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Analysis: Missouri River reservoir manual comes under fire

WASHINGTON - George Dunlop of the U.S. Army Corps of Engineers and deputy assistant secretary of Army civil works, sat in the witness seat at an oversight hearing of the Senate Committee on Indian Affairs and received compliments on his decency.

Almost a half-dozen times, Sens. Kent Conrad and Byron Dorgan of North Dakota acknowledged the personal decency of Dunlop, his staff and subordinates, notwithstanding the antagonism tribes feel toward their professional roles in revising a Missouri River Master Water Control Manual.

The so-called Master Manual is the U.S. Army Corps of Engineers' guide to the operation of six dams on the Missouri River. Water levels in the river and releases from the dam reservoirs determine how much irrigation water will be available for agricultural uses to many tribes within the basin. Many other purposes of the reservations, from economic development to fish and recreation, depend on Corps management of the dams and reservoirs.

The Corps has been engaged in the update and revision of the manual for the past 14 years, according to Conrad's count

The latest draft manual has drawn denunciation from tribes up and down the Missouri River basin. Their representatives at the Oct. 16 hearing insisted tribes have been left out of full account in the manual because it provides few indications the Corps will manage the river so as to fulfill the reserved water rights of the tribes.

"The Master Manual review and update process has become a tool to lock in existing non-Indian water uses, such as downstream navigation and fish and wildlife, to the detriment of water uses on the Pine Ridge and other Sioux reservations," testified President John Yellowbird Steele of the Oglala Sioux Tribe on Pine Ridge.

The Corps responded that while it recognizes tribal sovereignty and rights, the Master Manual is for the management of quantified water rights - that is, such are the many demands on the river that water use must be measured in acre-feet before the Corps will acknowledge it to the point of taking action to fulfill a need for water. Once legally binding quantification takes place, Dunlop said, the Corps becomes obligated to manage the river in light of that quantified water right, as reflected in the draft Master Manual. The Corps, however, cannot authorize quantification, which requires adjudication, congressional ratification of a tribe-state compact, or a direct act of Congress.

Tim Johnson, D-S.D., said he would play the devil's advocate in posing a question implied by the Corps' position: "The problem then is with Congress and the tribes not quantifying the amount of water they [tribes] need ? and legally must have."

But in view of a U.S. Supreme Court decision placing water quantification issues within the bailiwick of state courts, all but four of 30 basin tribes have declined to quantify their water rights.

"We won't use state courts," Steele said. "We see a conflict there."

The conflict is that states are thirsty for water, yet under law the water rights of tribes are senior to later-established state rights. And so states have resorted to specious argumentation in court actions aimed at diminishing the purposes of reservations to those needs that will take the least amount of water to fulfill, according to testimony of the Standing Rock Sioux Tribe.

Against this background, the hearing wasn't going to be a walk in the park for the Corps. "This is not a good moment for the Corps, this is not a good moment for the federal government," Conrad said in his opening remarks, and so it proved out.

The subsequent questioning of Conrad and Dorgan, along with fellow Democrats Johnson and Tom Daschle (the Senate Minority Leader, also from South Dakota), left no doubt of their conviction that the latest update to the Master Manual will finalize a water distribution system that short-changes "upstream" states and tribes in the Missouri River basin.

In the larger political context, "downstream" states wield more influence within the Corps than the less populous, less prosperous "upstream" states. Although it went unmentioned at the hearing, a widely noticed investigative series in the Washington Post last year exposed the compromised scientific and economic analyses that have often given a color of authority to the Corps' past cronyism toward key congressional helpmates in approving Corps projects. Conrad showcased the resulting irrationality of Corps decisions by noting that with reservoirs at their lowest water volume ever, the Corps reduced the downstream navigational season for all of six days, despite the comparative small economic value of downstream navigational traffic (of barges and other goods-shipping vessels) compared with upstream uses.

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In part because of the Corps' refusal to withdraw water from the upstream river because of downstream needs, the Standing Rock Sioux Tribe could not irrigate crops last spring.

Conrad added that downstream states have already received the benefit promised them by the mid-century Pick-Sloan Act that authorized the dams and rechannelings - flood control.

By contrast, the great Missouri River dams flooded out many tribal communities in the Dakotas, leaving a scar across generations. Many tribes maintain their communities still haven't gotten the benefits promised them in Pick-Sloan.

It is in light of this acknowledged burden on tribes that the emphasis on decency began to seem loaded. Any number of motives could be named for making nice to a witness before a Senate committee, including of course civility. But one motive that won't be quickly named became the leading candidate in light of Dunlop's testimony.

The accomplishment of great injustices always requires the mass complacency of decent people - at least, this quality of self-deceived, convenient neglect for the most obvious claims on justice used to go by the name of complacency. In our day, a more clinical term has arisen - "strategic indifference decision." It describes the same phenomenon as a sort of knowing but deniable internal disposition toward an indifference that serves other purposes without necessarily acknowledging them, for instance simple convenience. Or, for instance, institutional protection and preservation.

By whatever name, Dunlop's complacency and the Corps' own became apparent in a series of exchanges with Dorgan. The Senator had warned that "The failure to recognize the rights, obligations and existing treaties with tribes would be an extraordinary failure in the Master Manual."

Dunlop assured him the manual does "make provision for circumstances that might change if quantified water rights were to come along."

Absent a quantification of tribal water rights, he went on, the senior rights of tribes to the river mean they could "drain it dry" but for the Corps.

For a phrase so far-removed from any reality to have emerged at a Senate hearing can only mean that Dunlop, a highly-placed executive within the Corps' civilian division, couldn't have given it any thought. He didn't have to, perhaps. In any case it has all the earmarks of an axiom that has gripped the managerial class at the Corps, enabling the collective leadership there and in Congress to set their minds against Indian claims on grounds they'd "drain it dry" without the Corps to manage their rights on the river.

Author and scholar Vine Deloria Jr. has written that for tribes, the Pick-Sloan Act is the most destructive single action Congress has ever passed. But it passed before too many were watching what happened to tribes.

Nowadays, great injustices must cater to complacency - they must give decent people a way to engage in strategic indifference decisions, to set their minds against the most obviously just claims. They must rely on words like "quantify," conveying an impression of fair and rational measures when in fact no fair or rational way is in place for some tribes to quantify their existing water rights.

President Steele was more direct, characterizing the Master Manual and associated products as "bureaucratic architecture for the theft and confiscation of our water."

Conrad summed up the tribal attitude toward Corps promises to adjust the Master Manual once tribal water rights are quantified: "They've got a sneaking suspicion it's going to be adjusted against them ? Their experience is, every time they win ground, they get shorted."

At the behest of Sen. Daniel K. Inouye, D-Hawaii, the Corps has appointed a tribal liaison, Georgeie Reynolds who can be reached at (202) 761-4250.