Chapter 11 Indian Water Rights Settlements: How Settlements Are Including Climate Change Responses and Adaptations

• Jurisdiction: United States

Chapter 11 Indian Water Rights Settlements: How Settlements Are Including Climate Change Responses and Adaptations

[Page 11-1]

Ramsey Kropf¹ Oliver Skelly Somach Simmons & Dunn Boulder, CO

RAMSEY L. KROPF is a shareholder in Somach Simmons & Dunn's Boulder, Colorado office, Ramsey joined the firm in 2017 after completing an appointment as the Deputy Solicitor in the Water Resources Division of the U.S. Department of the Interior in Washington, D.C. She currently mediates Indian water right settlements and other Reclamation matters in New Mexico and California, represents a variety of clients in the Colorado River Basin, along with work in Oregon's Klamath Basin, Washington State, and other Colorado, regional, and interstate water matters. At Interior, she was the principal advisor to the Solicitor for all water resources issues, including Indian water rights settlements and litigation, reclamation law, and water rights for the National Park Service. In her post, she was also Counsel to the Secretary, Secretariat offices, Bureaus, and all Departmental officials regarding water law. Key matters she worked on included the Colorado River drought contingency planning negotiations, New Mexico's Middle Rio Grande issues including a settlement between the Isleta Pueblo, the Middle Rio Grande Conservancy District and the Bureau of Reclamation, assisting Reclamation and the Fish & Wildlife Service to implement a cooperative biological opinion, and with numerous Indian water settlements and federal water settlements, including those for both Arches and Bryce National Parks.

Introduction

To Hualapai Tribe Vice-Chairman Scott Crozier, the passage of the Hualapai Tribe Water Rights Settlement Act of 2022 was historic. "This will secure our tribe's future for generations," Crozier said alongside President Biden and other dignitaries at the Act's signing.² The Hualapai's decade-long negotiations with the federal government, State of Arizona, and other parties ended in 4,000-acre feet of water supply and a $312 million trust fund that the Tribe can use to begin developing water and improving its economy.³

The Hualapai's neighbors to the east in New Mexico, the Pueblos of Acoma, Laguna, Jemez, and Zia, have their eyes on a similarly long-awaited and bargained for water victory of their own. Currently pending in the Congressional Indian Affairs Committee is US S595, the Rio San José and Rio Jemez Water Settlements Act of 2023. S595 stands to deliver over $1 billion in water infrastructure funding and thousands of acre feet per year to the 4 Pueblo nations.

Beyond the very real water and dollars delivered is the presentation of something slightly less tangible yet equally as important: a new strategy for water allocation in the American West.

[Page 11-2]

Gripped by over-appropriation concerns amidst an historic drought, Tribal nations, Western water managers and policy makers are aware of the need for novel solutions. Tribal water rights settlements offer insight into what those solutions might look like and how they play out on the ground.

This paper explores the work those settlements are doing on the ground in Western states. It begins with a conceptual framework that these settlements must operate within, discusses the history and functionality of settlements, then concludes with a few case studies highlighting the flexibility and utility offered by Indian water rights settlements.

Conceptual Framework

To understand the role Indian water rights settlements, play in the American West, a conceptual framework is helpful. The two doctrines of prior appropriation and Winters rights and the historic tension between them underscore the significance of the move from adversarial to cooperative borne out by water rights settlements.

Prior Appropriation

The prior appropriation doctrine is a legal principle adopted by many western U.S. states to govern the water allocation. It is based on the "first in time, first in right" principle, which means that the first person or entity to use water from a natural source for a beneficial purpose (such as irrigation, mining, industrial, municipal, or domestic use) has a senior or superior right to that water. Subsequent (junior) users may only divert water after the senior users' needs have been satisfied.

