William H. Veeder Water Law Conference
September 28-29, 2007
Description of Presentations
DAY ONE
Indian Law Context and Practical Applications of the Walton case in 2007
Steven Suagee, Office of the Reservation Attorney, Confederated Colville Tribes, Nespelem
The Indian law context of Confederated Tribes of the Colville Reservation v. Walton, 647 F.2d 42 (9th Cir. 1986), will include a discussion of the following points: legal history of the 1872 Executive Order establishing the Colville Reservation and its purposes related to reservation of water rights; relative roles of Tribes and State in regulating non-member, fee-land water use within Reservation; priority dates of tribal federal law water rights under Executive Orders when reserved for aboriginal purposes; significance of Walton as a federal court shield against potential erosion by state court decisions under McCarran Amendment. Some of the foregoing concepts have evolved over time, and have a different significance now than may have been anticipated in the 1980s (a different era in the development of Indian law).
The foregoing concepts provide the backdrop for the Colville Tribes’ practical approach to regulation and management of water and fishery resources within the Colville Reservation and its boundary waters (Columbia and Okanogan Rivers) and to rights protection in the upper Columbia Basin. Recent examples to be discussed, with appropriate reference to the impact of the Walton case, include: comprehensive revision of Water Code that has been in existence since the 1970s (one of the earliest tribal Water Codes); increased cooperation with water and fish and wildlife agencies of the State of Washington, as evidenced by significant agreements related to anadromous fish harvest allocation and the implementation of the State’s Columbia River Water Management Plan; tribal primacy over on-reservation water resources permitting and regulation, including substantial deference by State agencies; successful legislative effort to preclude State-authorized Water Conservancy Boards from purporting to exercise authority within Indian Reservations; participation in sovereign collaboration process to develop new Biological Opinion for Federal Columbia River Power System under oversight of federal district court; other recent developments as appropriate.
Greatest Tirades of the Late, Great Bill Veeder
Jack Fiander, Attorney at Law, Yakima
William Veeder took the trust responsibility of the United States to Indian nations most seriously. Although a long-time, loyal employee of the United States government, when appropriate, he did not hesitate to display his skepticism or feelings of betrayal about the motives of his employer in dealing with the water rights of its tribal wards. A look back at some of the life, times, briefs and oral arguments of William H. Veeder.
Practical Water Management on the Spokane Reservation
David Lundgren, Attorney at Law, Bandon, Oregon
Anderson v. U.S. adjudicated the water rights of the Spokane Tribe of Indians and non-Indians to the waters of Chamokane Creek, which forms the eastern boundary of the Spokane Reservation. Post-decree water management has been conducted via federal watermaster and the U.S. District Court in Spokane court has retained and exercised jurisdiction in the case. This presentation examines current conflicts, including proliferation of exempt wells, issues concerning ground and surface water interaction, and other evolving and contemporary problems of water management.
Political & Economic Significance of Tribal Water Management
Mel Tonasket, Former Chairman, Colville Business Council, Omak
Reservation rivers, streams, lakes, spring, groundwater and other waterways are resources of tremendous value to tribes, from cultural, political and economic standpoints. Because of this, the management and protection of water resources is a significant activity of tribal councils and tribal administrative agencies. The Walton case serves as an important study of how water conflict and litigation impacts tribal leadership over reservation water management.
Tribal Water Rights in National Perspective
Professor Bob Anderson, Director, Native American Law Center, University of Washington Law School, Seattle
This presentation provides an overview of federal reserved water rights, how they fit within the context of national Indian policy at Congressional and administrative level, and observations on unique aspects of tribal water rights in the Pacific Northwest.
Water Use after Walton
Sam Sampson, Editor, Colville Tribal Tribune, Nespelem
Sam Sampson served on the Colville Business Council from 1976-1980 and attended the Walton trial that occurred in Spokane during that time. Mr. Sampson’s mother owned property in the No Name Creek watershed, subject of the Walton case, and served as a witness in the case. Mr. Sampson will provide his “eye-witness” account of the trial and his family’s involvement in the Walton litigation.
First Nations and Water Resources
Louise Mandell, Q.C., Barrister and Solicitor, Mandell Pinter, Vancouver, B.C.
Ms. Mandell has represented Canadian First Nations in many of Canada’s landmark cases involving aboriginal and treaty rights, including Regina v. Sparrow (upholding aboriginal fishing rights under the Constitutional Act), Guerin v. The Queen (establishing the fiduciary relations of the Crown toward First Nations), Delgamuukw v. The Queen (involving First Nations’ rights of ownership and jurisdiction over their territories), Regina v. Van der Peet (involving aboriginal rights to commercial fisheries), and Haida Nation v. British Columbia (establishing governmental duty to consult with First Nations). Ms. Mandell will discuss the rights and roles of First Nations in natural resources management.
