WikiLeaks II: Tribal Water Rights in Question, Again

All research is political, all politics is research(ed).

Of course, everyone–on all sides of the political spectrum–wants us to believe otherwise. That their research is politically neutral because it is scientific; that their knowledge is unbiased because it is acultural; that their claims to truth are free from religious prejudice. And that it is everyone else who is bogged down with the weight of political interest, cultural blindspots, and faith. This is the nonsense of power.

As reported by WikiLeaksthe Congressional Research Service (CRS) is a prima facie case in point. It is institutionally located within the Library of Congress as the “bipartisan” or “nonpartisan” and otherwise confidential “think tank” of the U.S. Congress. It is linked to the Congressional Budget Office and the Government Accounting Office with the significant difference being that its “reports” — as if apolitically requested and produced — are kept confidential, distributed first to the specific official or staffer who commissioned them and only occasionally released to the public. Though some lawmakers have fought to make the reports public, the bills have been rejected almost every year since 1998, reports WikiLeaks. Further, “The CRS, as a branch of Congress, is exempt from the Freedom of Information Act.”

So, just what kind of research is the U.S. Congress requesting concerning the legal scope and exercise of tribal sovereignty and self-determination? What issues are they “paying attention to” within Indigenous nations and communities? How are the investigations being used in congressional oversight, policy directives, and legislative proposals? How should Indigenous groups respond to these investigations, the majority of which they have not been made privy to either in conduct or in their circulation/use? Does the process of research being conducted in secret under the direction of the U.S. Congress respect Indigenous protocols for research, violate informed consent principles in international human rights law? Does it do harm, in production, circulation, use?

Water, Water Everywhere and Not a Drop to Drink

On September 26, 2008, Yule Kim, a legislative attorney with the American Law Division of CRS, issued a report on tribal water rights (Report RL32361) entitled Indian Reserved Water Rights: An Overview. The reported updated the original from 2005 (authored by Nathan Brooks, also a legislative attorney at the American Law Division of CRS).

Focused on four key state-tribal settlements concerning tribal water rights, Kim summarizes the importance of the issues in relation to what he perceives to be the “severe pressure” from US/state citizens on their respective states for “secure access to water.” (Emphasis on citizens and not corporations, non-Indian farmers or the fishing industry, or other what-might-be-perceived-to-be particularly politically charged, “special interest” entities.)

The Western states are under severe pressure from their citizens to secure access to water. In planning to meet this goal, Western officials have had to confront the doctrine of Indian reserved water rights, also known as the Winters doctrine. This doctrine holds that when Congress reserves land for an Indian reservation, Congress also reserves water to fulfill the purpose of the reservation. When this doctrine is applied to the water laws of the Western states, tribal rights to water are almost always senior to other claimants. Therefore, in order for Western water officials to effectively plan for a stable allocation of water on which all parties can rely, they must find a way to satisfy the water claims of local Indian tribes. The parties originally looked to the courts to resolve these issues, only to find themselves in an endless cycle of litigation that rarely produced definitive rulings. As a result, negotiated settlements — which often require federal funding in order to be implemented — have become the norm. This report provides an overview of the legal issues surrounding Indian reserved water rights disputes. Several settlements are being actively considered by the 110th Congress. H.R. 5293/S. 462 would approve the water rights settlement of the Shoshone-Paiute Tribes of the Duck Valley Indian Reservation in Nevada. S. 3355 would authorize the Crow Tribe water rights settlement reached between the Crow Tribe and the state of Montana. S. 3381 would provide for the Aamodt Litigation Settlement Act and the water rights settlement of the Taos Pueblo. H.R. 1970/S. 1171 would authorize the Navajo Nation Water Rights Agreement.

Kim, working through a modest number of scholarly writings and the standard reserve of SCOTUS rulings concerning tribal water rights, provides an overview of what he perceives to be the key “doctrines” or “requirements” that effect mitigation of tribal water rights: namely, the Winters Doctrine, the McCarran Amendment, and the qualification by Practically Irrigable Acreage (PIA).

