Water Sovereignty

American Indian Nations are beginning to see the value in managing their water rights, now that technology exists to better quantify and valuate water as an asset.  When we say 'asset' it is good to think beyond the sale or extraction value to a more complete view of water's in-place value-- as a system giving life, enabling opportunities and perpetuating what already exists.  Take a moment just to imagine what the world is like without it.  Take a moment to appreciate the limits we'd face if we had to buy every drop we used or benefitted from.  Water scarcity is a real limiting factor in some Western States.  As populations grow and shift, water scarcity will probably have regional impacts from place to place.

How do we prevent scarcity?  In Oklahoma, watershed planning is limited by Oklahoma's peculiar limitation on County planning and zoning.  In Oklahoma, the growth issue has to already be a full blown determinant, because in this state only counties with a huge human population can exercise zoning at the state county level.

A state solution exists:  Cities can expand to incorporate waterways and zone at the city level.  The downside is that it extends resources such as police and fire protection, beyond the productive zone of where tax dollars come from, to pay for such services.  And those are cities, which have a slightly different twist that Indian Nations.

For Tribes, water sovereignty and planning is often limited by the fact that their national boundaries tend to, yes be defined by watersheds and ridges (at least historically) but also often include parts of watersheds with upstream and downstream geopolitical boundaries of neighbors who may or may not have an identical agenda.  We saw this in recent years when Arkansas former Governor Mike Huckabee told Northwestern Arkansas locals that if pollution was coming to Oklahoma in the waters of the Illinois River, they'd just dam it at the state border and keep the problem, and the water, to themselves.  Northwest Arkansas is one of the fastest-growing metros in the U.S. and is aggressively addressing its growth needs by planning for water availability in advance.  The irony in Huckabee's solution is that his state receives the Arkansas River from Oklahoma and could theoretically face a similar retaliation-- only involving a greater volume of water (albeit less suitable for domestic use without a lot of expensive treatment).

As a lawyer, I've noticed a pattern in when issues like water rights assertion come into play.  The situation reaches a critical boiling point and then lawyers are called in to be the line of defense.  But there is a better way to achieve an orderly transition to tribal water management, and I'm advocating just that. 

Tribes should insure that their desire to manage water they own is identical to their ability to do so responsibly.  As a judge, I'd be hard put to honor treaty rights by declaring water rights when it would lead to chaos.  The more sophisticated and complex the system, the more I'd be reticent about penning a declaratory judgement that would upset things with a drastic change, create 'losers' based on past expectations, or  shift the balance to a less-efficient or less-effective method of transacting water useage.  In other words, I would think twice before giving the car keys to child.

So, what's lacking today in how tribes do water and what tribes want to do with water?  Often, in Oklahoma the state has in place a more rigorous water monitoring program, and tribes add some sites to the meat-and-potatoes of know water health aka water quality.  When tribes take on a full load of monitoring, replete throughout the TJSA, we'll know there is a method of guaging the success of water management.  Until tribes take the lead, actively, and become sole source providers of water quality data (even if redundant) then they can't carry the load of  managing their resource.

So, I hear it said that it is expensive to monitor.  It is redundant.  States are doing it and why duplicate the effort?  Where will the money come from?  I don't have solutions about how to fund monitoring.  Tribes must demonstrate the capacity and skills needed in order to fulfill at least the same level of resource management as the state.  And then, they must go beyond that and demonstrate objective excellence in doing so.

I truly hope to live to see the day when my Nation manages its own natural resources fully, in a culturally-appropriate way, because I believe the ethic of my culture is deep and rich and healthy for water.   In the 1820s, the Cherokee Nation was faced with parlaying with non-Indian neighbors and governments and chose wisely to bring the discussion to a common recognizable and respected framework of discussion.  We 'went legal' with our government form and more.  Today the arena is one of science and sytems technology and we stand to better the discourse if we move beyond wishihg for water at a childlike emotional level to something which is formidable and cutting edge, state of the art, and unimpeachable.  Building confidence.  That is the groundwork for water sovereignty.

More some time later.

(Kathy Tibbits is a contract planner and attorney strategist available for tribal water rights work.)