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Box 2574 :: :: Olympia, Wa Fido Net 1:352/333 :: :: 98507-2574 206-786-9629 :: :: USA The Quarto Mundista BBS :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: CONFERENCE OF TRIBAL GOVERNMENTS SESSION III RESOLUTION #1-51379 Water Policy Resolution PREAMBLE: The rights of Tribal Governments to exercise authority, jurisdiction and control over tribal water resource boundaries are being challenged by state and federal assertion of authority to control Indian water use. WHEREAS; the Federal Government is facing a conflict of interest between its duty to protect, preserve and enhance property rights and its role to respond to its non-Indian citizens; and WHEREAS; the consent and agreement of Indian Tribes must be obtained in the development and implementation of any and all federal policies or legislation that affects in any manner, Indian Water Rights; and WHEREAS; by the constitution of the United States, Indian Governments, including Indian rights to the use of water, are immune from State control or violation; and WHEREAS; the President's Water Policy clearly commits the Executive Branch to consult with the Tribe's involved, in the carrying out of the policy. During the course of this consultation process, funds will be needed in order that the Tribe's be assisted in this process; and WHEREAS; the Tribe's and the United States trustee have pre-empted all power, authority, jurisdiction and control of Indian rights to the use of water. The tribes have the full author- ity to administer, control and allocate the water resources within tribal water resource boundaries. When the United States trustee has been requested by the tribes to assist them in the management and control of their water resources, that assistance will be provided by the trustee to the extent of the tribal request; and WHEREAS; Indian Water Rights have been recognized and established largely as a result of litigation. Increasing competition for scarce water resources means that litigation and negotiation will continue to play a predominant role in the formulation and protection of Indian Water Rights. The United States, as Trustee of Indian water resources, owes a duty to act solely in furtherance of that trust. However, the United States has expressed and continues to express positions in numerous cases in conflict with Indian interests and in derogation of the trust responsibility. The United States has not been candid or timely in disclosing the nature of such conflicts of interest. In such cases, adequate representation of tribal interest requires privately retained attorneys Of the tribe's own choosing; and WHEREAS; The amounts authorized and appropriated in the Department of Interior budget, for retaining private attorneys to represent tribal interest have been historically inadequate, and that the decisions as to whether a conflict exists and when private attorneys are needed should be left solely to the tribes whose interests are at stake; and WHEREAS; the July 12, 1978 Presidential directive concerning Federal and Indian Reserved Water Rights requires the Bureau of Indian Affairs to; (Develop) technical criteria for Indian Land classification The criteria shall reflect and make allowance for water use associated with the maintenance of a permanent Tribal homeland. The basis for the determination of water requirements for all purposes, including but not limited to agriculture, must be determined by each Tribe predicate upon the facts and legal background found to exist on each individual reservation. THEREFORE, BE IT RESOLVED that if the delegates to Session III of the Conference of Tribal Governments disagree with any policies which are being advanced by any federal agencies or departments the policies must be revised to conform with the wishes of the tribes; and BE IT FURTHER RESOLVED that an amendment to 43 U.S.C. 666 (the McCarran Amendment) should be enacted exempting Indian Rights to the use of water from the applicability of the Act. BE IT FURTHER RESOLVED that the trustee will implement the immediate development of Indian water resources by forthwith making available, at the reservation level, a program and funding which will utilize and reserve surface and subsurface water resources. The program will benefit the Tribes by adopting the best and soundest means of protecting, preserving, utilizing, and conserving the Indian-Winters Doctrine rights or other rights to the use of water. Such uses and rights have been, and are now being threatened to be abridged or lost through a long-time policy within the Department of the Interior of refusing to develop sovereign rights to the use of water for the benefit of Indian people. The trustee will establish a fund to pay the cost of litigating Indian water rights by the tribes themselves. BE IT FURTHER RESOLVED that to properly implement the trust responsibility of the federal government and to avoid conflicts of interest the Department of Justice and the Solicitor's Office of the Department of the Interior will not adopt any legal position that conflicts with the position of the tribe affected: and BE IT FURTHER RESOLVED in view of the great magnitude of Indian interests in national water resources, tribal governments should be directly represented as a voting member of national, regional, and interstate water regulation and water policy planning bodies and commissions, including, but not limited to, Interstate Compact Commissions, Interbasin Commissions, River Basin Commissions, and others; and BE IT FURTHER RESOLVED that quantification of Indian Winter's Rights is neither necessary nor desirable at this time. A final deter- mination, made at any given date, is inconsistent with the open-endedness of the right itself. Introduced by Bill Matheson, Chairman, Snohomish Tribe, for the Organizing Committee. Date 5-13-79 - Adopted 5-15-79. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- To have a current Center For World Indigenous Studies Publication Catalogue sent to you via e-mail, send a request to jburrows@halcyon.com Center For World Indigenous Studies P.O. Box 2574 Olympia, WA U.S.A. 98507-2574 Fax: 206-956-1087 BBS: 206-786-9629