CHAPTER 5 USE OF INDIAN WATER IN DEVELOPING MINERAL PROPERTIES

• Jurisdiction: United States

Water Acquisition for Mineral Development
(Mar 1978)
CHAPTER 5
USE OF INDIAN WATER IN DEVELOPING MINERAL PROPERTIES
Stephen G. Boyden
Scott C. Pugsley
Boyden, Kennedy, Romney & Howard
Salt Lake City, Utah

I. INTRODUCTION

Many Indian reservations are located in the arid portion of the Western United States where water shortages are commonplace, hence, the physical availability of water for development of resources is all too often inadequate. As a general rule, most Indian tribes do not have all of their water rights either quantified or adjudicated so as to be in a position to effectively deal with third parties over the lease or sale of their water without inviting lawsuits from competitive users. To further complicate the matter, many Indian tribes have no desire to deal with industry or develop reservation resources, due primarily to their desire to preserve tribal cultural values which may be threatened by an influx of non-Indians to the reservation, the imposition of strange business ethics, and physical changes in the environment. An understanding of the nature of the Indians' legal right to the use of water, as well as a working knowledge of tribal government and the federal trustee relationship as they pertain to the particular reservation from which water is sought, is vital. While working with an Indian

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tribe for the use of its water for mineral development is not impossible, care should be taken to allow ample time to investigate and deal with every aspect of a future business relationship with the tribe. It is hoped that the following information will be helpful in evaluating the relative merits of relying on Indian water.

II. NATURE OF INDIAN WATER RIGHTS

Most Indian tribes subscribe to the doctrine of tribal sovereignty¹ which is based upon the historical fact that tribal government antedated the creation of the federal government or individual states. The right to use and regulate water for Indian purposes, therefore, is an aboriginal right² which has not been abrogated by assimilation into the federal system. While many may wish to quibble with the "sovereignty" or "aboriginal right" theories, the cornerstone of Indian water law is the decision of the United States Supreme Court in Winter v. United States,³ in which the Supreme Court held that at the time of the treaty between the government and the Indians, there was an implied reservation by the Indians of enough water to meet the purpose of the treaty, namely to enable the Indians to "become a pastoral and civilized people."⁴ The court found that the Indians, in ceding vast areas of land to the United

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States, retained sufficient water on the remaining land (reservation) to make it inhabitable for themselves. Thus, it appears, the court based its decision upon the treaty rights of the tribe, which, though not explicit as to water, were nonetheless construed so as to include such water as was a prerequisite to civilized life. Later cases held that the amount of water required to be reserved for Indian tribes was directly tied to the purpose of the reservation⁵ even though water rights were never mentioned in the treaty.⁶ The Winters Doctrine, as this line of cases has come to be known, was further amplified by U.S. v. Hibner⁷ wherein it was held that the reserved water rights could not be lost by abandonment or non-use.⁸ Later, in 1938, the Supreme Court protected the alienability of tribal water rights to non-Indian purchasers of tribal land.⁹ Finally, the court took the final step by recognizing Indian water rights which were not evidenced by treaty or agreement, but rather by Executive Order,¹⁰ thereby creating a federal right which vested at the time of the creation of any Indian reservation by the federal government. The distinction between this judicially recognized federal right and the tribal sovereign or aboriginal right to water seems no longer to be of practical significance except in establishing a priority date vis a vis other water users.

Contrasting the water rights acquired by Indians under

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Winters Doctrine to those water rights acquired pursuant to state "prior appropriation" laws, the following three differences are significant:

1. Priority under Winters exists merely to establish the time when waters were withdrawn from the public domain — either aboriginally or at the time of the creation of the reservation. Priority under the "law of prior appropriation" signifies the time in which an applicant complies with the statutory requirements of filing and diverts water for an approved beneficial use.

