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Indigenous Rights to Land Along Rivers (Dakota)
Water rights and land rights are largely contested topics. Violations of indigenous rights to land along rivers have occurred since colonization began. In the United States, Native Americans have been displaced both physically and culturally. Forms of displacement still occur today despite sacred ties and historic rights to land along rivers. Rivers are bodies of water that provide fresh water supply to urban areas. There is substantial power in holding land next to rivers which is one of the reasons for these areas to remain contested.
The negative implications of historical displacement of indigenous peoples set the foundation for modern day civil rights and environmental justice violations to take place. Is it important to bring into discussion the importance of property rights to land and water for all sectors of society. Without access to historic land and tribal territory, cultural practices are lost. For tribes that established traditions with different rivers, the disruption of these systems through water infrastructure development, led to a loss of their culture. Modern day, industrialized society does not facilitate the same ties to the land as was and still is developed with traditional cultures. Religion based off of the land establishes a deeper connection to the Earth. To understand the rights violations on this societal group of peoples, it is important to recognize that Western society has separated individuals direct connection to the land. Cultural and historical ties to land makes the fights for the environment more personal. In discussing the modern environmental movement, and how to mobilize people to fight for their environment, it is important to look at Native rights' issues - connecting civil and human rights violations to environmentalism to understand the bigger picture of environmental justice violations.
The Bureau of Indian Affairs[1][2] was established in 1824 under the Department of the Interior. The BIA is responsible for working with the country's 567 federally designated tribes. This federal bureau oversees the management and administration of tribes, including working with educational programs, legal and economic management, and other public services. There are regional offices for the BIA in Alaska, the Eastern region, Eastern Oklahoma, the Great Plains, the Midwest, the Navajo region, the Northeast, the Pacific, the Rocky Mountain region, the Southern plains, the Southwest, and West. Each regional location is led by its own director who works with the Deputy Regional Director for Trust Services and the Deputy Regional Director for Indian Services. "The Deputy Regional Director for Trust Services oversees a staff of specialists responsible for natural resources (water resources, forestry and fire, irrigation and safety of dams), agriculture, (farm, pasture, and range), fish, wildlife and parks and real estate services (land acquisition and disposal land title records office, probate, rights-of-way, and lease/permit)".[3]
Natural resource policy and law involves debates over property and access on federal, state, and individual rights levels. Access to natural resources for Native Americans is part of their everyday livelihood and culture. In 1908 the Supreme Court ruled on the case Winters v. United States,[4][5] determining the Native American water rights were incorporated into their land rights. If the land the tribe's reservation resides on has a fresh water source, then that becomes the tribe's water right. This property right supersedes federal water rights.[6]
The federal government and regional offices of the BIA are one half of the government entities that work with native tribes. The California state government has its own history of law and policies with Native Americans. In the opening statement for the tribal government affairs webpage, it is stated that: "Native American tribes exercise inherent sovereign powers over their members and territory. The United States, including the State of California and Governor Brown's Administration, will continue to work with Native American tribes on a government-to-government basis to address issues concerning Native American tribal self-government and tribal trust resources, and Indian tribal treaty and other rights".[7]
Historically, society has been built around access to water. Whether this has meant society has been established next to surface water or developed technology to bring the fresh water to civilization, the right to water has always been of key importance for success. Establishment of water rights as a form of property rights in the United States developed as social contracts between the colonies evolved into the establishment of the federal and state governments. As the settlers pushed expansion westward, they displaced many native tribes to gain access to land and natural resources where these peoples lived. The history of displacement of Native Americans is one of the biggest genocide histories. Indigenous peoples settled near access to fresh water a resource needed for plantations to survive and industrial society to expand. Water infrastructure has been in development in the United States since the 18th century. This infrastructure was first seen in the form of water mills and irrigation networks which were built upon establishing a systems of dams and levees that dominate waterscape today.
Riparian water rights were brought over from England to the Eastern colonies and eventual states. Riparian water rights were the dominant right doctrine for the country up until the settlement of the West.
