CHAPTER 7 INDIAN WATER RIGHTS: OLD PROMISES, NEW OPPORTUNITIES
| Jurisdiction | United States |
(Feb 1989)
INDIAN WATER RIGHTS: OLD PROMISES, NEW OPPORTUNITIES
Saul B. Goodman *
Covington & Burling
Washington, D.C.
Water resources in the western United States are of enormous importance. In large part, water is the key to unlocking the economic potential of the West — whether it be used for irrigation, mining or recreation.
Until recently, the claims of Indian tribes to the very same sources of water used to satisfy these needs have largely been ignored. Development in the western states has proceeded apace, without much regard to claims on water by nearby tribes. As the historian Norris Hundley has written, "Indians were a forgotten people in the Colorado Basin, as well as in the country at large; and their water needs, when not ignored, were considered negligible."1
Today, the Indians are no longer permitting their neighbors the luxury of being able to ignore their right to water — rights secured in many cases by treaties with the United States Government. And while it is clear that the exercise of Indian water rights today may sometimes cause harm to settlers and the descendants of settlers, appropriators who originally disregarded Indian water rights did so, it now can be said, at their (and their descendants') peril.
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Indian water-rights claims have been called the "West's darkest and most tumultuous legal storm cloud."2 The Indian claims in the Gila and Salt River basin near Phoenix and Tuscon, for example, were estimated to be up to three times the amount of all available water.3 Now the Supreme Court has agreed to review the primary standard under which Indian water rights have been measured — the "practicably irrigable acreage" standard first adopted twenty-six years ago.4 The new case, Wyoming v. United States,5 involves the water rights of the Shoshone and Northern Arapaho Tribes of the Wind River Indian Reservation in Wyoming.
In this article, we set forth the basic principles governing the water rights of Indians. In addition, we explore a number of the questions concerning the transferability of Indian water, within reservations and without, and between Indians and non-Indians.
I. Indian Water Rights — Winters: Before and After
The first wave of settlement of the West consisted mostly of miners searching for gold. Later, ranchers and farmers joined this migration and spurred the westward expansion of the United States. Growth then, like today, was limited by the water available for use. In these early years, when miners and homesteaders put water to use, the water usually had to be diverted from a watercourse and transported, commonly through ditches, to the place where it was needed. With competing demands for water increasing, a system was eventually developed to allocate water. This system allocated water essentially like minerals were rationed at the time — the first to make productive use of the water had a protected prior right. Eventually, early skirmishes over water led to the adoption of the "prior appropriation" system of
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recognizing rights to water, the predominant system in the western United States.6
Under the doctrine of prior appropriation, water rights are acquired through devoting water to a beneficial use. When an appropriator did so, he was awarded a priority date, denoting his priority in taking water from the water course. Later appropriators must wait until senior appropriators have received their water and senior appropriators can enjoin juniors from interfering with their water rights.7
A. The Source of Indian Reserved Water Rights
In the settlement and development of the western United States, the question of the Indians' entitlement to natural resources including minerals and water was not taken seriously by settlers and state governments, and even by some federal officials.8 At the turn of the twentieth century, however, the United States Supreme Court in three decisions within a span of nine years explicated the outlines of a broad Indian right to water that to this day is a subject of great controversy.
