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Ganje: Jackley Brief Contends State Authority Higher than Tribal Treaty Rights

In August, I mentioned that Attorney General Marty Jackley signed South Dakota onto a friend-of-the-court brief in a water-rights case pitting the Agua Caliente tribe of California against a local water development district. I noted that Jackley joined nine other states in arguing that surface and ground water belong to the public and that tribes and the federal government cannot take that water away from the states, a concept with implications for our soon-to-resume nonmeandered waters debate.

The far more legally astute David Ganje of Rapid City writes that Jackley’s position is an all-wrong effort to allow states to abrogate federal treaties with the tribes:

A.G. Jackley takes a shot at treaty rights. (Photo from SD Attorney General's office, Twitter, 2017.09.26)
A.G. Jackley takes a shot at treaty rights. (Photo from SD Attorney General’s office, Twitter, 2017.09.26.)

For over a hundred years the U.S. Supreme Court has granted Indian tribes the reserved right to surface water to accomplish the purposes of a reservation. This ruling based on the interpretation of an Indian treaty was issued in 1908 in the Winters case and has been since affirmed by numerous courts, including the U S Supreme Court again in 1976.

The Attorney General’s brief argues that states should have, “primary control over their groundwater resources.” The brief also attempts to assert that state water claims are greater than treaty water rights of Indian tribes. The Circuit Court decision, now under appeal, stated that rights reserved by treaties are not subject to appropriation under state law, nor did a state have authority to dispose of such water rights.

…The brief asserts the longstanding Winters case should apply only to surface water rights of an Indian tribe. The U S Constitution does not provide for a state setting treaty policy or imposing treaty terms. “No State shall enter into any Treaty. . .” Article I Section 10 “. . . all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” Article VI [David Ganje, “South Dakota Signs onto Anti-Tribal Brief in Supreme Court Water Case,” Native Sun News via, 2017.10.25].

An Attorney General running for Governor supports an argument that state interests can supersede tribal rights guaranteed by federal treaty. Hmm… might candidates working to get out the vote in South Dakota’s tribal communities want to point that fact out to Lakota voters?

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