WATER

The waters of Lake Sakakawea pictured here bury prime Missouri River bottom land, land once belonging to the Fort Berthold Tribes. This usurpation of the rights of the River Tribes was described by the National Water Commission as on of the sorrier chapters in the history of the Federal Government's treatment of Indian tribes.

INTRODUCTION

In the West there is an old saying; "Water runs up hill toward power and money." Since the days of Lewis and Clark, First Americans have had little of either. The expressed purpose of the Dawes Act (1887) was to "civilize the Indian," to convert him from a hunter gatherer to a farmer, (ignoring, of course, the fact that some tribes had been engaged in agriculture well before the time of Columbus.) Water, and lots of it, would be essential to this end, but for decades, Indians were denied the legal right and the technological means of securing it. A number of White settlers, most notably the Mormons in Utah, were able to operate irrigation projects on a limited scale, but no one had enough money to take full advantage if the limited water supplies. All that would change with the passage of the Rivers and Harbors Act of 1899 and the National Reclamation Act of 1902. Massive structures costing billions of dollars to build and operate have made the West what it is today, making unprecedented agricultural and urban development possible. Native Americans, despite measurable progress during the last two decades, have been unable to share fully in the bounty. Many Tribes have not been able to secure funding to take advantage of these federal subsidies; while others have seen their homes, farms, and holy places inundated by the reservoirs created to quench the thirst of "White America." Times have changed somewhat, however. Courts have validated Native American rights to water, and courts and negotiations are determining the quantity of water sufficient to secure these rights. As the western population grows and the demand for water increases, Native Americans have become major players in the political process which determines who can use water and how much they can use.

In one way or another, all of the tribes in this study have played a part in this process. Some have clearly had more success than others, and for many, the successes they have achieved have come at great cost. To better understand the nature of this struggle for water, we must briefly discuss two concepts: "prior appropriations" and "reserved rights."

PRIOR APPROPRIATIONS

By design, state governments largely determine who has rights to how much water in the West. Although each state has its own set of controlling legal principles, the doctrine of Prior Appropriations serves as a unifying principle. Water is scarce in most parts of the West. Often those who use water live far from where they draw it. Prior Appropriation is a uniquely western way of allocating water.

Actually the principle was generated over a dispute over mining claims. A miner was diverting water from a stream, in order to extract gold. Another miner filed a claim up stream and began diverting water, thus depriving the first miner of his water. In resolving the legal battle which followed, courts ruled that the original miner had rights to sufficient amounts of water to pursue his purpose. The later arrival had to respect his claim, and could use only the water not needed by the more "senior" miner. Thus was developed the first great principle of Prior Appropriations: "FIRST IN TIME, FIRST IN RIGHT.

The other edge of the sword is the principle: "USE IT, OR LOSE IT." This means that if someone applies for a permit to divert water, but fails to do so in a certain period of time, or stops diverting water after having started, he may lose his right to the water.

Though the requirements vary from state to state, most apply the "BENEFICIAL USE" rule and the "HOLD HARMLESS" rule. In general, the first rule means that those who would divert water, can do so only if the water will be put to a "beneficial use." At first state courts and now state statutes determine what constitutes a beneficial use. Examples of beneficial uses might include agriculture, commercial, recreational, or domestic use. The second rule means that no one, not even the most senior appropriator, can change the quantity or place of diversion, or "purpose of use" if another user would be harmed.

What does all of this mean for Native Americans? It means that because tribes had little or no means to divert water in any large quantity, the principle of Prior Appropriations would deny them rights to any water, or at least place them in the status of the most junior appropriator. Because water is so scarce in most parts of the West, and because there are more appropriated rights (paper water) than there is actual "wet water," in most cases Native Americans would be shut out of the process entirely. Fortunately for Native Americans, though by no means a panacea, federal courts have generated the principle of "RESERVED RIGHTS."

RESERVED RIGHTS

In 1874, several bands of Assiboines, primarily a nomadic hunting people, shared their home, the Fort Belknap Indian Reservation, with their former enemies, the Gros Ventre, possessors of agricultural skills of note. By virtue of the Dawes Act the tribes were forced to cede half of their lands (location in northern Montana along the Milk River) to white homesteaders. In the late '90's one Charles Winter, along with a group of settlers, began diverting water out of the Milk River. In 1898, the Tribes launched a modest irrigation project of their own. In 1905, an extremely dry year, there wasn't enough water for all. Under Montana law (prior appropriations) the settlers would have senior rights because they were the first to divert water. (Later testimony would place the time differential at about four days.) However a Bureau of Indian Affairs attorney, countermanding the orders of his superiors, brought suit, asking that the gates of the dam be closed so that the Tribes could have at least some water. A Federal Judge in Montana and subsequently a unanimous Supreme Court held in favor of the Tribes. In Winters v. United States (1908) the Court said that the Fort Belknap Tribes had been using the waters long before white men ever saw them, and even though the Tribes had ceded land to Whites in 1874 and again in 1888, they did not cede rights to the water which made their land livable. The Tribes thus held "reserved rights" to the water, federal rights which superseded those of Montana or any other state.

For more than fifty years the Winters Doctrine was of little use to Indians. The states simply ignored the doctrine and the Federal Government did not enforce it. Then in 1964 the U S Supreme announced its decision in Arizona V California. In this comprehensive decision the Court laid down the basis for determining how much water tribes were entitled to. The Court said that Indians were entitled to sufficient water to fulfill the purpose for which reservations were created. Since most reservations were meant to be farms, the Court said Indians were entitled to enough water to grow crops on practically irrigable land, whether or not the land was currently irrigated. Slowly at first, but now with increasing speed, Tribes began to negotiate with states concerning quantification of water rights. In 1994, some 86 years after Winters, the Fort Belknap Tribes finally learned how much water they were entitled to use. At this writing there is no proposed federal project which would allow them to turn this "paper" water into "wet" water.

Today Indians do not have complete control over water use. The States are the key administrators here. Federal courts have limited reserved rights water use to those purposes envisioned when the reservations were created. But if indeed water "runs up hill toward money and power," Indians are higher on the hill than they used to be. Native Americans hold rights to as much as a fourth of the flow of the Colorado River and perhaps as much as a fifth of the Missouri. Recently twenty-eight Missouri River Tribes joined to form MNI Sose, an organization designed to protect and promote their water rights. Native Americans may never be able to use all of the water to which they are entitled; there may not be enough water to go around. They may not wish to do so anyway. Whatever the case, they will play a major role in these decisions. THEIR VOICES WILL BE HEARD!