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Congressional Research Service ? The Library of CongressCRS Report for CongressReceived through the CRS WebOrder Code RL32198Indian Reserved Water Rights:An OverviewUpdated January 24, 2005Nathan BrooksLegislative AttorneyAmerican Law DivisionIndian Reserved Water Rights: An OverviewSummaryWith the dramatic population increase in the West over the last thirty years, theWestern states have been under increasing pressure from their citizens to securefuture access to water. In planning to meet this goal, however, Western officialshave had to confront a heretofore obscure doctrine of water law: the doctrine ofIndian reserved water rights, also known as the Winters doctrine. This doctrine holdsthat when Congress reserves land for an Indian reservation, Congress also reserveswater to fulfill the purpose of the reservation. When this doctrine is applied to thewater laws of the Western states, tribal rights to water are almost always senior toother claimants. Therefore, in order for Western water officials to effectively planfor a stable allocation of water on which all parties can rely, they must find a way tosatisfy the water claims of local Indian tribes. The parties originally took to thecourts to resolve these issues, only to find themselves in an endless cycle of litigationthat rarely produced definitive rulings. As a result, negotiated settlements - whichrequire Congressional authorization in order to be valid - are fast becoming the norm.This report provides an overview of the legal issues surrounding Indian reservedwater rights disputes.ContentsIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Winters and the Reserved Water Rights Doctrine . . . . . . . . . . . . . . . . . . . . . 2The McCarran Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Litigation and Quantification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Winters and Allottee Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Tribal Use of Its Reserved Water Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Tribal Regulation of Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Ongoing Adjudications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Pending Settlements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Benjamin Franklin, Poor Richard’s Almanack (1746 ed.).2 Studies done by the Western Water Policy Review Advisory Commission found that, from1972 to 1997, the 17 Western states saw a 32% increase in population, compared to thenational average of 19%. In addition, those same studies estimated that the currentpopulation of the Western states will increase another 25% by the year 2022. Denise Fort,The Western Water Policy Review Advisory Commission: Another Look at Western Water,37 Nat. Resources J. 909, 915 (Fall 1997).3 Regarding this transition, see generally Daniel McCool, Native Waters: ContemporaryIndian Water Settlements and the Second Treaty Era (2002).Indian Reserved Water Rights: An OverviewIntroduction“When the well is dry,” wrote Benjamin Franklin, “we learn the worth ofwater.”1 The people of the arid American West have always lived in fear of a drywell, and the dramatic increase in the Western population over the last century hasbrought with it a rise in the number of mouths clamoring for water.2 Consequently,the drive to secure water often pits states, municipalities, and individual landownersagainst each other in epic political struggles. This drive also spurs planning andinnovation as officials look for new technological means to deliver water fromwherever it can be found. As a result, we have water projects like the Central UtahProject (CUP) and the massive Central Arizona Project (CAP).In planning to ensure that their citizens have access to water in the future,Western states have had to confront a heretofore obscure doctrine of water law: thedoctrine of Indian reserved water rights, also known as the Winters doctrine. Thisdoctrine holds that when Congress reserves land for an Indian reservation, Congressalso reserves water to fulfill the purpose of the reservation. When this doctrine isapplied to the water laws of the Western states, tribal rights to water are almostalways senior to other claimants. Therefore, in order for Western water officials toeffectively plan for a stable allocation of water on which all parties can rely, theymust find a way to satisfy the water claims of local Indian tribes.Satisfying these claims has proven a difficult task, largely because the Wintersdoctrine offers very little guidance regarding just how much water the tribes areentitled to. The effort started with litigation but, as this report will discuss, judgeshave proven unable to fashion an effective method for balancing the literallythousands of interests in water rights adjudications. Increasingly, then, these disputeshave moved from the courtroom to the negotiating table, and settlements are fastbecoming the norm.3 Because of the federal government’s unique role with respectto Indian tribes, Congress must ratify these settlement agreements in order for themto be valid. As more and more of these settlements come to Congress for approval,CRS-24 David H. Getches, Water Law in a Nutshell 6 (3d ed. 1997).5 Id.6 207 U.S. 564 (1908).7 207 U.S. at 576.8 Cappaert v. United States, 426 U.S. 128, 138 (1976). The Colorado Supreme Court hasheld “appurtenant” water to be that water “on, under or touching the reserved lands.” UnitedStates v. City and County of Denver, 656 P.2d 1, 35 (Colo. 1983).9 Arizona v. California, 373 U.S. 546, 600 (1963).10 Id. at 600 (1963).11 Hackford v. Babbit, 14 F.3d 1457, 1461 (10th Cir. 1994).12 The priority date can be even earlier if the water use fits under the category of aboriginaltitle. In United States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983), the Ninth Circuit found(continued...)it is important for legislators to have an understanding of the Winters doctrine and thevery complicated