Transcript

Brian Wallace: Upholding the public trust and the Indian trust creates a conflict of interest for the federal government

In the context of Indian water rights, it appears that the tools that we have to sort these issues out and the environment that we are working in is doctrinally conflictive, [that is, the ability] of the trustee to uphold the public trust and the Indian trust puts [the federal government] in a conflict of interest and [creates] very difficult and challenging choices. So maybe, in some ways the dogmas of our quiet past are inadequate to the stormy present. From a cultural perspective, as an Indian person and as tribal leader, for us history is more about place than it is time, and to the Washoe people where I come from in Lake Tahoe, water is a sacred environment and, in the context of subsistence economies that tribes are involved in, we look to instream flows or springs and artisian sources that we have relied on for a number of years. They are very much a strong element of our survival and the landscape that we rely upon and quite frankly, our cultural and biological well-being relies on that and rests on it and maybe not just ours, not just Indian people, but everybody in the West. So that concludes my statement.

I have kind of a question for Mr. Getches. It is my understanding that while there has not been a definitive Supreme Court test affirming that tribes can have reserved water rights to groundwater as well as to surface water, a few federal courts and state courts have made such rulings. It seems logical that federal reserved water rights should not differentiate between surface and groundwater where the water is needed to fulfill the purposes of the reservation and its establishment and the overall well-being of the people that it was established for. And when we talk about sitting together in a discussion of our common interests, I guess the real question is, where are you starting from in that discussion? What we are experiencing is that the states and local governments are over-allocating groundwater without taking into account its impacts on tribal communities. So my questions are, what should be done to ensure that state and local groundwater allocations do not interfere with reserved water rights of Indian tribes [while] hopefully avoiding protracted and expensive litigation? And then my second question is, is there federal funding available for Indian tribes to negotiate settlements (there is for surface water rights conflicts)? Do you think there is a need for establishment of groundwater rights settlement funding or are there current funding mechanisms available that you are aware of and for what purposes?

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