WASHINGTON – U.S. Senator Daniel K. Akaka (D-Hawaii), Chairman of the Senate Committee on Indian Affairs, held an oversight hearing on Indian Water Rights: Promoting the Negotiation and Implementation of Water Settlements in Indian Country on Thursday, March 15.
“The settlement of Indian water rights claims has benefits that extend far beyond the boundaries of Indian reservations. Over one hundred years ago, the Supreme Court affirmed that in reserving homelands for their people, tribes also reserved water rights on and off reservations,” said Akaka.
“In order to fulfill its trust responsibility, Congress plays an integral role in tribal water rights settlements. When tribes were moved to reservations, the U.S. recognized their claims to water resources and promised that water would be supplied to meet their needs.”
“Water settlements not only secure tribal water rights, but also help fulfill the United States’ promise to tribes that Indian reservations would provide their people with permanent homelands,” said David Hayes, Deputy Secretary for the Department of the Interior.
In determining water rights claims, a tribe and other stakeholders may pursue either litigation or negotiation. However, many of these settlements have been delayed by lengthy litigation and often result in a tribe being awarded a “paper water right” which prescribes the right, but lacks the financial means to turn those vested rights into real water for their communities.
“With settlements, you get not only a determination, but you get authorization for funding; you get implementation through the implementation process; and you get the additional ability to address issues that would not ordinarily be able to be addressed in the course of litigation. But that benefits not just the tribes, but the states and surrounding communities as well,” said Judith Royster, the Co-Director of Native American Law Center.
“Settlements end decades of controversy and contention among tribes and neighboring communities over water, and that certainty improves relationships and encourages collaboration among neighboring communities,” said Hayes.
According to witness testimony, negotiating to reach a settlement in Indian water rights claims is advantageous for all parties as it is less time consuming and less costly than litigation.
“Litigation over Indian water rights is expensive and divisive. In many instances, Indian water rights disputes, which can date back 100 years or more, are a tangible barrier to socio-economic development for tribes, and significantly hinder the management of water resources,” said Hayes.
“Litigation could result in decades of associated legal expenses and court-ordered judgments against the United States that would likely exceed the total costs of settlement, thereby increasing costs for federal taxpayers,” said Maria O’Brien, Chair of the Western States Water Council.
“Dedicating the outcome of a water controversy to the courts is the best resolution if there is simply nothing left to lose…Courts are the least equipped to rearrange local and regional economies,” said Michael Bogert, a former Counselor to the Bush Administration’s Secretary of the Interior.
However, witnesses also voiced concern that successfully negotiated settlements could still be undercut by a delay in or lack of funding.
“What is the likelihood of a greater investment in Indian water litigation and settlement occurring in this era of intense pressure on domestic budgets? Slim. With significantly fewer human and financial resources to invest, the United States will not be able to speed up the work of finishing the ultimate task,” said John Echohawk, the Executive Director of the Native American Rights Fund.
“Tribes have made tremendous sacrifices to protect and ensure access to water, a sacred resource. Congress must continue to review the settlement negotiation process, find effective funding mechanisms, and ensure that congressionally ratified settlements are properly implemented,” said Akaka.
More information and an archived webcast is available on the committee’s website:
– Senate Committee on Indian Affairs