Under the prior appropriation doctrine, water rights are typically granted by state agencies or state courts through a permitting or application process. These rights can be bought, sold, or

[Page 11-3]

leased to varying degrees. Each Western state practices its own flavor of prior appropriation. Colorado is likely the strictest adherent to the system, with water court judges maintaining a significant degree of control over the water allocation system. States like California and Texas on the other hand, use a hybrid system of riparian and prior appropriation rights. Wyoming has a permitting only approach, except within the auspices of the Big Horn River adjudication. That said, most Western states have some rendition of the "use it or lose it" principle, where water rights that are not put to a beneficial use after a certain time may be considered forfeited abandoned. State systems largely developed initially without considering tribal water right claims.

Winters rights, Pueblo rights

The Winters doctrine was established by the U.S. Supreme Court in the 1908 case Winters v. United States. There, the Court looked at competing claims by upstream irrigators and a downstream tribe to water near the Fort Belknap Reservation, created by an 1888 agreement between tribes and the United States in present-day Montana. Relying on the federal government's policy at the time to transform Native Americans from "a nomadic and uncivilized people...to become a pastoral and civilized people," the Winters Court found that the arid lands would be valueless without irrigation.⁴

Winters established that the United States owned water rights in trust for the Ft. Belknap Tribe, and as such, the "power of the [Federal] Government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be."⁵ The holding relied on the established canons of construction that any ambiguity in Indian treaty cases be resolved in

[Page 11-4]

favor of the Indians and that Indians reserved all rights not expressly given away. As such, the Court found it inconceivable that the Indians would cede these rights; instead, "the Government did reserve them we have decided, and for a use which would be necessarily continued through years."⁶

While different than Winters rights, courts and Congress have also established water rights for Indian Pueblos.⁷ Pueblos often hold different types of lands with different water rights; Pueblo water rights can be derived from Spanish land grants with time immemorial priorities, and from Winters where portions of Pueblo lands were established by treaty or executive order.⁸

The Winters decision marked a seismic shift in Western water development, though the effects were slow to materialize. Because water policy is generally a matter of state law, lingering questions remained about the quantification of Winters rights and whether they were subject to abandonment or use restrictions. Later court decisions began to address the quantification issues but there is still no uniformly followed test.⁹ While a "practicably irrigable acreage" (PIA) standard was adopted by the United States Supreme Court in Arizona v. California¹⁰ during interstate litigation over the Colorado River, a more recent Arizona decision took a different path.¹¹ Arizona's Supreme Court disagreed that a PIA standard worked for all tribes, and substituted a standard of "water necessary to effectuate" the purposes of the reservation,

[Page 11-5]

"tailored" so that the reservation needs were considered.¹² Similarly, determinations about allowed uses for Tribal water rights are variously interpreted by different courts.¹³

The Winters and prior appropriation doctrines are inherently contentious because of the senior priorities and remaining ambiguities associated with federal reserved water rights, and the difficulty of fitting the senior priority federal water uses into administration of state-based water rights, where agriculture and other businesses have grown into those rights. The general principle that Winters rights cannot be forfeited by non-use also creates an unsettling risk of curtailment to other users once reserved rights are decreed.

A mid-20^th century legislative development added an extra wrinkle to the conflicts between Winters, Pueblo, and state prior appropriation doctrines. The McCarran Amendment, enacted in 1952, waived United States' sovereign immunity in state court water rights cases. The purpose was to allow for joinder of the United States as a party defendant on the basis that water rights adjudications necessarily require all interested parties¹⁴ ; otherwise, federal water rights, under Winters or Pueblo claims, could interfere with lawful and equitable use of water. In Colorado River Water Conservation District v. United States¹⁵ , the Supreme Court held that water rights adjudications held that the federal government could be joined to determine tribal reserved rights to water. While some adjudications continue to occur in federal forums, the McCarran Amendment and related jurisprudence allowed for a comprehensive administration of federal

[Page 11-6]

rights, including Winters and Pueblo rights, along with state rights to be determined in state court.

History of Settlements

Following the Winters decision and the much later adopted McCarran Amendment, during the 1960s civil rights era, increased disputes arose as Indian Tribes began to assert their water rights. Because many Indian reservations were established in the Western United States, these disputes generally arose in the West, where aridity and adherence to the prior appropriation system only intensified the conflicts...