Illinois River pollution case could have tribal water rights implications

Spavinaw Lake in Mayes County is one of the city of Tulsa’s main water sources. The lake is also located in the Cherokee Nation’s jurisdictional area. PHOTO BY CRAIG HENRY

By WILL CHAVEZ
Senior Reporter

OKLAHOMA CITY – Oklahoma’s lawsuit against the poultry industry regarding alleged pollution of the Illinois River has unintentionally opened the door for state tribes to possibly claim water rights, said an Oklahoma University law professor.

Drew Kershen, an expert in agriculture and water law, presented his “speculations” about the possible future of tribal water rights on June 3 at the annual Sovereignty Symposium.

The OU professor of 39 years said the ongoing Illinois River Watershed litigation between the state and poultry producers began as a “water quality environmental pollution case” and dealt with chicken litter and its impact in the IRW.

However, he said the case’s unintended impact might be in the area of tribal water rights.

Kershen said in July 2009 the case took an unexpected turn when U.S. District Judge Gregory Frizzell ruled the Cherokee Nation was an “indispensible party” to the case under federal guidelines. But because the CN had not joined the state in the litigation, Frizzell dismissed the state’s request for $600 million for pollution damages.

“When I read about it in the newspaper, I immediately said, ‘my goodness,’” Kershen, an Oklahoma Water Law Advisory Commission member, said.

The CN filed a motion to intervene in the case in September, but Frizzell denied it. The tribe then appealed the ruling to the 10th Circuit Court of Appeals, where it is pending.

In his ruling against Oklahoma’s request for pollution damages, Frizzell said the state does not have standing to prosecute monetary damage claims for injury to the CN’s lands, water and other natural resources in the IRW or to assert claims of injury to property it does not own or hold in trust.

In the case, the state claims it owns the waters in the Illinois River and all of Oklahoma without limitations. However, the CN in its codes also claims all waters in its boundaries.

Frizzell used the tribe’s codes when ruling on the state’s monetary damage claims, Kershen said.

During the case’s hearing, Oklahoma Attorney General Drew Edmonson acknowledged the CN has “substantial interest” in the natural resources in the IRW, though the extent has not been determined.

“This is the first admission, in any formal way, by the state of Oklahoma that the tribes have claims to water in the political boundaries in Oklahoma,” Kershen said. “This is the first judicial precedent recognizing tribal claims to water. I think this is the most explicit statement that I’ve ever seen in a judicial precedent.”

Frizzell used Edmondson’s admission in ruling that the CN is an indispensible party to the case.
The fallout from the case might be that the state and tribe will have to determine “who owns what in the watershed,” Kershen said.

The CN wanted to delay that determination and signed an agreement with Oklahoma in May 2009 to allow the state to prosecute the tribe’s claims against poultry companies for allegedly polluting the IRW. The agreement did not transfer any ownership interest in the water or any other natural resource in the watershed.

However, Frizzell did not allow the agreement and said Edmonson did not have the authority to make it.

Kershen said he believes if the CN wins its appeal to join the case, it would force the state and the tribe to determine “who owns what” in the IRW. The case would then turn from a pollution case to a general adjudication case of water rights in the Illinois River, he said.

Adjudication can settle rights of two water right holders with respect to one another or it can settle all the rights to water within a particular water system. Adjudication that settles all the rights within a particular water system is called a general adjudication.

“We’ve never had a general adjudication in Oklahoma, and that would be a big one,” Kershen said. “It would go on for awhile. It won’t be easy.”

He said if the CN were to end up owning between 25 and 40 percent of the Illinois River water, it would be “an attitude adjustment” for Oklahoma. The implications beyond the IRW would be the tribe’s ownership of other waters in its boundaries such as Lake Eucha and Spavinaw Lake, the sources of Tulsa’s water supply.

“That would get some attention. Is the implication that the Cherokee Nation owns 25 to 40 percent of Tulsa’s water supply? And does that mean they (Tulsa) have to negotiate with the tribal nation to get it?” Kershen said.

He said the tribe’s claims to water could also have implications for other tribes such as the Apache, Chickasaw and Choctaw nations, which may someday be in the market to sell water to Texas if they got partial or full ownership of water sources in their jurisdictions.

Currently, state water planning meetings are held with tribes included, but Kershen said tribes are not really treated as stakeholders. Based on Frizzell’s ruling in the IRW case, the CN could at some point be treated as a co-sovereign planner for all the water in its jurisdiction, he said.

“These are just speculations. All of this has happened in the last year, and from my viewpoint as water law professor it means Oklahoma water law, which was already complex, is even more complex and way more unpredictable,” Kershen said. “My speculations are just a few drops of speculation in a flood of speculation that’s about to wash over Oklahoma. I don’t know who is going to drown and who is going to swim.”

will-chavez@cherokee.org • (918) 207-3961