The Future of Indian and Federal Reserved Water Rights: The Winters Centennial

12: Winters in Salmon Country: The Nez Perce Tribe Instream Flow Claims

238 Winters in Salmon Country The Nez Perce Tribe Instream Flow Claims  Mark Solomon As the first snows of winter for the 2000 water year started falling in the high country, Judge Barry Wood issued his ruling against the Nez Perce Tribe’s Winters claims for instream flows in Idaho’s Snake River basin.1 Judge Wood, the presiding judge in the Snake River Basin Adjudication (SRBA), handed down his ruling in a courtroom in Twin Falls, Idaho, 286 miles by air, 390 miles by road, and 630 miles by river from the Nez Perce Reservation. Reluctantly tying the courtroom and the reservation together for the duration of the court proceeding were the river and the need for water to survive in the American West. Dividing them were the rugged mountains and steep canyons of central Idaho, two hundred years of conflict, and a cultural gulf with few, if any, bridges. Judge Wood ruled, 1) That pursuant to the 1855 Treaty, the Nez Perce Tribe reserved among other things, the “right of taking fish at all usual and accustomed places in common with the citizens of the territory;” 2) that the Nez Perce Tribe or the United States did not specifically intend to reserve an off-reservation instream flow water right for purposes of maintaining said fishing right; 3) that the scope of the “right of taking fish in common” does not also confer an off-reservation instream flow chapter 12 239 Winters in Salmon Country water right; 4) that pursuant to the 1893 Agreement and its subsequent congressional ratification, the Nez Perce Tribe ceded all interest in unallotted lands not expressly reserved to the Tribe; and 5) that by the savings clause the Tribe again reserved its off-reservation in common fishing rights. Therefore, the Nez Perce do not have Indian reserved instream flow water rights extending beyond the boundaries of the present Reservation, where ever those boundaries may be.2 The court found further that “the boundaries of the Nez Perce Reservation [were] diminished to the extent of all unallotted lands not expressly reserved in the 1893 agreement.”3 The tribe appealed the court’s order to the Idaho Supreme Court, along with a companion filing seeking removal of Judge Wood from the SRBA court due to an undisclosed apparent conflict of interest. Prior to a hearing on appeal, the parties to the ruling agreed to settlement mediation and a stay of proceedings. The mediation was successfully completed in 2004. History of the Nez Perce Reservation The Nimíipuu, the Nez Perce people, have lived in portions of what we now call Idaho, Oregon, and Washington since time immemorial.4 At the time of first contact with Anglo civilization in 1805, when Lewis and Clark descended half-starved from the Clearwater Mountains into the camas and salmon country of the Nez Perce, the Nez Perce aboriginal lands covered fourteen million acres, stretching from the Wallowa country in the west to the Bitterroot Mountains in the east, from the headwaters of the Salmon River in the south to the Palouse River in the north. Never a single tribe as much as a collection of individual bands related by blood and custom and occupying different areas within their territory, the Nez Perce followed the seasons from camp to camp, meeting with the other bands when the camas root was ready to dig and the salmon ran in the rivers.5 The Snake River, rising from the Teton Mountains along today’s border between Wyoming and Idaho, and its major tributaries—the Salmon, Grande Ronde, and Clearwater Rivers—define the land of the Nez Perce. The Snake, flowing at an average rate of thirty-six million acre-feet per year at present-day Lewiston, Idaho, also defines the freshwater world of the salmon runs that once filled its creeks, rivers, and lakes.6 Historically, salmon runs were estimated to have ranged from five million to eight million adult fish annually in the Snake and its tributaries.7 240 PART III InthetraditionsoftheYakama,Umatilla,WarmSprings,andNezPerce, the spirit of the salmon—Wy-kan-ush-mi Wa-kish-wit—is sacred life. The tribes believe that the salmon was created along with an ideal habitat in which to enjoy its existence and that for thousands of years the salmon unselfishly gave themselves for the physical and spiritual sustenance of human beings. The salmon’s abundance shaped the culture, religion, society, and even...