Wednesday, August 24, 2011

Tribal Water Rights in Oklahoma - And the Merits of the New Lawsuit by the Choctaw and Chickasaw Nations

At formation of the State of Oklahoma, Congress and the new State specifically stated that tribal governments and tribal jurisdiction would not change as a result of statehood.  Congress enacted the Oklahoma Enabling Act providing for Indian Territory and Oklahoma Territory to be admitted as the state of Oklahoma.  Section 1 of the Enabling Act authorized the inhabitants of both territories to adopt a constitution and become the State of Oklahoma provided,
That nothing contained in said constitution shall be construed to limit or impair the rights of persons or property pertaining to the Indians of said Territories (so long as such rights shall remain unextinguished) or to limit or affect the authority of the Government of the United States to make any law or regulation respecting such Indians, their lands, property or other rights by treaties, agreement, law or otherwise, which it would have been competent to make if this Act had never been passed.
The third paragraph of Section 3 of the Enabling Act contained a requirement that the proposed Oklahoma Constitution contain a disclaimer clause. The disclaimer clause presently Article I, Section 3 of the Oklahoma Constitution, provides that:
The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all land lying within said limits owned or held by any Indian, tribe, or nation; that until the title to any such public land shall have been extinguished by the United States the same shall be and remain subject to the jurisdiction, disposal, and control of the United States. . .
            Despite these clear mandated disclaimers, Oklahoma immediately began acting as if it had jurisdiction over all Indian lands.  See  Ex parte Nowabbi, 1936 OK CR 123, 61 P.2d 1139 and Toosigah v. United States, 186 F.2d 93 (10th Cir. 1950).  This assertion was imbedded in Oklahoma’s psyche.  For example, in a 1953 letter from Johnston Murray, Governor of Oklahoma, replying to a suggestion by the Assistant Secretary of the Interior, that the Governor meet with the Indian tribes in Oklahoma regarding Oklahoma assuming civil and criminal jurisdiction over Indian country (as was being legislated for other states in Public Law 280) in Oklahoma, Governor Murray stated:
When Oklahoma became a State, all tribal governments within its boundaries became merged in the State and the tribal codes under which the tribes were governed prior to Statehood were abandoned and all Indian tribes, with respect to criminal offenses and civil causes, came under State jurisdiction.
Therefore, Public Law No. 280 (providing a procedure for the assumption of jurisdiction by the States) will not in any way affect the Indian citizens of this State.
Oklahoma largely ignored Indian jurisdiction within the state until the 1970s when a number of court decisions recognized that Indians still existed within the state. Finally, a series of cases in the early 1990s resolved for Oklahoma that, indeed, Indian Country did still exist in Oklahoma and the state had little, if any, jurisdiction over actions therein.  Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991); Okla. Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114 (1993).  Thus, from statehood thru the 1990s, Oklahoma engaged in numerous transactions and enacted legislation impacting transfer of water within the state without considering the rights that Indian tribes might have to the water.
            Indian water rights are substantively governed by federal law.  Cappaert v. United States, 426 U.S. 128 (1976); In re General Adjudication of All Rights to Use Water in Big Horn River System, 753 P.2d 76 (Wyo. 1988). Two major Indian water rights cases decided by the Supreme Court more than half a century apart, Winters v. United States, 207 U.S. 564 (1908) and Arizona v. California, 373 U.S. 546 (1963), (footnote omitted) established the scope and foundational principles of the reserved rights doctrine.
The Winters Doctrine. The genesis of federal Indian water rights was founded in the Winters case wherein the Supreme Court held that a right to water was impliedly reserved in the agreement establishing the reservation. 
In Winters, the non-Indian appropriators of water, although junior in right to the tribes, had arguably been using the water for irrigation for a number of years prior to the tribal use.  In spite of the clear prior usage, the Court held that the tribe’s use, as the senior federally protected right, not only had priority over the junior state-law rights, but would be recognized even if the result would deprive the non-Indian irrigators of the water they had been using and on which they had been relying.  From its inception, then, the Winters doctrine contemplated that the water rights of junior non-Indian users would be forfeited when tribes asserted their reserved rights. 
In Winters, the court held that when Indian reservations were established, the United States and the Indian tribes implicitly reserved, along with the land, water sufficient to fulfill the purposes of the reservation.  As stated by the Court:
The Indians had a command of the lands and the waters—command of all their beneficial use, whether kept for hunting, “and stock,” or turned to agriculture and the art of civilization.  Did they give up all this?  Did they reduce the area of their occupation and give up their water which made it valuable or adequate. Id. at 576. The “implied reservation of water rights” doctrine expressed in Winters is that when land is set aside for Indian tribes, implicit with that reservation is the allocation of sufficient water to fulfill the purposes of the reservation.
In Arizona v. California, a dual riparian/appropriation state like Oklahoma, the issue was whether the reserved rights recognized in Winters entitled the Indian Tribe to enough water to irrigate its entire reservation even though it had never irrigated a substantial portion of its reservation.  The Court held whenever an Indian reservation was created, there was an “implied reservation of water rights . .  . necessary to make the reservation livable” and thus the tribe was entitled to that amount of water to “satisfy the future as well as the present needs of the Indian reservation”.  Arizona at p. 600.
