Water law experts appearing before a joint legislative committee Wednesday agreed upon one thing: When addressing the complex issue of Indian water rights, negotiation works much better than litigation, for all sides. It’s also cheaper and takes less time than a federal court case—which can take years.

New Mexico attorney Chuck DuMars recommended that discussions focus not on who has the power, but what is the best thing that will optimize resources for the tribes and the state.

There is no question that tribes have rights to water—significant rights in Oklahoma, said University of Oklahoma College of Law Professor Taiawagi “Tai” Helton.

Helton urged lawmakers to avoid litigation if possible, due to its cost and consumption of time. He also pointed out that some federal money may be available to help fund such negotiations.

Helton said Oklahoma’s history of negotiation with tribes sets it apart in a good way. He said the state and tribes negotiated in the 1990s regarding the issue of selling water to Texas, although that agreement was ultimately not finalized due to unrelated reasons.

He said negotiation and cooperation become even more important in times of fresh water scarcity.

Helton said it is important to develop a solution that works. Without negotiation, he said, those involved will end up exhausting not just themselves, but money and resources.

Rep. Phil Richardson, R-Minco, committee co-chairman, said that all 39 of Oklahoma’s federally recognized tribes have been sent agendas and invited to attend meetings. He said Tuesday that tribal issues may be considered at more than one meeting as the committee educates itself on Oklahoma water law and the state water plan under development by the Oklahoma Water Resources Board.

DuMars said that Congress has authority to reserve water on federal enclaves, including tribal reservations.

DuMars said that, when dealing with tribal water rights, two issues are key: The priority date of the federal water right and the quantity of the right.

Generally, he said, the priority date is the date the reservation was made, which for tribes tends to predate state water rights.

Helton said that federal law supersedes state law when it comes to federally reserved water rights, including those of tribes. As a property right, he said, water rights continue until terminated.

Information accompanying DuMars’ remarks stated that for federally reserved water, quantity is the amount needed to fulfill the purposes of the reservation. For most tribal water rights, the amount needed is the amount required to irrigate “the practicably irrigable acreage on the reservation.”

DuMars said problems arise with tribal reservations that have been terminated, land that has been allotted to individual tribal members and Indian-country situations where there is jurisdiction over behavior, but there is no remaining land where water could be put to a beneficial use.

“That gets really confusing,” he said.

In a 1908 U.S. Supreme Court case, Winters v. United States, the court held that when Congress set aside lands for tribes, that reservation of land included enough water for them to be self-sufficient.

Helton said that “Winters rights” arise from land ownership, are not lost due to nonuse and may be asserted at any time.

He said he knows of no court decision holding that no Winters water rights were created when land was set aside for a tribe.

Helton said that under the Five Tribes water doctrine, tribes argue that they have both Winters rights and the right to much of the water in eastern Oklahoma. He said they stake at least part of that contention on Choctaw Nation v. Oklahoma (1970), but Helton said that decision was mainly about riverbeds.

In Choctaw Nation, the court said Congress transferred riverbeds in pre-statehood treaties.

He said that based on Choctaw Nation, tribes can argue that there was also a promise that Indian Territory would never become a state, and that their water rights were created at the time of the reservation, that they were promised complete governance and a permanent homeland. He said the title to the land at issue in Choctaw Nation was reserved “in fee” to the nations involved, not by “ordinary Indian title.”

Helton said the federal government did not reserve water or riverbeds from the treaty involved in the Choctaw Nation case.

Congress must expressly terminated reserved rights, he pointed out.

Helton said relevant federal laws, such as the Dawes Act, Curtis Act and Five Tribes Enabling Act of 1906, are silent on the issue of water. He also said the Oklahoma Enabling Act disclaimed all rights to tribal property.

During a question-and-answer period, Helton said it is not clear how the U.S. Supreme Court headed by Chief Justice John Roberts would rule on such matters. He said the Roberts court does not favor broad recognition of tribal rights.