Water Editorials and Opinion
January 23, 2005
The Nez Perce people have lived in what are now the states of Idaho, Oregon and Washington for more than 10,000 years. For these countless millennia the Nez Perce people's very existence has depended upon the resource provided by the Creator — the land, the water, the fish and game, and the roots and berries — throughout this area.
Nez Perce leaders in the treaty era of the mid-1800s had the vision to forge a legal and moral bond with the fledgling United States in treaties, particularly the Treaty of 1855. Although the tribe agreed to give the United States title to some of the land in its aboriginal territory, it expressly reserved the right to take fish at all usual and accustomed places, and to hunt, gather and pasture on open and unclaimed lands.
Because the Snake River Basin Adjudication was started by the state as a general stream adjudication, the tribe and the United States were required to file their water right claims — just like everyone else in the state. The tribe, and the United States as its trustee, filed their claims in 1993. Also in 1993, and at the request of the tribe, the United States appointed a federal negotiating team so they could begin the process of voluntarily negotiating a settlement of their claims with the objectors to the tribe's claims. When the voluntary negotiations failed, the SRBA court ordered the parties to litigate. Later the SRBA court ordered the parties into mediation, which was subject to a protective order that allowed the parties to have open and candid discussions.
Every party struggled with the mediation process and the difficult decisions involved, but the mediation was eventually successful. Although the terms of the proposed settlement are complex, they recognize our common destiny as residents of Idaho — Indian and non-Indian alike. The proposed terms also reflect the give-and-take nature of mediation in that all parties gained something while achieving something short of all their objectives.
As the state and the tribe consider the proposed settlement, both should study its terms thoughtfully and carefully. Neither should be swayed by appeals to 19th-century hostilities or emotionalism, or by misinformation. The facts of the proposed settlement have been available to everyone since May and can still be obtained by contacting the tribe, the state and the United States.
Heidi Gudgell, staff attorney for the Nez Perce tribe, is the tribe's lead attorney for water issues in the Snake River Basin Adjudication.