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Tribal water rights claims complicate Oklahoma's water planning efforts

Oklahoma's pre-statehood history as a relocation territory for American Indian tribes has created a legal labyrinth for anyone trying to determine water rights to streams and reservoirs in the state.
BY RANDY ELLIS Published: June 5, 2011

Negotiate or battle it out through the legal system.

That's the dilemma facing Oklahoma political leaders and American Indian tribes when it comes to resolving conflicting water rights claims.

Oklahoma's pre-statehood history as a relocation territory for tribes has created a legal labyrinth for anyone trying to determine water rights to streams and reservoirs in the state.

Clashes over water rights are common in many states, but nowhere are the problems more difficult to resolve than Oklahoma.

“As well and long-recognized by the state of Oklahoma, presence in the state of almost 40 federally-recognized tribal governments, some or all of which may have valid, federally enforceable, treaty-based claims to water, has resulted in uncertainty with regard to issues relating to ownership and jurisdiction over water within the state's geographic limits,” University of Oklahoma law professor Lindsay Robertson stated in a report prepared for the Oklahoma Water Resources Board.

Robertson recommends that the state negotiate with tribes to resolve water rights issues.

Bill Anoatubby, governor of the Chickasaw Nation, said negotiations would be welcomed.

“It is vitally important that the tribal and state governments work together to develop a plan for sustainable management and equitable distribution of our water resources,” Anoatubby said.

That doesn't mean negotiations will be easy.

“The fact that many tribes will have claims adverse to each other will make any negotiations challenging for the tribes,” Robertson said.

Level of uncertainty

In cases where lands were allotted to individual tribal members, tribal citizens may have individual water rights claims that exceed the claims of their tribes, Robertson said. That could compound the difficulty of negotiations, he said.

The prospect of negotiating with multiple tribes and perhaps even individual tribal members with diverse interests may sound overwhelming, but the alternative is a federal adjudication process that may be even more difficult, said Dean Couch, general counsel for the Oklahoma Water Resources Board.

There is a case being adjudicated in Arizona that is still going on after 30 or 40 years, he said.

A lengthy legal conflict would not be in the best interest of Oklahomans, said Kyle Arthur, director of planning for the Oklahoma Comprehensive Water Plan that is being developed by the Oklahoma Water Resources Board.

“We certainly recognize there is a level of uncertainty as to this issue,” Arthur said. “We believe it is in the best interest of everybody in Oklahoma to negotiate it. The water plan, itself, is limited in its ability to resolve it. It can and should, however, raise the issue yet again and offer a path forward toward resolution. I believe this plan does that more aggressively than any in the past.”

Stephen Greetham, attorney for the Chickasaw Nation, agreed that litigation is not the best answer.

“No one ultimately ever wins those fights,” he said. “They go on for generations until folks finally come to their senses and sit down and try to figure out something that works for both sides.”

“We don't want the zero sum game,” he said. “We have to prepare for it, but we don't want that.”

Previous concerns

Tribal members are concerned because the state often has tried to ignore tribal water rights claims in the past, he said.

Just last summer, the Oklahoma Water Resources Board members riled Chickasaw and Choctaw Nation tribal leaders by agreeing to sell Oklahoma City the storage rights to 90 percent of Sardis Lake in southeast Oklahoma without obtaining consent from the tribes.

The tribes responded with a letter to state and city leaders warning that continued action on the Sardis Lake deal without tribal involvement risked “the triggering of complex federal law litigation.”

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