The Winters doctrine, as it has developed, has established that Indian reserved rights to water are determined by federal, not state, law.  Indian rights and interests in property are defined and protected by federal law.  And state jurisdiction over Indian property interests with Indian country is preempted unless authorized by Congress.  As set forth above, Congress has expressly stated, in the state’s Organic Act and Enabling Act, that Oklahoma state law is preempted with respect to Indian water rights.
            Indian reserved water rights differ significantly from both riparian and appropriative rights.  Unlike riparian rights, Indian reserved rights are not ratably reduced in times of shortage.  Reserved rights do, however, share certain characteristics with riparian rights:  They generally arise from land ownership rather than use; they may be asserted at any time; and they are not lost through nonuse.  Unlike appropriation rights, reserved rights are not based on diversion and actual beneficial use.  Instead, sufficient water is reserved to fulfill the purposes for which a reservation was established.  Nonetheless, reserved rights, like appropriation rights, are assigned priority dates.  But the priority of reserved rights is no later than the date on which a reservation was established, which, in the case of most Indian reservations in the West, is earlier than the priority of most non-Indian water rights. 
Present status of water rights in Oklahoma
            In his original treatise on Indian Law, Felix S. Cohen had this to say about Oklahoma and the state of Indian law:
The Laws governing the Indians of Oklahoma are so voluminous that analysis of them would require a treatise in itself.  In fact, two treatises have already been written on the subject, and at least two more are in the course of preparation.
            The laws concerning water rights by Indian tribes in Oklahoma would probably be just as voluminous and just as confusing.  Because tribal water rights are to be established consistent with federal law, an examination of the treaty history of the more than 30 tribes would have to be conducted just to determine the extent and scope of the individual tribe’s rights to water on the specific reservation land area on which the tribe was located prior to the allotment acts. 
There is no doubt that all tribes in Oklahoma have Winters rights in the reserved water.  However, because of the unique nature of some tribes, they arguably have greater rights to water than those provided under the Winters doctrine.  When the Five Civilized Tribes were removed to Indian Territory, each was granted in fee simple its own “country” that was never to be a part of any state. Treaty with Creeks, Feb. 14, 1833, 7 Stat. 417, Art. III Because the land held by Five Civilized Tribes is in restricted status and not in trust status, the rights to water in the land are arguably greater than Oklahoma tribes who hold land in trust.
Indian Territory.  The Five Civilized Tribes owned, in fee simple, all of the land in Indian Territory and the water was reserved for their absolute and exclusive use.   In Choctaw Nation v. Oklahoma, 397 U.S. 620, 639, Justice Douglas stated in a concurring opinion that “The treaties with the present Indians solemnly assured them that these new homelands would never be made part of a State or Territory.  So it is reasonable to infer that the United States did not have a plan to hold this riverbed in trust for a future State.  As the United States says, we would have to indulge "a cynical fiction without any basis in fact," to attribute such a purpose to the parties.”
Consequently, it is also reasonable to infer that the United States did not reserve to itself any other water rights in the land and, in fact, conveyed the full legal title to the land and water to the Tribes, who are sovereign entities.  Because Indian rights to property may only be taken by an act of Congress, and Congress has taken no such action on the water rights owned by the tribes before statehood, the Five Civilized Tribes still own much of the water currently in use by the state of Oklahoma.  Neither the General Allotment Act, Dawes Act, Curtis Act, Oklahoma Organic Act, and Oklahoma Enabling Act express any conveyance of water rights.  A well-settled cannon of construction enunciated by the courts in analyzing treaty rights is that the tribes impliedly reserve all rights not expressly given up in the treaty.
Thus, the Five Civilized Tribes legal position is that they did not give up any water rights at the time their land was allotted and retain the rights to the water.  The lawsuit filed by the Choctaw and Chickasaw Nations against the City of Oklahoma City and the Oklahoma Water Resources Board is designed to assert and protect these rights, which were never extinguished by treaty or act of Congress. 
Oklahoma Territory.  Whether the Tribes in Oklahoma Territory (largely the Western half of the state) can assert the same position depends upon their treaty history. Depending upon when and how the Indian Tribe held title to its reservation, Oklahoma Territory tribes may assert the same rights as the Five Civilized Tribes or may be limited to Winters rights only.
Indian Water rights in Oklahoma have been largely unasserted until recent litigation including the lawsuit by the Choctaw and Chickasaw Nations.  The Eastern side of Oklahoma has a comparatively plentiful water supply and a riparian water rights system. The Five Civilized Tribes and certain tribes which received lands directly from them rather than the federal government have a cognizable claim to ownership of the riparian rights.  As noted by the U.S. District Court for the Northern District of Oklahoma in Oklahoma v. Tyson Foods, et al., the Five Civilized Tribes (and in that instance specifically the Cherokee Nation) have colorable claims to exclusive ownership over water in their territories.  A claim for damages to water could not be fully adjudicated without the Tribe’s participation.
For a news article about the new lawsuit filed in the Western District of Oklahoma, see