legal issues surrounding it.Winters and the Reserved Water Rights DoctrineThe Western states all determine water rights using some form of the priorappropriation doctrine, which holds that rights to water belong to the party that firstputs the water to “beneficial use.”4 As long as the party continues to put that waterto beneficial use, its prior appropriation right remains senior to all other users.5Many commentators condense the entire doctrine, somewhat glibly, into six words:first in time, first in right.In 1908, the Supreme Court added a complicated twist to this system when itpromulgated what came to be known as the reserved rights doctrine in Winters v.United States.6 There, the Court ruled that when Congress set aside land for the FortBelknap Indian Reservation, Congress also impliedly reserved water to helptransform the tribe into a “pastoral and civilized people.”7 It is important to stresshere that the Court reached this conclusion not by looking to the Constitution orexplicit statutory language, but rather by implying a certain Congressional intent. Tothis day, the Winters doctrine remains such an implication.The Supreme Court has continued to imply the same Congressional intent withregard to all federal reservations - tribal or otherwise (e.g., national parks) - statingthat “when the Federal Government withdraws its land from the public domain andreserves it for a federal purpose, the Government, by implication, reservesappurtenant water then unappropriated to the extent needed to accomplish thepurpose of the reservation.”8 The amount must satisfy both present and future needsof the reservation.9 This reserved water right vests on the date that Congress reservesthe land,10 and remains regardless of non-use.11 Therefore, because most Indianreservations were created in the 1800’s or early 1900’s, such reservations aregenerally both first in time and first in right under the Western prior appropriationsystem.12CRS-312 (...continued)that the tribe’s water rights accompanying its historical right to hunt and fish did not comeinto being with the reservation, but dated instead to “time immemorial.” The court alsofound that this right is not consumptive in nature, but rather “consists of the right to preventother appropriators from depleting the stream’s water below a protected level in any areawhere the...right applies.” Id., at 1411 (citing Cappaert v. United States, 426 U.S. 128, 143(1976)).13 Indian water rights literature is replete with references to the paper water/wet waterdistinction, which is commonly used to highlight the difference between a right to waterversus actually possessing both the water and the means to put it to beneficial use. See, e.g.,Daniel McCool, Native Waters: Contemporary Indian Water Settlements and the SecondTreaty Era 101 (2002).14 Id, at 597.15 The most glaring example of this conflict is the fact that the Bureau of Indian Affairs andthe Bureau of Reclamation are both within the Department of the Interior. In 1970,President Nixon sent a message to Congress pointing out that when such conflicts withinInterior arise, “[t]here is considerable evidence that the Indians are the losers.” H.R. Doc.No. 363, 91st. Cong., 2d Sess. 10 (1970), reprinted at 116 Cong. Rec. 23258, 23261 (1970).16 Nevada v. United States, 463 U.S. 110, 128 (1983). See also Cobell v. Babbitt, 91 F.Supp. 2d 1, 30-31 (D.D.C. 1999) (declining to hold the Secretary of the Interior to commonlaw fiduciary duties, instead looking purely to statute in determining duties owed).While Winters established a reserved water right for Indian reservations, formost of the last century that right amounted to nothing more than “paper water,”13 asmany took to calling it, because without either a standard for quantifying that rightor the technological means to take advantage of it, Indian tribes had little hope ofseeing a drop of actual (i.e., “wet”) water. To remedy this situation, the tribes wereforced to seek assistance from the United States government, which holds mostreservation property in trust for the Indian tribes. Congress has charged the Interiorand Justice Departments with many of its responsibilities as trustee to advance thewater rights of the Indian tribes.14 However, these departments are also charged withadvancing the broader national interest in water use, creating a conflict of interestwhich, until relatively recently, almost always weighed in favor of non-Indianinterests, and against the development of tribal water projects.15 While under normalfiduciary principles such a conflict would not be tolerated, the Supreme Court hasrecognized that the United States in its unique relationship with Indian tribes cannotbe held to the same standards as a private trustee. As the Court put it in a waterrights case involving a conflict in legal representation,It may well appear that Congress was requiring the Secretary of the Interior tocarry water on at least two shoulders when it delegated to him both theresponsibility for the supervision of the Indian tribes and the commencement ofreclamation projects in areas adjacent to reservation lands. But Congress choseto do this...the Government cannot follow the fastidious standards of a privatefiduciary, who would breach his duties to his single beneficiary solely byrepresenting potentially conflicting interests without the beneficiary’s consent.16With the population increasing in the West and the resulting need to secureaccess to water, Westerners were forced to deal with the senior claims of the tribesCRS-417 Conference of Western Attorneys General, American Indian Law Deskbook 212 (2d ed.1998).18 Act of July 10, 1952, 66 Stat. 549, 560 (codified at 43 U.S.C. § 666).19 43 U.S.C. § 666(a).20 Colorado River Water Conservation District v. United States, 424 U.S. 800, 811 (1976).21 See Daniel McCool, Native Waters: Contemporary Indian Water Settlements and theSecond Treaty Era 75-76 (2002).22 Colorado River Water Conservation District v. United States, 424 U.S. 800, 819 (1976).23 See generally Peter W. Sly, Reserved Water Rights Settlement Manual 177-184 (1988).