Court tells tribe to allow water commissioner on land

The Nevada Supreme Court has ruled the TeMoak Indian tribe has no sovereign right to keep the water commissioner from entering tribal land to regulate the Humboldt River's irrigation gates.

Tribal officials are expected to appeal the decision to federal court.

"We conclude that petitioners waived sovereign immunity when the United States purchased and petitioners took the reservation land subject to previously adjudicated water rights," the opinion issued Thursday said.

The unanimous opinion says the tribe ratified that waiver by its historical compliance with the Humboldt Decree governing water rights on the river.

Tribal officials had argued they have sovereign immunity and can block anyone from entering reservation land. They went to the Supreme Court after the district court in Winnemucca tried to hold them in contempt for blocking the water commissioner.

The tribe cooperated with the state engineer and water commissioners for 55 years, allowing them to manage the water in the Humboldt so that everyone received water rights. In 1998, the tribe decided to bar water commissioners from getting to the control gates and refused to pay assessment fees charged all water rights holders on the river.

While tribal officials deny taking water that isn't theirs, state officials say only monitoring and controlling the gates can ensure that.

"Since every drop of water in the Humboldt River is owned by someone, if the tribe takes more than it is entitled to, someone downstream will not receive the water they are rightly entitled to," said Deputy Attorney General Paul Taggart during arguments in the case.

He pointed out that controlling the gates upstream on the Humboldt could let the tribe take all the water it wants and leave downstream users with what's left.

He also said aerial observation shows the tribe was irrigating before it was legally supposed to and illegally taking water to store in a reservation reservoir.

He said when tribal officials received water rights in the first place, they accepted the legal responsibility to follow the Humboldt Decree -including regulation by state court water administrators - and respect the water rights of other users.

"They cannot accept the benefits of state water rights and then ignore the burdens of those rights," said Taggart.

Tribal attorneys, however, argued the state courts simply have no right to tell the tribe what laws it must follow because the tribe is sovereign.

Raymond Rodriguez of Nevada Legal Services argued that the headgates on the river don't belong to the state and that "the tribe feels free to manipulate it."

The Supreme Court on Thursday agreed with the state.

"We conclude that the purchase of the reservation land subject to previously adjudicated water rights constituted an express waiver of sovereign immunity," the high court ruled, pointing out that the Humboldt Decree and its requirements are even mentioned in the deeds to the property now belonging to the tribe.

Therefore, the court held that the state district court in Winnemucca has the power to exercise jurisdiction over the tribe for interfering with administration of the water rights. A hearing is set for Sept. 11.

The court ruled the tribe waived sovereignty in that specific instance by accepting the land and the water rights and ratified that acceptance by complying with the Humboldt Decree for 55 years.

The opinion denies the tribe's petition seeking to block the district court from taking action against it.