The Nez Perce Water Rights Settlement and the Revolution in Indian Country

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I.   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. …