The history of Western water rights is a complicated one. As the Western territories were settled the arid and semi-arid regional realities were ignored and state borders were drawn in conflict with natural watersheds, leading to the remapping of natural waterscapes. The development of urban population bases in places that did not have natural water sources led to the extensive development of irrigation throughout the West to support growing populations and economies. Overtime the dominant industry transferred from mining to agriculture in California. This economic history, in addition to the previous native and settlement histories laid the groundwork for California and the West's current water rights system. As these areas were settled there was a mix of Native American water rights, Pueblo water rights,[8] Riparian water rights,[9] and Appropriative water rights (Prior-appropriation water rights[10]). As these different rights frameworks came into conflict with each other, each Western state established dominant water law frameworks. The new water rights frameworks often displaced indigenous rights after a long history of being removed from their tribal lands. Some tribes survived the settlement of the West and held onto their water rights. Tribes along the McCloud, Klamath and Trinity rivers in California are a few examples. Currently the issue of indigenous rights to land along rivers has been highlighted in the cases of the proposed Shasta Dam raise and the Klamath Dam removal.
The 2016 ballot for California had three policy proposals involving the status of building upon already existing dam infrastructure, as well as the development of new infrastructure. These proposals included the Shasta Dam raise. The increase in height of the Shasta dam would have flooded out 15 more miles of upstream river on each of the three major tributaries flowing into the reservoir. One of the many consequences that could occur if the Shasta dam were to be raised is the flooding of the last remaining tribal land of the federally uncrecognized, Winnemem Wintu Tribe, along the McCloud river. If these sites were to be flooded out, the tribes ability to practice their historical culture would be lost as well.
Proposed Shasta Dam Raise
There are three rivers flowing into Shasta Dam’s reservoir site; the Sacramento, Pitt, and McCloud rivers. This dam was originally built as part of the Central Valley Project in 1945. During the mid-twentieth century, there was a rush to build as many dams on as many rivers as possible. At that time, the common way of thinking was to bring water from north to south. Shasta Dam was a part of the attempt to divert water from the northern rivers for southern cities and agriculture. In 2016 there was a 1.1 billion dollar proposal by the Bureau of Reclamation (BOR) to raise Shasta Dam by 18.5 feet[11], which would flood out five additional miles on each stretch of river, fifteen miles total. During a normal water year, it is rare that Shasta Dam’s reservoir completely fills. In the spring of 2016 it was recorded as being only 40 percent full. The BOR’s desire to create more water storage by raising the dam height will not increase the amount of water available. In drier years, such as the one’s recently experienced with the drought, the large reservoir will be unlikely to reach full capacity.
If the proposal is implemented, there will be negative impacts on water quality and flow. The Sacramento River carries the northern water into the California Delta. This will impact all of California. The Shasta Dam raise is directly related to the Delta tunnels project to build a tunnel underneath the Delta to divert Sacramento water to the south. There will also be further pollution form emissions of carbon dioxide and methane from an enlarged reservoir site.
In the modern era there has been an effort to restore rivers and remove unnecessary dams. Friends of the River,[12] International Rivers,[13] and EarthJustice[14], are some of many organizations in support of indigenous rights to land along rivers. There is a fight to prevent raising the dam in hopes of mitigating further harm, instead of fighting to remove the Shasta dam and restore the rivers. Raising the dam would also adversely affect other wildlife habitat and species: “The dam raise/reservoir expansion will cause permanent loss of habitat for numerous important and special status wildlife species, including Pacific fisher, northern spotted owl, northern goshawk, foothill yellow-legged frog, Shasta salamander, seven bat species, and four mollusks. The project will also result in the permanent loss of rare plant habitat and important winter and fawning habitat for deer”.[15]
Wildlife and habitat will be destroyed by raising the dam. Thousands of acres of U.S. Forest Service land will go under water. Additionally, recreational areas that are also the homes of wildlife, will be destroyed. There is already development of recreation and municipal facilities in place that would have to be reestablished. Indigenous peoples, local residents, wildlife and the natural landscape will be negatively impacted if the dam is raised.
The further flooding of the McCloud River would also violate its wild and scenic designation. The following excerpt from the Wild and Scenic Rivers Act outlines the violations of dam building on designated wild and scenic stretches of river.