(continued...)holding reserved water rights. Against this backdrop, various state, local, and tribalclaimants to water have filled the courts for decades in order to settle the myriad ofissues left open by the Supreme Court in Winters. In the process, the question ofwhich courts possess the power to resolve these issues has been almost as contentiousas the issues themselves.The McCarran AmendmentFor most of the last century, the doctrine of sovereign immunity shielded tribesand the federal government from state water rights adjudications, and so federalcourts had near-exclusive power to determine Winters rights.17 In 1952, however,Congress passed an appropriations rider waiving the federal government’s sovereignimmunity and permitting joinder of the United States in suits involving theadjudication of water rights of a river system or other source.18 Known today as theMcCarran Amendment, the law provides for consent to join the United States “in anysuit (1) for the adjudication of rights to the use of water of a river system or othersource, or (2) the administration of such rights, where it appears that the UnitedStates is the owner of, or is in the process of acquiring water rights under State law,by purchase, by exchange, or otherwise, and the United States is a necessary party tosuch suit.”19 In a momentous 1976 decision, the Supreme Court held that theMcCarran Amendment allows state courts to adjudicate Indian water rights where theUnited States is sued in its role as trustee for the tribes.20 For Indian tribes that havelong considered state courts to be hostile territory, the prospect of having those samecourts adjudicate Indian water rights has been one of the primary motivations forpursuing negotiated settlements.21In its decision allowing state court adjudications of tribal water rights under theMcCarran Amendment, the Supreme Court held that the policy behind theamendment - namely, the avoidance of piecemeal adjudication of water rights in ariver system - requires that state court adjudications under the McCarran Amendmentmust be “comprehensive” in order to be valid. As the Court put it, “The consent tojurisdiction given by the McCarran Amendment bespeaks a policy that recognizes theavailability of comprehensive state systems for adjudication of water rights.”22Factors that contribute to a particular adjudication’s “comprehensiveness” includethe parties, the types of rights at issue, the definition of the basin to be included in theadjudication, and the time frame covered by the adjudication.23CRS-523 (...continued)A Federal Appeals Court has held that a failure to include groundwater in a state generalstream adjudication does not invalidate the adjudication on “comprehensiveness” grounds.United States v. Oregon, 44 F.3d 758, 768-769 (9th Cir. 1994).24 What exactly the power to “administer water rights” entails is not immediately apparent.The most widely followed definition seems to be the one given by a Nevada Federal DistrictCourt over thirty years ago: “To administer a decree is to execute it, to ensure its provisions,to resolve conflicts as to its meaning, to construe and interpret its language.” United Statesv. Hennen, 300 F.Supp. 256, 263 (D. Nev. 1968).25 See Conference of Western Attorneys General, American Indian Law Deskbook 220-221(2d ed. 1998).26 In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753P.2d 76, 114-115 (Wyo. 1988).27 Id.28 Conference of Western Attorneys General, American Indian Law Deskbook 194 (2d ed.1998).While the law is clear that the McCarran Amendment grants state courts theright to adjudicate Indian water rights, the question of who has the power toadminister water rights determined in a McCarran Amendment adjudication is notso clear.24 Some argue that the above-quoted language of the McCarran Amendmentdistinguishing between administration and adjudication of water rights is meant tolimit a state’s ability to administer such rights.25 The Wyoming Supreme Court hasheld, though, that state courts have the power to administer as well as adjudicateIndian water rights.26 Significantly, the court also ruled that an appointed StateEngineer has the power to “monitor” water use under a court’s reserved rightsdecree, but enforcement by that same official against either the tribes or the UnitedStates would require judicial action.27The benefit of the McCarran Amendment is that it allows a state to take a moreactive role in the determination of a resource so precious to all of that state’s citizens.As discussed above, however, the Supreme Court in Winters left many questionsregarding reserved water rights to be determined by other courts. In the wake of theMcCarran Amendment, most of the courts to take up these questions have beenvarious state judicial bodies, with different states sometimes providing very differentanswers. This lack of uniformity breeds confusion, which is nowhere more evidentthan in the courts’ handling of the quantification problem.Litigation and QuantificationUsing the Winters rationale to guide them in their search for a quantificationstandard, courts have generally focused first on each reservation’s purpose, and thendetermined the amount of water necessary to fulfill that purpose. Until recently,virtually every court to consider the question of a reservation’s purpose held thatpurpose to be agricultural, in that the federal government, in reserving the land,intended that the Indians who inhabited the reservation would cultivate the land inorder to become self-sufficient.28 Subsequent judicial attempts to establish aquantification standard in line with this agricultural purpose have resulted in someCRS-629 See, e.g., Note, Indian Reserved Water Rights: the Winters of Our Discontent, 88 Yale L.J.1689, 1695 (1979).30 United States v. Ahtanum Irrigation District, 236 F.2d 321 (9th Cir. 