Intergovernmental Aspects of Water Management
Mary Verner, Executive Director, Upper Columbia United Tribes, Spokane
Federal legal precedent serves as an umbrella for some aspects of Indian water rights, but differences in legal histories, treaty and non-treaty rights, and issues specific to certain water bodies make it difficult to generalize the application of legal premises. The interface of multiple governmental bodies brings challenges of coordination toward a common end. Water rights law can be employed either to achieve or to impede common purposes. Intergovernmental communications are at the crux of managing water across jurisdictional boundaries.
River Restoration: Cohesion & Conflict Between Tribal and State Water Rights
Rachael Paschal Osborn, Director, Columbia Institute for Water Policy, Spokane
Water rights held by Indian tribes are a special form of right known as a federal or tribal reserve right, as established in the 1908 Winters case and subsequent federal court decisions. Tribal reserve rights are senior to most state rights, not subject to state regulation, and can include instream flow rights to protect and enhance water quality, aquatic habitat and fisheries populations, including on off-reservation waters. Tribal water rights hold potential to solve environmental problems created by state-based water allocation systems. This presentation examines the cohesion and conflict between state and tribal water rights in the environmental arena.
DAY TWO
Current Status of Bill Veeder’s Goals
Mike Watson, President, Watson Engineering, Helena
Bill Veeder dedicated his life to the advancement of the Winters Doctrine for the benefit of present and future generations of Indian people. He sought to advance the development, conservation, and administration of waters traversing, bordering, and underlying the Indian reservations of the Western United States to which Indian Tribes hold title to the prior and superior property rights to use water for beneficial purposes both now and in the future. Bill Veeder would consider it his legacy immaterial, but he would be pleased that Indian Tribes, through their leadership and membership, are heavily engaged in utilizing their natural resources, particularly water, in their economic and social development.
The presentation will address the current status of the pursuit by Indian Tribes of their rights to use water with discussion of some cases intended to limit the Tribes, including Martinez v Lewis by the New Mexico Supreme Court and Gila River Adjudication, Quantification of Indian Water Rights by the Arizona Supreme Court. Examples will be given from the White Mountain Apache, Standing Rock Sioux, Oglala Sioux and Confederated Tribes of Colville of the vigorous activity to preserve, protect, develop and administer their water rights consistent with the tenets espoused by Bill Veeder.
The Impact of Walton on Integrated Water Management
Gary Passmore, Director, Environmental Trust, Confederated Colville Tribes, Nespelem
This session focuses on the role of environmental manager in water rights litigation, and includes remembrances of personal interactions with attorney Bill Veeder. The session concludes with a description of the transition of the Confederated Colville Tribes from lawsuits over water into a process of integrated natural resources management – a process still underway.
Fisheries Considerations in Tribal Water Management
Sheri Sears, Resident Fisheries Manager, Fish & Wildlife Dept., Confederated Colville Tribes, Nespelem
A brief history of state water rights and tribal water use considerations in permitting, including defining beneficial uses of waters (in-stream and out-of-stream uses), defining and prioritizing waters and resources, types of protection, and interaction with reservation landowners. The session concludes with a case history of the Aubertin exchange, including the role of tribal sovereignty and that of the Washington Water Trust, an environmental NGO.
Hydrogeology and Tribal Water Management
Tom Ring, Hydrogeologist, Water Program, Yakama Nation, Toppenish
Natural relationships between ground and surface waters should lead to integrated management of rivers and aquifers. This session explores how the science of hydrogeology informs water policy & law.
Water Quality & Tribal Water Management Panel
Patti Bailey, Environmental Planner, Environmental Trust Dept., Confederated Colville Tribes, Nespelem
This presentation outlines how the Confederated Colville Tribes address challenging water quality issues, particularly those associated with historic contamination of the Columbia and Okanogan Rivers, both international waters. Due to the great importance of these rivers to the Tribes and citizens of the United States, the Colville Confederated Tribes have taken on these issues with the goal of seeing that adequate risk assessments are conducted and lead to improved environmental conditions.
Optional Field Trip: Chamokane Creek on the Spokane Indian Reservation
Field trip to Chamokane Creek, which forms the eastern boundary of the Spokane Indian Reservation, and which is the subject of the ongoing Anderson v. U.S. lawsuit regarding water rights and water management in a shared (tribal-state) watershed.