Missouri River and other Water Rights Issues::

Water, Sovereignty and the Situation Today

Water rights and the Missouri River issue has dominated Sioux treaty council meetings over the years. Treaty activists (comprising largely elders) quote articles from treaties and laws that delineate the exterior boundaries of the Great Sioux Nation. The problem is that the language contained therein is not clear enough.

Article 2 of the 1868 Fort Laramie Treaty stated that the eastern exterior boundary of the Great Sioux Nation commenced "on the east bank of the Missouri River where the forty-sixth parallel of north latitude crosses the same". This treaty was superceded by the 1877 Agreement, which delineated an eastern reservation boundary that included the Missouri River but didn't clarify its precise edge. The Agreement did stipulate that the federal government be given the right to navigation of the River.

On the basis that the eastern boundary of the Great Sioux Nation was and is the eastern shoreline of the Missouri River, activists argue that the Missouri River dams were built within the boundaries of the Great Sioux Nation and thus were a direct violation of the treaties the Sioux still hold to be legally and morally valid.

Oglala elder, Johnson Holy Rock has highlighted another ambiguity relating to Lakota water rights, and that is that

"water was not a part of the treaty instrument. You won't find water rights in them, per se. Land surface, gaming, grass, all the natural resources are identified, but strangely nothing is said about water. Therefore, by law the water within the exterior boundaries of Indian Country, according to treaties, are a reserved right. [They] have been reserved but not yet addressed" (1998 Treaty Meeting).

Despite such ambiguities, Lakota treaty activists such as Holy Rock are clear that any water flowing on, under, in, through and alongside tribal reservations is Indian water, and Lakota water rights are argued on that basis. Control over water resources is seen to be a central component of Indian sovereignty and self determination:

"Ultimately, Pick-Sloan constitutes the destruction of indigenous economies for the benefit of the larger societal economy. As a result, the tribal economies shall remain under-developed until the valuable water, hydroelectric, and wildlife resources are protected and managed for the benefit of the tribal economies, rather than for the regional and national economies. [...] [Missouri River water] is a key to [tribes'] survival, economic prosperity, cultural strength, and development. As the 21st Century approaches there can be no greater undertaking now than to develop the mechanism and capabilities for tribal control over their water resources" (Richard Bad Moccasin 1996: 3-4).¹

The Mni Sose Intertribal Water Rights Coalition, based in Rapid City, South Dakota, is a non-profit organisation comprised of 26 Missouri River Basin tribes, including all nine Lakota and Dakota tribes in South Dakota. It serves as a vehicle through which tribes affected by the Pick-Sloan Plan can seek "legal, administrative, economic, and physical control over their significant water resources to achieve sustainable reservation economies, cultural well-being, and sovereignty" (Bad Moccasin 1998: 1).² One of its greatest successes to date has been persuading the Army Corps of Engineers to reallocate a certain percentage of hydro-electric power generated from the Missouri River to Missouri River tribes. This percentage is, at present, 6 percent: 4 percent to be allocated in 2001, 1 percent to be allocated in 2005, and another 1 percent to be allocated in 2010.

The Coalition is also concerned with reservation water resource management, pollution problems, watershed conditions, and improving water quality. In 1998, it hosted a series of meetings between the Oglala Sioux Tribe and federal agencies representing another of the Pick-Sloan dams, the Angostura Unit in the southern Black Hills, which impounds the Cheyenne River. The Oglala Sioux Tribe expressed concern over the dam's effects on water quality of the Cheyenne River, which runs along the northern border of Pine Ridge Reservation and of the White River which runs into the reservation. Concerns regarding fish lesions, pesticide and herbicide contamination, sedimentation, and riparian areas drying up were brought up by the tribe. Concerns were also expressed over reduction in fish species and increase in human skin rashes and other health problems of residents who live downstream of the Angostura Unit on the reservation. The tribe reminded federal government that tribal interests must be recognised and that economic, social, environmental and cultural impacts of the dam must be taken into account. The tribe gave the Red Shirt table region in the northwest area of the reservation as an example of the destructive effects that the Angostura Dam has had on the area: they said that elders remember that before the 1940s the area was lush with trees and vegetation for subsistence and ceremony; today the area is virtually barren - there has been little new growth and it is very dry. The tribe asserted a treaty right to have a say on the dam because though the dam resides outside reservation boundary it is within the boundaries of the 1851 and 1868 Great Sioux Nation. In other words, title to the Angostura watershed still resides, by treaty, with the Lakota.

