When President Barack Obama signed the Crow Water Rights Settlement Act of 2010 in December, it was hailed as the final victory in a long-fought battle for the tribal nation’s water rights. But three months later, Crow Nation citizens who own reservation land held in trust for them by the Interior Department (allottees) say the act will deprive them of rights they now hold and was negotiated by the federal and tribal governments without their input or consent. “There’s a lot of double-talk in that bill,” said Colleen Simpson, a member of the Crow Allottees Association near Billings, Montana, who owns 80 acres that were passed down from her grandmother. “We’re not getting due process—they’re violating our constitutional rights and our property rights.”
The Crow Water Rights Settlement Act was passed as part of the Claims Settlement Act of 2010, which settled a number of claims against the United States, including the seemingly endless Cobell Indian Trust Settlement, the Pigford lawsuit by African American farmers against the U.S. Department of Agriculture and water rights disputes with the Crow Nation, the White Mountain Apache Tribe, the Taos Pueblo and the Aamodt. The act was passed by Congress in late November and then signed by Obama, but it will not be finalized until Crow citizens ratify it. A vote in the six districts of the reservation is scheduled for March 8.
If the Crow Water Rights Settlement Act is ratified, the tribe will get 500,000 acre-feet per year of water from the Bighorn River and 300,000 acre-feet from Bighorn Lake. The act will also bring in $460 million from the federal government—including $246 million for the design and construction of a huge water system, almost $132 million for rehabilitating and operating the present irrigation system, $47 million to operate and maintain a safe drinking-water system and around $20 million for energy-development projects.
That’s good for the tribe, but may not be good for some Crows. “March 8 is too soon,” said Crow Allottees Association Vice President Richard White Clay of the scheduled vote. “We want to learn more about this. The federal government acted on behalf of the allottees without our permission. We need time to study and review and dissect it and let the other allottees on and off the reservation know about it. There has never been an independent hydrology study—and we need one—but we don’t have the money for that.” The association has set up a website for allottees and fears that the act is bad news for individual landowners. Simpson explained that allottees currently have water rights attached to their land that are conveyed with that land if it is sold or leased, and give them access to free water that can be used as they wish. They believe they will forfeit these rights to the tribe if the Water Settlement Act is ratified.
During the last week of January, Simpson organized a protest in front of the federal building in Billings. “We’ve been corresponding with the [Bureau of Indian Affairs], and everything we say just falls on deaf ears, so I wanted to draw some attention. We weren’t hearing anything from the allottees’ perspective, just the tribe’s. They have all the money and they can pay for attorneys and things, and here we are. A lot of us are struggling to make a living—we don’t want to lose our rights.”
Heather Whiteman Runs Him, a Crow citizen and Harvard Law School graduate who returned home to become counsel to the nation, said it is “irresponsible” for individuals to claim that the act would diminish allottees’ rights. “When people say they don’t have any rights under the Water Settlement Act, that completely mischaracterizes everything. The act specifically says that allottees are protected.”
While the Water Settlement Act does say the “intent” is to provide each allottee benefits that are “equivalent to or exceed” current benefits, Simpson’s claim of double-talk may be justified—a careful reading of the act says those benefits depend on “the availability of water from the tribal water rights,” the potential risks, cost and time delay associated with litigation, the availability of funding and other conditions.
Whiteman Runs Him adds that the act will actually secure tribal members’ water rights that don’t currently exist. “Right now what we have are claims for water. Nothing is decreed. We don’t have anything that establishes a right that can be protected in a court of law. What we will get from the settlement act is a decreed right protecting our uses as we currently have them.”
The act, however, would transfer the rights of individuals to the tribal government, and allottees would be required to seek permits from the tribal government, which would also control their access to and allocation of water. “If we have water rights now and all of a sudden we’re told we have to come and get a permit and pay a fee for that water, how does that improve our rights?” Simpson said. “The tribe is going to determine whether or not I get water for my livestock or my land, and everything with the tribe is political.”
Crow Chairman Cedric Black Eagle argues that funding from the act to upgrade irrigation on the reservation will benefit allottees, and all members of the tribe. “Our irrigation project was never built to provide an adequate water-delivery system for the valuable agricultural lands on the Crow Reservation,” he said. “With this funding, we will ensure that allottees are able to make full use of their irrigated lands and water rights. Landowners will be able to realize their lands’ full economic potential, be it through farming, ranching, or leasing of these lands. This will provide certainty as to water allocations and usage—something we desperately need in Crow Country.”
