CHAPTER 13 RESOLUTION OF INDIAN WATER RIGHTS CLAIMS
| Jurisdiction | United States |
(May 1999)
RESOLUTION OF INDIAN WATER RIGHTS CLAIMS
Greene, Meyer & McElroy, P.C.
Boulder, Colorado
For more than half a century, attorneys, legal scholars, and historians have quarreled over the meaning of the [Winters] decision with three questions in particular dominating their differences: the quantum or volume of the Indian right, the legitimate uses to which the water guaranteed by the right can be put, and the priority of the right in relation to the rights of non-Indians desirous of the same water sources. The vital importance of water has fired the imagination of disputants and inspired them to fashion a multiplicity of answers to these questions and to erect on those answers contradictory theories about the fundamental nature and extent of the Indian right. Additional by-products have been bitter court battles and others now in the planning stage, an Indian right that exists more in theory than in practice, the frustration of attempts to implement public and private water plans, and the inability of both Indians and non-Indians to make informed investment decisions.
Norris Hundley, Jr., The "Winters" Decision and Indian Water Rights: A Mystery Reexamined, W. HIST. Q. 17, 18 (Jan. 1982).
I. INDIAN WATER RIGHTS: A HISTORICAL BACKDROP
A. INTRODUCTION
The federal reserved rights doctrine provides that when the United States reserves lands from the public domain, it also impliedly reserves water sufficient to accomplish the purpose for which the land was reserved. Accordingly, when the United States sets aside lands as Indian reservations, it impliedly reserves water to provide a home for the Indian tribes residing on those lands.
The United States Supreme Court first acknowledged the reserved rights doctrine in the landmark case of Winters v. United States, 207 U.S. 564 (1908). Winters was the culmination of a series of decisions dealing with three distinct legal concepts: 1) that the federal government holds water rights to satisfy various federal interests that are separate from and not subject to state law; 2) that the United States is bound to uphold the terms and purposes of treaties with Indian tribes; and 3) that whatever aboriginal rights Indian tribes did not expressly relinquish by treaty, they retained, including the right to use water. In this section, we discuss the pre-Winters cases that form the foundation for the reserved rights doctrine to foster a better understanding of the three distinct elements of Winters.
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B. SETTING THE STAGE FOR RECOGNITION OF FEDERAL RESERVED RIGHTS TO WATER UNDER FEDERAL LAW
1. United States v. Rio Grande Dam & Irrigation Co.
The Supreme Court explored the issue of the federal government's rights to use water under federal law in United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690 (1899). There, the Rio Grande Dam & Irrigation Company ("Rio Grande Irrigation") intended to construct a series of dams across the Rio Grande River pursuant to the Texas water law of prior appropriation in order to "take and impound the water of said river, and thereby to create the largest artificial lake in the world, and to obtain control of the entire flow of the said Rio Grande...." Id. at 691. The issue before the Court was "the effect of the proposed dam and appropriation of waters upon the navigability of the Rio Grande, and, in case such proposed action tends to destroy such navigability, the extent of the right of the government to interfere." Id. at 701. In other words, given that the United States retained a navigable servitude upon the waters of the Rio Grande under the Commerce Clause, U.S. CONST. art. I, § 8, and by operation of the equal footing doctrine,1 could Rio Grande Irrigation take all the water out of the Rio Grande River so as to destroy the United States' interest in the river? The Court's answer was a resounding "No."
While states may appropriate the waters of nonnavigable streams pursuant to state law — portions of the Rio Grande River were not navigable — the United States' right to preserve the navigability of the Rio Grande River superseded the Texas rule of prior appropriation of those nonnavigable sections. States could change the common law rule of continuous flow, or riparianism, to that of prior appropriation, but states could not permit appropriation of water in contravention of the United States' interests. Rio Grande, 174 U.S. at 703. Just as states could not legislate to destroy the United States' interest in maintaining the navigability of navigable streams, private interests subject to state law, such as Rio Grande Irrigation, could not appropriate waters pursuant to state law so as to destroy the United States' interest. This prohibition extended to nonnavigable tributaries and to sections of a navigable stream insofar as the navigable stream depended upon the contribution of their waters for navigability. Id. at 709 (citing the analogy where the State of New York could appropriate the waters of the nonnavigable Croton River, a tributary of the navigable Hudson River, pursuant to state law, but not so as to diminish the flow in the Hudson River and thereby destroy its navigability).