1956); ConradInvestment Company v. United States, 161 F. 829 (9th Cir. 1908).31 See, e.g.,United States v. Walker Irrigation District, 104 F.2d 334, 340 (9th Cir. 1939).32 Arizona v. California, 373 U.S. 546, 601 (1963).33 373 U.S. at 601.34 373 U.S. at 602.35 See, e.g., Jennele Morris O’Hair, The Federal Reserved Rights Doctrine and PracticablyIrrigable Acreage: Past, Present, and Future, 10 BYU J. Pub. L. 263, 273 (1996). TheSupreme Court had an opportunity to clarify its position regarding the PIA standard inWyoming v. United States, but an evenly split Court (made possible by Justice O’Connor’srecusal) merely affirmed the Wyoming Supreme Court’s judgment without opinion.Wyoming v. United States, 492 U.S. 406 (1989).36 See Barbara A. Cosens, The Measure of Indian Water Rights: The Arizona HomelandStandard, Gila River Adjudication, 42 Nat. Resources J. 835, 842-844 (Fall 2002).37 See, e.g., Fort Mojave Indian Tribe v. United States, 32 Fed. Cl. 29, 35 (1994).standards, but also more confusion.29 While some courts followed the SupremeCourt’s lead in Winters and refused to establish a quantification standard,30 othercourts tried a “reasonable needs” approach that looked to past and present water useas a benchmark.31The Supreme Court made its most significant contribution to the quantificationdebate in Arizona v. California, in which the Court expressed its approval of theSpecial Master’s use of a fixed calculation of water needs based on the physicalcapacity of the reservation land, rather than the number of Indians on thereservation.32 The Special Master based this “practicably irrigable acreage” (PIA)standard, as it has come to be known, on the aforementioned assumption that thepurpose of an Indian reservation is agricultural. Starting from that assumption, theSpecial Master reasoned, and the Court agreed, that “the only feasible and fair wayby which reserved water for the reservation can be measured is irrigable acreage.”33Interestingly, while the Supreme Court endorsed the Special Master’s use of the PIAstandard in Arizona, the Court did not technically adopt it. As the Court put it,“While we have in the main agreed with the Master, there are some places we havedisagreed and some questions on which we have not ruled. Rather than adopt theMaster’s decree...we will allow the parties, or any of them, if they wish, tosubmit...the form of decree to carry this opinion into effect.”34 This unusual set offacts has led many to question the precedential value of the Court’s decision inArizona.35Notwithstanding the debate over Arizona’s precedential value, the PIA standardis today by far the favorite judicial method for quantifying Indian reserved waterrights,36 and lower courts have fashioned a three-step process for determining areservation’s practicably irrigable acreage.37 First, soil scientists determine thelargest area of arable land that can reasonably be considered for an irrigationCRS-738 Id.39 Id.40 Id. The Fort Mojave court went on to say that “In general, the PIA analysis is groundedupon project development with the overall goal of maximizing the income from the projectand not maximizing the water claim.”41 See Peter W. Sly, Reserved Water Rights Settlement Manual 104 (1988).42 492 U.S. 406 (1989).43 See Andrew C. Mergen and Sylvia F. Liu, A Misplaced Sensitivity: The Draft Opinionsin Wyoming v. United States, 68 U. Colo. L. Rev. 683 (Summer 1997).44 See, e.g., Peter W. Sly, Reserved Water Rights Settlement Manual 104 (1988).45 See, e.g., Barbara A. Cosens, The Measure of Indian Water Rights: The ArizonaHomeland Standard, Gila River Adjudication, 42 Nat. Resources J. 835, 837 (Fall 2002)(“Whereas southern tribes located in alluvial valleys near a large surface water source [e.g.the Colorado River] are entitled under an agricultural purpose quantified by the PIA methodto ample water, tribes in more northern climes or mountainous terrain are left withinsufficient rights to meet basic drinking water needs”).project.38 Second, engineers develop an irrigation system based on the availablewater supply and the arable land base.39 Third, economists evaluate the croppatterns, yields, pricing, and the net returns for crops that the irrigation project mightsupport.40While the widespread judicial adoption of the PIA standard currently providesparties with some degree of certainty as to how Indian water rights will be quantifiedby courts, that standard is by no means set in stone, and there is evidence to suggestnot only that courts may soon be moving away from the PIA standard, but also thatthey may be doing so in slightly different directions, adding to the uncertainty. First,non-Indian appropriators argue that agricultural water use is highly consumptive, andtherefore the PIA standard is too friendly to Indians and insensitive to state andprivate appropriators.41 There is evidence in Justice Thurgood Marshall’s papers thatbefore Justice O’Connor recused herself in Wyoming v. United States,42 she authoreda draft majority opinion in which the Court would have held that the quantificationof Indian water rights must include a sensitivity analysis, taking into account theeffect on other state and private appropriators.43 Given how close the Supreme Courtcame to restructuring the PIA standard in Wyoming, it is possible that the Court mightadopt a stricter standard in the future.On the other side of the ideological spectrum, some argue that the PIA standardis not friendly enough to Indians, in that linking water rights to agriculture isanachronistic and unfair given the current state of the agricultural economy in thiscountry.44 Others contend that the PIA standard does not take into account therealities of modern-day life and the diversity of reservations’ geographies andpurposes.45 Agreeing with both sides of the PIA debate in some respects, the ArizonaSupreme Court in its 2002 Gila River ruling abandoned agriculture as the solepurpose for Indian reservations and found instead that the