Interview Transcript
Doug Nash
Q: As a tribal member and as an attorney, what is the significance of this case?
A: The significance is huge in both respects. Water users and those who rely on water throughout the entire state are going to be defined by this case. In a case as large as this, that encompasses the entire Snake River basin adjudication. That's a majority of people in this state. It's going to sort out people's water rights in terms of quantity and priority time, and that's going to be terribly important to everybody.
Q: How is it significant to the Nez Perce specifically?
A: The Nez Perce claims are important to every tribal member who has an interest in the rights that the tribe has -- who is part of a tribal organization that has treaty reserved fishing rights. Treaty reserved fishing rights have been important since 1855 when they were reserved by treaty, and of course, terribly important to the tribe for a long time before that. It's in every tribal member's interest to be concerned about the welfare of those rights and the things they're based on, like water for fish.
Q: Does this case have any significance legally, as in setting some precedent?
A: As far as I know there have not been other similar or identical claims made in general stream adjudications, that is, for instream flow rights to support fish that are the subject of treaty reserved rights outside a reservation. And I think that will be a key point in this case.
Q: The Deputy Attorney General [Clive Strong] mentioned that the purpose of Congress opening up land to non-Indian settlers was to let them be able to use the water to settle the land, and if tribal rights to certain instream flows are affected, then that would defeat that objective.
A: Looking at the issue that way is looking at it backwards. The question in a general stream adjudication involving the issue of Indian water rights isn't what Congress intended when it put settlers on the land. It's what Congress intended when it created the reservation in the first place. Secondly what did it intend in the creation, formulation, of treaty reserved rights that the tribe has? Those are two distinct and separate components of the tribe's water rights -- the purpose for which its reservation was created and the treaty reserved rights, in this case, for fishing.
Q: How important are the off-reservation claims?
A: There are treaty fishing rights that have been reserved both on the reservation, where they're exclusive, and outside, where they are in common with those of other citizens. And one of the things the courts, historically, have not been inclined to do in their analysis of Indian water rights is to balance competing water rights; it is almost an absolute. As it is for non-Indian water users on a stream, there are senior rights and there junior rights, and sometimes senior rights trump junior rights and they don't get water. And the courts, historically, that have looked at Indian water rights have determined what they are and in some cases quantified them and then went forward with the rest of the adjudication.
Q: What do you see as a lawyer as the main difference between federal reserved water rights law and the doctrine of prior appropriation?
A: There are several, and there are distinctions even between federal water rights and Indian water rights as we have come to know them. With Indian water rights in particular, it's very unique in that the United States is the entity that in essence owns the water rights. The Nez Perce tribe for example has certain water rights, but from a legal standpoint, we are not in an ownership position. The United States as trustee for the tribe is the key entity for a number of purposes. And that is similar to the way real property is held as well. The United States is the holder of legal title to Indian trust land although the tribe or an individual Indian has the right to use and derive profits from trust land, but it can't be sold without government's permission and can't be subjected to the local taxation and regulations because it is the federal government that is the owner. No other party or governmental entity is in that situation in water rights cases.
Q: And the issue of time immemorial is different as well . . .
A: That is for the kinds of rights that are raised by treaty reserved fishing rights because the priority date goes, as the principle states, to the time water is put to a beneficial use. For tribes in this country, the Nez Perce tribe in particular, fishing has been an activity that has been engaged in as a part of life since time immemorial. And there really is no other feasible way to date that activity.
Q: Can you describe the importance of the Winters case?
A: Winters dealt with the issue of the other type of water right, if you will, besides those that are based in time immemorial. That is, whether the creation of a reservation for an Indian tribe carries with it an implied reservation of water rights to fulfill the purpose of that reservation being created. In that case, looking back, it seems almost simple in that the reservation was created in north central Montana, where irrigation was a necessity for agricultural purposes. It was created as a homeland, agriculture was a focus for that tribe, and without water, there could be no irrigation and no agricultural purpose fulfilled. In that case, the US Supreme Court held that when Indian reservations are created, there is an implied creation of a water right to fulfill that purpose.
Q: And Winans?