“It is hereby declared to be the policy of the United States that certain selected rivers of the Nation which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values, shall be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. The Congress declares that the established national policy of dams and other construction at appropriate sections of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or sections thereof in their free-flowing condition to protect the water quality of such rivers and to fulfill other vital national conservation purposes.” [16]
Winnemem Wintu Tribal Land
The proposed dam raise would negatively impact native people and the local ecology. In a news report from the Sac Bee, Caleen Sisk explained that "the tribe is responsible for the care of Buliyum Puyuuk (Mount Shasta) and a network of sacred waters, trees and mountains, a task accomplished through prayers, songs and dances. In return, sacred places care for the people by sending healing spirits, visions, water and medicines. If we can no longer perform our religious responsibilities, we believe the world will be thrown out of balance."[17] If the Shasta Dam is raised, the Winnemem Wintu tribe will lose their last remaining ceremonial land along the banks of the McCloud River. The coming of age ceremony takes place in the threatened land. This land includes puberty rock, a ceremonial place of passage from a girl to a young woman.Overall, the flooding of their land will therefore contribute to the loss of their culture.
The Winnemem Wintu have also been crucial in the fight to raise awareness of the highly impacted salmon runs.
"In the late 1800s, Chinook salmon dominated the waters of the San Francisco Bay and the San Joaquin River Delta region, with conservative estimates of 1 to 2 million spawning fish swimming upstream from ocean to river every year to return to the gravel beds where they once hatched in four seasonal “runs.” It is a journey that has long inspired the Native American people that live near Mt. Shasta in Northern California, even as they have watched fish numbers drastically decline since the Shasta Dam was erected in 1938, walling off some 35 miles of the Sacramento River. Now, as a result of the dam, warming waters and overfishing, only the Chinook salmon’s fall run is considered secure, and it, too, is vastly reduced in number."[18]
The tribe has been active in fighting for their land. In 2004 the tribe held a war dance in reaction to the dam. Chief Sisk explained why they held the dance was because: "that's the Weapon of Mass Destruction...That's the weapon that took our lands, flooded our sacred places, covered up our burials - everything. And left us with nothing."[19] In October of 2015 the tribe led the "Water. Every Drop Sacred" rally and march. 160 people attended the event that was organized to bring awareness of Crystal Geyser's pending plant[20]. In the fall of 2016, the tribe organized a Run4Salmon event with the help of EarthJustice, The Buena Vista Rancheria, the Wilton Rancheria, the Northstate Women's Health Network, Restore the Delta, and the Mechoopda Indian Tribe. This event was created to bring awareness of the journey of salmon swimming upstream to spawn. In addition to the Run4Salmon, the Sacred Lands Film Project[21] is a larger project that is working to spread awareness of protecting sacred lands. Their motto is that "sacred places rekindle reverence for land and cultural diversity, and connect nature and culture." The producers of this project support the fight to protect the Winnemem Wintu land.
