Concerted Attempts to Undermine State Rights
by Rep. Helen Chenoweth-Hage
"To take from the legislatures of the various states and territories, the control of (water) at the present time would be something less than suicidal . . . If the appropriation and use were not under the provisions of the state law, the utmost confusion would prevail."
These words given by our current Supreme Court Chief Justice, William Rehnquist, in the 1978 decision "United States v. California affirmed an exlusive and crucial power belonging to the states -- the right to control the allocation and ownership of its water.
We are now witnessing a concerted attempt to undermine this right in two particular areas: salmon recovery and Indian water claims. The simple fact is those who wish to destroy state water rights have hijacked the salmon issue. Rather than focus on the real problems and realistic solutions, so called salmon supporters have centered their attacks around the flow and distribution of water -- whether it be through flow augmentation or dam breaching.
Make no mistake about it, the focus of these extreme groups is not the fish, but the control of our water in an attempt to return to pre-Columbian times in the Northwest. Theirs is an unrealistic, un-achievable and costly goal that is causing economic and ecologic confusion, and is harmful to the species themselves.
While billions of dollars have been diverted to endless studies and non-starters such as dam breaching, workable measures such as predator and harvest controls, or other innovative solutions remain on the shelf gathering dust. We must steer this issue back on the course it belongs, which is to recover the species while at the same time respecting the laws and the way of life that has made spectacular agricultural valleys in Idaho prosper.
This brings me to my second issue, attempts by the federal government to make baseless claims for Indian water rights. Don't be fooled by the federal government's claim that the Treaty of 1855 -- which gave the Nez Perce rights to fish in the waters within its reservation -- means that the Tribe is entitled to all of the water in the river. The 1998 United States Supreme Court ruling, South Dakota v. Yankton Sioux Tribe, proves otherwise. This decision established that the Yankton Sioux could only lay claim to water rights that were appurtenant to boundaries of its reservation. The Court pointed out that the Tribe had sold all of its surplus lands within its reservation in an agreement with the federal government which was codified by Congress in the Act of Aug. 15, 1894. The Act itself stated that the Tribe will "cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the un-alloted lands within the limits of the reservation" in return for $600,000. Thus, the Court held that once the Yankton Sioux sold the land within their reservation, all of the rights attached to those lands -- including rights obtained under treaty -- were sold as well.
The Nez Perce were also a party to this 1894 Act, and thus are also subject to these same limitations on their claims -- despite whatever rights they obtained in the 1855 treaty. In November, Barry Wood, presiding judge of the Snake River Basin Adjudication, correctly recognized the Yankton Sioux connection. Judge Wood ruled that when the Nez Perce sold its un-alloted portions oftoo its reservation to the United States in 1893 for a sum of $1,626,222 the Tribe relinquished all of its rights to the fish and any other reserved rights -- including water.
This proves that once again, the federal government is using a bogus argument to undermine our state rights. This is costing the state and its water users millions of dollars to defend. I cannot emphasize enough how important it is to resist the temptation [to] "settle" these non-existent rights with the Nez Perce. After stripping away the subterfuge, the government does not have a legal leg to stand on. We must continue to make a strong stand to uphold the State's essential rights, and you can rest assured that I will continue to do everything in my power that these rights are not stolen, connived, or coerced out of our hands.
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