INDIAN WATER RIGHTS
Santa Ana Pueblo Schematic Demonstrates
Understanding of Hydrologic Cycle
Cover slide depicts drawing of Hydrologic
Cycle as understood by Santa Ana Pueblo.
It includes precipitation, evaporation,
infiltration, condensation, transpiration,
transport and runoff. Santa Ana schematic
in their own language (dialect of Keresan)
clearly includes surface and groundwater.
2
Rivers and Water Basins Have Been Here for
Millions of Years
3
We, as a Species (Present on Continent
for 25,000 Years or Less), Are Greatly
Interrupting Water Ways
Indigenous peoples’ knowledge of water
precedes Spanish, French, British, Mexican and
U.S. colonial regimes in what is now lower 48
states. There were megadroughts in 1100s and
1300s, and this knowledge of water scarcity may
have been passed on in traditional oral histories
and informed their worldview.
4
Federal Reserved Water Rights
•Federal government defers to states to
allocate certain public water resources
within state.
•Federal government maintains certain
federal water rights, though, which exist
separate from state law, e.g., water
allocation related to federal lands, including
Indian reservations.
5
Types of Indian Water Rights
•Reserved - water allocated to fulfill purpose of
Indian reservation established by federal
government.
•Allotted – when Indian reservation allotted,
each allotment has right to portion of tribal
waters needed for agriculture.
•Aboriginal – water used by Indians pre-dating
European colonization.
6
Indian Reserved Water Rights
Indian reserved water rights were first
recognized by U.S. Supreme Court in Winters v.
United States in 1908. Under Winters doctrine,
when Congress reserves land (e.g., for an Indian
reservation), Congress also reserves water
sufficient to fulfill purpose of reservation.
Winters v. United States, 207 U.S. 564, 575-77
(1908).
7
Allotments Received Share of Water Rights
• U.S. Supreme Court ruled in 1939, U.S. v. Powers, 305
U.S. 529 (1939), that when tribal land is converted into
allotments, trust allottees succeed to portion of tribal
waters needed for agriculture.
• Also, a non-Indian successor in interest to trust allottee
acquires that allotment’s reserved water right but loses
that right if non-Indian successor does not put water to
beneficial use.
8
Aboriginal Water Rights
An aboriginal water right, one which was the first of its kind in a region, is based
on the use of water from earliest days. It is the existence of a water right which
predates European colonization. Philosophically, aboriginal rights rest on the
familiar "first in time, first in right" dictum which governs prior appropriation.
Aboriginal water rights recognition can be crucial to tribes, primarily when (1) a
reserved water rights claim is not available (e.g., Indian Pueblos not established
as reservations, with a reserved water right, may rely on aboriginal rights
claims); or (2) priority date guaranteed by reserved water right is not early
enough to preserve tribe’s access to water.
On September 29, 2020, the Pueblos of Santa Ana, Jemez, and Zia secured a
major victory from the Tenth Circuit Court of Appeals in United States v.
Abousleman, No. 18-2164, which overturned the District Court's ruling that the
Pueblos' aboriginal water rights in the Jemez River Basin had been completely
extinguished by Spain's exercise of dominion over water in New Mexico without
more.
9
Reserved, Allotted or Aboriginal Water Rights
Associated with Different Categories of Indian Land
and Reserved Rights (e.g., Fishing or Hunting)
• Doctrine of Discovery
• Purchase by Colonists/Colonial Governments
• 1778-1871 Three hundred seventy treaties entered into by U.S. with sovereign
Indian Nations to provide for the transfer of land by Indians to the U.S.
• 1830
Indian Removal Act - Authorized President to grant unsettled lands
west of Mississippi in exchange for Indian lands within existing state borders.
• 1851
Indian Reservations - There should be assigned to each tribe, for a
permanent home, a country adapted to agriculture, of limited extent and welldefined boundaries.
• 1887
General Allotment Act - Act broke up communally held Indian lands
and gave each family its own allotment of land. Surplus lands were sold with
revenue received to be used for Indian education, health care, etc.
10
Doctrine of Discovery
U.S. Supreme Court Chief Justice John Marshall in Johnson v. M’Intosh,
21 U.S. 543 (1823), cited the doctrine of discovery as a customary
concept of public international law under which title to lands lay with
the government whose subjects discovered land whose inhabitants
were not subjects of a Christian monarch or Christian themselves. It is
a legal doctrine still in effect and adhered to by U.S.
