OLYMPIA (Jan. 13, 2003) — Indian tribes today released a list of principles they say the state must comply with in setting water policy. The principles, which were distributed to the Governor’s Office, state legislators and state agencies, were accompanied by a letter from Northwest Indian Fisheries Commission Chairman Billy Frank, Jr. which stated that tribes hold the senior water right in the state and that this fact, in addition to treaty law, requires the state to protect water with a priority toward sustaining fish and wildlife habitat.
“The senior right is not held by the public utility districts. It’s not held by the cities, and it’s not held by corporations or the counties. It’s held by the tribal governments, along with the state and federal governments. These are the governments that actually own the water, on behalf of their respective citizens. That’s the law, and yet the state has consistently ignored the tribes in its legislative and management practices and policies,” said Frank.
The tribes stand, united, in the effort to assure that tribal rights are respected, and that the water needed to sustain fish, wildlife and other resources are protected, Frank said.
“The tribes can no longer be ignored, and we will not permit water giveaways to continue to jeopardize the natural heritage of this region,” he said.
Tribes from throughout the state participated in two major water summits in 2002 and, among other achievements, drafted the set of water-related principles.
The draft principles range from a statement pointing out that the United States Constitution specifically and clearly says all treaties are “the supreme law of the land” to one which says storage of water cannot occur unless agreed upon by the tribes.
For more information, contact: Steve Robinson, (360) 438-1180.
TRIBAL WATER PRINCIPLES
Pursuant to the United States and State Constitutions, the Federal and State governments are obliged to protect the interests of tribes in water and treaty fishing rights but often have been restrained from doing so because of their competing and conflicting values.
To ensure Federal and State elected leaders, administrators, and officials fulfill their duties; the tribes need a coordinated strategy that is guided by a set of consensus principles.
Therefore, leaders of Pacific Northwest Indian Tribes are committed to the following:
Under Article VI, Section 2, the United States Constitution states that all Treaties made shall be “the supreme law of the land and the Judges in every State shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.”
Federal and State governments owe an obligation to protect, enhance, and restore resources that the Tribes have explicitly or implicitly reserved.
A reserved tribal right to sufficient instream flows to secure reserved fishing, hunting, and gathering rights exists with a time immemorial priority date. Specifically, the tribes reserve the right to adequate water quantity, quality, and habitat to meet the needs of anadromous fish in all stages of their life histories, as well as the needs of other aquatic and terrestrial life reserved under the treaties and other instruments.
A reserved tribal right to surface and ground water sufficient to fulfill the purposes of the reservations as permanent, economically sustainable homelands exists with a time immemorial priority date.
Adequate quantity and quality of water is necessary to protect the culture of the tribes, including but not limited to spiritual needs, fishing, hunting, and gathering rights and practices.
Reserved water rights cannot be abrogated, diminished, or regulated by State action.
Tribal rights will not be subordinate to or balanced with the interests of the State’s non-Indian citizens.
Reserved rights of the Tribes, including water, are property rights protected by the United States Constitution.
Leadership by Tribal, Federal, and State legislative and administrative officials is essential to achieve long-term resolution of water resource issues.
Tribal reserved instream flow water rights must be recognized by the State and Federal governments as senior to other existing water rights to effectively protect, restore, and enhance fisheries resources for the well being of all Washington citizens.
Establishment of adequate instream flows shall be determined by Tribal, State, and Federal water managers and shall not be delegated to subdivisions of state governments or other parties.
Protection, restoration, and enhancement of the physical, biological, and chemical aspects of water resources (streams, rivers, lakes, wetlands, and estuaries) are required to fulfill the reserved rights of the Tribes.
Water resource policies must recognize, address, and respond to the interrelations between water quality, water quantity, surface water, and ground water.
Water resource programs must achieve water quality and quantity sufficient to protect, restore, and enhance the productivity, diversity, abundance, and temporal and spatial distribution of aquatic and terrestrial species.
The State must interact with each of the Tribes on a government-to-government since each Tribe is a separate sovereign government responsible for protecting their citizens and resources.
Tribal governments must be recognized as managers of water that sustains all life and for which tribes depend upon for their spiritual, cultural, social, or economic well-being.
The use, transfer, or expansion of state water rights, including “municipal” water rights, shall not degrade or diminish senior tribal water rights to instream flows and dependent resources.
State water rights shall utilize the best available technology, pricing, and other measures to maximize the efficient use of water. Water saved through conservation and efficiency shall be applied to protection and restoration of instream flows.
Optimum flows shall be established to protect, restore, and enhance the full production potential and ecological functions of a watershed. These flows shall provide for the seasonal pattern of the intra-annual (magnitude, duration, timing, rate of change) and inter-annual (frequency) characteristics of riverine resources (e.g. wet, average, dry years).
The state must aggressively enforce its water quantity and quality laws and regulations, especially where there is abandonment, pollution, relinquishment, waste, and illegal diversions and withdrawals.
Storage of water cannot occur unless agreed upon by the Tribes.
This document is for information purposes only and is in no way intended to substitute or represent any individual tribal policy position regarding their rights.
The principles described above are not intended to alter, amend, or modify any Indian treaty or other rights reserved pursuant to federal authority or any court order that implements treaty rights to harvest fish and should not be interpreted as a definition of the scope or limits of tribal powers.
Individual Tribal parties may provide additional direction or policies relevant to their interests.
Nothing in this document shall limit, estop, or otherwise affect the rights of any tribal party to advocate actions, policies, procedures, rules of decision, or other principles as set out in this documents, including any right they may have under “Phase II” or environmental protection aspects of treaty fishing rights or any other rights. Nor do Tribal parities imply or admit that Tribal water rights are limited to fisheries, homeland, and cultural needs addressed in this document.