Kickapoo Water Rights
Attorney: Steve Moore, Kim Gottschalk

Case Update

In June, 2006, the Kickapoo Tribe in Kansas, represented by NARF, filed a federal lawsuit in U.S. District Court in an effort to enforce express promises made to the Tribe to build the 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 early 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 ultimately will be the amount of water to satisfy the Tribe's needs, and the source or sources of those rights. The Tribe and the US are also discussing funding to quantify the Tribe's water rights. We continue with active negotiations with the State and the local water interests on an agreed quantity of water for the Tribe.

Most recently, the watershed district rejected a Condemnation Agreement that the State and Tribe had approved. It appears the Tribe will have to return to litigation on these issues. We are currently negotiating a possible restructuring of the litigation to enable the Tribe to focus its litigation efforts exclusively on the watershed district. We also continue to investigate the possibility of a comprehensive settlement of the issues in the case.