11
Indians Have Right of Occupancy in Land,
Not Ownership
Supreme Court held that Indians only have a right of occupancy in
land they claimed at will of government (defeasible usufructuary
right), not title that can be conveyed except to discovering
sovereign or its successor because they:
• (1) were not Christian;
• (2) under doctrine of discovery land belonged to discovering
sovereign (United States and states as victors in Revolutionary
War succeeded to British Crown’s title);
• (3) new Republic wielded sword of conquest.
12
Spain, October 12, 1492,
Relied on Doctrine of Discovery
• The Admiral bore the royal standard, and the two captains
each a banner of the Green Cross, which all the ships had
carried; this contained the initials of the names of the King
and Queen on each side of the cross, and a crown over
each letter. … The Admiral called upon the two Captains,
and the rest of the crew who landed, as also to Rodrigo de
Escovedo notary of the fleet, and Rodrigo Sanchez, of
Segovia, to bear witness that he before all others took
possession (as in fact he did) of that island for the King and
Queen his sovereigns, making the requisite declarations.
13
France Challenged Doctrine of Discovery
• As a Catholic ruler, Francis I was restricted by the Papal Bull Inter caetera
which granted newly found lands east of the Azores to Spain and excluded
the rest of Christian Europe from entering them without permission.
• In 1533, King Francis I met with Pope Clement VII to ‘reinterpret’ the Bull,
thus protecting France’s ‘discoveries’ in Canada and Mississippi Basin
(the Basin covers more than 1,245,000 square miles).
• By 1540 though, Francis I openly challenged not just the scope of Inter
caetera but its legitimacy, asserting that popes had no power to distribute
lands among kings and asking “to see Adam’s will to learn how he had
partitioned the world.” Having rejected papal grants as a basis for a valid
title, Francis I also discounted ‘discovery’ without settlement, stating that
‘passing by and discovering with the eye was not taking possession.’
14
England Challenged Doctrine of Discovery
Even England, characterized by Marshall as an unequivocal supporter of the
‘doctrine of discovery,’ departed from the principle when it suited its
national purpose.
• Queen Elizabeth announced in 1580 that:
[S]he would not persuade herself that the Indies are the rightful property of
Spain only on the ground that the Spaniards have touched here and there,
have erected shelters, have given names to a river or promontory, acts which
cannot confer property. This donation of what does not belong to the donor
and this imaginary right of property ought not to prevent other princes from
carrying on commerce in those regions or establishing colonies in places not
inhabited by the Spaniards. Prescription without possession is not valid.
15
The Netherlands Disavowed
Doctrine of Discovery
• The laws of the Colony of New Netherland expressly provided that “[t] he
Patroons of New Netherland, shall be bound to purchase from the Lords Sachems
in New Netherland, the soil where they propose to plant their colonies, and shall
acquire such right thereunto as they will agree for with the said Sachems.”
• Hugo Grotius, a renowned Dutch scholar and lawyer, was retained by the Dutch
East India Company, to support its claims in the ‘New World.’ In 1608 he
published, anonymously, Mare Liberum (Freedom of the Seas), asserting that the
Dutch possessed the right to sail to the East Indies. At the same time, he rejected
claims to the ‘New World’ based on mere ‘discovery’ or papal or royal grant:
• “Infidels cannot be divested of public or private rights of ownership merely
because they are infidels, whether on the ground of discovery, or in virtue of a
papal grant, or on grounds of war. … [D]iscovery per se gives no legal rights over
things unless before the alleged discovery they were res nullius.”
• Res nullius - belonging to no one whether because never appropriated or because
abandoned by its/their owner but acquirable by appropriation. Res nullius also
refers to the principle by which a nation may assert control of an unclaimed
territory.
16
Sweden Disavowed
Doctrine of Discovery
• The policy of the Swedes was explicitly set forth in
the “Instructions to Governor Johan Printz,” written
in Stockholm and dated August 15, 1642. The
Governor of New Sweden was instructed to “bear in
mind that the wild inhabitants of the country” are
“its rightful lords.” Also, the boundaries of land
purchased from the inhabitants were to be specified
so as to respect the ‘contract’ entered into with
them.
17
Purchase of Indian Land
Is Basis for Ownership
• The “principle Care” of initial colonial policy was “to
cultivate and maintain a good Understanding with all the
Indians,” the Pennsylvania Gazette declared in 1736. To
that end, “nothing hath contributed more than the Practice
of purchasing their Claims to Lands.”
• English settlers declared “that wee would purchase the
land as wee are Englishmen.”