essential purpose of anCRS-846 In re General Adjudication of All Rights to Use of Water in the Gila River System andSource, 35 P.3d 68, 74 (Ariz. 2002) (quoting Winters, 207 U.S. at 565).47 Id. at 76.48 Id. at 79-80.49 Act of Feb. 8, 1887, 24 Stat. 388 (codified as amended at 25 U.S.C. §§ 331-334, 339, 341-342, 348-349, 354, 381). For a brief discussion of the history of and policy behind the act,as well as its consequences, see F. Cohen, Handbook of Federal Indian Law 127-143 (1982ed.); see also William C. Canby, American Indian Law in a Nutshell 20-23 (3d ed. 1988).50 There are several other allotment acts specific to particular tribes, some with longer orshorter trust periods than that of the Dawes Act, but the underlying policy issues from areserved water rights perspective are the same.51 William C. Canby, American Indian Law in a Nutshell 22 (3d ed. 1998).Indian reservation is to establish a “permanent home and abiding place.”46 Citingvarious water settlements, the court found its construction necessary “to achieve thetwin goals of Indian self-determination and economic self-sufficiency.”47 Inquantifying water rights in line with that purpose, the court held as proper areservation-by-reservation analysis of, among other things, (1) the tribe’s history andculture; (2) the reservation’s geography and natural resources, including groundwateravailability; (3) the reservation’s physical infrastructure, human resources,technology, and capital; (4) past water use; and (5) a tribe’s present and projectedfuture population.48While the Arizona Supreme Court’s approach addresses many of the criticismsleveled at the PIA standard, its “reservation-by-reservation” focus does not lend itselfto a specific formula, and so could lead to more uncertainty for authorities trying toaccount for Indian reserved water rights when planning large water projects. Ofcourse, the Gila River decision is only one case with no precedential value in otherstates. It is still too soon to tell whether or not the Arizona Supreme Court’s GilaRiver ruling will spur other states to follow suit and reassess the PIA standard. Whatis clear, however, is that there are serious questions - from all sides - about theeffectiveness of that standard.Winters and Allottee RightsWhile the task of quantifying Winters water often frustrates judges,adjudications involving Winters rights become even more confusing when allotmentsare involved. In an effort to assimilate Indians into mainstream American culture,Congress in 1887 passed the General Allotment Act49 - also known as the Dawes Act- authorizing the President to allot portions of reservation lands to individual Indians.Title would then remain in the United States in trust for 25 years, after which itwould pass to the individual Indian allottees free from all encumbrances.50 The actalso authorized the Secretary of the Interior to distribute surplus reservation land forthe purpose of non-Indian settlement. After the 25-year trust period was over, manyallottees found themselves unable to pay the state taxes to which their lands becamesubject, resulting in widespread forced sales.51 These forced sales combined with theSecretary’s distribution of surplus lands to non-Indians to produce a “checkerboard”CRS-952 See F. Cohen, Handbook of Federal Indian Law 138 (1982 ed.) (“The majority of Indianlands passed from native ownership under the allotment policy...about 27 million acres, ortwo-thirds of the total land allotted, passed from Indian allottees by sale between 1887 and1934. An additional 60 million acres were either ceded outright or sold to non-Indianhomesteaders and corporations as ‘surplus’ lands”).53 United States v. Powers, 305 U.S. 527, 532 (1939). Generally, under the NonintercourseAct (25 U.S.C. § 177), Indians are forbidden from transferring tribal land without federalgovernment approval, and this prohibition likely applies to the transfer of non-allottedreserved water rights also. See Conference of Western Attorneys General, American IndianLaw Deskbook 207-209 (2d ed. 1998).54 Colville Confederated Tribes v. Walton, 647 F.2d 42, 51 (9th Cir. 1981).55 Id.56 In re General Adjudication of All Rights to Use of Water in the Gila River System andSource, 35 P.3d 68, 76 (Ariz. 2002).pattern of Indian/non-Indian land ownership far different from what Congressintended in passing the Dawes Act.52While many reservations escaped allotment and its consequences, this“checkerboard” pattern of ownership on some reservations persists and todaypresents serious problems in reserved water rights disputes. The Supreme Courtruled somewhat confusingly in the only allottee water rights case to come before itthat when tribal land is converted into allotments, the allottees succeed to someportion of tribal waters needed for agriculture.53 A subsequent Ninth Circuit case,Colville Confederated Tribes v. Walton, built on that reasoning and held that anallottee’s share of a tribe’s reserved water is equal to the percentage of the entirereservation’s irrigable acreage that is located on the allottee’s land.54 The Waltoncourt also found that a non-Indian successor in interest to an Indian allottee acquiresthat allotment’s reserved water right, but loses that right if the non-Indian successordoes not put the water to beneficial use.55 The Supreme Court’s ruling and the laterlower court cases expanding on it considered allotment rights only for irrigationpurposes. It is not clear how these holdings relate to reservations of land for nonagriculturalpurposes.Tribal Use of Its Reserved Water RightAs the Gila River decision discussed earlier illustrates, a court’s answer to thethreshold question of purpose can have far-reaching effects. The Arizona SupremeCourt’s finding of a “permanent homeland” purpose not only led the court to a newmethod of quantification, but also allowed the court to put a premium on flexibilityin how tribes use their Winters water. As the court put it, “Just as [the U.S.]economy