rights, tribes should conduct historical research regarding water on their lands, perform legal and technical analyses, consider agricultural and non-agricultural demands and locate funding.

Funding is especially important, he said, to pay for research and studies. Funding for research can come from the tribe and the Bureau of Indian Affairs, which has a responsibility to protect tribal resources.

Gover said tribes should also look at creating programs to provide research and analyses if they don’t have existing programs.

“What works for your tribe? Some tribes already have a water rights protection office or a division of natural resources. Who in the tribe can lead the charge on water rights?” he said.

Gover said when performing historical research it may help to look to tribal historians, elders or spiritual leaders to determine water uses and how the tribe related or relates to the land and water. Tribes should also determine how their histories with the land and water relate when determining water rights, he said.

A tribe may have to rely on outside attorneys or in-house attorneys to determine legal and historic rights to water or land. Water rights created in 1800 would be “huge,” Gover said.

“You’re first in line (for water rights),” he said. “When you match federal-reserve rights and allocations (for water) it should scare folks that don’t have an early priority date. As water becomes more scarce, those older rights become more valuable.”

Technical analysis teams are usually made up of scientists, hydrologists, agronomist, agriculturist, engineers and soil scientists. Firms exist to aid tribes with this process, but it is expensive, he said.

Gover said when discussing water supply, every tribe should identify the surface and ground water they have in their jurisdictions, current water users and water-related infrastructure.

Though not much research exists on the subject, tribes should also account for climate change because ample ground or surface water today may not be there in 50 years if the climate changes.

How much water needed for crops grown by the tribe should be also be determined to create a “practicably irrigable acreage” standard. This standard is one method the government uses to quantify reserved water rights for tribes. Non-agricultural water needs include water needed for housing and business.

“You need to know what your resources are, so when you get to a point where you start talking…with the state…you know what you’re dealing with and where you’re at,” he said.

Gover closed by reminding the audience that water rights are not something the government gave to tribes, but reserved rights.

“These are Indian water rights that have been reserved, and that’s been recognized by the U.S. Supreme Court,” he said.