Tribal Claims to Water Continue in Oklahoma

Posted on October 29, 2010 by Mark Walker

Last year, in State of Oklahoma v. Tyson (Case No. 05-cv-329-GKF-PJC), a federal court threw out the State of Oklahoma's claims against poultry companies for $600 million in environmental damages to the Illinois River Watershed (IRW) due to the State's failure to join the Cherokee Nation as a party to the lawsuit. The Court held the Cherokee Nation was an indispensable party because of its potential "substantial interests" in the IRW, but the Nation could not be joined as a party because of its sovereign immunity. The Nation's last minute request to join as a party was denied as untimely. The case then proceeded solely as to injunctive and other equitable relief.

 


On the heels of the Tyson decision, in early 2010, the Apache Tribe filed a lawsuit in federal court seeking a declaratory judgment that it has Winters water rights (referencing the 1908 United States Supreme Court case establishing the doctrine of tribal federal water rights) in the Red River Basin within its historical tribal boundaries in southwest Oklahoma. Ironically, the State of Oklahoma now seeks to dismiss this lawsuit claiming the Tribe has failed to join indispensable parties, namely the Tribal "allotees" who received individual allotments of Tribal lands in the 1890's, as well as all other persons who claim an interest in the basin. The State claims that, in order to resolve the Tribe's claims, the Court must necessarily determine how much water the Tribe owns or can use, which the State contends puts the Tribe at odds with all other users within the basin.

 


In response, the Apache Tribe asserts it is not seeking a quantification of its reserved water rights, rather it is only seeking a determination that it has reserved rights under the Winters doctrine.

 


The motion to dismiss is still pending. If the case survives the motion, the Court will have to grapple with the issue of how the allotment of tribal lands, which occurred with most tribes in the late 1800's and early 1900's, affected the water rights which the tribes held prior to allotment, and the water rights associated with the lands which remained with the tribes after the allotment process, and how such rights interrelate with State water regulatory systems that have existed for decades. The importance of these cases looms large, as most of the State of Oklahoma and its water resources lie within the historical boundaries of 39 different federally recognized tribes.



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