As contending parties ignore the Caddo, Fallin tells Chickasaw and Choctaw leaders: “Dismiss your lawsuit”
Published: February 2nd, 2012
Oklahoma’s widely anticipated, and feared, water wars drew a step closer in recent days, as the leaders of two of Oklahoma’s most politically and economically powerful tribal nations maneuvered to capture rhetorical high ground – followed by a counterpoint from the state’s governor.
Missing in the recent exchange as any reference to the asserted aboriginal rights of the Caddo Nation, the subject of past reports from CapitolBeatOK.
In a letter dated today (Thursday February 2) and delivered “via counsel of record” to Michael Burrage of the Whitten Burrage law firm in Oklahoma City, Oklahoma Governor Mary Fallin called on the Choctaw and Chickasaw Nations to “dismiss your lawsuit.”
In the letter formally addressed to Chickasaw Governor Bill Anoatubby and Choctaw Chief Gregory E Pyle, Fallin wrote:
“When the Chickasaw and Choctaw Nations sued the State of Oklahoma in federal court on August 18, 2011, you claimed rights to all the waters in 22 counties in southeastern Oklahoma, and asked the federal court to stop the State of Oklahoma from taking actions related to those waters, “unless and until a comprehensive [stream] adjudication…has been completed” determining your tribal rights.
“Working in good faith, the State of Oklahoma agreed to initiate just such an adjudication so that a court of law could finally and conclusively determine what rights, if any, the Nations have to the waters of those 22 counties in southeastern Oklahoma. Strangely enough, you have now indicated you have changed your mind and have cried ‘foul’ over the State’s agreement, and are now taking every action possible to prevent that adjudication from occurring.
“As you know, the State of Oklahoma has repeatedly told you that that the adjudication is a necessary response to your lawsuit against the State of Oklahoma – the litigation that you initiated. The fact of the matter is that the State would never have even contemplated such an adjudication but for the lawsuit you filed.”
Fallin’s letter continued, “As you also know, before mediation began, the State of Oklahoma repeatedly told you that if you will agree to dismiss your lawsuit (without prejudice, which preserves your ability to re-file it in the future), it will not initiate the adjudication, and it will continue to mediate this dispute with the same mediator, and under the same mediation rules, for so long as such mediation is productive. That offer still stands.
“I am asking for the sake of our citizens, businesses, taxpayers and frankly, our image as a state, not to mention the huge cost our state will have to bear for a prolonged lawsuit, that you continue to work with the citizens and State of Oklahoma to find a resolution through mediation.”
The governor’s letter to the chiefs concluded, “If you are truly interested in mediation over litigation, you will dismiss your lawsuit.”
The missive from the state governor came less than a week after the Chickasaw and Choctaw issued “in partnership,” what they characterized as an outline of “essential water planning points.” The document was touted as a “seven-point resource management plan” stressing “cooperation to benefit all Oklahomans.”
The two tribes deemed southeastern Oklahoma their “homelands” and characterized the talking points as “The Essentials.” The tribal leaders said The Essentials would “ensure that every Oklahoman’s water needs will be met while respecting the rights and responsibilities of the Nations with regards to the removal of water from their historic territories.”
Govenor Anoatubby said, “Like other Oklahomans, the Chickasaws and Choctaws want to preserve the state’s natural beauty and precious water resources for future generations. The seven-point plan we have developed outlines the key points — the essentials, if you will — that any water management plan must address in order to ensure the continued sustainability of our water supply and prosperity of our great state.”
The narrative in the joint press release continued that a public outline of “water management priorities” from “the Nations” fed “hope that they can work together with state leaders to develop a water plan that meets the needs of urban and rural Oklahoma while maintaining the environmental health of the state’s rivers, streams and lakes. Faced with the possibility of prolonged litigation, leaders of both tribes have repeatedly expressed a preference to settle their differences with the state through negotiation.”
Chief Pyle of the Choctaw asserted, “The Nations have no desire to challenge existing permitted uses of water by any Oklahoman. Rather, the lawsuit filed against state officials and Oklahoma City was designed to ensure that our rights are taken into account in any future plan to remove additional water from our historic homelands.”
The document sketched The Essentials as follows:
“ * Urban – It is essential to meet the water needs of our urban centers – Oklahoma City and Tulsa – in order for all Oklahoma to prosper.
“ * Towns and Rural – It is essential to meet the water needs of our growing towns and rural Oklahoma so that their economic potential is realized.
“ * Tourism – It is essential to meet the water needs for tourism, Oklahoma’s third-largest industry. This means maintaining water levels high enough for water recreation uses.
“ * Agriculture – It is essential to meet the water needs of our state’s farmers and ranchers.
“ * Drought defense – It is essential that our water plan puts Oklahomans first and prepares for the worst. Our current serious drought reinforces the importance of drought defense.
“ * Sustainability – It is essential that we certify the sustainability of our water resources so the supply will be there when we need it. The Chickasaw and Choctaw Nations are committed to environmental stewardship of our water resources.
“ * Unity – It is essential that Oklahomans work together cooperatively to create a water plan for the entire state.
“We call on state leaders to work with us to develop a sustainable water management plan for the greater good of all Oklahomans,” said Gov. Anoatubby. “We firmly believe that state and tribal leaders can resolve our differences through negotiation instead of proceeding with the general stream adjudication process.”
The press release concluded, “The Chickasaw and Choctaw Nations are currently working with the U.S. Army Corps of Engineers to develop a regional water plan that meets the goals outlined in The Essentials. The tribes believe that having a science-based plan is critical to sustainable management of water resources to support economic development, recreation, household use and to provide for the environmental health of Oklahoma’s water supply.”
Speaker of the House Kris Steele last year deemed the rights of the original inhabitants of the area, the Caddos, “something to be considered” in development of water policy.
In a story dated September 9, 2011, Governor Fallin said the Caddo Nation of Oklahoma “will play an important role” in deliberations over water rights. Her spokesman told CapitolBeatOK the chief executive “is committed to working with them and other parties to pursue solutions that benefit all Oklahomans.”
Brenda Shemayme Edwards, chairman of the Caddo, told CapitolBeat last fall, as reported in a September 2 story, “While the Choctaw and Chickasaw are exerting their treaty rights, we will exert our aboriginal rights.” Aboriginal rights pre-date treaties and other laws, and are viewed by some legal analysts as dispositive.
Late last summer, CapitolBeatOK contacted the Caddo Nation of Oklahoma, headquartered in Binger, seeking reaction to the filing in August — by the Choctaw and Chickasaw tribes — of a federal lawsuit aiming to stop future sales or exports of southeast Oklahoma water without consent of the two larger tribes.