The legislative history of the McCarran Amendment: an effort to determine whether Congress intended for state court jurisdiction to extend to Indian reserved water rights.

• Author: Hedden-Nicely, Dylan R.

1. INTRODUCTION II. THE FUNDAMENTALS: RESERVED WATER RIGHTS VS. STATE LAW WATER RIGHTS III. SOVEREIGN IMMUNITY AND THE DETERMINATION OF INDIAN WATER RIGHTS BEFORE THE MCCARRAN AMENDMENT IV. THE SUPREME COURT'S INTERPRETATION OF THE MCCARRAN AMENDMENT V. THE LEGISLATIVE HISTORY AND THE TRUE POLICY UNDERLYING THE MCCARRAN AMENDMENT A. The Events that Led to the Call for Congressional Action 1. The Quinn River, Nevada: The United States Purchases State La w Rights but Refuses State Court Jurisdiction 2. The Colorado Adjudications: The United States Acquires State Law Water Rights Pursuant to the Reclamation Act but Refuses State Court Jurisdiction 3. Santa Margarita River, California: The United States Purchases State Law Water Rights and then Commences a Federal Court General Stream Adjudication B. The Hearings Before the Senate Subcommittee and Debate on the Floor of the Senate 1. The Hearings on the McCarran Amendment Chaired by Senator Arthur V. Watkins 2. Senator Pat McCarran's Statements on the Floor of the Senate C. The Senate Report D. The Interpretation of the Departments of Justice and the Interior VI. REVISITING THE LANGUAGE OF THE MCCARRAN AMENDMENT VII. CONCLUSION I. INTRODUCTION

   Between 1971 and 1983, the Supreme Court of the United States rendered three opinions that forever changed the legal landscape in Indian Country. In what has been called "a clear example of judicial legislation," (1) the Court considered an obscure rider on an appropriations bill that came to be known as the McCarran Amendment, (2) and found that it allowed for state court jurisdiction to determine federal and Indian reserved water rights. (3) In so doing, "[t]he Court reviewed a legislative history that is inconclusive at best and created a new federal policy." (4)

   The impact of the Court's decisions cannot be overstated. The Supreme Court has long recognized a "deeply rooted" policy in the United States that Indian tribes and their rights are to be free from state court jurisdiction. (5) There is good reason for this: Indian tribes "owe no allegiance to the states, and receive from them no protection." (6) Nowhere has this maxim been more pronounced than in the determination of reserved water rights. (7) The root of this treatment is that Indian tribes often have prior rights to water that has long been used by non-Indian appropriators. (8) This creates conflict between tribal and non-Indian water users and the primary forum to resolve such conflict now rests in state courts that are "ill-equipped to deal with the political pressures arrayed against tribal efforts to reclaim water that ha[s] been used by the non-Indian community." (9) This pressure can cause state courts to develop "strong incentives to discriminate against federal claims in favor of state and private uses." (10) The ultimate outcome is that tribes are often forced "into hostile forums in which [they] must be prepared to compromise their claims." (11)

   The question this Article addresses is whether Congress intended for this tectonic shift in federal policy regarding Indian tribes. It will explore the language and legislative history of the McCarran Amendment in an effort to ascertain its true purpose.

   That legislative history shows that "the McCarran Amendment was meant to be interpreted narrowly, not broadly." (12) Indeed, the language of the McCarran Amendment, together with its legislative history, suggests that the true policy underlying the McCarran Amendment was to address a narrow but politically unacceptable issue that was occurring throughout the West leading up to the early 1950s: the rapidly expanding United States government was acquiring state law water rights at an unprecedented rate but was refusing to be joined to state court proceedings that were seeking to either adjudicate or administer those water rights. The proponents of the McCarran Amendment argued that the federal government's claim of sovereign immunity precluded state courts from either initiating an adjudication or administering previously decreed water rights that were subsequently acquired by the United States. (13) This, according to the proponents of the bill, effectively paralyzed the states' ability to enforce their water laws because "all the supposedly settled water rights [were] subject to review and reexamination," whenever "the United States appear[ed] in a watershed." (14) The upheaval caused by the federal government's actions created considerable anxiety that "the long years of travail through which the water laws of our Western States have pased [sic] ... have been in vain." (15)

   The sponsors of the McCarran Amendment believed the federal claim of sovereign immunity unfair because, in those circumstances where it had acquired water rights pursuant to state law, the United States was acting in a proprietary rather than sovereign capacity but nonetheless claiming a "privilege of immunity that the original owner wouldn't have." (16) It was this issue, which had nothing to do with Indian tribes whose rights are reserved by the United States in its sovereign capacity and who have sovereign immunity independent of the United States (17) that was front and center as the McCarran Amendment was considered and passed into law.

