WASHINGTON - Four senators on the Indian Affairs Committee lectured some top brass from the U.S. Army Corps of Engineers over the mismanagement of the Missouri River.
American Indians have a stake in the way the river is managed and the revision of the Master Manual that controls management, does not place enough emphasis on how the tribes will be involved and how treaties will work.
"It is fair to say that no group of people in the Missouri River Basin have suffered more than the American Indian tribes," said Sen. Kent Conrad, D-N.D., committee member.
Water levels on the upper Missouri river have led to boat marinas left one-half mile from the water's edge, corn and grain fields burned by drought because there was no access to river water for irrigation, cultural and historic sites destroyed by erosion or exposed to looters; all because of poor management, tribal officials and senators said.
Lake Oahe, the reservoir created from Oahe dam, one of the seven dams on the Missouri River that were created by the Pick-Sloan Act of the 1950s used to be in both North and South Dakota. "Lake Oahe is no longer in North Dakota," Sen. Conrad said. "Lake Sakakawea is now 19 feet below normal and is on track to surpass its all-time low. I have just been notified that the water storage in the reservoirs have reached the lowest levels since the reservoirs were built," Sen. Conrad said.
The town of Parshall, on the Fort Berthold Reservation in North Dakota is forced to seek a new water source. The intake piping set in Lake Sakakawea is no longer underwater.
"Corps management is nothing short of abysmal. I don't know that anyone has felt the brunt of that mismanagement more dramatically than the reservations that border the river," said Sen. Tom Daschle, D-S.D. Senate Minority Leader and witness at the hearing.
"I would argue that no one within the country has sacrificed more on the Missouri River than Indian tribes. Sacrificed in terms of sacred sites, sacrificed in terms of the economic loss, sacrificed in terms of cultural repercussions when we built the dams. And the acknowledgement of that sacrifice has yet to be made in full," Sen. Daschle said.
The draft version of the revised Master Manual has only a half page devoted to tribal involvement. Brig. Gen. William Grisoli, Commander of the Northwestern Division of the U.S. Army Corps of Engineers said there is more information relating to Indian treaties and issues located in the Appendix of the Master Manual.
But a sticking point with the senators and tribal leaders that testified was the fact that quantification of water rights was so important to the Master Manual. Only three tribes have thus far quantified water rights. Many are withholding their quantification until the Corps recognizes the treaty obligations within the Master Manual.
"We have a legacy with our treaties. We claim water rights to the river," said John Yellow Bird Steele, president of the Oglala Sioux Tribe on the Pine Ridge Reservation.
"We have had the water rights since time immemorial." The Pine Ridge Reservation does not have shoreline on the Missouri, however, treaties locate Indian land on the river.
"Indian claims may exceed more than half the flow (of the river). Quantified water rights may adversely impact the tribes. Forty to 52 million acre feet for navigation could come from the tribes," Steele said.
He told the Corps and the committee members that he would be willing to sit down with the Corps and discuss water quantification if the Corps would recognize the treaty trust obligation within the Master Manual.
Tribal water rights were confirmed in 1908 by the U.S. Supreme Court in what is now referred to as the Winter's Doctrine. Quantification of water was written in the court case Arizona vs. California, where it was determined that irrigable land acreage would determine the amount of water a tribe should be awarded.
Sen. Conrad pressed the Corps on what they knew to be true about the Winter's Doctrine and Arizona vs. California.
Deputy Secretary of the Army for civil works, George Dunlop said he was not familiar with the lawsuit, but added he was advised it was a complicated case.
Dunlop said the Corps has an obligation to execute all laws, such as the treaties, wildlife and endangered species acts and other congressional mandates, which creates "an impossible task."
Gen. Grisoli said that treaties did not define water rights, they were only implied and that the nature of water rights varies with each reservation.
"We have a trust responsibility to the tribes and we take it seriously," Gen. Grisoli said.
Twenty-five million acre feet on average flow through the upper basin of the Missouri River. The tribes, should they all quantify their water rights could take nearly half of that flow.
Grisoli and Dunlop said that water flow is determined on a yearly basis. In 2002 and 2004 drought conditions were present. However, the Corps did not shut down navigation for more than six days in 2003, Sen. Dorgan said.
In the 1980s during one of the worst drought periods, the Corps shut down navigation for five weeks. Economic impact on the upper basin equals $85 million per year and on the lower reaches of the river where navigation is primary, the economic impact is $9 million.
"We look at the water rights," Gen. Grisoli said. "If the water is quantified to depletion it will drain the reservoirs. We have to look at how much water we have in the system. We have to because we have to comply with all federal laws and regulations."
If the tribes laid claim to half the water, the Corps would have to change the way it managed the river, Gen. Grizoli said.
"The way the manual is being written, to look at lower river users, it would render us secondary and by law we are senior and superior," Steele said.
"The Corps is directly responsible for the destruction of cultural sites, which is a heartfelt issue. There is no greater injury to our people than the destruction of human remains," Steele said.
A court order requires the Master Manual be completed by March 2004.