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Kempthorne carries through on water rights promise

Part one

WASHINGTON – It’s nothing new for Indian country to remember presidential administrations by the promises they didn’t keep. But in the case of Interior Department Secretary Dirk Kempthorne, the George W. Bush administration has kept at least one promise to Indian country.

And it’s a big one – on water rights. In October 2006, just before the last national elections (the so-called “mid-terms” of any four-year presidential term), Kempthorne counselor Michael Bogert pledged the secretary to giving “federal consideration” to a handful of proposed settlements on Indian water rights. Kempthorne had a track record that suggested he was up to the task, having negotiated a major settlement with the Nez Perce as governor of Idaho.

The administration’s Interior-led water settlements had already “resulted in hundreds of millions of dollars’ worth of commitments to meet the water supply and economic development needs of tribal governments,” Bogert added, in a message delivered to the Northwest Tribal Water Rights Conference at the University of Oregon in Eugene.

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Kempthorne wanted to look at settlement proposals that had the support of all parties, including tribal and state leaders and the respective congressional delegations. He called for a hands-on, holistic approach to settlement, providing innovative cost-share formulas, expanded partnerships with federal agencies, and organizational improvements for Interior’s negotiating team (an Indian Water Rights Office has been integrated into Interior on Kempthorne’s watch). He urged all parties to prefer negotiation – however arduous – over costly, acrimonious, time-consuming litigation. Through his lieutenants at Interior, including the office of the assistant secretary for Indian affairs, he sent a message of understanding for the great difficulty of giving up a known benefit for a greater good.

Bogert mentioned 19 tribal water rights negotiations in progress. Their importance to Western states can hardly be exaggerated. Tribes enjoy aboriginal water rights – prior to those of settler states. But rivers, aquifers and groundwater flows observe no jurisdictional boundaries; so tribes, off-reservation farmers and regional municipalities alike are hindered in water-supply planning without a quantification of tribal water rights.

The capital-intensive infrastructure for transporting water is another hurdle, one increasingly overcome by a combination of federal and state capital outlays and tribal “forbearance” concessions with a monetary value. Following widespread drought across the Western states in the first four to five years of the current century, the importance of planning for water use in the dry West has been acknowledged on all sides.

Two years after Kempthorne’s October 2006 promise, criticism abounds, much of it devoted to an alleged federal overemphasis on cost-sharing and an underemphasis on trust obligations to tribes.

But there is also no denying that in December 2007, Kempthorne signed final papers fully implementing the largest Indian water rights settlement in U.S. history and presided over ceremonies involving three other settlement pacts in 2008 while a fourth became law in October.

Continued in part 2