Kickapoo Water Rights

Attorney: Steven C. Moore, Kim Jerome Gottschalk

More than two decades ago, the Kickapoo Tribe in Kansas entered into an agreement with several state and federal entities under which the tribe would develop a reservoir project to address the tribe’s water rights and needs.  In the intervening years, the reservoir has not been built, and the water resources of the watershed have been developed to near depletion of the tribe’s senior federal water rights.

According to the federal Environmental Protection Agency, the water supply for the tribe’s reservation at times, depending on hydrologic conditions, can be in violation of the Safe Drinking Water Act of 1974. The Kickapoo people are concerned about their ability to safely drink, bathe, or cook with local tap water.  At times, especially during drought conditions, there is not enough water on the reservation to provide basic municipal services to the community.  The tribe’s fire department cannot always provide adequate fire protection due to the water shortage.  The proposed reservoir project is the most cost effective and reliable means by which the tribe can improve the water supply.

Therefore, in June 2006, the Kickapoo, represented by NARF, filed a lawsuit against the Nemaha Brown Watershed Joint Board # 7, the Natural Resources Conservation Service of the U.S. Department of Agriculture, and the State of Kansas in an effort to enforce what the tribe believed were express promises made to the tribe to build a reservoir.  By August 2007, the parties expressed an interest in taking a break from the litigation track to explore mutual benefits from settlement. The federal and state governments concede the existence of the tribe’s senior Indian reserved water rights. The real issue is the amount of water needed to satisfy the tribe’s rights, the source of that water, and the means to effectively collect, store, and deliver that water.

The state and tribe drafted a Condemnation Agreement that created the mechanism for condemning the property for the water storage project, and approved that agreement in late 2010. In March 2011, the watershed district rejected that agreement.  The federal court found in favor of the watershed district on the question of whether a 1994 agreement obligated the district to make its condemnation power available to aid the tribe in acquiring the land for the water storage project area.

The tribe is now evaluating its options to find an alternative means of securing the remaining land rights for the project.  Approximately 80% of the land rights have been purchased by the tribe.  Additionally, negotiations resumed over the last year to address the tribe’s federally reserved water rights.  The negotiations are yielding good progress.  All parties met with the federal magistrate judge most recently in July of 2015 and agreed to a new schedule for settlement negotiations, which will run through the end of 2015.

Read More: Hold governments accountable to Native Americans, Preserve Tribal Existence, Protect Tribal Natural Resources