David Ganje: South Dakota signs onto anti-tribal brief in Supreme Court water case

Wednesday, October 25, 2017

This is not the way to settle water claims

By David Ganje
Native Sun News Columnist
nativesunnews.today

South Dakota Attorney General Marty Jackley recently signed an appeal brief in a water rights case now pending before the U.S. Supreme Court.

California state water agencies which lost in two courts are asking the Supreme Court to overturn a Circuit Court decision in the Agua Caliente case which granted an Indian tribe water rights to groundwater underneath its reservation. The Circuit Court ruled that the Indian tribe had reserved water rights to groundwater appurtenant to the reservation. Attorney General Jackley opposes this decision.

In my view if the Supreme Court accepts the fact that the Agua Caliente case is not a wholly litigated case, it will hear the case. In my view the arguments and position taken by Attorney General Jackley in a brief filed with the Supreme Court are unsound. Attorney General Jackley signed the brief on behalf of South Dakota as an amicus. The brief was written by the Nevada Attorney General and his staff. The brief was submitted by several states as an amicus. An amicus brief is written to offer the Supreme Court assistance in a case from non-parties who claim knowledge of the subject matter.

For over a hundred years the U.S. Supreme Court has granted Indian tribes the reserved right to surface water to accomplish the purposes of a reservation. This ruling based on the interpretation of an Indian treaty was issued in 1908 in the Winters case and has been since affirmed by numerous courts, including the U S Supreme Court again in 1976.

The Attorney General’s brief argues that states should have, “primary control over their groundwater resources.” The brief also attempts to assert that state water claims are greater than treaty water rights of Indian tribes. The Circuit Court decision, now under appeal, stated that rights reserved by treaties are not subject to appropriation under state law, nor did a state have authority to dispose of such water rights.

South Dakota maintains a Department of Indian Relations. A core principle of the state Department of Indian Relations is to engage in a government to government relationship with the tribes. Did the Attorney General review with and consult the department before arguing the positions taken in the filed brief? With the Great Plains Tribal Water Alliance which has an office in the state? With the nine tribes located in the state?

The brief asserts the longstanding Winters case should apply only to surface water rights of an Indian tribe. The U S Constitution does not provide for a state setting treaty policy or imposing treaty terms. “No State shall enter into any Treaty. . .” Article I Section 10 “. . . all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Article VI

A treaty made by Congress as interpreted by the U S Supreme Court is the supreme law of the land. States are bound by a treaty’s terms. Indian treaties are the grant of rights given by tribes to the United States. When negotiating treaties Congress could have requested natural resources including surface water and groundwater on tribal reservations. It did not. These resources belong to the tribes, not to the United States and not to the states.

The brief states that in no case before the Agua Caliente case had a court granted an “unqualified right” to groundwater. This is erroneous. First, the court decision did not grant an “unqualified right.” The ruling limited water rights to what will be determined in the future as necessary for the reservation’s purpose. The question of quantifying groundwater rights was also intentionally left open and has not yet been decided by the case.

Second, the Attorney General’s brief fails to cite or acknowledge a 1999 Arizona Supreme Court case, a 2002 Montana Supreme Court case, and a 2005 State of Washington US District Court case all of which cases recognized that Indian water rights include the right to groundwater.