High court upholds state’s rights to regulate water on Indian land

Brendan Riley

Friday, Aug. 25, 2000 | 4:13 a.m.

CARSON CITY - The Nevada Supreme Court on Thursday upheld the state engineer's authority to regulate Humboldt River water rights on the South Fork Indian Reservation near Elko.

The high court's ruling goes against the South Fork Band of the Te-Moak Tribe of Western Shoshone Indians, headed by Marvin McDade who had tribal police arrest three state water commissioners last September when they crossed reservation land.

The arrests followed tribal resolutions adopted in March 1998 barring water commissioners from the reservation and refusing to pay assessment fees charged against every Humboldt River water right holder.

The ruling clears the way for a Sept. 11 District Court hearing in Winnemucca to determine whether the tribe is in contempt for arresting the commissioners and throwing them off the reservation.

The tribe's members contend they have sovereign immunity from the court action. But the Supreme Court said immunity in this instance was waived when the tribe accepted its reservation land subject to previously adjudicated water rights.

The tribe got the land in the late 1930s and early 1940s, but the court said that came after a 1935 judicial determination of all Humboldt water rights - what's known as the Humboldt Decree.

Justices also said that from the 1940s on, the tribe paid water assessment fees and allowed the state engineer and the water commissioners access onto the reservation so that they could reach water diversion boxes on the Humboldt - until 1998.

The land acquisition subject to the already resolved water rights "constituted an express waiver of sovereign immunity," justices wrote, adding that the tribe's actions until 1998 ratified the waiver.

Deputy Attorney General Paul Taggart said the state doesn't want to infringe on the tribe's sovereignty, and has never treated the tribe any differently than any other water right owner on the Humboldt.

"This case is solely about protecting the state's ability to preserve the orderly distribution of water rights," Taggart said, adding that without the state jurisdiction the tribe could take as much water as it wanted.

"Since every drop of water in the Humboldt River is owned by someone, if the tribe takes more than it is entitled to, someone downstream will not receive the water they are rightly entitled to," he added.