Records show that in February 2011, two of Oklahoma's largest tribal nations made a direct threat to sue over the state's high-profile sale of 90% of Sardis Lakes water rights to Oklahoma City for $42 million last June.
Since then, OKC has continued Sardis Lake development work even after a tribal attorney warned them that it was "profoundly unwise" and could spur a lawsuit that would strike at the heart of a decades-old dispute over water rights in Oklahoma, because tribal nations predate statehood.
Several tribal nations don't think the deal with OKC was legal and it was widely-believed that tribal lawsuits would follow the deal, but none have been filed, even after a direct threat to sue in February.
The Choctaw and Chickasaw tribes were exiled to southeastern Oklahoma 175 years ago and given land in the area. Gregory Pyle, chief of the Choctaw nation, said his tribe would sue to win some of the water if necessary. The tribes want the state to recognize them as joint owners. And their may be some hope.
A 103-year-old Supreme Court decision effectively put tribes in Western states at the head of the line in times of water shortage, or if a water basin is oversubscribed. If the Choctaw and Chickasaw tribes were to gain water rights under that old court ruling, it could prompt a new push for similar rights across Oklahoma, which has 39 federally recognized tribes.
However, unlike four tribes whose rights were signed into law in the past year, the Choctaw and Chickasaw Nations no longer have reservations, as they parceled it out t0 tribal members more than 110 years ago. This raises the question of whether water claims must be tied to a specific land grant or not. According to Stephen Greetham, lawyer for the Chickasaw Nation, “The water was never taken away.”
When the Choctaw and Chickasaw did have reservations, their land covered virtually all of southeastern Oklahoma and was watered by the Kiamichi River, whose tributary, Jackfork Creek, was impounded by the Sardis Dam in 1982. The tribes’ goals are to have some ownership and control over the water, to keep as much water as possible in the lake and to enhance southeastern Oklahoma’s recreational industry.
But of course, that prospect is very unsettling to Oklahoma City and suburbs like Edmond who have already voted to issue $102.5 million in bonds to help bring Sardis Lake water 110 miles north. It is even more unsettling in the Southwest, where irrigated agriculture and industries consume most of the available water.
A leading Oklahoma water official said in an interview that he wanted to negotiate with the Choctaw and Chickasaw. “Certainly we’re not foreign to the concept of sitting around the table and working things out with tribes and these tribes in particular,” said the official, J. D. Strong, executive director of the Oklahoma Water Resources Board, the state’s primary water agency. “It will happen if the leadership of this state wants to do that.”
So far two Oklahoma governors — Brad Henry, a Democrat who left office in January, and his successor, Mary Fallin, a Republican — have not opened formal negotiations with the tribes over Sardis Lake. Alex Weintz, a spokesman for Governor Fallin, said in an e-mail that the governor was awaiting a report being prepared by the state water agency before deciding on her approach.
Other Oklahoma based tribes currently fighting for water rights include: The Apache in Oklahoma who have gone to federal court, so far unsuccessfully, seeking to sell or lease water to the Tarrant County water agency in Texas; and the largest Oklahoma tribe, the Cherokee, have received mixed signals from federal courts as to its rights concerning the Illinois River.