Troubled Waters

TAKING NOTE

GOVERNMENTS, like people, don't like to admit they've been wrong--a fact that goes a long way in explaining many of the flabby political justifications that reach the public ear. What is less understandable, however, is why officials would acknowledge former sins only to compound that error by refusing to make amends for their evil ways--as the Supreme Court did last week with its decision involving the water rights of several Southwestern Indian tribes.

The case concerns a 20-year-old dispute over access rights to water from the lower Colorado River which runs through five South-western states and several Indian reservations. The Court settled competing claims for the water in 1964 when it allocated rights based on the amount of arable land claimed by the states and tribes. But, due to some administrative snafu which has yet to be explained, government officials representing the tribes in the dispute underestimated by more than 20 percent the amount of reservation land for irrigation--thereby cheating the tribes of close to one-fourth of their water rights. The Court accepted these findings as true, but refused to grant the tribes' request, which was backed by contrite federal officials, to reopen proceedings that would enable the Indians to recover these rights.

Justice Byron R. White, who authored the 5-3 majority opinion, argued that reopening the issue would upset the delicate balance existing in the parched Southwest. He added that since developers and farmers have planned according to these hard-won agreements, "finality" dictates that the case remain closed. This is a strange argument, since finality hasn't been the historical criterion for judging government land agreements with Indian tribes--at least not the finality of rising suns and flowing rivers.

The Court's decision is, as the dissentors state, a "manifest injustice" because it denies the tribes their rightful claim under the Court's own apportionment formula. The majority notes that the tribes are not currently using their full water allotment, but it is unrealistic to assume that they will have no future need for the contested rights. Even if the tribes have no immediate demand for the extra water itself. They do have an urgent need for revenue that could be generated by leasing the access rights.

Ironically, such reclamation projects of profit-making deals are more necessary than ever due to overall Administration policy concerning tribal reservations. While urging tribes to become economically self-sufficient. President Reagan has cut back or eliminated federal programs essential to economic development on reservations. The Economic Development Administration, a major source of funding for tribal development, was sustained only after Congress overrode Reagan's zero-funding for the agency. In addition, tribes have been particularly hurt by federal cuts in social programs, since they receive no state or local aid. Conservative estimates place current unemployment on reservations at about 40 percent: the figure may be high as 80 percent Clearly, the development projects begun by some tribes (such as tapping energy resources) cannot immediately or completely answer this pressing level of hardship. Calls for tribal self-sufficiency, in this light, become an Administration pretext for abandoning Native Americans.

Furthermore, the Administration confounds even its own recommendations by encouraging tribal independence only when it is politically convenient. Tribes are not eligible for state aid, but they are denied the all-important economic powers of taxation or commerce regulation. It is emblematic that, in the water rights dispute, the Supreme Court denied the tribes request for self-representation in such cases.

In the short run, economic independence is not a realistic possibility for most reservations; government encroachment has robbed the tribes of access to both their original resources and their traditional lifestyle. In the long run, tribes are as eager as Reagan to cut their dependence on government programs, but can only do so in the context of meaningful, not farcical, autonomy.

Given both historic injustices and current policies, the Supreme Court's decision is a particularly stinging slap in the face for the tribes. And it emphasizes the government's failure to live up to its responsibility to help create a future for the reservations, so long as the Colorado shall flow.