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The Rise of Tribes and the Fall of Federal Indian Law
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Deal proposed to resolve Idaho tribe's water rights
Monday, May 17, 2004

The Nez Perce Tribe of Idaho will receive $193 million in water rights, payments and other benefits under a proposed settlement to one of the longest-running water disputes in the nation.

Tribal leaders joined Interior Secretary Gale Norton and Idaho Gov. Dirk Kempthorne (R) on Saturday to announce terms of the deal. Reached through mediation, officials said it would resolve the tribe's claim to water in the Snake River Basin.

"The process can now move forward to closure with new momentum, for the benefit of all concerned," said Anthony Johnson, chairman of the tribe's executive committee.

The settlement still requires tribal, congressional and state approval but is the closest the parties have come to resolution. Affecting more than 180,000 water users, the dispute was tying up a water rights adjudication process that has taken more than 20 years and $40 million to sort out.

Under treaties with the United States signed in 1855 and 1863, the tribe reserved the right to fish on and off the reservation. This right formed the basis of the tribe's water claim in the basin.

A judge in Idaho ruled against the claim in 1999 but after learning that the judge and his brother had a stake in the matter, the tribe sought to disqualify the judge and have all rulings thrown out. As the matter was being heard before the Idaho Supreme Court, Snake River Water Rights Adjudication Judge Barry Wood was removed from the case for unrelated reasons.

The state Supreme Court in June 2002 then ordered a refiling of all the claims, setting in motion the talks that led to the latest announcement. In October 2003, the tribe and the the other parties agreed to suspend the litigation, which could last several more years, to seek a settlement.

Under the proposed settlement, the tribe will drop all of its claims in the basin. In exchange, the tribe will receive water rights, a trust fund, payments, land and other considerations.

The agreement calls of the tribe to receive 50,000 acre-feet of water a year on the reservation. Under Idaho law, priority is assigned by date so the tribe will receive a priority date of 1855. The federal and state governments also will recognize the tribe's off-reservation access to federal and public lands that were ceded by the 1863 treaty.

The federal government will establish a $50 million multiple-use trust fund for the tribe. The tribe can use the fund to acquire land and water rights; restore and improve fish habitat; promote cultural preservation, fisheries and agricultural development; and other purposes.

The tribe would also get a water supply and sewer system on the reservation. The project is valued at $23 million.

Additionally, the U.S. will pay the tribe $10.1 million for 45,000 acre-feet of water in the Payette River. The tribe will be able to work out an agreement with the Bureau of Land Management to select $7 million worth of lands within the reservation.

Another main component of the settlement is salmon protection and habitat restoration. If approved, the federal and state government would ensure that at least 427,000 acre-feet is available to increase water flows for salmon and steelhead.

The settlement seeks a stay of the litigation until March 31, 2005. The tribe could head back to court if Congress, the state or other parties decide not to accept the arrangement.

The Native American Rights Fund, a non-profit advocacy group, represented the Nez Perce Tribe throughout the process.

Relevant Documents:
Fact Sheet | Term Sheet | Agreement Summary

Relevant Links:
Nez Perce Tribe - http://www.nezperce.org
Snake River Basin Adjudication - http://www.srba.state.id.us

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