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Water rights are one of the most important trust resources held by federally recognized Indian Tribes (Tribes) and the United States as trustee. The trust responsibility owed by the United States Government to Tribes and individual Indian beneficiaries is a well-established legal principle that has its origins in the formation of the United States Government. The Secretary of the Interior through Secretarial Order 3335 has reaffirmed the tenets of this trust responsibility and has established several guiding principles for honoring the trust responsibility for the benefit of current and future generations. One of the guiding principles is to ensure trust resources, such as water rights, are recognized and protected to the maximum extent possible.
Securing water rights and ensuring permanent access to a clean and reliable water supply is both an important component of economic security and prosperity for Tribes and necessary to sustain fundamental cultural values. The potential future costs of settling Indian water rights claims are large and difficult to estimate, but the needs are clear and the Department of the Interior (Department) has seen an increase in requests for affirmative litigation or the appointment of water rights negotiations teams in the last few years.
The Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Right Claims (Federal Register / Vol. 55, No. 4B (March 12, 1990) (Criteria and Procedures)) delineates specific steps for coordination among the Department, the Office of Management and Budget (OMB), and the Department of Justice in negotiating Indian water rights settlements. In accordance with Executive Order 13175 and the Department’s Tribal Consultation Policy, dated December 2011, the Department has concluded that it would be appropriate to discuss improving the negotiation and review process for Indian water rights settlements in conjunction with consultation with Tribes. This consultation will be a follow up to the consultation carried out by the Department in 2014 discussing how the Department could improve its Indian water rights settlement program.
In the upcoming consultation, the Department will address the following questions:
Do the Criteria and Procedures need to be reviewed and reconsidered given that the Criteria and Procedures were promulgated in 1990, prior to negotiation and completion of the great majority of enacted Indian water settlements?
Have the Criteria and Procedures been useful to achieve Indian water rights settlements? Have they been applied consistently and fairly?
If reconsidered, should both the substantive criteria and the procedures, including process through various federal agencies, be re-examined?
What criteria or procedures should be revised? Why should they be revised? What is the best mechanism to accomplish the revision?
How to Submit Input
We will be hosting tribal consultation sessions to obtain your input on these questions and any additional recommendations you may have about how the Department can improve its Indian water rights settlement program. Please feel free to provide your input in writing, by January 31, 2017, to Ms. Pamela Williams, Director, SIWRO, at Pamela_Williams@ios.doi.gov or Secretary’s Office of Indian Water Rights, 1849 C St. NW, MS-6040-MIB, Washington, D.C. 20240.
If you have any questions or would like additional information, please contact the Secretary’s Indian Water Rights Office at (202) 208-1442.