2. THE FUNDAMENTALS: RESERVED WATER RIGHTS VS. STATE LAW WATER RIGHTS

   A typical water user in the United States acquires his or her water rights pursuant to state rather than federal law. The history of this arrangement derives from a series of federal acts, which culminated with the Desert Land Act of 1877. (18) The Desert Land Act allowed for federally-owned public domain "desert lands" within certain states to be acquired by United States citizens. (19) However, the Act also contained the disclaimer:

   That the right to the use of water by the person ... on or to any tract of desert land ... shall depend upon bona fide prior appropriation; and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation; and all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers, and other sources of water supply upon the public lands and not navigable, shall remain and be held free for the appropriation and use of the public for irrigation, mining, and manufacturing purposes subject to existing rights. (20) Based upon this language, the United States Supreme Court determined that "following the act of 1877, if not before, all nonnavigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states." (21)

   All arid and semi-arid states in the West have adopted some form of the prior appropriation doctrine. (22) The prior appropriation doctrine is based upon the maxim that first-in-time is first-in-right: "[w]ater rights are ranked in the order that the right was acquired, and this priority schedule is used to distribute available water in times of shortage." (23)

   The basis of a water right under the prior appropriation doctrine is beneficial use. (24) The Supreme Court has described it this way:

   [O]ne acquires a right to water by diverting it from its natural source and applying it to some beneficial use. Continued beneficial use of the water is required in order to maintain the right. In periods of shortage, priority among confirmed rights is determined according to the date of initial diversion. (25) Thus, the quantity of appropriative rights is limited to the amount a person actually diverts and puts to a beneficial use. (26) Prior appropriation jurisdictions apply the "use it or lose it" rule, meaning the water right is subject to forfeiture for nonuse. (27) Finally, there is no shared shortage; in times of scarcity, the most senior user gets their entire quantity of water before the next most senior receives any water. (28)

   Reserved water rights are different. Reserved rights are one of two exceptions to the general rule of state plenary authority over water rights. (29)

   The basis for reserved water rights for Indian tribes are the treaties, executive orders, congressionally ratified agreements, and other operative documents that were negotiated between the United States and each Indian Tribe for the creation of Indian reservations. (30) Because reserved water rights are treaty rights, the United States and the tribes set them aside pursuant to their sovereign capacity. (31)

   Most agreements between Indian tribes and the United States are entirely silent regarding water rights. This silence was first addressed in Winters v. United States. (32) That case involved the Fort Belknap Reservation, which was created by congressionally ratified agreement in 1888. (33) However, the agreement did not discuss water rights. (34) Shortly after the Reservation was created non-Indian irrigators began diverting water from the Milk River, which was a primary water supply for the Reservation. (35) In 1905, a drought caused water supply to diminish below the amount necessary to supply both the tribes and the non-Indian irrigators, causing the United States to bring suit. (36)

   The non-Indian defendants argued that the silence in the Agreement as to water rights should be construed to mean that the tribes and United States did not intend for any water rights to be reserved along with the Fort Belknap Reservation. (37) They argued the tribes should get their water by appropriation pursuant to the laws of the State of Montana and that since the non-Indians had begun using the water first, they were the prior appropriators. (38)

   The Court disagreed. It stated that "[t]he case, as we view it, turns on the agreement of May, 1888, resulting in the creation of Fort Belknap Reservation." (39) The Court then found:

   The Indians had command of the lands and the waters--command of all their beneficial use, whether kept for hunting, "and grazing roving herds of stock," or turned to agriculture...