Court affirms ruling on tribal water rights on reservation

The Coeur d’Alene Tribe will not have a say on lake levels, nor will it have control of water outside the reservation boundaries according to an Idaho Supreme Court ruling released Thursday, which upholds an earlier decision by a Twin Falls district court.

The Idaho Supreme Court in a close decision ruled 3-2 in favor of an earlier ruling by the water adjudication court that said the Tribe will not have jurisdiction over water outside the reservation, and the court in a unanimous decision said the Tribe’s ownership of the southern third of Lake Coeur d’Alene does not afford it the legal right to control lake levels.

The decision was important for resort and property owners on the lake as well as municipalities whose economies depend on consistent lake levels.

“We’re not unhappy with the decision,” Greg Delavan of the Coeur d’Alene Lakeshore Property Association said.

The association was among entities named in the latest appeal, which also included the cities of Coeur d’Alene, Harrison and St. Maries, Potlatch Forest Products, Hagadone Hospitality and the state of Idaho.

“I think the Supreme Court made the right decision,” Delavan said.

The state’s highest court last autumn heard the appeal by the Coeur d’Alene Tribe over whether the Tribe had federal reserved water rights for lake levels, which would give it authority to control the entire lake, and whether the Tribe had federal reserved water rights outside the boundaries of the reservation. Also at issue was whether the Tribe had federal reserved water rights for industrial or commercial purposes.

An earlier decision in the state’s water adjudication court in Twin Falls had denied those rights to the Tribe, but the Tribe appealed the decisions to the Idaho Supreme Court.

In its latest ruling, the state’s highest court considered what the original intent was when the reservation was formed, and revisited the 1873 treaty in which much of the language is found.

Norm Semanko, the attorney who represented nontribal entities, said the court affirmed some tribal rights that were not granted in the earlier decision.

“The courts had to (decide on) the purpose for which the reservation was created and what the water rights were,” Semanko said. “The court had to divine what those were.”

Water rights for hunting and fishing, which could establish minimal stream flows on the reservation, and water rights for ceremonial and gathering practices on the reservation were determined to be part of the reservation’s initial design.

“There will be some kind of minimal stream flow,” Semanko said.

Those issues were remanded back to district court to determine questions of what Tribal water rights should look like for purposes of homeland, ceremonial and gathering purposes.

“This issue has always been about continuing to provide our people with the resource of water, to continue the traditions we have held since time immemorial,” Tribal Chairman Ernie Stensgar said.

The purpose of the water on tribal homelands was meant for tribal people to live, Stensgar said.

“Previous decisions have dismissed our stance that the ‘purpose’ of our reservation was to provide life to our people,” he said. “Water is life and this most recent opinion by the court supports and validates our connection and responsibility to the water.”