Sacred Rights

In Wyoming, the Wind River Reservation tribes stir up controversy as they take steps to protect their resources

06-01-1992 // Mark Wexler

Water, says Jeff Fassett, "is a lightning rod for controversy in the West. Disputes over who gets it can turn friends into enemies and cause neighbors to pick up their shovels and start slinging insults at each other."

Fassett should know. From his office in Cheyenne, the Wyoming State Engineer has been fielding lightning bolts ever since he took the job in 1987 and inherited a dispute over Indian water rights that began a decade earlier. "This case is not political," he maintains. "It's strictly a legal-precedent problem, and to be honest with you, I wish it had happened in some other state."

Two hundred miles to the west at the Wind River Reservation, where some 7,000 Shoshone and Arapaho Indians make their home, Wes Martel looks at things from an entirely different perspective. "This case is no longer a legal issue; now it's political," says the former Shoshone tribal councilman. "The courts ruled that outsiders can't take our water without our permission, but some people don't want to accept that. We're simply protecting our sacred, sovereign rights. A lot of people in the West aren't accustomed to seeing Indians stand up for themselves."

If Martel and Fassett cannot agree on the results of a 1988 Wyoming Supreme Court decision that awarded the tribes priority rights to much of the water that flows through their land, they might see eye-to-eye on another point: In the Old West, the times they are a-changing, and both Indians and non-Indians can no longer manage their resources--whether it's water or forests or wildlife--only for short-term gain.

"A lot of the old prejudices still exist, but in many ways, this is the new West," says Shoshone tribal council member John Washakie. "This is a chance for us to take better control of our own destiny. It is imperative that we Indians adapt."

Perhaps more than any other Indians in the western United States, the Wind River tribes are taking major steps to adapt--and protect their natural resources in the process. In recent years, Shoshone and Arapaho leaders have initiated a number of new wildlife conservation programs on the two and a half million-acre central Wyoming reservation, including a game code that allows wildlife populations to be managed, and a wide range of habitat restoration and protection efforts.

The Wind River Indians are also among the first tribes to initiate their own environmental programs. "We realized that there's no point in having control over a quantity of water if the quality of that water is no good," says Arapaho tribal Chairman Burton Hutchinson. The tribes have established a water code and have brought in outside experts to help run their own environmental quality division. They have also acquired a number of Environmental Protection Agency grants to study such problems as acid rain, polluted runoff from mining and logging on reservation lands, and radon levels in Indian homes. "There have been more changes here in the last five or six years than in the previous fifty," says Martel.

"These tribal leaders are setting some precedents that Indians elsewhere can adapt to their lands," adds Tom Dougherty, western division staff director of the National Wildlife Federation, which in 1990 honored the Wind River Shoshones and Arapahos with a Special Conservation Achievement Award for their efforts. In many respects, however, the two tribes are the most unlikely of partners.

Traditionally, the Shoshones and Arapahos were enemies. That they wound up on the same reservation is more a sad testament to the insensitivity of the U.S. government than to the desire of the tribes to make peace with one another.

The Wind River Reservation was established by the federal government in 1868 as a "reward" to Eastern Shoshones who inhabited the area. The tribe had been friendly toward Anglo immigrants ever since its first contact with the Lewis and Clark expedition in 1805. One Shoshone woman, the renowned Sacajawea, helped guide the expedition to the Northwest.

Because of their cooperation, the Shoshones were among the few tribes allowed to select the site of their reservation. They chose a huge parcel of land that spread across some 44 million acres in five western states. Five years later, U.S. authorities took away most of that territory and reduced the reservation to its current size and location.

The Arapahos, meanwhile, had been given a smaller, 122,000-acre domain in 1851 that stretched along the Platte River in parts of Colorado, Nebraska and Wyoming. It was their land, U.S. officials told them, "as long as the grass should grow" Seven years later, however, as thousands of eastern settlers moved into the region, the land was taken away by the federal government. The Arapahos became starving, homeless nomads. In 1878, the few hundred that survived were placed "temporarily" for the winter on the Wind River Reservation--much to the chagrin of the Shoshones, who had fought many battles with the Arapahos. The two tribes have lived together there ever since, operating under a joint council of elected leaders who occasionally still reflect the rivalry that once existed between them.

"The U.S. government did more than just throw us in together. They also took away much of our native identities," says John Washakie. For at least the first half of this century, he notes, "Indian parents shied away from teaching their children any of our cultural traditions to protect them from abuse by their white teachers. The government-run reservation schools tended to punish anyone who was too 'Indian-like.'"

Today, there is a renaissance of tribal customs on the Wind River Reservation. One of nearly 300 Indian reservations in the Lower 48 states, it contains some of the most breathtaking, unspoiled mountain areas in the nation. To protect that backcountry, the tribes established a 187,000-acre roadless wilderness area in 1938--a quarter of a century before Congress passed the Wilderness Act. The reservation also has more than 1,000 miles of rivers and streams, including some 80 miles of the mighty Big Wind River. And it has oil and natural gas deposits, which provide some revenues for tribal members.

Unfortunately, Wind River also has some of the disturbing social problems that plague other reservations: alcoholism, poverty and an unemployment rate that runs as high as 70 percent of the total adult population. "A lot of white people think that we just don't want to work," says Arapaho Councilman Crawford White. "What they don't realize is that this is our home, land we inherited from our fathers and which we will pass on to our sons and daughters. The white man placed us here and told us to survive, to change our traditional lives as hunters and become farmers. But then he took away much of our water, so white settlers could feed their crops. Now there are not enough jobs for everyone. So are we to give up our land and leave the reservation? For people who have lived here all their lives, that is not an easy thing to do."