The Winters Doctrine, following from the SCOTUS opinion in Winters v. United States (207 U.S. 564, 1908), “holds that when Congress reserves land for an Indian reservation, Congress also reserves water to fulfill the purpose of the reservation.” As a result, “tribal rights to water are almost always senior to other claimants because the creation of most Indian reservations predates most other non-Indian water claims,” Kim argues. Therefore, Kim continues, “in order for Western water officials to effectively plan for a stable allocation of water on which all parties can rely, they must find a way to satisfy the water claims of local Indian tribes.”

The McCarran Amendment, Kim explains, “allows state courts to adjudicate Indian water rights.” It allows for the “dismissal of Indian water rights claims filed in federal courts when there are ongoing, concurrent, and comprehensive state adjudications available to hear the claims.” SCOTUS has “concluded that the McCarran Amendment’s main purpose was to designate comprehensive state adjudications as the primary means to determine water rights claims; allowing concurrent federal proceedings would thwart this policy goal by creating unnecessary litigation that would lead to duplicative and possibly contradictory judgments.”

The PIA qualification is the “assumption that the purpose of an Indian reservation is agricultural. Starting from that assumption … the only feasible and fair way by which reserved water for the reservation can be measured is irrigable acreage.” But in reviewing court precedence, Kim finds that this qualification was overturned by a redefinition of the “essential purpose of an Indian reservation” not to be only agricultural but instead “to establish a ‘permanent home and abiding place'” for Indians “to achieve the twin goals of Indian self-determination and economic self- sufficiency.”

With that purpose in mind, tribal water rights must be evaluated on a case by case-by-case basis and take into consideration: “(1) the tribe’s history and culture; (2) the reservation’s geography and natural resources, including groundwater availability; (3) the reservation’s physical infrastructure, human resources, technology, and capital; (4) past water use; and (5) a tribe’s present and projected population.”

Kim concludes:

Many parties have concluded that issues as complex and important as those outlined in this report may be better resolved by settlement, with each party compromising in order to achieve its most important goals. As the drive for a dependable water supply in the West has grown stronger, so has the desire to quickly settle tribal water claims in order that Western water officials can effectively and accurately plan for the future. In addition, tribes understand the negotiating power that comes with a reserved water right — power that can be leveraged to address other tribal needs. This transition from courtroom to negotiating table brings with it a larger role for Congress, which must approve a settlement if the settlement requires new federal appropriations.  

While offering that tribes yield some negotiating power in relation to states owing to their water rights, Kim concludes that the U.S. Congress, in light of SCOTUS and state court precedence, has a “larger role” to play in mitigating tribal water rights–both at the “negotiating table” and in the approval or not of state-tribal negotiations and settlements that require federal appropriations.

Part III: Questioning Tribal Sovereignty

“Just because you’re paranoid doesn’t mean they aren’t after you.”
― Joseph Heller, Catch-22

Several issues are raised by Kim’s report on tribal water rights. As mentioned in my previous blog, WikiLeaks I, several immediate matters are raised: 1) the report tells us nothing about the author of the report except the he is a legislative attorney with the American Law Division of CRS (a search in WikiLeaks reveals that he authored several reports on tribal legal issues, including the Indian Child Welfare Act, tribal civil litigation, and the Cherokee Freedmen issue, all also from 2008). 2) We do not know the name(s) of those in Congress who commissioned the report or what their intentions were in doing so. 3) We do not know how the report was used or circulated.

Since I’ve already suggested what the political implications of “what we don’t know,” I want to consider what this report’s implications are in relation to tribal politics and culture.

I begin with two key current issues of energy development.

1) The Keystone Pipeline was proposed in February 2005 by TransCanada. It was approved by the National Energy Board (NEB) of Canada in September 2007. ConocoPhillips acquired a 50% share in the project in June 2009. The US Department of State issued a presidential permit authorizing the construction of facilities at the US and Canada border in March 2008. TransCanada bought out ConocoPhillips in June 2009. Meanwhile, the Keystone XL (eXport Limited) extension was proposed in 2008 and approved in March 2010 by the NEB. The South Dakota Public Utilities Commission granted a permit for its construction through the state in February 2010. As reported in various news outlets, the EPA stalled its construction in the US on the grounds that the environmental impact study was inadequate and should be revised. The report was subsequently reissued in August 2011. The report said that there were no deleterious impacts of the pipeline on the environment as long as the protections in place were respected, but that the proposed route through the US would present “significant adverse effects to certain cultural resources.”

