S.E. RUCKMAN: Ownership of water a line drawn in the sand

I recall the story I heard about a humble Comanche man who wore overalls and lived simply. His family was part of the great allotment experiment in Oklahoma around the early 1900s where 80-acre plots were given to individuals. And like a mini lottery tucked into this larger land scheme, his acreage had a natural spring on it.  The water breathing up from his piece of the Earth was sweet, clean and pure.

So everyone can be in the loop, Indian landowners often lease their minerals, grazing or water to make use of land that would otherwise be owned but not necessarily exercised.  A deal is then worked out so that the leaser is compensated fairly by the lessee. In this case, family members told me their patriarch gave his consent after being promised an annual if negligible amount.

Forty years stretched by. The man’s descendants were now being notified by the Bureau of Indian Affairs (BIA) that the water lease was up for renewal. In the span of those four decades, several community developments had sprung up and water need increased. More users of the same water source would seemingly mean a more lucrative lease for the family, they reasoned.

Yet that may not the case. Local officials saw the ownership of this water as a larger scale issue that bypassed Indian landowner interests. The lease is still being worked out, I was told. Fair, after all, is in the eyes of the beholder and codified on the lease papers.  Meanwhile, the subject of water supremacy started to sprinkle on me.

Not more than a few months went by that I learned that two of the Five Civilized Tribes had filed a case in federal court to prevent the State of Oklahoma from selling water storage rights to a municipal party. The two tribes contend that a treaty negotiated over a hundred years ago gave them say-so over the water in question. That’s the beauty of treaties; they can reconstitute and reverberate with life when necessary.

After reading the case filing, I learned that plaintiff tribes were demanding their treaty territory be preserved. Their right to be free of state jurisdiction was established by the Treaty of Washington which gave the two tribes ownership of water in the Sardis Reservoir (in south central Oklahoma).  Like most federal Indian cases, the non-Native sides desire unilateral authority while the tribal interests hinge on sovereign fulfillment.

The sleeping water issue has risen like a Gila monster prodded from under a rock in Oklahoma.  Akin to sounding a bugle horn, an editorial from a mainstream paper reminded readers in a paternalistic tone that while the two tribes were well able to defend their interests, the state’s long term welfare was at stake. Great consequence hovered.

It is abundantly clear to me that lines are being drawn in our red, iron oxide sand. State governments like to rally the support of non-native inhabitants to emphasize their greater good. In the same breath, we all know might doesn’t necessarily make right.

It is stunning how many entities can impinge on water disputes.  This case alone names 13 defendants (a veritable Who’s Who in Oklahoma). From water resource boards, rural water districts and advocacy groups, non-native water claims spring up like numbered balls in a bingo game. Weighing it out carefully is prudent; a badly decided water issue can trickle down and erode even the most single-minded purpose.

I spoke with a fellow from the Oklahoma Water Resources Research Institute recently and the point we agreed upon was that water eventually becomes an emotional rather than a rational topic. This is a clue to me that this (water) is one of the things that really matter. All other issues in Indian Country kind of meld into it. We are, after all, only mammals breathing in air on the Planet.

Now it’s the part in the revived Western movie where the Indians stand off their encroachers. Tensions are running high. Water issues are notorious for becoming entangled in the brambles of the legal system. This is no cause for alarm. The two Oklahoma tribes have the resources to maintain their water position. But if they fall, water interests for every tribe in the state teeters. Legal precedent can be a slippery slope indeed.

I watched an animated piece recently about a small town’s fight over water. Without it, they perished. The hero lizard (in this case) keeps coming back to the line: “He who controls the water controls everything.” I do not necessarily rely on cartoon oracles, but in this case, it resonates.