If advocates and opponents of the Crow Water Settlement Act of 2010 agree on nothing else, they believe that without water, land is worthless.
The debate that lingers over the act, which includes the 1999 water rights compact between the tribe and the state of Montana, is whether Crow landholders’ water rights are protected. Both sides of that debate have spent the past few weeks trying to convince tribal members of the accuracy of their arguments.
The urgency lies in the vote slated for Saturday in which enrolled members of the tribe will be asked to ratify the water settlement act, which Congress passed in November and President Barack Obama signed on Dec. 8.
Eight tribal members on Tuesday filed a request in Crow Tribal Court for a temporary restraining order against the vote, but Judge Jonni Dreamer-Big Hair denied the motion on Wednesday.
If voters approve, the tribe will see several benefits. It will have a quantified water right of 650,000 acre-feet per year from natural flow and storage with a priority date of 1868.
The settlement also will bring the tribe $460 million to rehabilitate the Crow Irrigation Project and design and construct a municipal, rural and industrial water system on the reservation. The bill also gives the tribe the exclusive right to develop hydropower at the Yellowtail Afterbay Dam.
None of that matters, opponents say, if those who own land or interests in land that is held in trust by the United States — allottees — are stripped of their water rights.
“Water goes with land,” said Sarge Old Horn, a tribal member and allottee who opposes the act. “What happens here if you don’t have water? Of all the elements on this planet, you need water to survive.”
Bill Eggers, another opponent, said he believes the water compact takes away the allottees’ water rights without compensation. Eggers, a member of the tribe and an allottee, is an attorney and instructor of Indian law at Montana State University in Bozeman.
Cedric Black Eagle, chairman of the Crow Tribe who spent 12-plus years helping fashion the compact and the water settlement act, disagrees with Eggers’ contention.
“I believe that the allottees are well-protected and I don’t see any problems in the future as far as protecting the rights of allottees as far as the beneficial use of the water is concerned,” Black Eagle said.
The Crow Reservation contains an estimated 2.3 million acres, and tribal enrollment is about 11,500. A total of about 5,150 allottees are spread across the United States, Eggers said, and about 2,200 of them live on the reservation.
“The water compact divests, eliminates and takes the allottees’ water rights away and does not give them any compensation for it,” Eggers said.
He specifically points to a section on the Crow water compact that talks about new development of the tribal water right being junior to water claims filed with the state prior to 1999. Since Eggers relied on the tribe’s 1868 priority date and didn’t file a claim, he fears his water right is now junior to others, including non-Indians, who filed earlier claims.
Heather Whiteman Runs Him, co-counsel for the Crow Tribe, said Eggers’ fear about possessing a junior claim is unfounded. Indian water users on trust land are not required to file claims with the state.
“That was done on their behalf by the federal government as trustee,” Whiteman Runs Him said. “Any water use on tribal trust land, whether individual or tribally owned, is protected as a senior water right as of 1868, and it’s specifically stated in the water compact as well as in the settlement.”
In both documents, she said, it says that allottees are entitled to “a just and equal portion of the tribal water right.” The senior and junior rights in the compact refer to claims in the state water adjudication system, which has nothing to do with trust land.
Bill Yellowtail, a former state senator and regional administrator for the Environmental Protection Agency, also has concerns about the water settlement act. He sent a letter to Black Eagle asking him to postpone the vote until all of the issues are resolved.
Among other things, Eggers questions whether he will be able to use the groundwater that’s on his land or if he’ll have to figure out a way to get water from the river 60 miles to his acreage.
“Clearly I’m guaranteed some unspecified share of the tribe’s water right, which if I chase what that is, is downgrade and 60 miles from me who lives on a creek,” Yellowtail said. “There just doesn’t seem to be equity in that picture to me.”
Whiteman Runs Him said questions about the tribe’s right to groundwater have frequently come up in meetings on the water settlement act.
“Groundwater is absolutely included in the compact,” she said. The compact touches on all but one of the tribe’s basins and mentions surface flow, groundwater and storage in each case.
Eggers also maintains that the allottees were never represented at the bargaining table, either in state or federal negotiations. Whiteman Runs Him said the federal government, in its trust capacity, represented the allottees throughout negotiations.
“There have also been allottees involved in that process,” she said.
Eggers, Old Horn and Yellowtail all wonder what the rush is to hold the vote. The act need not be ratified until 2016, Yellowtail pointed out.
Waiting will “give us adequate time to cure the problems that are embodied in the compact, and for that matter, the act itself,” he said.
Black Eagle believes the water compact and settlement act will both protect allottees and offer the tribe a brighter economic future.
“It opens the door to opportunities that never existed before,” Black Eagle said.
Whiteman Runs Him said she understands the reluctance of tribal members to endorse the settlement act. In the past the tribe has been deeply wounded by actions in federal court and through Congressional actions.
“But this is something that’s going to be to our benefit,” she said.