American Indian reserved water rights: the federal obligation to protect tribal water resources and tribal autonomy.

• Author: Liu, Sylvia F.

1. INTRODUCTION 426 II. ORIGIN OF TRIAL WATER RIGHTS: THE WINTERS RESERVED RIGHTS

   DOCTRINE, THE PIA STANDARD, AND THE ROOTS OF CONFLICT III. NORMATIVE ARGUMENTS For STRONG FEDERAL PROTECTION OF

   INDIAN RESERVED RIGHTS

   1. Historical Redress Based on Asymmetry in the

      Development of Western Water Resources

   2. Distributional Justice

   3. Group Identity and American Indian Sovereignty

      1. Communitarian or Group-Based Arguments

      2. Tribal Sovereignty

      3. Implications of Tribal Sovereignty for Reserved Water

      Rights IV. IMPLICATIONS FOR LEGAL DOCTRINE

   1. The Federal Responsibility to Promote Indian Autonomy.

      Plenary Power, the Trust Relationship, and Sovereignty

      1. The Federal Responsibility To Promote Indian Reserved

         Water Rights

      2. The Trust Doctrine and the Implications of Historical

         Redress, Distributive Justice, and Indian Sovereignty

   2. The Impact of Historical Equity, Distributive Justice, and

      Indian Sovereignty on Disputes over the Scope of the

      Winters Rights

      1. Sensitivity Analysis

      2. The Uses of Awarded Water V. CONCLUSION

1. INTRODUCTION

   In the arid American West, the control of scarce water resources has been a long-standing source of conflict among water users.(1) While most private users appropriate water under state law, American Indian tribes(2) derive their water rights from federal laws. The rights are determined using the federal reserved rights doctrine, which the Supreme Court first enunciated in the 1908 case of Winters v. United States.(3) The incompatibility of these two legal systems has created enormous conflicts between tribal water users and state law appropriators.

   This paper discusses the development of the Winters doctrine and argues that when properly interpreted, this doctrine directs the federal government to develop and protect American Indian water rights. Part II sets forth the basic contours of the Winters right and some of the current debates between tribal users and state law appropriators. Part III explores normative arguments that favor federal protection of Indian reserved water rights. These arguments rely on concepts of historical redress, distributive equity, and the values of maintaining community identity and tribal sovereignty. Part FV discusses the implications of these arguments for the federal role in the protection of Indian water rights and for the current doctrine of Indian reserved water rights. This part also describes the trust relationship between the federal government and the Indian tribes and argues that the federal government has a duty to support a broad interpretation of Indian reserved water rights. Once tribes receive their water rights, however, tribal sovereignty requires that tribes retain full control over the subsequent uses of their water. Part V concludes that proper recognition of American Indian water rights depends upon federal protection of these rights as well as federal recognition of tribal sovereignty.

2. ORIGIN OF TRIBAL WATER RIGHTS: THE WINTERS RESERVED RIGHTS DOCTRINE, THE PIA STANDARD, AND THE ROOTS OF CONFLICT

   The Winters doctrine conflicts with many of the fundamental principles that govern water rights in the United States. Most private users appropriate water under state water law, using one of two legal doctrines. In the eastern states where water is plentiful, rights to use water are based on the riparian doctrine, which permits landowners whose property abuts a body of water to make reasonable use of the water as long as they do not interfere with the rights of other riparian users.(4) These rights are not lost by disuse and, in times of shortage, riparian water users share the available supply equitably.(5) In the arid western states, on the other hand, users obtain water under the doctrine of prior appropriation, developed by miners in the late 1840s and early 1850s to meet their off-stream water needs.(6) Under this doctrine, a person acquires an enforceable right to use water only upon actually diverting water from its natural source(7) and applying the water to beneficial use.(8) The right to use water is not necessarily appurtenant to the land, but the appropriator may lose the right with disuse.(9) The water use receives a legal priority date based on the date upon which the appropriator first put the water to beneficial use. In times of shortage, a senior right takes precedence over junior rights.(10)

