9298

• UCREFRP Catalog Number: 9298
• Author: Water Education Foundation.
• Title: Colorado River Project
• USFW Year: 1999.
• USFW - Doc Type: Symposium Proceedings.
• Copyright Material: NO

THE
CHANGING
ROLE OF THE
SECRETARY ON
TH E COLORADO
RIVER

Irrigation Project has probably been satisfied with
there having been a substantial amount of water in
the environmental baseline available for completion
of the Navajo Indian Irrigation Project. Then you
have the Hickory Apache Tribe, which has recently
completed the adjudication of its water rights in the
San Juan Basin but is unable to put those water rights
to use because their rights were not in the environ-
mental baseline for the Endangered Species Act.
How would you address that situation? Sure,
you're protecting existing uses but you have tribes
throughout the West whose rights have not been
adjudicated yet. Those are future uses and in light of
the Endangered Species Act, I think there is some
likelihood that those rights will never be able to be
put to use.

SAx: I agreed with Guy [Martin] and added one
item to his list of what's waiting for administrations
down the line, and that's Indian water rights.
Everybody has been making some effort at working at
it but there are some big unresolved problems. I think
ii::takes more than a crystal ball to figure out how to
deal with those.

As you
probably know,
I worked on the
Animas LaPlata
issue for a year
or so. There are
some ideas that
have been
brought forward
that have thus
far not proven
very popular.
One thing that I
suggested was to
exchange some
water for money
and let the lndians buy some water rights from
existing users, trying to use the mechanism of
voluntary mutually agreed on transactions. They
thought that was one of the worsr ideas they had ever
heard. In fact, one person who was representing some
of the Indians told me that he took that idea back to
his client and almost got fired. So, thank you very
much, he said to me.
I'm only saying this because I think in the not too
distant future there are going to have to be some
innovative ideas about how to deal with some of these
Indian entitlements and not just the notion that
they're going to either be unresolved or displace
existing users. And I don't think anybody really has a
very satisfactory answer to that at the moment.

I. think in the not too

distant future there are

going;to have to be some
innovati'S!e ideas about how

to deal, with some of these

SYMPOSIUM
PROCEEDINGS
. SEPTEMBER 1999

~

Indian entidements.

- Joseph Sax

QUESTION FROM THE AUDIENCE: My

question is, in your positions, have you ever felt that
the Secretary had a conflict of interest, or has a
conflict to interest, in playing major roles as a chief
trust officer for Native Americans, as the chief
enforcer of the Endangered Species Act and as the
water master of the Lower Colorado River?

SAX: It's sort of like being a parent. You have
responsibility to all your children and the children
often have very strongly conflicting desires and you
just have to try to work with that. The reason I'm
using that metaphor is that we don't think that's a
disqualifying kind of conflict. Sometimes you just
have those sort of problems.

QUESTION FROM THE AUDIENCE: What if
you favor one child over the other one?

SAX: You can't do that and be a good parent.

CARVER: We had that problem. It first came to
bear upon during our administration when it became
clear, at least it became clear to Udall, that trust
responsibility with reference to the Indians and the
responsibility under the statute with respect to the
Bureau of Reclamation were directly at odds. The
first step was to recognize, as it later became recog-
nized, that the Indians could and later did get their
own lawyers and to get a separation with the
Solicitor's Department. But fundamentally, this
matter, with respect to most Secretaries of the
Interior, has been to punt it to the courts. Where
you've got the conflict on this project or on that
project, the courts have got to figure it out.
But I was extremely aware of it because I was
fighting for the Indians and the same lawyers that
were representing me were representing the Bureau of
Reclamation and they were always telling me that the
law is quite clear that the Indians didn't have any
stake in this thing. I was dissatisfied with that and
eventually the courts agreed with that dissatisfaction.
But you're quite right, I don't think any Secretary
can be in this office without running into an institu-
tional conflict of interest. Now, that's different from a
personal conflict of interest where you're talking
about something in the Secretary's own state or the
Secretary's own project and so on. That's another
matter.
Bur with respect to the Indians, that's a policy
matter and I think the courts are leaning to the idea
that the Indians and, in fact, mostly successfully do
assert that the government's relationship with them is