JUNE 2024 | 7 THE OKLAHOMA BAR JOURNAL Real Property Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Water Unity in Oklahoma: A History of the 2016 Water Settlement Agreement By Christine Pappas “WHILE WE HAVE BEEN SOVEREIGN SINCE TIME IMMEMORIAL, sovereignty is something we should never take for granted. As tribal leaders we have a duty to engage in this process and exercise our rights as sovereign nations to protect the interests of our people.” – Gov. Bill Anoatubby, Chickasaw Nation1 The story of the 2016 Water Settlement Agreement begins with the Treaty of Dancing Rabbit Creek of 1830. The Choctaw Nation agreed to trade their homelands in Mississippi for land west of the Mississippi River that would be held in fee simple and exclusive of any state government.2 Choctaw scouts surveyed available lands and chose what is now water-rich southeast Oklahoma. The Chickasaw Nation joined their cousin tribe in 1837 and became a retroactive party to the Treaty of Dancing Rabbit Creek.3 The Chickasaw Nation signed a new treaty with the U.S. federal government in 1855. After the Civil War, both the Choctaw and Chickasaw nations signed the Treaty of 1866, which ceded lands west of the 98th meridian to the U.S. government.4 This treaty also allowed railroads to cross tribal land, enabling increased nontribal settlement.5 The Choctaw and Chickasaw nations thrived in their new lands, establishing schools, infrastructure, a legal code and communities.6 They lived near ample water and constructed ferries and toll bridges over the Red, Blue and Kiamichi rivers. Most tribes in Oklahoma began to lose land base under the 1887 Dawes Act, but it did not apply to the Five Tribes. In 1897, however, the Choctaw and Chickasaw nations agreed to accept the allotment policy and abolish communal ownership of land.7 In 1907, Oklahoma became a state, but as McGirt v. Oklahoma demonstrated, Congress failed to disestablish tribal reservations.8 Water rights based on treaty obligations were unaffected by statehood. Tribal governments’ influence was reduced under assimilation and termination policies, but federal policies that strengthened tribal self-determination were passed starting in the 1960s.9 As tribes were growing in power, Oklahoma was engaging in an ambitious agenda of dam and reservoir building. Most of Oklahoma’s 200 lakes were constructed by damming a creek or river and inundating the surrounding area.10 Many tribal towns, cultural sites and burial grounds were flooded. Tribes were nominally consulted during this process. The state of Oklahoma contracted with the U.S. Army Corps of Engineers on April 9, 1974, to construct the dam on the Kiamichi River to create Sardis Lake for flood control purposes.11 In the 1980s, the state of Texas unsuccessfully investigated purchasing water rights from Oklahoma and acknowledged the rights the Choctaw and Chickasaw nations had on water
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