Water fight brewing in S.D.

Seth Tupper The Daily Republic

Published Saturday, December 15, 2007

Clashes between American Indians and whites in South Dakota have traditionally been about land, but the next big one could be about water.

Demands for Missouri River water are growing, even as global climate change threatens to extend the dry spell that has weakened the mighty waterway during the past nine years. If long-range forecasts hold true and the dry spell continues, fights over water could erupt.

Former state Game, Fish and Parks Secretary John Cooper, now chairman of the Missouri River Association of States and Tribes (MoRAST), said this week that Indian tribes would hold a wild card in those fights. A century-old legal doctrine, never yet applied in South Dakota, gives tribes along the Missouri River and its tributaries the right to withdraw specific amounts of water every year.

“If we as a nation start getting into this issue of who’s going to get what water, who’s going to get allocated what water,” Cooper said, “one thing we forget or don’t acknowledge or haven’t had to face is the fact that the tribal interests in water are still out there — they still exist.”

Tribal water rights were established by the Winters Doctrine, the result of a 1908 U.S. Supreme Court case. The doctrine states that when land reservations were established for tribes, corresponding water rights were implied.

Tribes in some states — especially states with water shortages, such as Arizona — have asserted their powers under the Winters Doctrine and reserved rights to withdraw negotiated acre-feet amounts from waterways. Some tribes have leased portions of their reserved water to non-tribal users.

There has been no such activity in North or South Dakota, possibly because the Missouri River has so far supplied enough water for all comers in the sparsely populated states. But Cooper and others see emerging factors that could soon push the Dakotas into water-rights haggling.

Falling water, rising usage

The principal factor is climate change, or global warming, which scientists say could result in extended dry periods and lesser flows in rivers such as the Missouri. Rising average temperatures already are reducing the winter mountain snowpack that melts in the spring and feeds the Missouri. The rising temps also are causing the snowpack to melt earlier, which in turn results in weaker late-summer flows.

Some scientists predict that warmer temperatures will continue to weaken the Missouri in the coming years. If they’re wrong, Cooper said, there may be no reason to worry about the river.

“I think when we have good water conditions and have lots of water storage in the upper three reservoirs — Fort Peck in Montana, Garrison in North Dakota and Oahe in South Dakota — a lot of these points, a lot of these conflicts, are kind of moot,” Cooper said.

But if the scientists are correct, a bevy of existing and emerging demands on Missouri River water could combine with climate changes to turn the river’s ample water supply into a delicate resource.

One of the emerging river uses could arise from the ethanol boom, which Cooper said is inspiring more farmers to consider tapping the Missouri River for irrigation.

Irrigation from the river has long been viewed as cost prohibitive by many farmers, but Cooper said the ethanol-driven surge in corn prices is leading some to reconsider. More farmers may now be willing to invest in irrigation, he said.

Additional demands on Missouri River water could include the Lewis and Clark Regional Water System, which plans to pipe river water to Sioux Falls and other areas of southeastern South Dakota, northwestern Iowa and southwestern Minnesota; the Red River Valley Water Supply Project, which plans to divert river water to eastern North Dakota; the Mni Wiconi Rural Water System, which will pipe river water to western South Dakota; and a proposed oil refinery near Elk Point that would utilize up to 12 million gallons per day from groundwater wells along the river.

Add to those emerging uses all the existing users of river water, including the dams that produce hydroelectric power and the population centers — such as the City of Mitchell — that draw water from river pipelines, and you’ve got an overused resource. So says Michael Jandreau, chairman of the Lower Brule Sioux, whose reservation borders the Missouri River and the Big Bend Dam in central South Dakota.

“Personally, I feel that the water already at this point is over appropriated,” Jandreau said, “because the tribes have not even begun to totally utilize what they are eligible to use.”

‘Quantification’

Tribes could formalize their rights to a yearly acre-feet amount of water through a legal process known as “quantification.” In Montana, the effort to quantify water rights has been ongoing since 1979, when a commission was established to negotiate compacts with tribes. That commission has so far completed 10 compacts with five tribes and is working on more.

