By Robert J. Campbell, Jr., Robert J. Haupt & G. Calvin Sharpe
Former Oklahoma Gov. David Walters referred to water as the “new oil.” That metaphor would seem apt. However, while Oklahomans recognize that to get oil you’ve got to pay the owner, it’s very different with water.
For decades, many have refused to admit that much of the water they rely on belongs to someone else – the 38 federally recognized Oklahoma Indian nations – and that decisions regarding that water cannot, in good conscience, be made without the owners’ input. Just this past April, when it became clear that an agreement regarding Lake Sardis Reservoir was in the works, Indian nations made pleas for a “place at the table,” but to no avail.
Can those nations be faulted for turning to the courts? One lawsuit has already been filed, and others are imminent.
Many in the larger community react with alarm: Don’t the nations know that negotiation is preferable to litigation? However, the record in Oklahoma suggests otherwise. As pointed out by L. Susan Work, a senior assistant attorney general of the Cherokee Nation, a 1995 recommendation that the state explore “the development of a mutually acceptable negotiation system to fairly resolve current and future Indian water rights issues” has gone unheeded. Indeed, work on the 2011 update to the Oklahoma Comprehensive Water Plan has not included discussions with the Indian nations regarding their water rights claims. As University of Oklahoma law professor Taiawagi Helton notes, “[t]hey are creating a comprehensive water plan without effectively dealing with the tribal water rights.”
In fact, the 2011 update will apparently be based on the idea that the Indian nations have no such rights. As quoted in published reports by an Oklahoma Water Resources Board official, tribal right to water is “a question that’s lingered for decades” and “has yet to be proven,” and for purposes of the water plan, the OWRB operates under Oklahoma law “which states that it’s the public’s water.” As Work warns, “unless the OWRB or another appropriate state entity begins working more directly with the tribes on a government-to-government basis, the value of the 2011 plan may be severely compromised.”
There is a federal component to this problem. As stated in 2006 by the Western Governors Association, the negotiation approach is threatened by the fact that “while the U.S. Interior Department continues to espouse settlements, it is taking an increasingly narrow view of its trust responsibilities to tribes.” While the Western states and tribes “have continued to work hard to conclude water settlements,” they “can no longer continue to do so in a virtual vacuum of meaningful federal participation and financial commitment.”
We submit that the time has come for the tribes to gather for an “Oklahoma Indian Nations Water Summit” as early as possible during the first quarter of 2011. There, the Indian nations could address issues such as:
A fair and effective negotiation mechanism, and how best to engage the state in implementation.
How best to compel the federal government to perform its trust responsibility to provide the financial and other support essential for many tribes to effectively participate in a negotiation process.
How best to address any conflicting claims asserted by the nations, while making clear to the larger community that such issues will not be permitted to defer negotiation on the broader issues.
The possibility of pooling the nations’ water rights so as to proceed directly to discussions with the larger community regarding the marketing of water.Infrastructure needs, including how to deliver water to nations in the western part of the state.
No longer should the Indian nations of Oklahoma have to plead for a place at a table set by others. The combination of litigation, actual and imminent, and the united front created by a successful summit can mean that their future will be determined at a table set by them.
Robert J. Campbell Jr., Robert J. Haupt and G. Calvin Sharpe are attorneys in the private practice of law, including tribal law, in Oklahoma City.