And now:[EMAIL PROTECTED] writes: from Martha With Perfect Justice... Nez Perce Treaties - http://members.stratos.net/cpetras Lewiston Morning tribune (Lewiston, Idaho) Saturday, November 13, 1999 http://www.lmtribune.com/11131999/northwes/449676.htm ---------------------------------------------------------------------------- ---- Tribe says water rights ruling is all wrong By: Tara King Of The Tribune Nez Perce Tribe officials are calling the rejection of the tribe's water rights claims in the Snake River Basin a judicial error. "We certainly believe that Judge Wood's decision is in error and the Nez Perce Tribe probably will appeal it to the Idaho Supreme Court," tribal executive committee Chairman Samuel N. Penney said in a statement issued Friday. "We cannot let this ruling go unchallenged." Fifth District Judge Barry Wood handed down a ruling Wednesday that dismisses the tribe's claim to much of the water in the Lower Snake, Clearwater, Salmon and Weiser rivers. Wood also held that a 1893 land-sale agreement reduced the Nez Perce Reservation to land specifically retained by the tribe. In regard to the water rights, Wood concluded the tribe reserved the right to fish at all usual and accustomed places in the 1855 Treaty. But the "Nez Perce Tribe ... did not specifically intend to reserve an off-reservation instream flow water right for purposes of maintaining said fishing right." Penney said the claim to fish and the claim to water go hand in hand. "Our long-recognized treaty-reserved fishing rights are impacted if there isn't sufficient water for fish in the streams," Penney said. "It would be like saying you have a right to breathe, but not to the air." Wood handed down his decision in response to a request for summary judgment filed by the tribe's opponents in the case. A summary judgment means a judge decides there are no facts in dispute and renders a decision based on law. Heidi Gudgell, the tribe's deputy attorney who handled the Snake River Basin Adjudication, disagrees the law is clear in regard to the tribe's water rights. "Judge Wood is in error in ruling that there are no factual issues in dispute here," she says in the tribe's prepared statement. "The extent of the tribe's water rights cannot be determined without a full review of the disputed facts." Wood erred in his conclusion that he could ignore the intent of the tribe in entering into the 1855 Treaty, she said. "The U.S. Supreme Court has ruled that Indian treaties must be interpreted as the Indians would have understood them and that Indians retain any rights not expressly granted away ... in a treaty." Also, she said, the high court has established three basic rules for the interpretation of Indian treaties: First, ambiguities in language must be resolved in favor of the Indians. Second, treaties must be interpreted as the Indians would have understood them and third, treaties must be construed liberally in favor of the Indians. Penney also addressed Wood's ruling in regard to reservation boundaries. "It is unfortunate that Judge Wood has attempted, in this ruling, to diminish the boundaries of our reservation as well as our water rights," he said. "We have fought and won on this issue in federal courts, yet he ignored persuasive federal rulings and attempted to rely on the Yankton Sioux case, which is not applicable in this circumstance." The U.S. Supreme Court in 1998 held that the Yankton Sioux Reservation was diminished as a result of an allotment agreement. Daniel M. Johnson of Nezperce, executive director of the North Central Idaho Jurisdictional Alliance, applauded Wood's ruling and its inclusion of the reference to the Yankton case. "We're certainly pleased and from what I've read, it's in line with what we've been saying all along -- the Nez Perce issue is no different than Yankton in that diminishment took place over 100 years ago," he said. Penney said the ruling should not be heralded as a victory for Idaho. "It's not just the tribe which is affected by this ruling, but the fish which the tribe seeks to protect by asserting these water rights, and all those who depend upon, or simply enjoy, fishing. "The survival of our salmon, our steelhead and the other species of fish which have inhabited the Snake River Basin since time immemorial also benefits the state of Idaho and the people of the Pacific Northwest." Reprinted under the Fair Use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. <><<<<<>>>>><><<<<> Tsonkwadiyonrat (We are ONE Spirit) http://www.tdi.net/ishgooda/ <><<<<<>>>>><><<<<>