For further material on this topic look at the Winnemem Wintu Website.[22]
The removal of four hydroelectric dams along the Klamath River in California and Oregon has been proposed to improve the ecological health of the river and to ensure that Klamath tribes have access to the river and surrounding land. After construction of the dams in the early 20th century, salmon populations have died from knocking into dam walls and have been unable to reach upper parts of the Klamath Lake. The issue is of significance to the six federally recognized Native American tribes along the river because the salmon hold substantial social, financial and spiritual value in their respective cultures.[23]
Tribal leaders have joined with federal and state officials to form the Klamath River Renewal Corp. and are working to gain ownership over the dams from PacifiCorp.[24] The Klamath River Renewal Corp. aims to then remove the dams so that Klamath River can once again provide water for agriculture and sustain the salmon population that holds considerable cultural and economic value for Klamath Tribes.[25] As approval for dam removal is needed from the Federal Regulatory Energy Commission (FERC), the proposal is likely to face resistance from Republican congress members.[26] Although FERC approval is necessary, proponents of dam removal remain optimistic. With shifts in government positions under the Trump administration, three of the five seats on FERC have been left empty. PacifiCorp. officials feel that this will not be problematic in the dam removal process because of economic reasons. In analyzing economic impacts, PacifiCorp. has determined that dam removal would be the most fiscally responsible choice.[27] Repairing the dams for continued use would require major improvement. Expensive fish ladders would have to be installed in order for salmon to travel the river and restore their population.[28]
The four dams do provide water for the surrounding agriculture industry. Governor Jerry Brown of California and Governor Greg Walden of Oregon, however, are both in support of dam removal and legislation that addresses water usage issues for the agricultural industry.[29] Another example of strong political support for dam removal along the Klamath River comes from U.S. Secretary of the Interior Sally Jewell. In October 2016, Secretary Jewell sent a letter to FERC urging them to accept the formal requests of both the Klamath River Renewal Corp. and PacifiCorp. to remove the dams.[30] The plan for dam removal is now set to begin in 2020[31]
Background of North Dakota Water Rights Policy
North Dakota reserved water rights differ because their reservations were established in the 1800s, which was before the Winters v. United States case and it upholds the prior appropriation systems. Even though this allows North Dakota tribes priority to their water rights over state law, this first come, first serve rule has caused conflict due to the water that flows on non-Indian land and homesteaders that settled on Indian reservation land. Further, the lack of settled negotiations and Congressional acts to claim water rights in North Dakota compared to other Western states has ensured the continuation of more disputes to the rights of water.
President Roosevelt popularized the use of land allotments, which was a designated amount of land—supposed to be about 320 acres but often was 160 acres—to individual tribe members for the purpose of farming the land and is a method of assimilating Indians to American culture. Allotments were commonly established in treaties, including those that established “the Spirit Lake, Standing Rock, and Fort Berthold Reservations.”[32] Once land had been allotted to individual tribe members, a “surplus”[33] was then offered to non-Indians, and thus birthed and progressed issues with claims to water because of the mix of Indians and non-Indians on reservation land in North Dakota.
The 1851 Treaty of Fort Laramie “defined boundaries between Indian tribes of the northern Great Plains” and the 1868 Treaty of Fort Laramie “established the Great Sioux Reservation which included the Sacred Black Hills."[34] The Great Sioux Reservation, later known as the Standing Rock Sioux Indian Reservation, “straddles North and South Dakota”[35] However, with the discovery of gold in the Black Hills (Black Hills Gold Rush[36]), the federal government supported miners’ extraction and conflict over ownership of this land ensued. A combination of difficulty keeping land allotments because of fees and the federal government’s ultimate authority over land in the United States—reserved for indigenous peoples or not—allowed non-Indians the ownership of “around fifty percent of the North Dakota side”[32] of the Standing Rock Reservation by 1913.
Overall, North Dakota has a unique and complicated situation when it comes to water rights, between tribe-state relations, federal policies, and the presence of non-Indians on reservations, which has certainly birthed the conflict faced with the construction of the Dakota Access Pipeline involving the Standing Rock Sioux Reservation.
Perspectives and Resistance about the Pipeline
The underground oil pipeline is 1,172 miles long and each day will carry 470,000 barrels of crude oil across four states until it reaches Illinois, and from there reach refineries through shipping.[37] Proponents of the pipeline are in favor of the construction because it is more cost-effective, reliable, and quicker than through on-ground transport.[38] They also claim the pipeline does not cross Standing Rock Sioux Reservation land.