has evolved, nothing should prevent tribes from diversifying theireconomies if they so choose and are reasonably able to do so. The permanenthomeland concept allows for this flexibility and practicality.”56 This is consistentwith the opinion of the Special Master in Arizona v. California, who stated that, evenCRS-1057 S. Rifkind, Report of the Special Master - Arizona v. California 265 (1962).58 In re the General Adjudication of All Rights to Use Water in the Big Horn River System,835 P.2d 273 (Wyo. 1992).59 Id. at 278-279.60 438 U.S. 696 (1978).61 Id. at 718.62 Id. at 702.63 In re General Adjudication of All Rights to Use of Water in the Gila River System andSource, 35 P.3d 68, 77 (Ariz. 2002).though he found the reservation’s purpose to be agricultural, that did not mean thatthe reserved water had to be put to agricultural use.57The Gila River court specifically rejected the approach taken by the WyomingSupreme Court ten years earlier in the Big Horn adjudication.58 There, the courtfound that because agriculture was the primary purpose for the reservation of land forthe Indians, if the tribe wanted to use the water for some other purpose, such asinstream flow, the tribe must do so according to state prior appropriation doctrine.59In reaching its conclusion, the Wyoming Supreme Court relied on the primarysecondarypurpose test used in United States v. New Mexico,60 a Supreme Court casedealing with a non-Indian federal reservation, specifically a national forest. TheCourt in New Mexico found that the United States, in setting aside federal lands forthe Gila National Forest, reserved use of the Rio Mimbre River only where necessaryto preserve timber and to secure favorable water flows, and therefore did not have thereserved right for aesthetic, recreational, wildlife preservation, or stock wateringpurposes.61 As the Court stated, “Where water is necessary to fulfill the verypurposes for which a federal reservation was created, it is reasonable to conclude,even in the face of Congress’ express deference to state water law in other areas, thatthe United States intended to reserve the necessary water. Where water is onlynecessary for a secondary use of the reservation, however, there arises the contraryinference that Congress intended, consistent with its other views, that the UnitedStates would acquire water in the same manner as any other public or privateappropriator.”62 The Big Horn court applied the New Mexico rationale to Indianreservations and greatly constrained the ability of the tribe to adjust its water useaccording to modern day realities.The Arizona Supreme Court in the Gila River adjudication rejected the BigHorn approach on two grounds. First, the Arizona Supreme Court said there areenough significant differences between Indian and non-Indian reservations topreclude applying New Mexico’s primary-secondary purpose test to Indian waterrights cases. The court found chief among these the underlying federal policy ofIndian self-sufficiency, which necessitates an interpretation of Indian reserved rightsthat is broader than that of non-Indian reserved rights.63 Secondly, the court said,CRS-1164 Id.65 For a discussion of the different causes of this state of affairs, see Daniel McCool, NativeWaters: Contemporary Indian Water Settlements and the Second Treaty Era 161-163 (2002).66 See, e.g., Edmund J. Goodman, Indian Tribal Sovereignty and Water Resources:Watersheds, Ecosystems, and Tribal Co-management, 20 J. Land Resources & Envtl. L.185, 208 (2000).67 25 U.S.C. § 177. Given the disastrous consequences of the Allotment Act era, discussedearlier, proponents of marketing must overcome some very strong arguments againstgranting such congressional approval.68 25 U.S.C. § 415.69 For this reason, all of the marketing provisions approved so far in water settlement actsspecify water delivered from federal projects rather than reserved water.70 In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753P.2d 76, 100 (1988).even if the New Mexico test applied, the “permanent homeland” purpose would beprimary, not secondary.64The debate over what a tribe can do with its Winters water gets even morecontentious when the issue of off-reservation water marketing is broached. Thegeography of Indian and non-Indian settlement that emerged from the era ofwestward expansion is such that today many tribes control large amounts of waterupstream from major metropolitan areas.65 In theory, then, certain tribes could divertwater for their own uses and leave little for the already-parched downstream cities.Given this situation, such tribes stand to make a good deal of money by agreeing tonot use their water in deference to downstream interests. Marketing water isespecially attractive to tribes which possess the rights to reservation water, but lackthe infrastructure and resources necessary to exploit it.66 Under the NonintercourseAct, tribes are restricted from alienating trust property without specific statutoryauthorization.67 There is a limited exception to the Nonintercourse Act, however,which authorizes tribes, with the approval of the Secretary of the Interior, to leasetrust land for “public, religious, educational, recreational, residential, or businesspurposes, including the development or utilization of natural resources in connectionwith operations under such leases.”68 The use of the term “natural resources” seemsto suggest that tribes need only seek the Secretary’s approval to market their water.Even so, difficult questions persist regarding the legality and policy ofmarketing Winters water. First, because most tribes have not had their Winters rightsquantified, in many situations a reservation’s reserved water is already being used forfree downstream by those who have consequently built up a substantial relianceinterest on this state of affairs. The prospect of suddenly having to pay for water thathas for so long been free predictably sparks vehement opposition.69 Secondly, asdiscussed