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Idaho Supreme Court Holds That Shoshone-Bannock Water Rights Not Ceded to City February 21, 2008

Posted by rezjudicata in State Courts.
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City of Pocatello v. Idaho, No. 33669 (Idaho Feb. 19, 2008)

Issue(s): Constitutional Law > Property Clause >> Water Rights; Water Law > Federal Water Rights >> Grants; Treaties > Construction

In the mid-1880s, the federal government negotiated a cessation agreement between the Shoshone and Bannock Tribes of the Fort Hall Reservation and the trespassing citizens of Pocatello. By statute, Congress implemented the agreement saying that Pocatello citizens would have “use…of the waters” on the Reservation, “in-common with the…Indians.” The cessation agreement, however, did not mention water rights. Did the statute grant a federal water right to the City of Pocatello?

No, said the Idaho Supreme Court. Though Congress undisputedly could have granted the water rights, that does not mean that it did. Because courts construe governmental grants strictly, Congress must have used exacting language. The statute, however, did not contain any historically recognized terms of conveyance. Thus, the Court said, a plain reading of the statute shows that no right passed to the City.

Even if the statute were ambiguous, the result would be the same. To resolve any ambiguity, the Court construed the statute within its historical context. Settlement of the arid West required a special set of water laws. As a result, the states developed a system of appropriation as opposed to the older common law of riparian rights. And for well over a century, the federal government deferred to state law on these issues. Though it could have overridden state law under the Property Clause, Congress would have to do so explicitly to overcome the presumption of state control. Nothing in this particular statute or its legislative history could clear that hurdle. Indeed, discussions leading up to the act referred only to water sources, not water rights.

The City also argued that the phrase “in-common with…” granted the City part of the Tribes’ water right. To support this argument, however, the City relied on several cases that interpreted Indian treaties. These cases in turn employed so-called “Indian canons of construction.” The Court explained that these canons-such as construing treaty provisions as Indians would have understood them-exist for the benefit of Indians only. Moreover, in a treaty involving cessation of land, the tribe grants rights. And the “in-common with” phrase came in a statute that the Tribes’ had no part of. Under their treaties, two-thirds of the male population must agree to cede any water rights, which never happened during cessation negotiations. Therefore, neither the statute nor the Tribes ceded any water right to the City.

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