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Te-Moak Tribe and state of Nevada face off over tribal jurisdiction

ELKO, Nev. - The Te-Moak Tribe and the state of Nevada came head to head in the Nevada State Supreme Court last month over the state's right to enter the reservation to monitor the tribe's water diversions from the South Fork of the Humboldt River for irrigation.

A decision in the case, heard before seven Nevada state judges, is expected soon. Tribal officials say it is unlikely the court will uphold it's right to ban access to state water commissioners. If an unfavorable decision is returned, the tribe will file an appeal in federal court.

The issue of the state's right to enter had been heard before the 9th Circuit Court in Nevada. Federal Judge Edward C. Reed granted a preliminary injunction against the tribe, providing reservation access to state water commissioners.

The tribe honored the injunction. But, when a commissioner entered the reservation and attempted to cross over to private land to the north, he was arrested by tribal police, turned around and escorted off the reservation.

Although the legalities of crossing versus entering a reservation differ, Deputy Attorney General Paul Taggart used the arrest to up the ante and filed for state jurisdiction over the tribe which the state district court upheld. The tribe immediately filed an action in the state Supreme Court challenging that decision.

The cycle of events started simply enough in 1997 when the BIA determined it would no longer continue to pay state water master fees for the tribe. When the BIA dropped the water bill in the tribe's lap, the tribal council passed a resolution declaring that, because of tribal sovereignty, payments to the state were unnecessary. The resolution directed the BIA not to pay any additional fees to the state of Nevada out of any irrigation money the tribe might be due in the future.

"The Bureau of Indian Affairs, they fought us on this right off the bat and said you cannot do this," says Te-Moak Chairman Marvin McDade. "But the tribe passed a resolution anyway."

On the surface the whole thing seems to be about water rights. The state insists the responsibilities that come with the original water rights on the five ranches purchased by the federal government for the Te-Moak Tribe in 1947 are in force, even though the land is held in trust.

"It really is a question of what did the tribe receive when it buys something privately, as opposed to when a reservation is created out of federal land?" says Taggart. "That's the difference here."

Typically a reservation is created by the withdrawal of federal land owned by the U.S. government. In the case of the Te-Moak, the reservation was created by purchase of privately held land which had encumbrances.

"Our position is that when they purchased these water rights, they took the water rights part and parcel with the benefits that come with those and with the burdens," Taggart says.

Aside from the "burden" of a state water fee which amounts to approximately $2,000 per year, the state also insists that mistaken or illegal divergences by the tribe, including water use out of season, could disrupt allocations to other users downstream. In this case, because the reservation is situated near the headwaters of the South Fork, the entire river system is affected.

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Because of this, in the state's view, it is all the more critical that water commissioners be allowed access.

The tribe, part of the system management for more than 50 years, maintains it has not wavered from its legal allotment in the past three years of self-management, and that there have been no complaints from downstream ranchers. In fact, McDade said three ranchers immediately below the reservation wrote letters of support for the tribe.

At this point the BIA is not directly involved in the dispute, although it is monitoring the situation.

"I think it's BIA's view that this is not an issue about whether the tribe is compliant or not compliant to decreed water rights," says Kathy Wilson, supervisory water rights specialist for the BIA in Phoenix. "It's my view, after being up there and seeing the situation, that the band has never taken more than it was entitled to and has made it clear that they never intend to.

"What is really the issue here is the jurisdictional tug of war between the band and state for whether the state should be able to come onto the reservation."

Tribal attorney Raymond Rodriguez concurs that the issue is not about water rights at all. Instead there are several legal fine points at stake which could affect tribal sovereignty and have never been put before a supreme court.

"The question is, if the United States buys land on behalf of the tribe, to which is attached some state laws, can the tribe be sued over those things if they don't abide by them?" says Rodriguez.

"What the state wants to argue is the tribe has used the water for the last 50 years and that's a waiver of their immunity. And no court has ever said, at least no appellate court anyway, has ever said that an action on behalf of a tribe - some act, some doing something - waives a tribe's immunity."

The state of Nevada also filed suit against the United States for non-payment of the water fees. The United States immediately had the case moved into federal court.

But in a recent decision to relieve escalation of jurisdictional pressure against the tribe and facilitate a negotiated agreement between the state and the tribe, the United States paid the state of Nevada $10,000 for a three-year backlog of water fees. The government is moving to have the federal suit dismissed.

It is doubtful the tribe's legal duel with the state will be ended so easily. "States don't like Indian reservations and the state of Nevada more so, especially since California put their gambling contract in place and took a lot of business away from the state of Nevada," says McDade.

"They just want to take our sovereign rights away from us and use the water issues as a pretense. If we could just get some support from the BIA and their trust responsibility it would help a lot."