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Tribal Water Rights: Snake River, Idaho
And for Nez Perce elder Allen Pinkham, that conversation has been a long time coming.
Allen Pinkham: "We were never given that option 200 years ago and 150 years ago, even 100 years ago, even a few years ago. We were never given a choice. But now since we have the law, what you people call the law of the land, we are using that law of the land to protect our interest. And water issues are our interest."
Specifically, the Nez Perce tribe has filed thousands of water claims in the Snake River basin adjudication, claims that could affect water rights holders hundreds of miles away.
John Simpson: "The number of farmers throughout the basin would be extraordinary. Very few farmers if any could exist in the manner that they've been accustomed to."
John Simpson represents water users who stand to be affected by the large number of claims the tribe has filed.
John Simpson: "They've essentially claimed all the water in the Snake River area. So essentially water that is now stored behind reservoirs could be subject to a call by the Nez Perce tribe to fulfill their water rights. That could extend all the way to the headwaters in Wyoming, in the Jackson Lake area. Those are the headwaters of the Snake River. The ramifications are to anyone that uses water in the state."
Because it was government policy to "civilize" nomadic Indians, forcing them onto reservations and making them farm, courts have ruled that tribes have a right to enough water to irrigate their land and run their operations on the reservation. But the Nez Perce say their treaty specifically reserves to them fishing rights off the reservation. And that, they say, means they can claim that water as well.
Allen Pinkham: "When we negotiated the treaty of 1855 with Isaac Stevens we said we want to fish here, here and here, not only in our homelands but as we travel."
Clive Strong: "The state's position is ...we do not believe that the tribe has a reserved water right under the Nez Perce treaty."
Clive Strong is head of the natural resources division of the Idaho attorney general's office.
Clive Strong: "Certainly we recognize the Nez Perce tribe has a right to hunt and fish but that right is in common with the other citizens of the territory. When we were developing the West the whole idea was to open the lands to development, and to allows these claims to go forward would defeat that purpose."
Doug Nash: "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 did Congress intend when it created the reservation in the first place."
Doug Nash is an attorney and a member of the Nez Perce tribe.
Doug Nash: "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."
And according to case law, Native Americans can literally go back to the beginning of time to date that water claim.
Clive Strong: "With the priority date of time immemorial, they become the first water right on the river so all of the existing uses within these various basins made would be junior in time to those rights and subject to curtailment in order to satisfy them."
Allen Pinkham: "We were here first…. We've always been here. Since time immemorial. Since time began. We were given this area to live and now some other strange people come and say we don't have these rights. That is not correct. We were here first."
For more than 10 years, the state, the tribe and other interested parties have been trying to resolve the conflict, both in the courtroom and at the negotiating table. While the legal proceedings have been open, the bargaining process, has not been, and that's where much of the action is taking place.
Clive Strong: "The reason that we have to do these things in executive session is because obviously there are some very sensitive issues that we're discussing and parties in order to explore whether they're willing to make concessions in one area need to have the flexibility and freedom to talk openly about those without the concerns that that becomes an issue in the press that then frustrates the negotiation process."
Those involved say they hope the talks will not only resolve specific water rights issues, but also help solve larger problems, such as the conflict over water for endangered species.
John Simpson: "The negotiations are an effort to resolve in our view all threats to Idaho water, to allow irrigated agriculture to continue as it has for 100 years, allow development to continue. We want to ensure that the way of life that all Idahonians have been accustomed to can continue."
Allen Pinkham: "You know, we as Indian people have been hurt many times over because of the encroachment of so called civilization, so when do we quit feeling pain? I think now is the time for us to quit making sacrifice for progress. Why don't somebody else suffer some economic pain, like we have for the last 200 years?"
John Simpson: "I understand that. We understand where their feelings lie. But at the same time, that doesn't mean we feel like we should be subject to the pain if you will, or the curtailment, because if there were broken promises 150 years ago, that's unfortunate, but that doesn't mean that promises that were made 100 years ago to people coming out West should then be broken at the same time."
Each side remembers promises given. And each side will have to make new promises in order to create some certainty over a resource that everyone needs.
Allen Pinkham: "Water was given to everyone by our Creator. We should share this resource and not have to divide it up. You know if people realize that this is really life, if without water there is no life and I hope that one day we will have enough water, good quantity and quality of water to sustain life."