Chapter 1B INTERJURISDICTIONAL WATER: TRIBAL-STATE WATER INTERESTS AND APPROACHES TO RESOLUTION

• Jurisdiction: United States

Water Law Institute
Chapter 1B

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INTERJURISDICTIONAL WATER: TRIBAL-STATE WATER INTERESTS AND APPROACHES TO RESOLUTION
Maria O'Brien Jamie Allen Modrall Sperling Albuquerque, NM

"Anyone who can solve the problems of water will be worthy of two Nobel prizes - one for peace and one for science." - President John F. Kennedy

Introduction

Throughout history, conflicts over water - from scarcity to disagreements over use and management - have never been in short supply. Conflicts over water can be particularly intense given water's essentiality to everyday domestic life, economic development and, for sovereign governments, self-determination. Water is by its nature predominately a shared resource, paying no mind to sovereign jurisdictional boundaries. As a result, water conflicts can be exacerbated when multiple sovereign jurisdictions lay claim to the use or management of the shared resource. This can be especially true regarding claims of sovereign Native American Nations¹ to the waters within their respective reservations or treaty territories and the claims of sovereign States to provide for use and administration of water within state boundaries. This paper provides a general overview of the legal paradigms that can give rise to some of the conflicts between states and tribes regarding water resources, and discusses the benefits of negotiated resolutions and some approaches that may serve useful in settlement of such conflicts.²

I. Basis for Native American Nation and State water conflicts

Conflicts between states and Native American Nations over water resources within overlapping sovereign boundaries arise not just because of shared and intersecting physical boundaries. Such conflicts are compounded by distinctly different histories and sometimes competing values the respective sovereigns may ascribe to water resources. Those differing histories and values attendant to water are overlain with differing legal paradigms which govern state and tribal claims to water. The quantification and determination of tribal water rights not only differs from state-based claims to water, but there remains a fair degree of uncertainty as to the definition and determination of tribal water claims. The differences and uncertainties contribute to both conflict and difficulty in resolution.

With limited exception, States have sovereignty over the water resources within their respective jurisdictional boundaries.³ Accordingly, as a general matter, the law of a particular state, not federal law, applies to the use and administration of water within the relevant state boundaries. Deference to state law regarding the use and management of water resources manifests repeatedly in western water law.⁴ One of the limited - albeit significant - exceptions to primacy of state law is the water rights of Native American Nations. Federal, not state law

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applies to the water rights of tribes. This very basic and essential difference is the genesis of many state and tribal conflicts with regard to water resources within their respective jurisdictions.

a. Governing law regarding determination of tribal water claims.

For over a century, courts have grappled with various issues unique to water situated on and running through Native American lands. While a century of jurisprudence and some congressional action has confirmed the applicability of federal, not state law, to tribal water claims and provided some significant guidance in some areas, there remain many uncertainties regarding the definition and determination of tribal claims to water.

Generally, state courts are responsible for determining issues related to the quantification and administration of water within state boundaries.⁵ With regard to the adjudication of tribal claims, Congress provided important directive in the 1952 McCarran Amendment providing for the right of states to adjudicate tribal water claims in state courts along with the adjudication of state-based claims to water.^{6 7} Federal courts however, also retain jurisdiction to adjudicate water rights arising under federal law along with state-based claims.⁸ The ability to adjudicate tribal rights in state as well as federal court, while not still without some complications and controversy,⁹ has provided important procedural guidance. Regardless, ultimate determination of such claims is complicated by the conflicting legal principals applicable to state and federal claims to water.

So, what parameters govern determination of tribal water rights? And how does this differ from state-based water rights and state's claims of sovereignty over water resources? Western water law is generally guided by two important principals: first, that the "beneficial use" of water is paramount to establishing the right to water, and given its importance and scarcity, a failure to continue to beneficially use the water can result in a forfeiture of any claim of right. Second, is a principal of first in time-first in right, or the priority of appropriation. The prior appropriation doctrine directs that a state-based water right will receive priority based on when water was first beneficially used. Some western states also recognize some aspects of riparianism in conjunction with the prior appropriation doctrine. Oklahoma, home to 38 Native American Nations is one such state.

However, the state law principals applied to western water rights developed under state law for over a century are not the same as principals applicable to the determination of the water rights of Native American Nations. Tribal "claims" to water resources in and running through their respective sovereign lands arose long before statehood; how Native American Nations may have historically used water may be similar to state-based uses, such as irrigation, or conversely

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be based on "uses" not historically recognized under some state law regimes such as instream flow.

The federal law concepts regarding determination of tribal claims to water have evolved over more than a century and continue to evolve. However, these federal law concepts have not necessarily evolved in harmony with state law based concepts, or been resolved with certainty across or even within jurisdictions. Because rights of tribes are implied, and establishment of a right is not based on use, tribal "claims" will often arise in the context of systems which may be considered fully appropriated by state based rights; and the tribal claims to water usually have the senior or prior in time right. As noted, with regard to determination of priority date, "state-law water rights are determined according to the doctrine of prior appropriation" which is "essentially a first-in-time rule."¹⁰ With regard to determination of a priority date attributable to tribal water claims however, courts have used the date of the reservation,¹¹ or the doctrine of "time immemorial" to determine priority date.¹² Under state law, western states generally recognize "appropriative rights to the beneficial uses" of water, with "beneficial use" referring to "a type of use that involves some depletion," such as irrigation,¹³ while with regard to federally based tribal water rights, courts have considered "future use," and determined that the quantity granted is not based on development and cannot be lost for nonuse.¹⁴

One of the seminal cases governing definition of Indian water rights is United States v. Winans, in which suit was brought against two brothers to enjoin them from "obstructing certain Indians of the Yakima Nation from exercising fishing rights and privileges on the Columbia River."¹⁵ Winans created an aspect of the "reserved rights doctrine," under which, pursuant to treaty, tribes retain all elements of their original Indian title until affirmatively given up by the tribe,¹⁶ and noted that tribes were given a "right in the land," running against not only the federal government, but subsequently created states.¹⁷

Three years later, in Winters v. United States,¹⁸ the United States Supreme Court provided foundational guidance for determination of tribal water rights. In Winters the Court focused on congressional intent in creation of reservations and the implication for tribal rights to water associated with the reserved land. The Court resolved a suit brought by the United States on behalf of the Fort Belknap Tribe to restrain Winters and other non-Indians from constructing or maintaining dams or reservoirs on the Milk River in Montana. The United States claimed the actions and uses by non-Indian water users interfered with the claimed rights to present and future uses of water for the Fort Belknap Reservation.¹⁹ The Winters Court held that the establishment of a reservation for the Fort Belknap Tribe impliedly reserved the amount of water

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necessary to irrigate reservation lands and provide water for other purposes, and that these reserved waters are exempted from appropriation under state law.²⁰

Building on Winters, the Supreme Court held in Arizona v. California that the creation of a reservation also creates an implied right to the amount of water necessary to "make the reservation livable," and extended the reserved right doctrine in Winters to include waters reserved for federal lands set aside for recreation, wildlife, or forests."²¹ Arizona v. California also determined that the measure of reserved rights should be premised on the amount of acreage on the reservation which could be "practicably irrigated."²² The Court's focus on Native American Nations as agrarian and as needing water primarily for irrigation has been a continued source of controversy and uncertainty in resolution of tribal claims.

Lower federal courts and state courts also have contributed to the federal law defining tribal rights. But many of those decisions have contributed to state-tribal conflict regarding water resources, and have not provided clarity or sought to harmonize...