The controversial act has raised a number of concerns among the allottees, beginning with the fact that it was passed at all, said Simpson. “We thought it was going to die when it was in the House [Natural Resources Committee]. Chairman Cedric Black Eagle testified and [committee members] said there were a lot of legal issues concerning allottees, but the next thing we knew it popped up in the Cobell settlement. We were all shocked.”
Allottees also wonder why the Settlement Act ratified the Crow Tribe-Montana Water Rights Compact, which was signed in 1999 but disapproved the next year by the Crow Tribe. According to the disapproving Crow Tribal Council Resolution No. 2000-32, the tribal chairwoman and team that negotiated the compact “failed and refused” to obtain the required hydrological and drainage studies and gave the state of Montana priority over water in the Big Horn River and ground water within the reservation’s exterior boundaries without compensation to the tribe. They also “failed and refused to advise, notify, educate and inform the members of the Crow Tribe of the proposed terms and conditions” of the management plan. The Crow council and state of Montana would have to renegotiate and reenact the compact to move forward, the resolution says. That wasn’t done and now the same unfair provisions of that compact have been folded into the Water Settlement Act without the allottees’ permission or consultation, Simpson said.
Asked why the disapproved compact was revived under the Water Settlement Act, Whiteman Runs Him said the compact was executed under a previous constitution. Pressed to provide a further explanation, she said she was not familiar with the details because, “that all happened before I got here.”
The new Constitution enacted in 2001 converted the Crow Nation government from a general council to a structure of separate powers under executive, legislative and judicial branches. But under the new Constitution only the Crow legislature could authorize the renegotiation of the Crow Tribe-Montana Water Rights Compact and the Crow Water Rights Settlement Act of 2010—“and that didn’t happen,” Simpson said.
With 47 percent of the land base, allottees own a majority share of the 2.2 million acres within the exterior boundaries of the Crow Reservation. The tribe owns seven percent and the remaining 46 percent is owned by non-Indians. Under the Water Settlement Act, those non-Indian owners will have an advantage over Indian allottees, Simpson said, because their water rights are assured. Not so for the allottees.
Although the Water Settlement Act, written in the murky language of legislation, says in one passage that allottees maintain their right to lease their land along “with any water right determined to be appurtenant to the interest in the land,” it doesn’t say who makes that determination.
And the most troublesome passage in the act, according to allottees, states that the U.S., “acting as trustee for the allottees, is authorized and directed to execute a waiver and release of all claims for water rights within the reservation and the ceded strip that the U.S., acting as trustee for the allottees, asserted, or could have asserted, in any proceeding.… ”
Whiteman Runs Him maintains that allottees were represented throughout the negotiations by the federal government, acting as their trustees, but allottees say they never authorized the federal government to execute a waiver on their behalf. Whiteman Runs Him also said the water rights of allottees were protected. “It’s hard for me to accept that people believe the tribe would do something that would hurt our members,” she said, “including those of us who work for the tribe, but there’s this distrust of anything involving the federal government and water, so people will believe almost anything at this point.”
Tom Luebben, a partner at the firm of Luebben, Johnson & Barnhouse in Albuquerque and an expert in litigation and negotiation involving Indian land, water and natural resources issues, agrees that the allottees’ claim that the federal government’s asserted authority here was a clear violation of their constitutional right to due process. “I’ve never understood how a good Indian-rights lawyer can deny with a straight face that allottees hold constitutionally protected real property rights to water appurtenant to their allotments,” he said.
But the Interior Department has made it easy for them. Interior’s official policy, documented in a 2001 memorandum, is to try to settle Indian water-rights claims involving allottees by passing federal legislation that extinguishes those constitutionally protected real property rights without formal notice, due process or any formal opportunity for allottees to object. The reasoning behind this policy, according to the memorandum, is that it would be too inconvenient to notify allottees, explain the settlement and get waivers from them. “That principle does not, of course, apply to non-Indian water rights claimants who must be individually named and provided full due process of law in any water rights adjudication,” Luebben said.
Either all allottees should be named as parties in a case and given full due process of law—just like non-Indians—or a class action should be initiated on the allottees’ behalf with all official notices and opportunities to opt out or formally object to the settlement as in the Cobell case, Luebben said.
The federal government’s argument that a tribal water rights permit system can substitute for allottees’ real property water rights “doesn’t pass constitutional muster” unless the allottees consent to it, Luebben said. “However, it is very convenient and much cheaper for the Interior and Justice departments.”