David Ganje: Tribes can't remain silent about their water rights

David Ganje

Tribal water rights – The Road to securing water
By David Ganje
For the Native Sun News Today

Part II of II

Litigation of reserved water rights is one of the two alternative means to secure water rights discussed in this article. Water rights litigation is a complex, time consuming legal playing field. Much can be achieved, but the time, well known litigation risks and money involved must be kept in mind.

The Crow Creek Reservation recently started water rights litigation in the United States Court of Federal Claims asking for both money damages as well as a request for a ruling quantifying the tribe’s reserved surface water rights to the Missouri River. The Crow Creek complaint calls for money damages, as mentioned, and for a judgment that the tribe is ‘entitled to declaratory and injunctive relief including judgment requiring Defendant (the United States) to establish and measure the reserved water rights held by the tribe, and to quantify the reserved water rights held by the tribe, and to assert water rights on behalf of the tribe and to record legal title to water held in trust for the benefit of the tribe.’

The complaint lists the type of relief that should be requested in reserved water rights litigation. The complaint filed by Crow Creek, however, has problems:
1. The court in which the complaint was filed does not have full jurisdiction to award the complete relief requested in the complaint. By the reorganization statutes of the Court of Federal Claims it has authority to render declaratory judgments only in matters regarding contract or procurement disputes.
2. The court is unlikely to get into its main jurisdictional issue: money damages in favor of the tribe. It is unlikely to do this because there is no existing water rights determination or quantification by statute, final decree, or water agreement from which the court could calculate a money damages amount. And, further, the important matter of Indian water rights under the Winter’s doctrine is beyond the general expertise of the Court of Claims.
3. One of the important requests in the complaint is for injunctive relief. This is also beyond the jurisdiction of the Court of Claims. Bowen v. Massachusetts, 487 U.S. 879, 905 (1988) (“[W]e have stated categorically that ‘the Court of Claims has no power to grant equitable relief.’’

Read the rest of the story on the Native Sun News Today website: Tribal water rights – The Road to securing water

(David L. Ganje practices law in the area of natural resources, environmental and commercial law in South Dakota and North Dakota. His website is Lexenergy.net)

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