Tribes' water claims wind through process

Federal funding remains most difficult issue in negotiations

Billings Gazette 4/17/08

By NOELLE STRAUB Gazette Washington Bureau, 4/17/08

WASHINGTON - With several American Indian water rights settlements heading to Congress soon, including three from Montana, tribal and state leaders called Wednesday for a federal fund to pay the government's share and for a more robust federal role in talks.

Those involved with negotiations for numerous tribes told of a lack of federal funding and problems with the process that result in many settlements moving at a snail's pace.

An Interior official said the costs of such settlements could rise to $4 billion.

A U.S. Supreme Court ruling 100 years ago gave tribes water rights on their reservations, but since then only 21 claims have been resolved or are near resolution, said Rep. Grace Napolitano, D-Calif., who heads the Natural Resources panel's water and power subcommittee. Four bills addressing Indian water rights are before Congress, and nine more are expected this session, Napolitano said.

Montana has concluded agreements with six of the seven tribes in the state and has three settlements being readied for congressional approval this year, said Susan Cottingham, director of the Montana Reserved Water Rights Compact Commission. She also testified on behalf of the Western Governor's Association.

The settlements have avoided costly and lengthy litigation, come up with practical solutions to difficult allocation issues and fostered sound management practices, she said. But for years they have faced two problems: the lack of funding and the difficulty states and tribes "have had getting the federal folks engaged at an early stage," Cottingham said.

Because there is no permanent fund, settlements have had to compete with other Interior programs, she said. Montana has spent more than $50 million on settlements, she said.

Cottingham also said the federal criteria have not been applied evenly to all cases. When federal agencies "analyze what the potential legal exposure of the United States might be, which is really the main part of how they analyze these settlements, places like Montana really get the short end of the deal," she said.

A recent idea to pay for the federal share out of the Reclamation Fund, which takes in revenue from water resource development and some sales, leases and rentals of Western federal lands, is a "very exciting development," she said.

"Even though they seem expensive now, they're going to be even more exorbitantly expensive 10 or 20 years down the road, and they are an obligation that the United States has to these tribes and to Western communities," she said.

The funding and process problems are the same as they were in the early 1990s, said Jeanne S. Whiteing, who is legal counsel to the Blackfeet Tribe of Montana in its water rights negotiations and is a member of the tribe. Despite significant water resources on the reservation, the tribe has been unable to benefit in any meaningful way, she said.

The federal negotiating process has made the road to Congress a rocky one, she said. The federal criteria have been used as an "actual impediment to settlements."

The tribe has been negotiating for almost two decades, but has made significant progress in the last two years, she added. "We expect to have a compact ready for congressional introduction in the very near future," she said.

"The key in my opinion is a clear and firm funding mechanism. It frees up the department to be involved in the settlements in a more substantive way, and it frees up the department to come up with creative solutions," she said.

Negotiated settlements are preferable to protracted litigation, said Michael Bogert, chairman of the Interior Department's Working Group on Indian Water Settlements.

The administration follows the procedures and criteria set in 1990, he said.

"Each settlement is inherently imperfect for all the parties, and instead these agreements are about sharing the burdens, the risks and the benefits," he said.

Bogert said federal teams are currently negotiating 19 agreements, and he has requests for an additional 13 teams. "We've never had more attention on water rights settlements," he said.

But he acknowledged that the funding issue must be addressed. He said there may be more than $4 billion in tribal water rights settlements for Congress to consider; he said the hearing was a good first step.

The agency is also taking steps to permanently establish an Indian water rights office within the office of the Interior secretary, he said.

The funding issue is the most difficult in negotiations, agreed John Echohawk, executive director of the Native American Rights Fund. "Getting the federal government to pay its fair share of these settlement costs is still the most important issue that we're facing," he said.

Cottingham and Echohawk also agreed that tribes thought the federal government would be on their side during negotiations, but, actually, states and tribes have agreed on settlements only to have to try to persuade Congress to approve them, usually without administration support.