• One, however, can find opinions to the contrary, including
some by people powerful enough to put them into usage.
18
Indian Land Title Morphed from
Ownership to Mere Occupancy
• Starting in the very late 1700s, a cataclysmic change occurred in the
nature of Indian ownership of their land—Indian land title morphed
from ownership to mere occupancy.
• In 1793, President Washington assured over 1000 Indians and their
leaders at negotiations between the Western Indian Confederacy and
the appointed U.S. Commissioners, that Indians owned their lands,
and the government would not confiscate them without
compensation:
• “We only claim ... the right to pre-emption, or the right of purchasing
of the Indian Nations disposed to sell their lands, to the exclusion of
all other White People whatever.”
19
Secretary of State Jefferson, 1793, Only
Right of Pre-Emption, Not Dominion
• Secretary of State Jefferson to President George Washington in 1793
wrote:
• “I considered our right of pre-emption of the Indian lands, not as
amounting to any dominion, or jurisdiction, or paramountship
whatever, but merely in the nature of a remainder after the
extinguishment of a present right, which gave us no present right
whatsoever, but of preventing other nations from taking
possession, and so defeating our expectancy; that the Indians had the
full, undivided and independent sovereignty as long as they choose to
keep it, and that this might be forever.”
20
Southern States Dominate in Political Conversion
of Indian Land Ownership to Mere Occupancy
• To raise revenue for cash-strapped and near bankrupt states in the
south, huge amounts of land occupied by Indians were sold to to
speculators who were willing to wait for Indian removal— preemptive
rights.
• The prominent land speculators engaged in these sales wielded
substantial political clout and needed to protect their purchases and
accelerate their vesting of title. They needed to invent a basis of
ownership other than a mere right of preemption to Indian lands and
states were willing to go along.
21
Georgia - Example of Southern
Impoverished State
• An impoverished Georgia (founded by Britain as penal colony) raised
revenues by:
• Encouraging immigration by promising land grants;
• Holding state lotteries for land grants;
• Controlling gold mines in State;
• Encouraging cotton production; and
• Settling ongoing disputes over prior corrupt land grants
by State.
• To accomplish what was already done, they needed land
and the only way to get this land was to get rid of Indians
living in Georgia.
22
Yazoo Land Sales in Georgia
On January 7, 1795, Georgia governor George Mathews
signed the Yazoo Act, transferring 35 million acres of
land to four companies for $500,000 (about 1½
cents/acre), part of which included Cherokee land. To
bring off this coup, the leader of the Yazoo speculators,
Georgia’s Federalist U.S. Senator James Gunn,
distributed money and land to legislators, state
officials, newspaper editors, and other influential, landhungry Georgians.
23
24
George McIntosh Troup (1780-1856)
Strong Opponent of Yazoo Land Sales
• George McIntosh Troup served in Georgia General Assembly, U.S.
House of Representatives and U.S. Senate before becoming 32nd
Governor of Georgia and then returning to U.S. Senate. He said
following about Yazoo land scandal - “Do not believe, sir, that the
corruption in which this transaction was engendered, was a
corruption of any ordinary character; it was a corruption without
example in history; may it never find a parallel! Not merely were the
corrupted corrupted by the corrupters — the corrupters cheated the
corrupted-the corrupters cheated one another, and the corrupters, as
they say, cheated these claimants. The members of the Legislature
were bribed with land and money …”
25
Chief Justice Marshall, in Dicta, Stated Georgia Held
Fee Title to Indian Land,
Subject to Indian Occupancy
• Yazoo Land Sales were legislatively overturned by Georgia but U.S. Chief
Justice Marshall in 1810 U.S. Supreme Court case Fletcher v. Peck held that
Yazoo Land Sales were binding contracts and could not be retroactively
invalidated by passage of superseding legislation.
• Chief Justice Marshall, in dicta, stated Georgia held fee title to Indian land,
subject to Indian occupancy. Georgia’s land conveyances were not just
preemptive rights to purchase land of Indian owners when they were
removed, they were conveyances of fee simple absolute titles.
• Robert Goodloe Harper, attorney and land speculator for the Yazoo
plaintiffs, was chastised by Justice William Johnson for feigning case
between two supporters of Yazoo land sales.
26
Indian Removal Act
• Andrew Jackson’s Presidential Campaign 1828 made American
Indian Removal his goal - relocating eastern Indians west of
Mississippi.
