RAPID CITY, S.D. - Treaty tribes claim water belongs to them, but they have been kept out of the management of the longest river in America.
And tribal leaders are not happy about the treatment they have received with development of a plan to manage the river. A strategy to take their claims to Congress is under way.
The Missouri River was the lifeline for numerous tribes and today 28 tribes with treaties reside in its basin. The U.S. Army Corps of Engineers manages the river levels in six earthen hydro power dams that took land away from the river tribes as the reservoirs were established. But the plan to solve flooding problems and provide power is now wrecking havoc on cultural and sacred burial sites.
And a Master Manual for management of the river to protect areas from flooding and provide navigable water flows down river and at the same time preserve wildlife in and along the river basin has been 13 years in the making, and tribal input is not included in the plan's draft.
Part of the Master Manual, a Programmatic Agreement with the tribes is necessary, but all tribes are not included in it, said Tim Wentz, Historic Preservation Officer for the Standing Rock Sioux Tribe.
Tribal officials said that when the Corps held consultations with the tribes and the public over the Master Manual content the proposed final plan does not include much of what the tribes requested - and they are not pleased.
"This is the first time in 50 years the Corps is revising the way it manages the river. The upper basin is for recreation and wildlife and the lower for navigation. The lower states are more politically powerful," said Everett Iron Eyes of the Standing Rock Sioux Tribe.
"The manual will be a long-time management plan and the Corps has not respected our rights or acknowledged our wishes," he said.
The Master Manual was to have been completed in six months some 13 years ago, but litigation has held the process up. To speed up the process Sen. Byron Dorgan D-N.D. introduced legislation that would turn the management of the river over to the Department of Interior. That's something the tribes are against.
Former Cheyenne River Sioux Tribal Chairman Gregg Bourland said that with the way the DOI has mismanaged the trust funds for more than 100 years, they should not be trusted to manage the Missouri River.
Tribal leaders and members at an emergency strategy meeting on the river management agreed that it would not be in the best interest of the tribes.
"Tribes have the supreme water rights," Iron Eyes said.
Treaty rights to the water of the Missouri River belong to the tribes, official claim, yet they could be left out of any water use if they do not exercise their rights.
It's more than water, it is the right to not have cultural, spiritual and burial sites ravaged by looters when water levels fluctuate to expose them.
The Programmatic Agreement would resolve much of that problem. However, an agreement that was written by the tribes was scrapped by the Corps and a PA drafted by the Corps was put in place.
Tribes are upset that only 13 of the 28 Missouri River Basin tribes are included in the plan and will be the only ones allowed to offer comment, Mentz said. In fact he said at one meeting the Corps said it would only meet with Tribal Historic Preservation officers and not tribally elected officials. Only two tribes officially have THPOs, Standing Rock and the Cheyenne River Sioux Tribe.
The Corps officials in Omaha were not available for comment.
"Standing Rock established an irrigation project to show the water is ours," said Jesse Taken Alive, councilman for the Standing Rock Sioux Tribe.
"Water is more precious than stones."
Mintz said that tribes should establish a water code in order to defend the treaty rights to water. Some tribal officials want to try to establish water rights in the courts, but others, who said the Supreme Court has not been kind to Indian issues may look at such a move to degrade and reduce the power of the treaties.
The solution to getting recognized in the Master Manual and to establish water rights is to go to Congress.
"There are a lot of dangers in litigation in defending your rights. We can sit here and say we have water rights but there may not be enough for us. The only alternative is to go to Congress and ask for an oversight hearing," Mintz said.
Tribal leaders are in the process of writing the proposal for the oversight hearing, but are not willing to disclose any of the information in it. The plan is still in the strategy stage, they said.
The Rosebud Sioux Tribe and the Pine Ridge Reservation are not included in the Master Manual, because they do not reside on the river. However, tribal official lay claim to the fact that the treaty of 1851 and 1868 gave the land from the eastern boundary of the river to the Great Sioux Nation and it remains the aboriginal lands. Also tribal members do live along the river.
Sayed Huq, hydrologist for the Rosebud Sioux Tribe said that rivers from the Rosebud Reservation are an integral part of the Missouri River flow and are part of the contribution the tribe makes to the Missouri River.
The Winter's Doctrine, established after a 1908 lawsuit, states that tribes have the rights to all the water that lies within the reservation and on its boundaries. Some claim that the Winter's Doctrine will stand up in a federal court, however, subsequent litigation, Arizona v. California, for example changed some of the Winter's ruling, therefore the fear of a lawsuit.
To establish how much water a tribe can claim from the river a formula of determining how much irrigable land is available added to that the human needs for drinking and other uses.
Using that criteria the tribes in the Missouri Basin can lay claim to more than 14 million acre feet of water. The six reservoirs hold a total of 73 million acre feet. The Standing Rock Sioux Tribe has established a claim for 1.2 million acre feet.
"We have to establish water for the future. Some people only want the tribes to have enough water to drink and wash with. We are trying to protect the irrigable lands on the reservations," Iron Eyes said.
The intent for the tribes, officials said, should be to quantify the water rights or it will be done for them. An oversight hearing in Congress continues to be the direction tribal officials want to proceed. Officials said they do have support from members of Congress for the oversight hearing and expect it may take place in September.
It is important for the tribes to get the states to recognize the water rights and claims of the tribes, Iron Eyes said.
Gov. Mike Rounds of South Dakota has asked that a summit with all states and the Corps of Engineers be held to come to an agreement about the management of the river, however, tribal leaders said, the tribes were not included in that meeting request. A call to the governor's office was not returned.
"If we don't do it they will do it for us. If we don't speak they will say we agree. We must let the youth know that these things are important. We must tell the young who and what we are.
"Do we take care of the land or do we talk and sing about it? Our actions will speak louder than words. If we don't assert ourselves they will think it's okay," Taken Alive said.