The irony of a downpour was undoubtedly appreciated by those attending the Oklahoma Academy’s forum on water. The April 11 gathering placed in the same room two entities currently duking it out over water: tribal officials and state leaders.
Tens of millions of dollars have been expended by the Chickasaw and Choctaw tribes in a public relations effort that features slick inserts in newspapers, 30-minute infomercials and multitudes of high-quality television commercials.
Meanwhile, the state and Oklahoma City, while not politically capable of spending millions promoting their agenda, have presented their side of the story, both in court filings and through a decidedly more modest PR campaign.
The issue of water rights came to a head after Oklahoma City made moves to get access to water in Sardis Lake, a reservoir in far southeastern Oklahoma.
Oklahoma City, which is expected to see its population grow over the next 20 years, hopes to tap the water in Sardis to keep pace with its development. The tribes maintain that the water is best served where it is, creating recreational and tourism opportunities for an area already facing tough economic realities.
The final straw
In 1974, a contract between Oklahoma and the U.S. Army Corps of Engineers resulted in the construction of Sardis. The state later refused to pay the bill, and the federal government twice took the state to court — eventually getting a judgment in the case.
The state consequently made a year’s worth of payments, but in 2010 the Oklahoma Water Resources Board agreed to grant Oklahoma City water-storage rights if it paid off the debt. Although the deal did not give Oklahoma City water permits, the city has a pending application for 90 percent of the amount set aside for municipal water use under that 1974 contract.
Meanwhile, the tribes say they had worked for more than two decades to engage Oklahoma in discussion over tribal rights to water. The OWRB’s deal with Oklahoma City was the final straw. In August 2011, the Choctaw and Chickasaw nations filed suit against Gov. Mary Fallin, the OWRB, the city of Oklahoma City and the Oklahoma City Water Utility Trust.
“The suit was filed to get people to the table, not to take control of the water so we could regulate it,” said Chickasaw Nation Gov. Bill Anoatubby. “What triggered the suit was … when they did sell the storage rights for Sardis.”
Still, despite the tribes’ contention that they wanted to work with the state for a resolution, their lawsuit is what brought the underlying conflict to a head, said OWRB member and Cherokee Nation member Ed Fite.
“All these commercials the citizens of our state have been seeing make it appear as if Oklahoma has chosen to do battle with the Indian tribes, and that’s not so,” said Fite, one of two board members who voted against the OKC- OWRB plan. “The two nations brought that suit against the state, and that’s being lost.”
Tribal claims
Simply stated, the tribes claim that when they were forced to move to land in Indian Territory, they held control of the water rights — as well as rights to the land — and those water rights were never signed away.
In 1830, the Choctaw Nation, which had a land base in the southeastern U.S., signed a removal agreement with the federal government. A few years later, the Chickasaws signed a similar treaty giving them part of the Choctaw lands, which at that point consisted of the southern half of Indian Territory.
That 1830 treaty was unique in that it conveyed the land to the tribes in patent fee title.
That meant the tribes owned the land instead of it being held in trust by the federal government, and it guaranteed that the land would never be part of a state, according to Stephen Greetham, chief counsel to the Chickasaw Nation and an adjunct law professor at the University of Oklahoma College of Law.
At the dawn of the 20th century, however, the land held in common by the tribes was busted up and allotted to individual Indians.
Multiple court rulings offer precedents that could favor the tribes: In 1970, the U.S. Supreme Court ruled the Choctaw Nation still held the rights to a portion of the Arkansas River bed because that land had never been allotted out or sold, Greetham said.
In addition, he said that previous high court rulings have shown that water rights did not have to be mentioned in a treaty in order for tribes to retain them. And in a case pitting the federal government against the Grand River Dam Authority, Greetham said, the court pointed out there could be a potential problem since Oklahoma might not have gotten water rights from the tribes.
This issue turned out to be a key factor in a 2009 suit by Oklahoma against poultry companies over pollution levels in the Illinois River, according to Greetham.
In that case, the poultry industry argued that the Cherokee Nation held an interest in the Illinois River and was an indispensable party to the case, but could not be named in the litigation because of its sovereign immunity.
Said Greetham, the court concurred.
When that matter was decided, he said, tribal leaders pointed to the suit “and said, ‘C’mon guys, you’re now having federal courts tell you you can’t implement your own strategies because you lack the clear legal authority to do so. If we let this continue, it’s going to start amounting to a genuine cloud on title that’s going to make investors leery about underwriting infrastructure.’” But the state did not negotiate with the tribes, Greetham said, leading the tribes to file suit.
State’s argument
City and state leaders counter that the tribes never were given water rights by the U.S. government.
Going back further in history, attorneys for the defendants claim that following the Louisiana Purchase, the surface water was still under French and Spanish common law because it hadn’t been addressed in the 1830 treaty. As a result, the water was the property of no one.
Furthermore, the defendants argue that aboriginal water rights are not a factor because the tribes had been forced to Indian Territory from their original homeland.
Congress has repeatedly upheld states’ rights to regulate water, argues the defense. Once the federal government broke up the tribes’ communal property, the argument goes, water regulation fell to the states.
“Are we fighting about the water? Maybe, but maybe we’re fighting about some other things,” said Oklahoma City Manager Jim Couch. “I think a lot of it is … sovereignty. Establishing their sovereignty can lead to other things.”
Couch pointed to an amended complaint filed by the tribes in January saying it was not seeking a ruling on current water usage from that area, only future usage.
“You’re either sovereign or you’re not,” Couch said. “Now they’re saying, ‘We’re sovereign over the future stuff, but we’re not sovereign over the past stuff.’” Couch said the city has engaged the tribes before the suit was filed, but figuring out exactly what they wanted was difficult.
“We’ve never said they don’t have some rights. We just don’t know what those rights are, nor do they,” Couch said. “It’s going to be resolved by mediation or through the court system.”
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This article appears in Apr 25 – May 1, 2012.