• Indian Removal Act signed by President Jackson on May 28, 1830,
authorized President to grant unsettled lands west of Mississippi
in exchange for Indian lands within existing state borders.
• Johnson v. M’Intosh decision bolstered support for Act in
Congress.
• Passed Senate by vote – 28-19. Passed House by vote 102-97.
27
Tenor of Times – “They May Begin to Dig
Their Graves and Prepare To Die”
• Letter from Alfred Balch to Andrew Jackson, January 8, 1830.
After inauguration, Jackson appointed his personal friend and
neighbor Balch as Commissioner of Indian Treaties.
“The removal of the Indians would be an act of seeming
violence—But it will prove in the end an act of enlarged
philanthropy. These untutored sons of the Forest, cannot
exist in a state of Independence, in the vicinity of the white
man. If they will persist in remaining where they are, they
may begin to dig their graves and prepare to die."
28
1834 - Congress Created Indian Territory
• 1834 - Congress Created Indian Territory in Present Day
Oklahoma for Removal of Indians in Southeast
• Over 60 removal treaties were signed which resulted in
forced westward migration of approximately 80,000
American Indians.
• Although removal was supposed to be voluntary,
relocation of tribes became mandatory whenever
government decided.
• Many of eastern tribes were destroyed or decimated.
29
Indian Territory - 1830
30
Indian Territory - 1889
31
1858, Elias Rector, Superintendent of Indian Affairs,
Description of Incalculable Wealth of Indian Territory,
It Will Have to Give Way to
Necessity of White Settlement
• “The country possessed by them, picturesque and fertile, must at some day
become a State of the American Union. It is useless for white man or Indian to
shut his eyes to that fact … The country is equal in size to one of our largest
States. Within it are the rich alluvial valleys of the upper Arkansas, the
Canadian and its branches, the upper Red river, the Neosho, the Verdigris, and
many smaller streams; vast extents of the most beautiful and fertile limestone
prairies; ranges of mountains abounding in minerals; lovely valleys between;
incalculable wealth of coal, limestone, and marble; salt springs, water power;
everything in short that is needed to make a great and flourishing State, a
great grain-producing, stock-raising, vine-growing country.”
Indian Territory Incorporation into Union,
Necessity Its Apology
• “But necessity is the supreme law of nations. All along
the Indian border the country is now populous, and
the railroad will soon reach their frontier. Necessity
will soon compel the incorporation of their country
into the Union, and before its stern requisitions every
other consideration will give way, and even wrong
find, as it ever does, in necessity its apology.”
• This same analogy applied across the country and all
of this development would require water.
33
Reservation Policy: Indians Must Be Controlled
and Compelled by Stern Necessity to Resort to
Agricultural Labor or Starve
• 1850, Indian Commissioner Luke Lea:
• It is indispensably necessary that they be placed in positions where they
can be controlled, and finally compelled by stern necessity to resort to
agricultural labor or starve. Considering, as the untutored Indian does,
that labor is a degradation, and there is nothing worthy of his ambition but
prowess in war, success in the chase, and eloquence in council, it is only
under such circumstances that his haughty pride can be subdued, and his
wild energies trained to the more ennobling pursuits of civilized life. There
should be assigned to each tribe, for a permanent home, a country
adapted to agriculture, of limited extent and well-defined boundaries;
within which all, with occasional exceptions, should be compelled
constantly to remain until such time as their general improvement and
good conduct may supersede the necessity of such restrictions.
34
Reservation Policy – Derivation of Popular
Phrase “Off the Reservation”
Indian Commissioner's Report 1872
• “In the first announcement made of the reservation
system, it was expressly declared that the Indians
should be made as comfortable on, and as
uncomfortable off, their reservations as it was in the
power of the Government to make them; that such
of them as went right should be protected and fed,
and such as went wrong should be harassed and
scourged without intermission.”
35
Minerals Segregated from Reservations
• In 1872, the Commissioner of Indian Affairs wrote: “It is the policy of
the government to segregate such [mineral] lands from Indian
reservations as far as may be consistent with the faith of the United
States and throw them open to entry and settlement in order that the
Indians may not be annoyed and distressed by the cupidity of the
miners and settlers who in large numbers, in spite of the efforts of the
government to the contrary, flock to such regions of the country on
the first report of the gold discovery.”
• This also resulted in copious conflicts.