For tribes that traditionally were accustomed to hunting and fishing as they pleased, adapting to a reservation game code has proven an equally difficult task. "When I began working here in the 1970s, there was no baseline data about the numbers of animals on reservation lands, or the state of their habitat," says Richard Baldes, project leader for the U.S. Fish and Wildlife Service's (FWS) office in nearby Lander, Wyoming.

At the time, Baldes was an anomaly: the only Indian overseeing a U.S. government agency's work at Wind River. The Shoshone biologist soon discovered that with unregulated hunting by the tribes, reservation wildlife populations appeared to be in serious decline.

"I was the first biologist to ever talk with the tribes about sustaining animal populations," says Baldes. "There was some fierce opposition from many tribal members, who were reluctant to give up any traditional rights."

It took Baldes and other biologists nearly a decade to convince the tribes to establish hunting and fishing seasons and limits on the number of animals taken. Finally, in 1984, Wind River adopted one of the nation's most comprehensive reservation game codes.

"It was a big change for our people," says Arapaho Burton Hutchinson. "It was," adds NWF's Tom Dougherty, "the turning point for conservation and wildlife management at Wind River Reservation."

At first, many of the Indians had trouble adapting. "We initially had problems enforcing the code," says Gary LaJeunesse, the tribes' game department head who oversees a staff of eight wardens. "But last year, we had only 11 violations." The result is that wildlife numbers are again flourishing. In less than a decade, for instance, the reservation's elk population already has tripled, to nearly 5,000 animals.

In recent years, the biggest controversy at Wind River has revolved around water rights--who controls them and how they can be used. It is a controversy that is raging on Indian lands throughout the West. "There are seven reservations in my jurisdiction," says Richard Whitesell, a Bureau of Indian Affairs regional administrator in Montana. "All of them are embroiled in water disputes." Only Wind River's case has gone all the way to the U.S. Supreme Court.

The dispute began in 1977, when the State of Wyoming initiated a process to quantify and, in effect, challenge the tribes' reserved water rights. A long court battle ensued and eventually wound up in the Wyoming Supreme Court. There, justices upheld a lower court's decision, which found that the original 1868 treaty not only gave the Indians senior water rights over all other users, but that those rights entitled them to a half-million acre feet of Big Wind River water a year--a third of the water that originates on the reservation and nearly 40 percent more than the Shoshones and Arapahos previously used. In 1989, the U.S. Supreme Court upheld that decision.

Armed with their water rights, the tribes turned to the FWS and asked what they could do to restore fish to the Big Wind River. For years, a section of the river had been reduced to a trickle during certain months as water was diverted from it to non-Indian farms. Baldes and his staff were prepared to answer. They had been working for 16 years on ways to restore reservation in-stream flows (water levels high enough to sustain fish).

In May of 1990, the Indians claimed their right to enough water to establish an in-stream flow in the Big Wind, amid the cries of farmers who, in effect, had been using Indian water for decades. Baldes' crew released 50,000 brown trout fingerlings into the river--the first stage of a plan to stock the river with 160,000 trout as a way to return a bounty to the Big Wind that had been lost. "That," says Dougherty, "is when the controversy really heated up. It changed an Indian/Non-Indian issue into a biological issue." With fish in the river, the state couldn't lower water levels. That would kill fish.

Wyoming's Congressional delegation protested the fish stocking, and under pressure from Washington, D.C., FWS authorities put a halt to the program. The tribes then turned to conservation groups for help. "From a biological standpoint, the effort to restore fish in the Wind River was the right decision," says John Zelazny, conservation director of the Wyoming Wildlife Federation.

With support and financial assistance from such organizations as the National Wildlife Federation and its Wyoming affiliate, the Audubon Society, Trout Unlimited and local sportsmen's clubs, the tribes released 10,000 rainbow trout fingerlings into the Big Wind in June of 1990. Since then, the Big Wind's water level continues to sustain fish, though state authorities are still challenging the tribes' right to establish in-stream flows.

"We believe that what the Supreme Court gave the tribes is a water right--the right to use water," says Jeff Fassett. "It's very valuable. It's the number one priority right in that river. But we believe there should have been a process by which all the parties discussed how the tribes would use that water right before they went ahead and established the in-stream flow, and requested the state to cut off water to farmers. There are no rules on this because this had never been done before anywhere in the country."

Susan Williams does not agree. The Albuquerque attorney, who represented the Wind River tribes before the Wyoming Supreme Court and the U.S. Supreme Court, maintains that the Shoshones and Arapahos can use their water on reservation lands any way they choose. "It's our view," she says, "that the longstanding sovereignty of Indian tribes over their people and natural resources applies here. Unless the state can show the courts federal statutes that change the tribes' jurisdiction over their own resources, there's no doubt in our minds that the state's attempts to assert control over the Wind River Indians' water use is not legal."

Back at the reservation, Wes Martel stands at the banks of the Big Wind River and looks to the future. Like other reservation residents, he envisions a time when sportsmen and other tourists could bring much-needed jobs and revenue to the area. "With all of our resources and natural beauty here," he says, "we have a chance to be one of the first reservations in this country to afford itself."

Martel gazes down at the river and smiles. "It's been good to see water flowing strongly again here," he says. "Many non-Indians don't realize the cultural significance to our people of having water in this river. It's as if we are rejuvenated."

Editor Mark Wexler and Wyoming photographer Ted Wood visited the Wind River Reservation last fall.

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