By ef mouss
August 23, 2011
On the August 18, 2011 the Chickasaw Nation and Choctaw Nation of Oklahoma (“Plaintiff Nations”) filed a 36 Page Federal Complaint in the Western Federal District Court of Oklahoma seeking declaratory and injunctive relief to protect theirfederal rights— including their present and future use water rights, regulatory authority over water resources, and right to be immune from state law and jurisdiction. [CIV-11-927-C Case 5:11-cv-00927-W]. To the best of my knowledge, the Plaintiff Nations began this discussion over 25 years ago in their respective Councils.
In a previous article I discussed governance, leadership and jurisdiction. In all the good ole’ boy speak, there has not been one utterance of this scarce and valuable resource, which begs the question,” is your candidate forward looking? And forward looking to the Nation’s water rights or backward looking and uninformed in the complex area of ‘tribal water’. Maybe we as citizens are supporting our status quo candidate and are satisfied with the ‘tobacco fiasco’.
As the Plaintiff Nations move to adjudicate their rights under the principles of the most important case in Indian water law, our principle leader candidate should be able to discuss with their citizens the important nature of the Winters doctrine (‘implied reservation of water doctrine’) and subsequent cases. In each of the community forums I’ve attended, growth and prosperity has been a topic on the citizen’s mind. Not one candidate has addressed water resources as a critical part of economic development.The best candidate should be able to speak on how water rights are necessary for the “growth and prosperity” Creeks all desire. You as a citizen must be aware of the ‘first in time, first in right’ (doctrine of prior appropriations) unknowingly advocated by some of your candidates (which is the principle advocated by white settlers) which the Winters doctrine overturned resulting in Indian water rights. As the Plaintiff Nations prepare to protect their water resources, we in turn must prepare to elect forward looking and competent leaders to begin intensive self-education on Creek water rights.
We cannot sit idly by and expect the Plaintiff Nations outcome to be applicable to the Creeks due to the factors associated with the purpose and quantity of water needed for today (“enough water to make them economically self-sufficient but not enough to make them rich”) but for lawful purposes as technology develops. We must be able to quantify as much water as is needed to fulfill our legitimate purpose. As an agrarian tribe, we should quantify the amount of water needed.
In all the forums, a sense of community has been expressed. With a sense of community, Creek people have exhibited a great sense of success. In my experience, I have experienced Tribal governments mobilize their technical capacity and expertise of hydrologist, civil engineers, wildlife and fish biologist, forestry managers, range specialist, meteorologist and other technical experts with unquestioned integrity and loyalty to the Tribe. If this process is not managed correctly water not quantified for tribal use will go to the state.
Perhaps at no other critical timethan in the late 70’s when Mr. William Veeder, Dept. of Interior’s foremost water expert declared that the Creek water rights were still intact. As the Plaintiff Nation’s move forward, it is the responsibility of the new leadership to initiate a ‘Water Rights Negotiation Council’. The Plaintiff Nations have demonstrated to the Creeks how much we must go forward. We can ill-afford to file a hasty contrived law suit and suffer the fate like the “tobacco fiasco”. There is a big difference; this is water! A life supporting resource.
The Water Rights Negotiation Council must be prepared to formulate a strategy on questions such as, “Are Winters rights transferable to non-Indians?” Since the Creeks occupy an allotted reservation and a great majority of the allotments have been sold. And perhaps this question of hindsight, “when an allotment is sold, did the sale in include the economic value of ‘water’ and did the Winter’s doctrine rights extinguish with the sale of the allotment? And did the water title transfer with the land deed or did it accrue to whom? How does “use it or lose it” fit into the scheme of water rights? Food for thought to evaluate your candidates forward thinking and competency.
We need leadership who has the forward thinking vision and competent leadership to lead.
Mr. Mouss served with the U.S. Congress’ American Indian Policy Commission; Creek Nation Housing Authority Commissioner; First Election Board for the Creek Nation; Adjct Prof Univ of Okla and Okla St Univ; Tribal Co-chair for PL 93-638 Federal Negotiated Rule-Making Committee; Federal Chair for the Contract Support Work Group; Director for Information Resource Mgmt./IHS/HHS; Chief Self-Determination Services/Interior; Chair Okla. and Nat’l Indian Health Board, numerous National Tribal/Federal Taskforces and Work groups, Creek Interpreter-Okfuskee Cty Dist. Court.