CHAPTER 8 ENFORCEMENT OF FEDERALLY RESERVED INDIAN WATER RIGHTS - PAST, PRESENT AND FUTURE
| Jurisdiction | United States |
ENFORCEMENT OF FEDERALLY RESERVED INDIAN WATER RIGHTS - PAST, PRESENT AND FUTURE
Partner
Sonosky, Chambers, Sachse, Endreson & Perry, LLP
Washington, DC
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REID PEYTON CHAMBERS is a founding partner of Sonosky, Chambers, Sachse, Endreson & Perry, LLP, having joined the firm in 1976. Mr. Chambers specializes in litigation, tribal reserved water rights and issues arising out of the federal trust responsibility. He has represented tribes and Alaska Native interests with respect to land claims, water rights, hunting and fishing rights, reservation boundary issues, Alaska tribal rights and immunities, gaming law, tribal court jurisdiction, state and tribal taxation, and coal development. Mr. Chambers has also codified tribal laws and engaged in advocacy on behalf of a variety of tribal interests before state and federal agencies and Congress. Mr. Chambers practiced privately in Washington, D.C. from 1967 to 1970. From 1973 until joining the firm, Mr. Chambers served as Associate Solicitor for Indian Affairs of the U.S. Department of the Interior, the Department's chief legal officer with responsibility over Indian and Alaska Native matters. Mr. Chambers has published two oft-cited articles in the Stanford Law Review on federal Indian law issues, as well as a number of articles on Indian reserved water rights. He has testified on Indian issues at the invitation of committees of Congress and frequently been invited to speak at the Federal Bar Association's Indian Law meetings and conferences sponsored by other entities, including the Rocky Mountain Mineral Law Foundation. Mr. Chambers has argued numerous cases before federal district and courts of appeals, and before state tribal courts and appellate courts. In 2003, Mr. Chambers represented the Bishop Paiute Tribe before the U.S. Supreme Court in Inyo County v. Paiute-Shoshone Indians of the Bishop Community, 538 U.S. 701 (2003). For over 30 years, Mr. Chambers has taught a seminar on federal Indian law at Georgetown University Law School. He has also taught this seminar several times at Yale Law School, and in 1988, served as the Chapman Distinguished Visiting Professor at Tulsa University Law School. Mr. Chambers taught law for three years (1970-1973) as a professor at the University of California at Los Angeles (UCLA), working extensively during those years with the Native American Rights Fund and California Indian Legal Services. He is a graduate of Amherst College, 1962; Harvard Law School, 1967; and Balliol College, Oxford, Graduate degree in Politics, Philosophy and Economics.
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The purpose of this paper is to discuss the legal principles of Indian reserved water rights as determined by the courts and the history of how those rights have been enforced and implemented by Congress and the Federal Executive. Part I discusses the legal framework of Indian water rights as developed by the courts and concludes that the basic legal principles of Indian reserved water rights have been enunciated with noteworthy consistency by the courts for over a century. While the courts have declared the law governing Indian water rights, courts cannot direct the United States, states or private parties to fund the infrastructure that is usually necessary to deliver water to Indian reservations to which tribes are legally entitled. Thus, the enforcement and implementation of tribes' federally protected legal water rights typically requires and relies upon the actions of Congress and the Executive Branch to provide that funding. Part II discusses the uneven course of implementation of the legal principles governing Indian water rights by Congress and the federal Executive over the past century. It concludes that Congress and the Executive Branch essentially neglected and ignored these rights through the middle part of the 20th century, but have in more recent decades begun more actively to enforce them - especially through settlements of pending Indian water rights cases that have been reached in the past four decades. However, these settlements have not benefitted the great majority of tribes. Part III examines the prospects for significantly expanding the number of tribes that benefit from Indian water settlements implementing their reserved water rights in the near future as well as the obstacles that presently stand in the way of attaining that goal.