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. 2. Severance of Surface and Subsurface
The Rio Grande court found that the Desert Lands Act of March 3, 1877, ch. 108, 19 Stat. 377 (codified as 43 U.S.C. §§ 321 -339), was not inconsistent with its holding that private interests could not appropriate water under state law so as to destroy the United States' interest in that water. The Desert Lands Act allowed entry onto lands classified as desert for mining and reclamation purposes but expressly severed water appurtenant to such lands2 from entry:
[A]ll 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.
43 U.S.C. § 321. The Rio Grande court read the Act to indicate Congress' assent "to the appropriation of water in contravention of the common-law rule as to continuous flow." Rio Grande, 174 U.S. at 706. The Desert Lands Act was momentous because Congress expressly severed water from the land on the public domain. The Desert Lands Act severed nonnavigable streams from the public domain, and thereby permitted the appropriation of such water apart from the land.
Such assent, however, did not "confer upon any state the right to appropriate all the waters of the tributary streams which unite into a navigable water course, and so destroy the navigability of that water course in derogation of the interests of all the people of the United States...." Id. Such would be "a construction which cannot be tolerated." Id.
Likewise, individuals may appropriate the waters of a navigable stream pursuant to state law only until the United States asserts its rights to such waters:
It is true there have been frequent decisions recognizing the power of the state, in the absence of congressional legislation, to assume control of even navigable waters within its limits, to the extent of creating dams, booms, bridges, and other matters which operate as obstructions to navigability. The power of the state to thus legislate for the interests of its own citizens is conceded, and until in some way congress asserts its superior power, and the necessity of preserving the general interests of the people of all the states, it is assumed that state action, although involving temporarily an obstruction to the free navigability of a stream, is not subject to challenge.
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Rio Grande, 174 U.S. at 703. See also United States v. R.B. Rands, 389 U.S. 121, 122-23 (1967) (use of the waters of navigable streams by state law appropriators is always subject to the United States' interest in those waters, and is not subject to compensation for takings under the Fifth Amendment since a state law appropriator "depends on the use of the water to which the [appropriator] has no right as against the United States...."); Federal Power Comm'n v. Niagara Mohawk Power Corp., 347 U.S. 239, 249 (1954) (where Congress clearly exercises the United States' right to use the waters of navigable streams for interstate commerce purposes, such as to preserve the navigability of a stream, appropriators using such water under state law are not entitled to compensation under the Fifth Amendment).
In California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), the court further analyzed the effect of the Desert Lands Act upon entrymen in the arid West. Because the climate conditions of the West differed so dramatically from those in the eastern portion of the country, the water appropriation doctrine of continuous flow, or riparianism, was functionally inappropriate. Instead, many western states adopted the prior appropriation/beneficial use method of water appropriation: "The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use." Id. at 154. The Act of July 26, 1866, ch. 262, § 9, 14 Stat. 251 (codified as 30 U.S.C. § 51) and the Act of July 9, 1870, ch. 235, § 17, 16 Stat. 217, 218 (codified as 30 U.S.C. § 52), constituted federal recognition of the prior appropriation doctrine.
"If the acts of 1866 and 1870 did not constitute an entire abandonment of the common-law rule of running waters in so far as the public lands and subsequent grantees thereof were concerned, they foreshadowed the more positive declarations of the Desert Lands Act of 1877, which it is contended did bring about that result." California Oregon, 295 U.S. at 155. Congress understood that the common law doctrine...
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