On the other hand, opponents of the pipeline attribute the land sovereign to the indigenous peoples based on previous water and land rights, but again, the history of water rights in North Dakota was complicated, and thus questions of ownership ensue. They also fear the risks to the environment and indigenous culture: the contamination of water supply (the pipeline route traverses under parts of the Missouri and Mississippi Rivers and Lake Oahe) and the harming of sacred burial sites.[39]
A camp was formed on federal land near the construction of the Dakota Access Pipeline in April 2016 in protest; the hashtag #NODAPL was coined to term this grassroots movement. The July 2016 approval of the pipeline's route by the U.S. Army Corps of Engineers was met with a lawsuit by the Standing Rock Sioux Tribe in August 2016.[40] Protestors of the construction called themselves "Water Protectors"[41] and their presence in the resistance greatly increased by late November 2016.[42] Water protectors faced off with state officials and private security guards in the hopes of halting construction of the pipeline. The resistance gained nation-wide awareness and was highly covered by the media, in comparison to other efforts supporting indigenous rights to land, because it is viewed as a final stand for the survival of indigenous peoples' land and culture after so many lost efforts and the increase in citizen journalism via mediums such as Facebook live. These videos revealed often unseen stand-offs and the ethicality of actions by those progressing the construction was widely seen and discussed around the country and the world, such as the use of tear gas and "water cannons on protestors in freezing weather"[41]
Government Action
The resistance proved apparent and widespread and there were a few halts in construction from December until mid-January. However, with the change in Presidential office from Barack Obama to Donald Trump, the end appeared near. On January 24, 2017, Trump signed an executive order to push forward the construction of the Dakota Access Pipeline (Bakken pipeline); he was clear in his campaign and in this action about his stance on pipeline construction and indigenous land and water rights. North Dakota Governor Doug Burgum declared February 22,2017 as the date that protestors must evacuate their camp.[43]
Background of Mexico–United States Border
The international Mexico-United States Border was first time clearly defined based on the The Guadalupe Hidalgo Treaty of February 2, 1848.[44] The 3141 km long border area is shaped by arid deserts, rugged mountains, and two main rivers which are the main water supply for this area: Colorado River and the Rio Grande.[45] The Colorado River runs along 38km of the border, 100km through Mexico and end in the California. Until now, there are around 12 million people live on the borderlands. These two rives are the main resource of traditional irrigated agriculture, industry, daily use, and other purposes.[46] However, the speed of providing infrastructure is not as rapid as the growth of urban areas. The unbalance between the growing population size and associated urban area development puts a lot of pressure to the environment along the border between Mexico and United States Border.[45]
Background of Economy Status Along the River
The driving force of US-Mexican border economy is low-cost labor. The result and consequence of it are the harm to the ecosystems and also the pollution to water. However, the alternative is hard to find. The overdevelopment and expanding of urban area exceeded the capacity of the environment and natural resources can no longer continue to support so many industries.[46] Unfortunately, at present, agriculture, is still as the sole economic engine of most part of the regions and water is the soul for the industry. The pollution and waste of water will highly affect indigenous people daily life and also the income source.[47]
History of IBWC
The International Boundary and Water Commission (IBWC), is an organization continued more then one century which dedicated to solve issues of water use along the border.[48] The International Boundary Commission was established in 1848 through the treaty of Guadalupe Hidalgo which was used to mark the boundary. In 1889, the United States and Mexico signed the convention to establish the International Boundary Commission (IBC) to apply border agreements.[49] Around 50 years later, in 1944 IBC was expanded the agreements and changed the name to International Boundary and Water Commission (IBWC) which is charged of addressing issues of boundary application and water treaties.[50] In the 1944 Treaty, Article 10 provides 4 allotments related to the Colorado River:
- Guaranteed delivery of 1,500,000 acre feet annually
- In the event of excess water in the US, delivery to Mexico, not to exceed 1,700,000 acre feet annually
- In the event of the drought, the 1,500,000 acre foot allotment will be reduced the same amount as the consumptive use in the US is
- Mexico created Morelos Dam to facilitate transport of water to agricultural areas, which is managed by the IBWC[51]
How does the Mexico–United States Border affect the environment?
Water Supply
The increasing demand of agriculture, industry and municipal water supply highly threatens the sustainability of Colorado River. Based on the graph from U.S. Department of the Interior Bureau of Reclamation in December 2012, in 2008[52], the water use was around 15 million acre-feet and this usage will continue increase in the following years. However, the supply of the water did not increase as the same trend as the water use. From the blue line in the graph, the supply amount fluctuates around 15 million acre-feet and does not show a clear increase trend.[53] The main reason for the increasing demand of water is that the expanding of urban area. The increase consumption and the increase agriculture need not only drives the climate change, causes the overconsumption but also heavily consumes the supply of Colorado River. Lake Mead, as the largest reservoir on Colorado river, lost more than half content from 25 million acre-feet in 1944 to 10 million acre-feet in 2016.[54] In fact, research at the Scripps Institution of Oceanography indicates that there is a 50% chance that Lake Mead will by completely dry by the year 2021. Because the capacity of Colorado River was closely affected Glen Canyon Dam, which is only driven by the water power to generate electricity, the decrease of water content along Colorado river will highly affect the people's life along the Colorado river.
