11-02-89
CHAPTER 131
CHEROKEE WATER CODE
Section 131-1. DECLARATION OF RIGHTS.
In order to promote the general welfare of the Eastern Band of
Cherokee Indians and to develop, manage and preserve the waters and
other resources of the Cherokee Trust lands, to provide for the
exercise of inherent sovereign power of self-government by the Tribe
and to further the preservation and development of the resources of
the Tribe, the Tribe hereby asserts its prior, exclusive and supreme
rights in, ownership of and jurisdiction over the waters of the
Cherokee Trust lands.
Section 131-2. NATURE OF OWNERSHIP.
(a) The Eastern Band of Cherokee Indians is the owner of the
full equitable title of the rights to and the use of all the
waters of Cherokee Trust lands and that title remains
undiminished in the Tribe. The United States of America
owns only the naked legal title to such waters and rights
solely as trustee for the Tribe.
(b) All rights to the use of Cherokee waters are held by the
Tribe in perpetuity for the use and benefit of the Tribe and
the lands and other resources of the Tribe. No rights or
privileges of any kind shall be recognized except as they
are subject to the overriding, prior and supreme right and
interest of the Tribe and the policies and provisions of
this Code together with any regulations established
thereunder. No agent of the Tribe, the Tribal Council or
the United States shall take any action or recognize any
right affecting the water resources of the Tribe and its
trust lands which shall in any way decrease or threaten to
decrease the prior and supreme rights and interests of the
Tribe.
Section 131-3. WATERS DEFINED.
The waters of the Eastern Band of Cherokee Indians are defined as:
(a) all waters located upon or bordering Cherokee Trust lands,
whether flowing or stationary, whether above or below the
surface of the ground, and whether diffused or contained
within a defined water course or water body of any kind.
(b) all waters reserved or granted to the Tribe or to Cherokee
lands by the United States and the Tribe, and
(c) all water which in the course of nature or as the result of
artificial works, flows into or otherwise enhances such
waters.
Section 131-4. WATER POLICY.
In taking any action under this Code, the Tribal Council or the
Tribal Business Committee shall be guided by the following policy
guidelines:
(a) Whenever practicable, action should benefit the Tribe and
its members and further the objective for which Cherokee
lands were placed in Trust, namely to provide a permanent
home for the Tribe and its members, now and in the future.
Alternatives to existing or proposed uses shall be
considered whenever practicable.
(b) In taking any action under this Code which may impose
substantial economic hardship on persons or entities
presently using water, or which threaten the degradation of
other economic, historical, aesthetic, natural or
environmental values, the Tribal Council and the Business
Committee shall consider and give weight to:
(1) the economic dislocation and hardship which will be
imposed by its actions,
(2) the investment in time, money and other resources made
by the parties affected in reliance upon the existing
system of distribution and use of water,
(3) such other burdens as may be imposed by the action, and
(4) the nature and extent of degradation of other economic,
cultural, historical, aesthetic, natural and economic
values.
(c) Unless otherwise provided, the Tribal Council or Business
Committee shall give preference in the following order:
(1) domestic use,
(2) municipal/tribal use,
(3) fish and wildlife,
(4) agriculture,
(5) industry,
(6) power,
(7) other uses.
Section 131-5. GUIDELINES AND EFFECTIVE USE OF RESOURCES.
In addition to policy guidelines contained in Section 131-4, the
Tribal Council and Business Committee may take appropriate action, in
its discretion, to:
(a) insure an adequate supply,
(b) maintain water levels,
(c) maintain pressure in surface and underground water,
(d) prevent or reduce obstruction of surface or ground water
flow,
(e) maximize use of the available supply,
(f) create and enhance the efficiency of storage,
(g) prevent or reduce pollution or the effects of pollution,
(h) shape use of available supplies to promote economic, scenic,
aesthetic, historical, cultural, natural or domestic values,
(i) provide for long-term development,
(j) penalize misuse,
(k) prevent interference with Tribal administration of water,
(l) retain a base flow of rivers, streams and springs necessary
to provide for the preservation of wildlife, fish, scenic,
aesthetic and other environmental values, or
(m) otherwise insure conformity with the provisions of this Code.
Section 131-6. RIGHTS RESERVED TO TRIBE.
(a) The following rights shall be reserved by the Tribe when
possessory holdings are issued to individual tribal members:
(1) all rights to issue water rights in or through leases
and permits and to draw the income therefrom or
allocate the income therefrom between the Tribe and the
possessory holder,
(2) the power and responsibility to control and regulate
the use of water on the possessory holding.
(b) The following rights shall be reserved by the Tribe when
leases or other use permits are issued to individuals or
other legal entities, whether tribal members or not:
(1) to negotiate any lease fees, permit fees, royalty fees
or use fees and rates for consumption or for commercial
or industrial use,
(2) the power and responsibility to control and regulate
the use of water on the leased property.
Section 131-7. RIGHTS GRANTED TO MEMBER WHEN POSSESSORY HOLDING
ISSUED.
The following rights shall be granted by the Tribe to a tribal
member when a possessory holding is issued:
(a) riparian rights to use of water standing or flowing through
or along the possessory holding, subject to the right of
riparian possessory holdings to make reasonable use of the
water and subject to reasonable regulations of the Tribe,
(b) use of any surface or subsurface water for domestic
purposes, subject to health and sanitation regulations of
the Tribe or other governmental agencies with lawful
authority within Cherokee Trust lands.
Section 131-8. PROHIBITED ACTS AND PENALTIES.
(a) Any Indian person or firm who shall wilfully violate any
provision of this Ordinance or the Water Policy, including
the violation of any use permit, license or right exercised
under a lease, shall be guilty of a criminal offense and
upon conviction shall be fined and imprisoned in the
discretion of the court, with each offense not to exceed a
fine of one thousand dollars ($1,000) and imprisonment not
to exceed six (6) months.
(b) All persons or firms whose employees, owners or agents are
convicted of any such offense shall be subject to the
revocation, cancellation or termination of their use permit,
license, lease or other use right by the Tribal Business
Committee.
(c) Any person or firm not subject to the criminal jurisdiction
of the Cherokee Court who shall wilfully violate any term or
provision of this Ordinance, the Water Policy, any use
permit, license, lease or use right granted by or through
the Tribe, shall be subject to a civil fine of up to two
thousand dollars ($2,000) per violation, together with being
subject to revocation of Trader's License, use permit,
license, lease or other use right by the Tribal Business
Committee. All such civil fines shall be assessed by the
Tribe through the Tribal Business Committee and may be
enforced by civil suit in the Cherokee Court.
SOURCE: Ord. 25, eff. Nov. 2, 1989.
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