   The federal government holds federal reserved water rights under federal law. The reserved water rights doctrine is a judicial creation first articulated in the Winters case:(11) when the federal government reserves public lands for a particular purpose, it also implicitly reserves sufficient water to achieve that purpose.(12) These rights, like riparian rights, are appurtenant to the land and remain in existence through periods of nonuse.(13) But, like prior appropriation rights, these reserved rights have a priority date which marks when the federal government reserved the land.(14) In times of shortage, seniority allows the reserved water rights holder to take water while junior holders with later-acquired state rights take nothing. These characteristics create significant problems for prior appropriation states, since the date of many federal reservations is quite early, and the amount of the reserved right typically remains unquantified.(15) The federal government, as guardian of American Indian lands, is responsible for asserting the Indian reserved rights.(16)

   The Winters doctrine languished for more than fifty years after its articulation in 1908.(17) This caused great uncertainty for state law appropriators because theoretical federal rights with early priority dates threatened to assert sertiority. In 1952, Congress eased this uncertainty by enacting the McCarran Amendment,(18) which allowed states to include the federal government in general stream adjudications by granting a limited waiver of federal immunity.(19) In 1976, the Supreme Court held that the McCarran Amendment also waived federal sovereignty for the adjudication of Indian reserved water rights.(20) In 1983, citing congressional intent and notions of efficiency, the Court held that state courts are the preferred forum in which to adjudicate Indian water rights.(21) Nonetheless, jurisdiction over the determination of federal and Indian reserved water rights remains a controversial and complex issue.(22)

   In 1963, the Supreme Court, in Arizona v. California,(23) Made the issue of quantifying the Winters right the most important aspect of Indian water rights adjudication. The Court held that the purposes of the reservations determined the quantity of the Indian reserved water right.(24) For reservations with agricultural purposes, this standard is the amount of water needed to irrigate all the practicably irrigable acreage on a reservation (the PIA standard).(25) While the Court did not explain what it meant by PIA, at least one state used three factors to quantify the irrigable acres on a reservation: 1) arability of the land; 2) engineering feasibility of irrigation projects; and 3) economic feasibility of irrigation projects, which essentially consists of a cost-benefit analysis.(26)

   Although seemingly a mechanical test, the PIA standard poses a challenge to courts attempting to implement it because it lacks a clear Supreme Court definition. One commentator points to three problems that courts face with the PIA standard: 1) although historical congressional intent implies that reserved rights assume a priority date at the time of the reservation, current technological capabilities to irrigate land determine the quantity of the right; 2) the economic feasibility analysis is not an objective inquiry, since factors such as a proper discount rate for tribal irrigation projects or the proper accounting of opportunity costs involve policy decisions; and 3) the PIA standard does not take into account the real needs of American Indians, since it merely awards water based on large-scale agricultural projects that may or may not be feasible on a given reservation.(27)

   The uncertainty surrounding the PIA standard has created two major disputes over the scope of Indian reserved water rights: whether a "sensitivity" doctrine applies to the quantification of the Winters right,(28) and whether water users must devote water awarded under the PIA standard to agricultural uses.(29) The only case that has been argued before the Supreme Court on the scope of the PIA standard, Wyoming v. United States,(30) raised both of these issues. In Wyoming, the Supreme Court affirmed by an equally divided court a Wyoming Supreme Court decision(31) that applied the PIA standard to award approximately one-half million acre feet(32) of water for the Wind River Reservation.(33) The Supreme Court, however, did not publish an opinion, so controversy about these disputes remain.(34)

   States asserted the first controversial issue by arguing that the PIA standard creates a windfall for Indian tribes, since the water right is determined by the amount of irrigable land a tribe has and not by how much water the tribe currently uses.(35) These critics propose to add a sensitivity analysis to the quantification of Indian reserved water rights, where courts should determine the award of water with sensitivity to the impact on prior appropriators.(36)

   Largely relying upon two Supreme Court decisions, Cappaert v. United States(37) and United States v. New Mexico,(38) proponents of the sensitivity doctrine assert that because a federal reserved water right will frequently require a gallon-for-gallon(39) reduction in the amount of water available to junior private appropriators, reserved rights exist only to satisfy a federal reservation's minimal needs. The Wyoming Supreme Court provided limited support for this theory in Big Horn River I,(40) when it expressed uncertainty about whether the sensitivity doctrine applied in the case. The court held that even if it did, the district court had...