Water Quality
One of the main problems concerning the water quality of Colorado river is salinity.[55] Seriously lowered the water quality of the river and even led to completely unusable water, 9 million tons of salt per year in Colorado River caused by natural and human reasons was a big problem need to be resolved. There are a variety of natural sources of salinity and one of them is the saline spring, which contributes the most salt to the river. Although the contribution of natural salinity is unavoidable, the contribution of salinity from human to the Colorado river is unnecessary and can be remedied. The first is due to groundwater. Because of the increase population, the pollution to ground water on account of leaching of coal materials, oil and gas production, water consumption also increase.[56] All of these are practices should be prevented with more caution. Another human-made resource of salinity comes from municipal and industrial water, accounting for 4% of the salinity of the river. The third reason comes from the expand of agricultural area. As the single largest source of increased salinity, agriculture contributes 37% of the increased salinity in the Upper Basin. [57] The increase salinity of irrigation water creates a loop which will cause a worse water environment. Due to the increase salinity of irrigation water, the choices of crops can be grown are limited and also the output decreases because of the excessive salinity. Thus, to make up for the change of water and improve the sustainability of water, it is necessary to decrease the effect of human that affects the salinity of water.[58]
Agriculture
Even though US Mexico border is not the major agriculture as Imperial Valley farm, the agriculture along this border is still important.[59] It is a crucial enterprise in the U.S./Mexico Border Region. This enterprise Not only serves people along the border line, but also supports the local economies significantly. Farming along the border requires large inputs of water in relatively low price in order to be profitable.[60]
Law and Management
One of the biggest problem of the Colorado River is the chaos of the law and management which need to be improve. Because the Colorado River involved the management of two countries because it is through the border line of Mexico and the United States. at present, there is not a united organization which is in charge of the whole river. The management is decentralized. For now, there is no federal mandate about recovering the ecosystem in the delta which brings a big barrier for different organizations to get a consensus of recovery plan. [61]
The Wall and the Colorado River
Trump has planned to build a border wall which will be ideally paid by Mexico between it and the US to limit the illegal immigration. The wall is not only a human issue but also a environmental issue. To build up the Wall which will extend about 2000 miles, besides the estimated $265 billion budgets.[62] The wall will affect the ecosystems along the Colorado River and also impose huge impacts on Native Americans. Because of the plan of building concrete wall between two countries, animals' habitats might be highly affected, such as endangered North American jaguar. The natural flooding zones also need to be considered because of the move of grounds.
Suggestion for the recovery of Colorado River Ecosystem
According to book published in 2014, "The Hardest Working River in the West: Common-Sense Solutions for a Reliable Water Future for the Colorado River Basin[63]", there are 5 critical steps and anticipated result for solving current and future water shortages:
- Municipal conservation, saving 1.0 million acre-feet through such efforts as improved landscaping techniques, rebate programs that incentivize water-saving devices and standardized water audits
- Municipal reuse, saving 1.2 million acre-feet through gray water treatment and re-use for irrigation, industrial uses and other purposes
- Agricultural efficiency and water banking, saving 1.0 million acre-feet via voluntary, compensated improvements in irrigation efficiency and technology, crop shifting and other measures (while avoiding permanently taking agricultural lands out of production)
- Renewable energy and energy efficiency, saving 160 thousand acre-feet using wind, solar PV, and geothermal energy solutions, and new water-efficient thermoelectric power plants
- Innovative water opportunities, generating up to 1.1 million acre-feet through creative measures such as invasive plant removal, dust-on-snow mitigation and targeted inland desalinization[63]
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