State officials say tribal reservation or not, the TeMoak Tribe has no right to stop a state court water commissioner from crossing their land to regulate irrigation gates controlling the Humboldt River.
But tribal officials say they have sovereign immunity and can block anyone they want from entering reservation land.
Both sides presented their arguments Wednesday before the Nevada Supreme Court.
The issue, according to Deputy Attorney General Paul Taggart, is whether the tribe has the legal right to ignore everyone else's water rights and take as much water as it wants.
"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 Taggart.
He told the Nevada Supreme Court on Wednesday the water commissioners have regulated water rights on the Humboldt for 55 years but were suddenly kicked out by the tribe two years ago.
When that happened, the state went to district court for an order saying the state court's water commission has the power to regulate the Humboldt River irrigation gates.
The tribe went to the Supreme Court to block that order saying it is sovereign and immune from state court actions.
"They cannot accept the benefits of state water rights and then ignore the burdens of those rights," said Taggart.
And he said they accepted those legal burdens, including regulation by state court water administrators, when they got the water rights in the first place. Therefore, he told the court, that immunity claim doesn't hold water.
But Raymond Rodriguez of Nevada Legal Services said the Humboldt Decree says nothing about crossing reservation land without permission and the tribe has the right to stop the water commissioner. He said the headgate was built by the U.S. government, not the state, and that it isn't under state control.
"The tribe feels free to manipulate it," he told the court.
Taggart said aerial observation of the reservation shows the tribe has been "manipulating" the gates, irrigating before it was legally supposed to and illegally storing water in a reservoir within the reservation.
"They don't care about people downstream," said Taggart.
"If a tribe can acquire water rights that are subject to state control and then claim immunity from state court jurisdiction, they can upset water rights systems that have been in place and relied on for more than a century," he said.
Rodriguez said the tribe never accepted the Humboldt decree and that the U.S. government gave the water rights to the tribe.
"The tribe is not saying it wants to use any more water," he said. "This is not a water grab.
"But the state doesn't think it has to ask for the tribe's consent to cross its land," he said.
Rodriguez said the land issue has become a big one for the tribe as the population of Elko expands and more people are going onto tribal lands.
After hearing the arguments, the Nevada Supreme Court took the issue under submission. But Rodriguez said no matter which side wins, the issue will be appealed to federal court.