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The first decision, United States v. Rio Grande Dam and Irrigation Co.,9 involved water rights for lands owned by the federal government. In its 1899 ruling, the Supreme Court held that the federal government possessed water rights intrinsically in its proprietary capacity as the owner of federal lands. Because federal law is supreme, state-law requirements of an actual appropriation of water as a prerequisite to establishing an enforceable water right were inapplicable to the United States.10
Although Indian water rights were not addressed in this first decision, only six years later the Supreme Court set forth the general principle governing the Indians' entitlement to resources associated with their reservations. In United States v. Winans, the Court ruled that, unless an Indian tribe specifically surrenders ownership of a particular natural resource associated with its land, the tribe retains ownership and may exploit the resource.11
Finally, in its seminal ruling in Winters v. United States in 1908, the Supreme Court essentially combined both these principles and squarely held that, even where a treaty or agreement with an Indian tribe is silent on the matter, the Indians have a federally protected right to the water needed to fulfill the purposes of establishing the reservation.12 According to the Winters Court, the right to use water had been "reserved" when the reservation was set aside. This right is secure without regard to state-law requirements for obtaining water rights.13 In states that recognize water rights based on prior appropriation, Indian water rights have a priority date no later than the date of the official
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founding of the reservation.14 Thus, under Winters, if water is necessary to effectuate the purpose(s) of establishing an Indian reservation, a right to water is guaranteed under federal law even where the Indians have not previously used ("appropriated") that water.
The fundamental objective in establishing reservations was to provide permanent homes for Indian tribes.15 Usually, the goal in establishing an Indian
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reservation was to transform nomadic hunting bands into self-sustaining agrarian communities and to teach the Indian "the arts of civilization."16 In each case, the particular purposes for which water was reserved depend on the historical
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context and the land and tribe involved. Purposes identified for reserving water include: agriculture and stockwatering,17 domestic needs,18 homemaking,19 fishing (and maintaining appropriate instream flows) and hunting,20 any useful purpose,21 power production22 industrial and commercial
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uses,23 and future uses.24 While some water may have been reserved when all Indian reservations were established, the amounts of water and the purposes for which water was reserved may vary.25
B. Sources of Water out of Which Reserved Water May Be Taken by Indians
Where an Indian tribe has a reserved right, there is an obvious question of identifying the water sources out of which the Indians may take their water. The simplest and clearest example of a source for reserved rights is that of the now-famous eponymous "No Name Creek" at issue in Colville Confederated Tribes v. Walton.26 In Walton, the Ninth Circuit ruled that "No Name Creek," which is located entirely within the Colville Indian Reservation in Washington state, is a reserved-water-right source. If all the water on a reservation is needed to satisfy the protected rights of the Indians, it is likely that all water on the reservation will be held to have been reserved for Indian use.27 Moreover, water sources bordering on a reservation, as was the case in Winters, or originating off the reservation may be subject to reserved rights.28 Even "non-riparian" water sources have been used to satisfy reserved rights, as was the case with the Cocopah Indian Reservation involved in Arizona v.
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California.29 There are, nonetheless, many unanswered questions.30
The foregoing examples all involve surface streams and water sources. An important question as yet without an authoritative answer is whether tribes are entitled to satisfy their reserved rights out of groundwater.31 It is important to bear in mind that the distinction commonly drawn between "surface-water" and "ground-water" is often illusory from a hydrological perspective. Most groundwater is integrally related to the surface watercourse — one feeds the other. Even the Supreme Court has recognized this point: "[G]roundwater and surface water are physically interrelated as integral parts of the hydrologic cycle."32 Separate treatment of the integrated hydrologic system has been
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criticized by commentators and some states now recognize the need to manage surface water and groundwater conjunctively where the two are interrelated.33
The United States Supreme Court has yet to rule on the precise question of tribal entitlements to tap groundwater as a source of reserved waters.34 Certainly nothing in Indian treaties should be construed to prohibit conjunctive use and management of the surface water and groundwater associated with a reservation. The lower federal courts seem in agreement that, whatever quantity of water is reserved for an Indian tribe or other federal enclave with a federal reserved right, the reserved right may be satisfied out of groundwater.35 The state courts, on the other hand, seem more reluctant to recognize a reserved right to use
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groundwater.36 Recognizing a groundwater right makes sense; otherwise, tribes would be compelled to pump water across a reservation instead, in some cases, of simply drilling a well.
C. Quantification of Reserved Rights
A question not resolved in Winters was precisely how much water the Indians were entitled to under...
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