The Nez Perce water rights settlement and the revolution in Indian country.: An article from: Environmental Law

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From the author: In March 2005, the Nez Perce Tribal Executive Committee agreed to waive instream reserved water rights claims for salmon throughout the Snake River Basin in a settlement with the federal government, State of Idaho, and Idaho water users. These claims arose from treaties signed by the Nez Perce and federal government in 1855 and 1863, which exterminated aboriginal title to millions of acres in Idaho, Oregon, and Washington but also explicitly reserved fishing rights for tribal members on and off the Nez Perce reservation in north central Idaho. In 1987, the State of Idaho initiated the Snake River Basin Adjudication (SRBA), a general adjudication of all water rights in the Snake River Basin. Six years later, the Nez Perce and federal government on behalf of the tribe filed over one thousand claims for instream reserved water rights in the SRBA. The SRBA Court ruled on the Nez Perce claims in 1999 and rejected tribal claims to reserved water rights in the Snake River Basin. In a decision assailed by some commentators, the court ruled that the Nez Perce impliedly reserved no water to protect Snake River salmon when it reserved fishing rights in the treaties. The Tribe appealed this decision to the Idaho Supreme Court while continuing efforts to reach a negotiated settlement with the federal government, State of Idaho, and Idaho water users. Negotiations culminated in 2005 when settlement parties reached accord. Under the settlement, the Nez Perce Tribe agreed to waive its reserved water rights claims in the SRBA, which avoided a significant reordering of priorities in the State of Idaho's priority-based water rights system. The Nez Perce secured an array of terms in exchange, including commitments from the federal government and State of Idaho to enhance salmon habitat in the Snake River Basin, a commitment from the federal government to transfer up to 11,000 acres of federal land within the Nez Perce reservation into trust for the Tribe, and creation of a tribal water right to 50,000 acre-feet from the Clearwater River with a priority date of 1855. This article traces the recent treatment of Nez Perce treaty fishing rights in the courts and discusses the effects of the SRBA court's decision as well as a 1994 decision by the federal District Court of Idaho on the water rights settlement. This article also suggests that the invigoration of Nez Perce sovereignty over the latter half of the twentieth century, a phenomenon described by Professor Charles F. Wilkinson as "the revolution in Indian country," provides a rational justification for the settlement which ultimately failed to fulfill the promise of comprehensive instream flows for Snake River salmon under the Nez Perce treaty fishing right.

Citation Details
Title: The Nez Perce water rights settlement and the revolution in Indian country.
Author: Alexander, V Hays
Publication:Environmental Law (Magazine/Journal)
Date: June 22, 2006
Publisher: Thomson Gale
Volume: 36 Issue: 3 Page: 869(31)

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