throughout this memorandum, the threshold question in water rights casesis often, what is the purpose of the reservation? As the Wyoming Supreme Courtheld, it is very difficult to link the off-reservation marketing of water to thereservation’s original purpose, especially if that purpose is an agricultural one.70 IfCRS-1271 United States v. Wheeler, 435 U.S. 313, 322 (1978). The Court went on to clarify that thepower to punish tribal offenders is an exercise of retained tribal sovereignty. As such, thepower “[E]xists only at the sufferance of Congress and is subject to complete defeasance.But, until Congress acts, the tribes retain their sovereign powers. In sum, Indian tribes stillpossess those aspects of sovereignty not withdrawn by treaty or statute, or by implicationas a necessary result of their dependent status.” Id. at 323.72 Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978).73 25 U.S.C § 1322.74 See Peter W. Sly, Reserved Water Rights Settlement Manual 138 (1988).75 United States v. Anderson, 736 F.2d 1358, 1363-1365 (9th Cir. 1984).76 United States v. Montana, 450 U.S. 544, 565 (1981).courts move toward the Arizona Supreme Court’s “permanent homeland” approach,water marketing might rest on a much stronger foundation.Tribal Regulation of WaterThe Supreme Court has held that Indian tribes, as limited sovereigns, have theright to regulate the conduct of their members,71 a right which presumably extendsto the regulation of members’ use of tribal water. States must respect a tribe’s rightto order its own affairs,72 and even those states that have assumed criminal and civiljurisdiction over Indian tribes pursuant to Public Law 280 are expressly prohibitedfrom regulating Indian trust water rights.73The real problem with tribal regulation of water arises when tribes attempt toextend their authority to nonmembers. Nonmember water rights arise in two ways:first as mentioned above, an allottee holds rights to a portion of reservation water;second, and even more complicated, homesteaders have rights to reservation water.In the late 1800’s and early 1900’s some reservations were opened up to the public,and homesteaders moved in to claim portions of reservation land.74 Thesehomesteaders hold state appropriative water rights,75 which must be reconciled withthe federal reserved water rights of the tribe.In Montana v. United States, the Supreme Court held that a tribe may onlyregulate the on-reservation activities of nonmembers on non-Indian land within thereservation if (1) the nonmembers have entered into consensual relationships (e.g.,contracts, leases, etc.) with the tribe; or (2) nonmember conduct on the reservation“threatens or has some direct effect on the political integrity, economic security, orhealth or welfare of the tribe.”76 Citing their inherent sovereign powers over triballand and resources, as well as the second Montana exception, tribes have enactedwater codes purporting to regulate all who use reservation water, sometimesincluding nonmembers.The law governing tribal authority to enact water codes regulating nonmembersis not very clear, engendering a great deal of confusion among tribes and privateCRS-1377 See generally Thomas W. Clayton, The Policy Choices Tribes Face When DecidingWhether to Enact a Water Code, 17 Am. Indian L. Rev. 523 (1992).78 This moratorium is informal and is not codified anywhere, but is commonly known. DOIhas told tribes that the Department will not approve their water codes until DOI promulgatesregulations pursuant to 25 U.S.C. § 381, which DOI has yet to do. See Holly v. Totus, 655F. Supp. 548, 551-552 (E.D. Wash. 1983). See also Conference of Western AttorneysGeneral, American Indian Law Deskbook 224, n. 250 (2d ed. 1998); Thomas W. Clayton,The Policy Choices Tribes Face When Deciding Whether to Enact a Water Code, 17 Am.Indian L. Rev. 523, 548 (1992); Peter W. Sly, Reserved Water Rights Settlement Manual72 (1988).79 25 U.S.C. § 461 et seq. Congress passed the IRA in an effort to encourage tribal selfgovernment,authorizing tribes to adopt constitutions and by-laws to be ratified by membersof the tribe. In order to be effective under the IRA, these constitutions and by-laws must beapproved by the Secretary of the Interior.80 Memorandum from Ross Swimmer to Secretary of the Interior requesting approval of FortPeck Water Code, Oct. 7, 1986.81 Holly v. Confederated Tribes and Banks of the Yakima Indian Nation, 655 F. Supp. 557,559 (E.D. Wash. 1985).82 Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997) (quoting Williams v. Lee, 358 U.S.217, 220 (1959)).83 See Peter W. Sly, Reserved Water Rights Settlement Manual 181-182 (1988).water appropriators.77 The Department of the Interior (DOI) was sufficiently worriedabout the potential for conflict inherent in such codes that in 1975 the Secretaryimposed a moratorium78 on all DOI approvals of such water codes submitted bytribes subject to the Indian Reorganization Act (IRA).79 The moratorium is still ineffect, although DOI made one exception in 1985 when it approved the tribal watercode included in the water rights compact between the State of Montana and theAssiniboine and Sioux Tribes of the Fort Peck Reservation.80The status of codes enacted by tribes not subject to the IRA is yet to bedetermined. The available case law, however, suggests that tribal water codes couldnot be upheld on tribal sovereignty grounds. In Holly v. Yakima Indian Nation, atribe enacted a water code that purported to regulate all use of excess waters on feelands within the reservation. The court held that nonmember use of excess water onsuch lands does not implicate the concerns of the second Montana exception, and sothe exception does not apply.81 In addition, in Strate v. A-1 Contractors, the SupremeCourt seemed to limit the second Montana exception to those situations where stateregulation would impede on “the right of reservation Indians to make their own lawsand be ruled by them.”82 It does not appear