Posted on October 18, 2011 by Linda Martin
March and September 2009 blog entries discussed issues involving Native American water rights in the Illinois River and its watershed. The issues arose in connection with a federal district court case in Oklahoma involving poultry litter pollution. State of Oklahoma v. Tyson Foods, Inc., et al., Case No. 05-CV-329-GFK. In that case, the non-party Cherokee Nation signed an agreement with the State of Oklahoma wherein the State acknowledged that the Cherokees had “substantial” interests in the Illinois River and its watershed and wherein the Cherokees assigned to the State of Oklahoma any and all of their claims against the poultry defendants. The poultry defendants challenged the agreement, and for various reasons, the Court concluded that the agreement was not valid and did not grant standing to the State to assert the claims of the Cherokee Nation.
Other tribes did not fail to notice the purported agreement between Oklahoma and the Cherokee Nation, with the State acknowledging the “substantial” interest of the Cherokee Nation in the water resources of the State of Oklahoma, the Illinois River, and its watershed. Indeed, on August 18, 2011, the Chickasaw and Choctaw Nations of Oklahoma filed a case involving Native American water rights in the United States District Court for the Western District of Oklahoma. Chickasaw Nation and Choctaw Nation of Oklahoma v. Mary Fallin, in her official capacity as Governor of the State of Oklahoma, et al., Case No. CIV-11-927-C. In this case, the Chickasaw and Choctaw Nations of Oklahoma seek declaratory and injunctive relief to protect their federal rights, their present and future water rights, regulatory authority over water resources, and the right to be immune from state law and jurisdiction in and to certain waters located in the State of Oklahoma. The background facts are as follows:
In June, 2010, the Oklahoma Water Resources Board (“OWRB”) entered into an agreement with the Oklahoma City Water Utility Trust (“Trust”), agreeing to sell to the Trust certain of the OWRB’s rights to store waters of the Kiamichi Basin in the Sardis Reservoir and to control withdrawals of the water from the reservoir. The tribes claim that a fundamental element of the agreement is that the OWRB will issue a water use permit that grants the Trust the right to annually withdraw water from the Sardis Reservoir and/or the Kiamichi Basin in an amount roughly equal to ninety percent (90%) of Sardis’ estimated sustainable yield. The tribes take issue with the sale, transfer and appropriation of water, which they assert was given to the tribes under various treaties with the United States granting them exclusive dominion and control over the water resources on their tribal lands in Oklahoma.
The suit alleges that Oklahoma officials earlier “acknowledged” tribal water rights in the waters in question, as evidenced by State officials seeking participation in a proposed interstate transaction involving the Kiamichi Basin waters. Paragraph 44. Similarly, the suit alleges that the State of Oklahoma “recognized [from the earlier poultry litigation] that ‘the Cherokee Nation has substantial interests’…” in the waters and natural resources in the Illinois River watershed. Paragraph 45. Thus, the earlier agreement with the Cherokee Nation (in which there was an acknowledgement of some level of sovereign rights of the Cherokee Nation in the Illinois River watershed), and the State’s participation in negotiations with the tribes over an interstate transaction related to the Kiamichi Basin waters, are apparently being invoked as indications of the State’s acquiescence in tribal rights in and to certain Oklahoma waters.
Some think that the State of Oklahoma has held its breath for years over the possibility that a court of competent jurisdiction will have the issue of tribal ownership of water squarely in front of it. Others think that the tribes don’t actually want to litigate the matter for fear of how it might turn out. Not so any more, as the Chickasaw and the Choctaw Nations place their ownership rights of water resources of the State of Oklahoma squarely in issue in this case, suing the Governor, the OWRB, the City of Oklahoma City and the Trust for the purported granting of rights to the Trust in the Sardis Reservoir and the Kiamichi River and its tributaries. A ruling in favor of the tribes establishing tribal sovereignty over water rights in certain Oklahoma water bodies and lakes and watersheds will stand Oklahoma on its ear, if it ever happens. Will the case be settled or go to trial? Do the tribes or the State really want to risk letting a court decide these questions? Stay tuned.