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Sho-Bans Threaten Suit by Dean Ferguson Lewiston Tribune, March 9, 2005

$52 million potential economic gain for Lewiston could reopen dam debate

Tribal attorney claims SRBA destroys water rights

Dean Ferguson Lewiston Tribune

2005-03-09

Page: 1A

BOISE -- The Shoshone-Bannock Tribe has threatened to sue Idaho's governor and attorney general if the Legislature approves the massive water rights deal between the Nez Perce Tribe and the state. The Sho-Bans also accused the governor of going back on his word.

The governor said Sho-Ban threats will not change the proposed deal.

The deal "wipes out Lemhi-Shoshone water rights," said Sho-Ban tribal attorney Bill Bacon of Fort Hall. The Lemhi tribe is part of the Sho-Bans.

Sho-Ban tribal members staged a press conference on the Statehouse steps Tuesday, a day before the Senate State Affairs Committee will hold hearings over the proposed water rights settlement. The deal has already passed the House. The committee will hear testimony beginning at 9 a.m. today in the Boise City Hall council chambers.

The Nez Perce agreement evolved out of the Snake River Basin Adjudication, an attempt to settle Snake River water rights claims.

In return for $93 million, land, partial management of two fish hatcheries and some water rights, the Nez Perce Tribe will give up most of its water claims. The state will get about $100 million, mostly for habitat projects and water rental. Congress and President Bush have approved payment of the money.

But the Sho-Ban are angry the Nez Perce Tribe will consult with the state to set in-stream flows on 57 streams the Sho-Ban claim are within their aboriginal boundaries.

"This is our homeland security," said Bacon, who also threatened a federal lawsuit to stop the state from moving forward if the deal is finalized.

The Sho-Ban claim they were never invited to participate in negotiations.

However, the governor's office and the Nez Perce Tribe note the Sho-Ban voluntarily withdrew from the Snake River Basin Adjudication negotiating table.

"If they had not voluntarily withdrawn their claims they might be in a position to make that argument," said Nez Perce tribal attorney Heidi Gudgell. "Once they withdrew those claims, they lost their seat at the table."

The Sho-Ban also claim Gov. Dirk Kempthorne made a deal with the tribe for its off-reservation water rights on April 15, 2002, and reneged a day later.

The governor called the next day and said there was no deal because non-Indian water users didn't like the tribe's demands, said Kempthorne spokesman Mark Snider.

The Sho-Ban withdrew their water claims April 22, 2002, because a "drop-dead" deadline was fast approaching, said Bacon.

"We had a deal with the governor, and we were going to hold his feet to the fire," said Bacon, refering to why they dropped out of the SRBA negotiations even after the governor made it clear there was no deal.

Bacon said the disputed deal with the governor was a trick to get the Sho-Ban to drop their SRBA claims, which were identical to those made by the Nez Perce.

The governor's office denies a deal was ever finalized with the Sho-Ban.

"It was not a done deal. It was part of the negotiations," said Snider. "It was one of many attempts to find a resolution. The governor called the chairman and said, 'I'm sorry, Mr. Chairman, it's not something we can do.' "

Kempthorne told reporters Tuesday the real issue has less to do with the Nez Perce deal than with feuding between the two tribes.

"We have to look beyond where there may be differences among tribes," said Kempthorne. The Sho-Bans actions on the Capitol steps would not "augment the SRBA," he added.

Gudgell said the Nez Perces dispute Sho-Ban claims to all of the 57 streams in question.

"We don't concede those are joint use areas," said Gudgell. "We have a right (in the SRBA deal) to consult with the state on in-stream flows on those streams listed in the agreement that the Nez Perce consider to be in their aboriginal territory."

Gudgell said the two tribes have an ongoing dispute over important fishing areas such as Rapid River near Riggins and the Middle Fork of the Salmon. The Sho-Ban list streams as far north as the North Fork of the Clearwater River as "disputed areas between Lemhi-Shoshone-Bannock Tribes and the Nez Perce Tribe aboriginal areas."

With Tuesday's action the Sho-Ban joins other opponents of the deal who are threatening lawsuits. Non-Indian opponents worry the deal will give the Nez Perces too much control and influence over north central Idaho lands within the 1863 Nez Perce Treaty boundary.

If the deal passes the Senate, Kempthorne said he will sign it.

The Nez Perce Tribe will then be the last party to ratify the agreement.

The Nez Perce Tribal Executive Committee passed a resolution two weeks ago to clarify that the executive committee has the right to sign the agreement, said Gudgell. Over the past several months, some tribal members have claimed that the Nez Perce Tribe's General Council should sign the deal.

The executive committee is the tribe's nine-member governing body and the General Council is the entire tribal voting membership.

Gudgell said the executive committee will vote this month.