LETTERS TO THE EDITOR

My Voice: Abandon moratorium on tribal water codes

David L. Ganje

Since the 1970s, the Department of the Interior, through its various secretaries, has prohibited certain Indian tribes and reservations from creating tribal water codes. Interior has the authority to change this “moratorium” on the approval of tribal water codes. Such a change would clean up old and very bad Department of Interior policy. This antiquated, but continuing, moratorium has the actual affect of law. Bad law.

Water codes allow tribes to manage tribal water rights and water quality standards. Rulemaking by a tribal governmental body is fundamental to the administration of a tribe’s management of a reservation. It is also a fundamental premise of federal Indian policy to let local government set local rules.

Many U.S. tribes existing under the 1930s law, commonly called the Indian Reorganization Act, must petition the government with a request to approve a proposed tribal water code. Even a tribal water code properly adopted by an established tribal legislative authority must be submitted to Interior for consideration.

Now comes the rub. Interior is mandated by the written moratorium “to disapprove any tribal ordinance, resolution, code or other enactment which purports to regulate the use of water on Indian reservations ... .” The unwritten reason behind the moratorium is the fear that tribal water codes will prejudice nonmember’s water rights. This unwritten reason, however, fails to account for the fact that more than 100 years ago, the Supreme Court held that tribes hold water rights.

Interior’s longstanding, but little known, moratorium is old world paternalism at a time when government should allow tribes to enhance tribal resources and rights. In 1975, Interior Secretary Rogers Morton instructed all parties that the moratorium would remain in effect until Interior issued written guidelines for the review and approval of tribal water codes. Almost 40 years later, Interior has yet to establish any such guidelines.

The decades-long reliance on a policy issued without adherence to any rulemaking, adjudicative processes set forth by the Administrative Procedures Act or legislation deprives the Native Tribes of their fundamental right to due process. This moratorium also directly contradicts the goals of increased tribal independence set forth in congressional legislation, as well as a direct executive order.

Congress previously has acknowledged problems left in the wake of bad law and bad Indian policy. Congress has stated, “The Congress, after careful review of the Federal Government’s historical and special legal relationship with, and resulting responsibilities to, American Indian people, finds that the prolonged Federal domination of Indian service programs has served to retard rather than enhance the progress of Indian people and their communities.”

Interior’s moratorium also violates a November 2000 executive order. Under this order, “Agencies shall respect Indian tribal self-government and sovereignty, honor tribal treaties and other rights and strive to meet the responsibilities that arise from the unique legal relationship between the Federal Government and Indian tribal governments.” This executive order has not been revoked or replaced by Presidents Clinton, Bush or Obama and retains the force of law.

The covenant the American government offered to American Indians by treaty, laws and regulations remains unfulfilled when a reservation cannot plan or administer its own laws governing surface and groundwater. The government’s encouragement of tribal management of a tribe’s natural resources is intended under the purposes of the many treaties the U.S. has negotiated during the last 170 years.

This moratorium should be abandoned. It is embarrassing to the country, is illegal and is wrongheaded. Recognized tribes should be granted the ability to achieve self-governance as the history of many treaties clearly intended.

David Ganje of Ganje Law Offices practices natural resources, environmental and commercial law in North Dakota and South Dakota and has offices in Rapid City.

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