Posted on December 9, 2011 by Mark Walker
On August 18, 2011, the Chickasaw and Choctaw Nations filed a lawsuit, in federal court in Oklahoma City claiming that they, rather than the State of Oklahoma, have regulatory authority over the water resources within their original tribal boundaries which comprise almost one-fourth of the State. The source of their claims is the 1830 Treaty of Dancing Rabbit Creek, in which the federal government agreed to convey the lands to the Nations, in fee simple, to entice the Nations to move west of the Mississippi from their aboriginal homelands.
In support of their position, the Nations point to the fact that the State, in its lawsuit against the poultry industry for alleged pollution to the Illinois River Watershed, recently stipulated that the Cherokee Nation (as one of the “Five Tribes”) had “substantial interests” in the watershed. The Nations also rely upon the case of Choctaw Nation v. State of Oklahoma, in which the U.S. Supreme Court held that the Tribes own the riverbed of the Arkansas River as it flows across their treaty lands. The Nations also contend that the State previously recognized the Nations’ water rights when it negotiated a compact with the Nations to apportion out-of-state water sales revenues. Lastly, the Nations remind the State that, as a precondition to being admitted to the Union, the State of Oklahoma agreed that it would never assert jurisdiction over the Nations’ lands or affairs.
One of the main issues underlying the lawsuit is, of course – money. The Nations are upset that the State recently sold water storage rights in Lake Sardis to the Oklahoma City Water Utility Trust, thus paving the way for water to be transported from tribal lands to provide water to several municipalities in central Oklahoma, without consulting or sharing revenues with the Nations. Moreover, the temporary moratorium on out-of-state sales while the State studied water availability is about to end, meaning the State could move forward with out-of-state sales of waters located within the tribal territories without sharing the revenues with the Nations. A 2002 proposed compact had resolved this issue, agreeing to revenue share 50%/50% on such sales, however, the Oklahoma Legislature never approved the compact.
The Nations say they want to talk – sovereign to sovereign – to try to resolve the problem. However, the Nations contend that the State has spurned all such efforts. The Governor responded, claiming that the filing of the lawsuit while she was out of town promoting Oklahoma as the go to place to live and do business was a surprise and not helpful to either side’s interests.
Neal McCaleb, a spokesman for the Chickasaw Nation, has said, “most people think tribal rights and tribal sovereignty in general is some kind of ancient relic from the past that really doesn’t have any relevance to the issues today, like water, and that’s not the case.” One hundred and eighty-one years later, the Nations’ water claims under the 1830 Treaty of Dancing Rabbit Creek are finally going to court.