that tribal water codes regulatingnonmembers would satisfy that requirement.GroundwaterThe Supreme Court has never addressed whether a reservation’s groundwateris included in its reserved water right. Most states handle groundwater and surfacewater under separate regulatory and judicial controls,83 and a determination of rightsto groundwater is not required for a McCarran Amendment adjudication to meet itsCRS-1484 See United States v. Oregon, 44 F.3d 758, 768-769 (9th Cir. 1994).85 In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753P.2d 76, 99 (Wyo. 1988). In addition, a Federal Appeals Court has held that a failure toinclude groundwater in a state general stream adjudication does not invalidate theadjudication on “comprehensiveness” grounds. United States v. Oregon, 44 F.3d 758, 768-769 (9th Cir. 1994).86 See Gila River Pima-Maricopa Indian Community v. United States, 695 F.2d 559 (D.C.Cir. 1982); Nevada v. United States, 279 F.2d 699 (9th Cir. 1960); In re Determination ofConflicting Rights, 484 F. Supp. 778 (D. Ariz. 1980); Tweedy v. Texas Co., 286 F.Supp. 383,385 (D. Mont. 1968).87 In re the General Adjudication of All Rights to Use Water in the Gila River System andSource, 989 P.2d 739, 748 (Ariz. 1999).88 Id., at 747.comprehensiveness requirement.84 The Wyoming Supreme Court, whileacknowledging that “the logic that supports a reservation of water to fulfill thepurpose of the reservation also supports the reservation of groundwater,” refused toextend the Winters doctrine to include groundwater because no other court hadexplicitly done so.85 Several courts, however, have implicitly recognized a reservedgroundwater right.86 In 1999, the Arizona Supreme Court took the position that theWinters doctrine applies to groundwater only when “other waters are inadequate toaccomplish the purpose of a reservation.”87 This analysis, the court recognized,essentially dissolves the distinction between surface and groundwater: “Thesignificant question for the reserved rights doctrine is not whether water runs aboveor below the ground but whether it is necessary to accomplish the purpose of thereservation.”88 This issue is by no means settled.ConclusionIn the century since the Supreme Court promulgated the reserved rightsdoctrine, the judiciary has often shown itself to be an inadequate body for resolvingthe myriad of issues that the Court in Winters left unresolved, with litigation draggingon endlessly. This is not surprising, given that three governments and tens ofthousands of people have significant stakes in the outcomes. The situation in thecourts promises to get even more complicated in the wake of the Arizona SupremeCourt’s Gila River ruling.Many parties have started to realize that issues as complex and important asthose outlined in this report are best resolved by settlement, with each partycompromising in order to achieve its most important goals. As the drive for adependable water supply in the Western has grown stronger, so has the desire toquickly settle tribal water claims in order that Western water officials can effectivelyand accurately plan for the future. In addition, tribes have begun to understand thenegotiating power that comes with a reserved water right - power that can beleveraged to address other tribal needs. This transition from courtroom to negotiatingtable brings with it a larger role for Congress, which must approve each settlement.CRS-1589 The Gila River Indian Community Water Rights Settlement Act (Title II of P.L. 108-451);The Southern Arizona Water Rights Settlement (Tohono O’odham Nation) (Title III of P.L.108-451); The Nez Perce/Snake River Water Rights Act (P.L. 108-447, Division J, Title X);The Zuni Indian Tribe Water Rights Settlement Act (P.L. 108-34); The Shivwits Band ofthe Paiute Tribe of Utah Water Rights Settlement Act (P.L. 106-263); The Chippewa CreeTribe of the Rocky Boy’s Reservation Indian Reserved Water Rights Settlement Act (P.L.106-163); The Yavapai-Prescott Indian Tribe Water Rights Settlement Act (Title I of P.L.103-434); The San Carlos Apache Water Rights Settlement Act (Title XXXVII of P.L. 102-575); The Jicarilla Apache Tribe Indian Water Rights Settlement Act (P.L. 102-441); TheNorthern Cheyenne Indian Reserved Water Rights Settlement Act (P.L. 102-374); The FortMcDowell Indian Community Water Rights Settlement Act (P.L. 101-628); The FallonPaiute Shoshone Indian Tribes Water Rights Settlement Act and the Pyramid Lake/Truckee-Carlson Water Rights Settlement Act (Titles I and II, respectively, of P.L. 101-618); TheColorado Ute Indian Water Rights Settlement Act (P.L. 100-585); The San Luis Rey IndianWater Rights Settlement Act (Title I of P.L. 100-675); The Salt River Pima-Maricopa IndianCommunity Water Rights Settlement Act (P.L. 100-512); The Ak-Chin Indian Water RightsSettlement Act (P.L. 98-530); The Southern Arizona Water Rights Settlement Act (P.L. 97-293).Ongoing Adjudications. Presently, there are at least 19 ongoingadjudications involving at least 52 tribes laying claims to water rights on the GilaRiver, Virgin River, Walker River, Little Colorado River, Milk River, MissouriRiver, Big Horn River, Tongue River, Rosebud River, Flathead River, BlackfootRiver, Bitterroot River, Marias River, Wind River, Klamath River, Snake River, andYakima River. Initiated in 1977, the Big Horn adjudication, referred to numeroustimes in this memorandum, reached the Supreme Court once and is currently beforethe Wyoming Supreme Court for the fifth time.Pending Settlements. To date, Congress has approved eighteen Indianwater rights settlements.89 Various tribes have negotiated settlement agreements stillawaiting Congressional approval, including the Fort Peck Indian Reservation, theFort Belknap Indian Reservation, and the Aamodt Pueblo Tribe. The Crow IndianReservation is in the negotiation process and may have a settlement ready to presentto Congress within the next few years. |
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