Tribes adjoining the Missouri River have also complained that the reservoirs are becoming increasingly contaminated due to sedimentation and pesticide run-offs from large-scale farming operations that proliferate in the region. Pesticides routinely seep into the ground water which then flows into the reservoirs. The reservoirs are tribes' main source of drinking water. Other environmental problems that have arisen due to the dams is that today the natural flow of the river has been tampered with and the sloughing of the river is increasingly eroding adjoining land. This impacts on Indian land particularly as there is more Indian land within the dammed area.

Resource management is seen to be an important component of enhancing Indian sovereignty. This area also includes the formulation and implementation of tribal water codes. The stress is on sustainability and conservation, and to this end the Coalition has hosted conferences and meetings on, for example, alternatives sources of power such as wind and solar and environmental protection. An example of this was when the Coalition hosted a conference in 1998 by the ICOUP - Intertribal Council on Utility Policy. ICOUP includes Cheyenne River, Standing Rock, Lower Brule and Rosebud Sioux tribes as members, and, among other things, promotes tribal utilisation of alternative, clean and renewable energy resources such as wind, solar and water power on reservations. One ICOUP member told a local Indian newspaper: "Tribal members have the right to enjoy good living in their own homelands in a good way that doesn't destroy the environment" (Indian Country Today 1998). Its executive director from Rosebud Reservation, Pat Spears said:

"Our ancestors have always known the power (of the wind, sun and water). That power is recognized in our prayers, ceremonies and songs. We always pay respect to that power and now is the time to know how to use that power and develop it to live and become self reliant and leave a legacy for the youth" (Ibid.).

Energy is also a treaty right and its utilisation, especially in environmentally-friendly ways, is seen to be an important cornerstone of tribal sovereignty in Indian Country today. Reservoirs continue to threaten Indian tribes: fluctuating water levels, for example, impact cultural resource sites. Since the construction of the Pick-Sloan dams, tribal residents of reservations that border the river have reported sightings of skeletal remains from old burial sights being washed up on the shores as reservoir water levels fluctuate. The Corps of Engineers' Draft Environmental Impact Statement (EIS) for 1994 identified 945 historically- or culturally-significant sites at Oahe alone (Mni Sose News, December 1994). To this end, the Coalition have been working to include tribal concerns over cultural resources and environmental protection in the Army Corps of Engineers' Master Manual Review Process - a document that contains the guidelines by which the Corps manage water in the six Missouri River dams.

The most recent controversy over the Pick-Sloan dams and the Missouri River culminated during my fieldwork and involved the Cheyenne River and Lower Brule Sioux tribes and the state of South Dakota. In October 1998, the Omnibus Appropriations Bill was passed which sanctioned the transfer of some 100,000 acres of federal land along the Missouri River to two Lakota tribes and to the state of South Dakota. The Cheyenne River and Lower Brule Sioux tribes would be given strips of shoreline within the reservation boundaries. However, the state would receive the lion's share of land outside the reservations. Moreover, the two tribes would receive the interest on some $48 million whilst the state would benefit from the interest on some $100 million of a trust fund. These monies were to be used for wildlife management, recreation development, and, for the tribes, cultural resources protection.

The bill angered many Sioux who emphasised the fact that the land in question is located inside the boundaries of the Great Sioux Nation as decreed by the still-active 1868 Treaty - that is, a Great Sioux Nation reservation that includes and is bounded by the eastern shoreline of the Missouri River. Moreover, the transferred land is part of the unresolved and still-active Black Hills land claim under Docket 74. Thus the transfer violates the treaty and the land claim. The fact that Sioux land had been transferred to the state, during a time when the land claim has not been settled and is thus still active, angered many. In fact, it would be better that the land given to the state remain in federal ownership until the land claim is resolved and accepted, some Sioux treaty activists argued.

Notes::

• 1 - Richard Bad Moccasin. 1996. "Native American Historical Perspectives." Unpublished lecture delivered at the 25th Annual Nebraska Water Conference. 11-13 March. Omaha, Nebraska.
• 2 - Richard Bad Moccasin. 1998. "Mni Sose Water Rights Presentation." Unpublished lecture delivered at the 12th Annual Coming Together of the Peoples' Conference. 2021 February. Law School, University of Wisconsin.

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