One of the first signs that quantification could be coming to the Dakotas cropped up last month, when The Three Affiliated Tribes of North Dakota expressed a desire to quantify the amount of water it can take from the Missouri River.

Tribal Chairman Marcus Wells Jr. told the U.S. Senate Indian Affairs Committee during an oversight hearing on flood control impacts that tribal members are “prepared to work toward quantifying our priority water right.” He said tribal members are concerned about “the potential infringement of our water rights due to the changing climate, the current water management of the U.S. Army Corps of Engineers, and the potential for the diversion of our water rights to supply the Red River Valley project.”

Wells’ comments align with a prediction Cooper made this week to MoRAST during its gathering at Pierre where, for the first time in the organization’s brief history, no representatives of any tribe were present.

“We’re going to at some point get into a situation,” Cooper said, “where if water is moved from one location in the Missouri basin down to the lower basin and there isn’t sufficient enough water in some tribe’s estimation, if that tribe wants to exercise its control, there will have to be some type of allocation reached.”

There are 27 tribes in the Missouri River basin. If all of their water rights are quantified, predicted Dale Frink, one of North Dakota’s representatives at this week’s MoRAST meeting in Pierre, they could secure rights to an enormous amount of water.

“If they all would do it, they would tie up a chunk of water, if not all of it,” said Frink, an engineer with the North Dakota State Water Commission. “I don’t know if I should say ‘tie up,’ but certainly they could quantify a huge amount of water.”

‘More precious than gold’

Not all tribal leaders want to quantify their water rights.

Robert Quiver Jr., a resident of the Pine Ridge Indian Reservation and executive director of the Great Plains Tribal Water Alliance, said he will never support quantification because he thinks it would hinder Sioux attempts to recover land and water taken by the U.S. government.

Quiver said tribal acceptance of a right to Missouri River water would amount to an acknowledgement that the United States owns the river and all the land west of it in South Dakota. That land — from the east bank of the river and westward — was supposed to be reserved for the Sioux Nation by the Fort Laramie Treaty of 1868, but the treaty was broken by the United States.

Some Indians continue to press claims to the treaty land — especially the Black Hills — despite a 1980 Supreme Court-ordered $106 million payment to the Sioux for the Black Hills and lands east of them. The payment has never been accepted and, with interest, today is reportedly worth nearly $1 billion.

“If tribes quantified water rights now,” Quiver said, “it would negatively impact our claim to the Missouri River and to our Black Hills. … We can’t quantify unless the outstanding land claims have been settled.”

Jandreau, too, said he will not seek quantification, but he gave different reasons. One is that he does not want to acknowledge, by entering into a compact with the state, that the state has authority to allocate water rights to sovereign tribes.

“That begins to talk about sovereignty and control factors that I don’t believe we can give away,” Jandreau said.

Jandreau also fears that quantification cannot take into account all of the potential future development of a reservation. An amount of water considered overabundant today, he said, could turn out to be inadequate decades into the future.

Instead of quantifying the tribe’s water rights, Jandreau has been practicing a strategy he sums up as “use it or lose it.” He’s spreading the water to the greatest extent possible throughout his reservation, via pipelines for his people and irrigation for tribal crops, so that the tribe will have something like squatter’s rights if outside groups try to lay claim to the tribe’s share of Missouri River water.

Like Cooper, Jandreau thinks a battle over the water is brewing.

“It’s going to be an issue that’s going to be very contentious and very divisive and very combative,” Jandreau said.

Jandreau compared the potential water rush to the historical gold rush that resulted in the taking of Sioux lands in western South Dakota during the late 1800s. Once again, Indian people are sitting on a resource that a lot of other people want.

“You know, water is more precious than gold, especially when there’s none,” Jandreau said. “And it’s such an essential element of life. You can do without gold, but by golly you can’t do without water.”