2. Appropriation under state law requires that an actual diversion of the water be made before the right may be perfected. Conversely, no such requirement is necessary under Winters:

Manifestly the Indians cannot be expected to acquire water rights to any considerable extent through prior appropriation, because they are not far enough advanced in the art of agriculture to reduce the water to a continuous use, and the water of the public streams that they shall finally need depends largely upon their progress in this art. The government, however, being their guardian, has a most important trust to perform in this relation; that is, so to conserve the waters of such streams as traverse or border the reserve as to supply the Indians fully in their probable, or, I may say, even possible future needs...¹¹

3. Abandonment or forfeiture of water rights under state law is designed to prevent waste and reward the diligent. The courts have precluded application of the doctrine to Indian Winters rights.¹²

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III. QUANTITY OF INDIAN WATER RESERVED

The Winters case itself approached the question of quantification by stating that sufficient waters were reserved for:

all their beneficial use, whether kept for hunting, "and grazing roving herds of stock," or turned to agriculture and the arts of civilization.¹³

Subsequently, Conrad Investment left the decree open to modification to accommodate future needs¹⁴ while the Walker River Case used population to determine the quantity of water.¹⁵ Ahtanun reserved for the tribe the remaining water in the creek "to the extent that the said water can be put to a beneficial use."¹⁶

In Arizona v. California,¹⁷ the Supreme Court set a standard for the Colorado River basin after receiving the previously mentioned cases. The court rejected the population criterion and opted for irrigable acreage in the following language:

(T)he only feasible and fair way by which reserved water for the reservations can be measured is irrigable acreage.¹⁸

The court then decreed a fixed amount of water for each tribe in the adjudication based upon the total acreage susceptible to irrigation.¹⁹ Relying strictly upon Arizona v. California, any tribe could readily quantify its entire water entitlement by inventorying lands which can be irrigated and then applying the appropriate duty to adequately

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irrigate such acreage. The application of such a formula will yield a set figure or fixed water entitlement, which many non-Indians deem essential so as to be able to allocate the balance of the water in the particular reservation drainage area.

The "National Indian Water Policy Review"²⁰ dated January 23, 1978, announced that one of the objectives of the present Administration of the Department of the Interior is:

To develop appropriate methods to determine the present and future water requirements of the Indian people.²¹

An elaborate process is detailed for the inventorying of surface and groundwater resources located on and adjacent to Indian reservations, evaluation of storage potentials, calculation of present water requirements for all uses, and a determination of projected water needs utilizing potential resources on the reservation.²² Interestingly enough, the process of quantification of Indian water rights was opposed by the Joint Committee on Indian Water Rights²³ in the belief that

Quantification of Indian Winter's Rights is neither necessary nor desirable at this time. A final determination, made at any given date, is inconsistent with the open-endedness of the right itself.²⁴

Resistance of many tribes to quantification may be bottomed in the conviction that a strict standard of irrigable acreage as set out in Arizona v. California is inadequate to serve all the projected needs of reservations

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which must support a birthrate many times the national average and develop large stores of mineral and energy resources. It has been effectively argued that mineral development is embraced within the beneficial use contemplated by the Winters Doctrine. To deny the use of water for mineral development would "constitute a taking of Indian property rights which would be subject to the payment of just compensation by the United States."²⁵ Notwithstanding Arizona v. California, most tribes and the federal government tenaciously hold to the position that Winters Rights include all potential uses of water including "irrigation; domestic use; livestock; municipal; industrial and public services; fish and wildlife; outdoor recreation; mineral production; aesthetic and religious needs; instream flow requirements and water quality."²⁶ Obviously, more extensive use of water claimed by the Indians will require a sophisticated and time-consuming procedure to fully quantify such rights, which begs the expedient legislative solution. However, courts no doubt will be injected into the matter, sooner or later, to rule specifically on quantification issues, which leaves "negotiated settlements between the tribes and competing parties"²⁷ as one of the most promising alternatives to determine water entitlement or quantification.

IV. AVAILABILITY OF INDIAN WATER

Indian water under the Winters Doctrine is susceptible

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to quantification when an agreeable formula is finally fashioned. Then, once the water has been quantified, it becomes...