A: Winters was a 1908 case; Winans was 1905. That case dealt with treaty reserve fishing rights on the Columbia River. That was a situation where the Yakima nation had a right to fish but were being denied access to fishing sites by private property owners along the river. The Court in that case held that the reserved right carried with it an implied servitude or an implied easement across private property. There was a right that existed, and the right could not be defeated by private land owners denying access to the fishing sites.
Q: There never has really been a case that looked at not just the right to fish off-reservation and have access like in Winans, but the right for the tribe to have this water to take care of the this resource.
A: There are several cases where water rights have been tied to a tribe's right to fish, typically a treaty reserved right. There have been cases where a tribe's right to fish that was not reserved by treaty was not found to be a suitable basis for water rights. I think the case that comes the closest is the Adair case, which went to the 9th Circuit and which involved the Klamath tribe. The Klamath tribe was one of those that was terminated in the 1950s. In 1953 Congress stopped recognizing it as a federally-recognized Indian tribe. But subsequent to that happening, the tribe made a claim that it still had treaty reserved fishing rights because it had a treaty with the United States similar to the Nez Perce treaty. The court held that those treaty rights to fish survived termination.
Q: Is there case law that puts the Nez Perce on solid legal ground to be asking for these rights off-reservation for the protection of fish?
A: The Nez Perce tribe I think is on as solid ground as you get in legal proceedings where there's always somewhat of a question. In two regards. One, there is support for it in case law that is similar, although not identical, that supports the award of water rights to support treaty reserved fishing rights. And secondly, as a matter of necessity, the implication that goes with water rights, having a right to fish without any right to water to support those is an illogical outcome.
Q: Judge Wood's decision says, the tribe has the right to fish the same as any other citizen, but does not have a right to the conditions nor the volume of water that existed at the time the reservation was created.
A: I think the parallel that has to be drawn in that is like the Winters analysis. Having a reservation as a homeland where you can grow crops but you don't have a right to water to grow those crops destroys the purpose. In the case of the Nez Perce tribe, there's a right to fish specifically reserved by treaty, and a right to fish without the right to the water to support those fish is as destructive to that right as having irrigated farmland without the water.
Q:Many of these negotiations have been going on for a long time. I would assume it is in everyone's best interest to have this thing settled.
A: Generally water rights adjudications are terribly protracted in terms of time. They're complicated in terms of the number of parties and the legal issues involved and the number of rights involved, and I think that from my perspective at least, mediation, settlement discussions, offer the hope of a better outcome for all the parties. Litigation focuses on issues that are within the documents filed in the case; the complaint and the answer and the results don't go beyond that. In a negotiated settlement, much broader issues and interests can be addressed, and many times that's what makes them successful for the parties.
Q: Is there anything else you feel is important to say?
A: The case is terribly important because it will happen one time. So everything that the Nez Perce tribe can and should do I'm sure will be done and that's true for all the parties. Everybody will be recognizing that this will happen one time, rights will be defined and then that's it. It is a matter of administering the decision once it is done. From my own standpoint as a tribal member, I of course support the tribe and view the rights that are involved as extremely valuable and hope that they are adequately protected.
Q: Would the tribe settle for some sort of compensation, some sort of recognition that something was taken from them?
A: If it's a matter of a case where something has been taken, sometimes that's the case. Tribes are very unique in that they're often involved in litigation or mediation, nominally for money, but it's not really that important. If it's a matter of vindicating something that's been lost over the years, to a certain degree. I have represented tribes in litigation where an offer has been made of money and it's going to be withdrawn if it isn't taken, and I've seen tribes wracked by saying, We've gotten along without the money before; we can get along without it now.
Q: It wasn't too long ago that the tribe wouldn't have been able to mount an effort like this; it couldn't have been done even 20 years ago.
A: It would have been difficult, I believe, much more difficult than it is currently. But at the same time, when tribes face a threat to what they view as very fundamental rights, they have been inclined for the most part to dedicate resources to where they need them. The tribe is better off financially now certainly than it was 20 years ago. A lot of other opportunities and programs for funds to support litigation and litigation expenses have come into play. You're right, they're in a much better position now to defend these rights.
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