2) The “Halliburton Loophole” of the Energy Policy Act of 2005 excludes hydraulic fracturing or “fracking” from EPA regulation:

SEC. 322. HYDRAULIC FRACTURING.Paragraph (1) of section 1421(d) of the Safe Drinking Water Act (42 U.S.C. 300h(d)) is amended to read as follows:‘‘(1) UNDERGROUND INJECTION.—The term ‘underground injection’—‘‘(A) means the subsurface emplacement of fluids by well injection; and‘‘(B) excludes—‘‘(i) the underground injection of natural gas forpurposes of storage; and‘‘(ii) the underground injection of fluids or proppingagents (other than diesel fuels)pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.’’. 

It has also been used, such as within Pennsylvania, to prohibit doctors from revealing the medical effects of fracking.

Given the extraordinary amount of water used and contaminated–for an unknown period of time–by the oil and gas industry, and the deregulation of both activities from effective federal oversight, it is difficult to near impossible not to read Kim’s report in their contexts.

In other words, his caveat about tribes being emboldened (unfairly? unjustly?) in negotiations with state governments because of their inherent water rights–long ago recognized under the Constitution by treaty and the courts–and his more direct conclusion about the power of Congress at the “negotiating table” and in the approval or not of state-tribal negotiations and settlements that require federal appropriations, have real political importance for tribal sovereignty and self-determination.

Are members of Congress concerned about the ability of tribes to curtail or stop their acquiescence to the demands of the oil and gas industry for unlimited water access and use? From any real accountability for water contamination? As powerful energy corporations, lobbyists, and representatives in Congress work to deregulate the industry even further, in defiance of growing public demands for the contrary, tribes become more and more central in questions about remaining water sources–above and below ground.

Conclusions

“The recovery of the people is tied to the recovery of food, since food itself is medicine; not only for the body, but for the soul, is the spiritual connection to history, ancestors and the land.” Winona LaDuke, Recovering the Sacred

Frankly, I don’t like talking about the sacred in public spaces. It is too easily made into a cliche and so too easily dismissed as crazy new agey talk or misunderstood as some Indian spiritual truth. So I’m not going to say it.

What I will say is this. Kim reports that state-tribal negotiations over tribal water rights are supposed to take the following into consideration: “(1) the tribe’s history and culture; (2) the reservation’s geography and natural resources, including groundwater availability; (3) the reservation’s physical infrastructure, human resources, technology, and capital; (4) past water use; and (5) a tribe’s present and projected population.”

These considerations are not abstract, feel good ideas pulled out of the hot air of the government’s faux multiculturalist good intentions. They were hard-fought for principles of global Indigenous political action (take a look at the Declaration on the Rights of Indigenous Peoples) that have insisted that any viable, effective legal provision for Indigenous rights by states ought to be historically and culturally relevant.

They are principles that inform Indigenous perspectives about the relationships and responsibilities they have as caregivers of water. Indigenous peoples do not consider themselves merely as consumers of water seeking revenue sharing or fair distribution (though some tribal elected officials and individuals have been snared by this capitalist’s trap.)

They are also principles that inform Indigenous cultural protocols for conducting ethical and principled research on Indigenous issues. They mean that the nonsense confidentiality surrounding this and other CRS reports on Indigenous matters have no business being commissioned, researched, and submitted without consultation with tribal governments, at the very least.

According to those I have touched base with so far at Shoshone-Paiute, Crow, Taos Pueblo, and Navajo, none of the tribes knew this report was being produced, let alone by whom or for what purposes. Folded into the politics of U.S. surveillance, isn’t this a gross violation of the Declaration on the Rights of Indigenous Peoples to which the United States is a signatory? of Article VI of the U.S. Constitution?

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

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One thought on “WikiLeaks II: Tribal Water Rights in Question, Again

  1. Reblogged this on museum42 and commented:
    and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

    Like

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