Kickapoo Water Rights

Attorney: Steven C. Moore, Kim Jerome Gottschalk, Staff Attorney

n June 2006, the Kickapoo Tribe in Kansas, represented by NARF, filed a federal court lawsuit in an effort to enforce express promises made to the Tribe to build a Reservoir Project. The Nemaha Brown Watershed Joint Board # 7, the Natural Resources Conservation Service of the U.S. Department of Agriculture, and the State of Kansas made these promises to the Tribe over a decade ago. In the intervening years these parties have been actively developing the water resources of the watershed, resulting in the near depletion of the Tribe’s senior federal water rights in the drainage.

According to the Environmental Protection Agency, the water supply for the Reservation is in violation of the Safe Drinking Water Act of 1974. The Kickapoo people are unable to safely drink, bathe or cook with tap water. There is not enough water on the reservation to provide basic municipal services to the community and the Tribe is not even able to provide local schools with reliable, safe running water. The fire department cannot 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.

By August 2007 the parties expressed an interest in taking a break from the litigation track to explore mutual benefits from settlement. The US, the State and the local watershed district all 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, and the source or sources of that water. The Tribe and the US are also discussing funding to quantify the Tribe’s water rights.

In March 2011, the watershed district rejected a Condemnation Agreement that the State and Tribe had approved. That agreement created the mechanism for condemning the property for the water storage project. We have succeeded in restructuring the litigation to place the immediate focus on discovery against the watershed district and on getting the condemnation dispute resolved by the federal court. We also continue to investigate the possibility of a comprehensive settlement of the water rights issues in the case.

Most recently, we are in active discovery against the Watershed District and the Kansas Farm Bureau [a non-party against whom we are entitled to discovery of relevant information]. Active litigation continues in the case. In January – October of 2013, we filed numerous discovery and dispositive motions with the Court, and are awaiting ruling on the motions.

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