March 09, 2009

Native American Water Rights in Oklahoma

Posted on March 9, 2009 by Linda C. Martin

The ownership of the Illinois River and its watershed in Oklahoma is currently at issue in Federal Court in the Northern District of Oklahoma in a case brought against the poultry industry. State of Oklahoma v. Tyson Foods, inc., et al., Case No. 05-CV-329-GFK (PJC). 

In this case, the Attorney General for the State of Oklahoma sued several poultry companies for polluting the Illinois River and its watershed in Eastern Oklahoma as a result of the disposal of  poultry litter in the watershed. The suit alleges claims under CERCLA, RCRA and nuisance, among other things. The poultry companies assert that the State has no standing to sue because, in this geographic area, under applicable treaties the natural resources (including the water in the Illinois River) are owned exclusively by the Cherokee Nation and not the State of Oklahoma. The defendants’ argument relies heavily on Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), which held that under various treaties, the Cherokee, Choctaw and Chickasaw Nations own fee title to the land, minerals, sand and gravel in and under the bed of the Arkansas River in Eastern Oklahoma. 

The Attorney General asserts that the State of Oklahoma is the exclusive owner of the stream water, not the Cherokee Nation, and relies on the laws and authorities which prescribe the rights and privileges of a new state. The State also claims under other cited authorities that even if it does not hold exclusive ownership of the water in the Illinois River, neither does the Cherokee Nation. The Cherokee Nation is not a party and has not filed a motion to intervene in the case.

Because of treaty similarities, a decision on this issue by the Tulsa Federal Court could well determine the ownership rights of all the Five Civilized Tribes, not just the Cherokees, as to water in any stream or river within or abutting the boundaries of the lands included within their original treaty grants. Thus, it could affect the ownership of stream water in approximately half of the State of Oklahoma. It could further have a significant impact on both development of the Oklahoma Comprehensive Water Plan now in progress, and the issue of who has the right to sell water to both in‑state and out‑of‑state purchasers (i.e., Texas).

Tags: Water


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