‘If we have the water, then why do we still pay for it?’
Thu, 08/10/2017 - 10:53am admin
Tribal members take a closer look at 2010 water legislation
By Andrew Turck / Big Horn County News
The Crow Tribe Water Settlement Act, signed into law by former U.S. President Barack Obama in December 2010 and the Crow Tribal General Council in March 2011, will be up for tribal vote again on Aug. 12. This piece of legislation – when combined with the Crow Tribe-Montana Water Rights Compact of 1999 – provides $460 million for the tribe to help repair irrigation infrastructure, construct a water distribution system and draft a tribal water code.
Any attempt to actually remove the legislation by tribal vote would likely be impossible, according to Big Horn County Attorney Gerald “Jay” Harris. The Crow Tribe, he said, can’t appeal an act of U.S. Congress, who approved the legislation in addition to Obama. Nonetheless, Crow Chairman Alvin “A.J.” Not Afraid intends to see what the people want and try to act accordingly, a decision opposed on legal grounds by the Legislative Branch, who believe the issue has already been settled.
Crow voters themselves approved the act 2,323 votes to 938 in 2011, though opposition continues among some allottees, or tribal members who own reservation land. This is due to the tribe gaining control of the water and its use, rather than individual landowners. According to one allottee named Alee Birdhat, she will lose the legal right to $1 million in water resources while her daughter will lose $2 million. The majority of people who voted for the 2010 settlement, she said, were young and didn’t own land.
“What [the U.S. Department of the Interior] did was they did not reserve nor did they identify how much water the Crow Reservation has,” said Sharon Stewart-Peregoy, a member of the Crow Allottees Association and legislator for Crow Agency’s Senate District 21. “Basically, through the negotiations, they only reserved 650,000 acre feet, which is storage behind Yellowtail Dam [in Fort Smith].
“Between the 1999 and 2010 settlement, they took that water out from the hands of the landowner. They still own the majority of the land on the reservation.”
Nearly five years ago, former Crow Chairman Cedric Black Eagle lined up with fellow members of his Executive Branch to celebrate the first project financed by the Settlement/Compact. Wielding gold-colored spades along the banks of the Little Bighorn River, they dug into earth, breaking ground for the complete reconstruction of the Crow Reservation’s 320-mile irrigation system.
“Indian self-determination will take its fullest form under this compact, I guarantee you,” said Dr. Alden Big Man Jr., director of the Crow Tribe’s Water Resources Department, at the time. “We will begin to retake the reservation, piece by piece, to utilize what is ours.
“It can go any direction. Where do we want to go with it? That opportunity now lies in your hands.”
Big Man, recently rehired as director of the Water Resource Department under Chairman Alvin “A.J.” Not Afraid, again addressed the legislation during a July 29 meeting of the Crow Tribal General Council. This time, he acted on behalf of Not Afraid in a discussion on the compact’s viability for the Crow people in its current form.
Larry Little Owl Jr., a cattle rancher in Crow Agency, told the crowd that he approved of the settlement in theory, but was nonetheless frustrated when he saw white landowners prosper in the area while tribal members remained poor.
“We have land and pay a water bill. If we have the water, then why do we still pay for it?” he asked. “The $460 million that is supposed to come to the tribe; why are the white people in charge of it? It hurts me when I go to St. [Xavier] and see all the white people working on our ditches. I thought the Crow people were supposed to be the ones working.”
“I know there are going to be people who hate me for saying this, but…Apsaalooke, you are lazy people. You look to the chairman for everything,” he continued, to the sound of applause. “They say, ‘We’re going to give you your voice back.’ I don’t think that’s true. The only way you can have your voice is when you fence off your land.”
Others believe the settlement has to go altogether. The Allottees Association have tried – thus far unsuccessfully – to sue the Department of Interior, Bureau of Indian Affairs and more in order to find the settlement, and therefore compact, unconstitutional. Though the allottees weren’t provided with legal counsel to protect their rights during the settlement, a June 28 decision from Seattle’s Ninth Circuit Court states, the United States legally didn’t need to help them in that manner.
“We affirm dismissal of plaintiffs’ claims because they have failed to state a claim on which relief can be granted,” the decision states, adding in a footnote, “We express no views on the merits of any future claims for damages that plaintiffs might bring.”
According to former Vice Secretary Dennis Bighair, who helped form the compact in 1999, lawsuits aren’t the key to success. He remembered a piece of advice from one of the water compact lawyers: “You never litigate, you negotiate. At least then you get something back.”
“It’s a good compact, but now they’re trying to get the individual allotments,” Bighair said. “The Supreme Court is not our court. They’re going to ruin us, I think.”
A comprehensive look at the Settlement Act and Compact may be found at www.narf.org/nill/documents/water/2011/presentations/13-crow.pdf.