I. Legal framework of federally reserved Indian water rights
A. Winters case
The landmark historic Supreme Court decision delineating the basis and scope of federally reserved Indian water rights is Winters v. United States,1 decided in 1908. Winters was a suit the United States filed as trustee for the Fort Belknap Indian Tribes in northern Montana to enjoin Henry Winters and other non-Indians from diverting water for irrigation upstream from the Tribes' reservation, because insufficient water was reaching lands on the Reservation which the Tribes and Bureau of Affairs wanted to develop for agriculture and related uses.2 The Fort Belknap Reservation had been established by an agreement between the Tribes and the United States ratified by an act of Congress in 1888 "as and for a permanent home and abiding place of the [tribes]."3 In the agreement, the Tribes had also ceded territory outside the Reservation to the United States. These ceded lands were quickly opened by the United States to non-Indian settlement. Non-Indians, including Mr. Winters, acquired ceded land upstream from the Reservation, irrigated that land, and obtained water rights under state law.4
The legal systems of Montana and most western states generally follow the doctrine of "prior appropriation", under which the uses by prior appropriators are legally superior to those
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junior appropriators. Thus, in times of short water supply, a senior appropriator claiming water rights under state law is entitled to his or her full diversion before a junior user gets to use any water.
Despite the fact that the non-Indian irrigators had senior rights under state law, the Supreme Court in Winters held that the Tribes had superior rights to water under federal law because the agreement between the Tribes and the United States and federal statute creating the Fort Belknap Reservation as "a permanent home" for the Tribes had implicitly reserved water rights for the Tribes to use in the future on the Reservation when they needed it. The Supreme Court explained that when the reservation was created its "lands were arid and, without irrigation, were practically valueless,"5 and that water had been reserved to the extent "necessary for... the purpose for which the reservation was created."6
B. Arizona v. California
Arizona v. California7 decided in 1963, is the only major United States Supreme Court decision since Winters explaining the nature and extent of Indian reserved water rights. The case began in 1952 when the State of Arizona filed a suit in the original jurisdiction of the United States Supreme Court against California and Nevada to determine its rights to water from the Colorado River. Without such a determination, Arizona believed it could not obtain federal funding to build its long-coveted Central Arizona Project to bring Colorado River water into the populated portions of central Arizona. The United States intervened, asserting, among other things, reserved water rights for five Indian reservations located in the lower Colorado River basin.
The Court referred the case to a Special Master, who held lengthy hearings on the issues presented.8 The Master concluded that an open-ended decree of water rights to the Indians, as in Winters, would put all junior water rights forever in jeopardy and severely hamper financing of non-Indian water projects, because current Indian populations and needs could change.9 The Master largely accepted the position presented by the United States in the case and determined the future needs of each Reservation by deciding which reservation lands were practicably irrigable. The Supreme Court, after extensive briefing on the issues, specifically affirmed the Master's reasoning as to the Indian water rights:
[The Master] found that the water was intended to satisfy the future as well as the present needs of the Indian Reservations and ruled that enough water was reserved to irrigate all the practicably irrigable acreage on the reservations. . . How many Indians there will be and what their future needs will be can only be guessed. We have concluded, as did the Master, that the only feasible and fair
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way by which reserved water for the reservations can be measured is irrigable acreage. The various acreages of irrigable land which the Master found to be on different reservations we find to be reasonable. 10
The five tribes in Arizona were decreed 905,496 acre feet a year11 for 135,636 practically irrigable acres, even though in the early 1960s, these tribes were actually irrigating less than 36,000 acres. This quantification allocated over 12 percent of the total dependable water supply of the Lower Colorado River - which is 7,500,000 acre feet a year - to these five tribes.
C. Increased number of adjudications involving Indian water rights after Arizona v. California
There were only a handful - about a dozen - reported cases concerning Indian water rights between Winters and Arizona v. California. The federal court decisions in this period generally adhered to Winters in holding that tribes held water rights that were senior to non-Indian uses initiated after a reservation was established, and the Indian uses could be increased in the future to meet "the ultimate needs of the Indians as those needs and requirements should grow."12
Encouraged by Arizona v. California, many tribes began increasingly to assert and protect their water rights. Tribes directed...
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