36
“Unfortunately For You, Gold Has Been
Discovered In Your Country”
• The U.S. policy of mineral segregation is evidenced repeatedly from 1851
on. In the U.S. treaty negotiations between the U.S. and Arapahos in
October 1865, mineral segregation was a foregone conclusion:
• "We all fully realize that it is hard for any people to leave their homes and
graves of their ancestors; but, unfortunately for you, gold has been
discovered in your country, and a crowd of white people have gone there
to live, and a great many of these people are the worst enemies of the
Indians men who do not care for their interests, and who would not stop at
any crime to enrich themselves.” There is, in the opinion of the
commission, “no part of the former country large enough where you can
live at peace.”
• “We want to give you a country that is full of game and good for
agricultural purposes, and where the hills and mountains are not full of
gold and silver."
37
1865 Cost-Benefit Analysis of
Total Destruction of Indians
• Commissioner of Indian Affairs, D. N. Cooley, included a cost-benefit analysis of the total
destruction of the Indians in his 1865 Annual Report:
• “The policy of the total destruction of the Indians has been advocated by gentlemen of
high position, intelligence, and personal character; but no enlightened nation can adopt
or sanction it without a forfeiture of its self-respect and the respect of the civilized
nations of the earth.
• Financial considerations forbid the inauguration of such a policy. The attempted
destruction of three hundred thousand of these people, accustomed to a nomadic life,
subsisting upon the spontaneous productions of the earth, and familiar with the
fastnesses of the mountains and the swamps of the plains, would involve an appalling
sacrifice of the lives of our soldiers and frontier settlers, and the expenditure of untold
treasure. It is estimated that the maintenance of each regiment of troops engaged
against the Indians of the plains costs the government two million dollars per annum. All
the military operations of last summer have not occasioned the immediate destruction
of more than a few hundred Indian warriors. Such a policy is manifestly as impracticable
as it is in violation of every dictate of humanity and Christian duty.”
38
General Allotment Act of 1877 - Mighty
Pulverizing Machine
Intended to Break Up Tribal Mass
• According to the United States, it took a giant step toward “civilizing”
Indians and paving way for them to become U.S. citizens with passage of
General Allotment Act in 1887. In order to assimilate Indians into American
society, Act broke up communally held Indian lands and gave each family
its own allotment of land.
• During his first inaugural address, President Theodore Roosevelt stated his
view that the Allotment Act was “a mighty pulverizing machine intended to
break up the tribal mass.”
• Once Indians were placed on their allotments, the “surplus” Indian lands
were opened for sale to and settlement by non-Indians, under very
lucrative terms. Under this Act, Indian lands were reduced from 138 million
acres to 48 million acres by 1934.
39
Cession of Land by Tribes to U.S.
Faster than Allotment
• Under the General Allotment Act, reservations,
whether established by Executive order, act of
Congress or treaty, were held to be permanent.
Congress authorized the Secretary of the Interior to
negotiate with the Indians for cession of portions of
their reservations without waiting for the slower
process of allotment, which involved (1) survey of
land, (2) allotment in severalty, and (3) negotiations
with Indians for cession and relinquishment of their
surplus unallotted lands.
40
Sooner Reservation System Done Away With the
Better: 17,400,000 Acres
Or About One Seventh Of All Indian Lands
Acquired by Cession
1899
• 9,000,000 acres in North and South Dakota secured from Sioux;
• 4,000,000 acres in Minnesota acquired from Chippewas.
Pending for Congressional Ratification
• 1,600,000 acres in North Dakota in the Fort Berthold Reservation;
• 660,000 acres in South Dakota in Lake Traverse (Sisseton) Reservation;
• 185,000 acres in Idaho in Coeur d' Alene Reservation;
• 1,095,000 acres in Colorado of Southern Ute Reservation;
• 941,000 acres in Oklahoma Territory, now embraced in the Pottawattomie, Iowa, and Sac and Fox
Reservations.
Total of upwards of 17,400,000 acres, or about one seventh of all the Indian lands in the United States.
According to the 1890 Commissioner of Indian Affairs, Thomas J. Morgan, “Land relinquished was not being
used for any purpose whatever, scarcely any of it was in cultivation, the Indians did not need it and would not
be likely to need it at any future time, and they were reasonably well paid for it.”
41
Indian Reservations in 1899: States/Territories Requesting
Presidential Extinguishment of Indian Lands Fulfilled
Around 1832, the following 12 states/territories requested presidential extinguishment of Indian title in
their states or territories: Georgia, Illinois, Indiana, Kentucky, Michigan Territory, Mississippi, Missouri,
New York, North Carolina, Ohio, South Carolina and Tennessee.
Colorado wanted the Utes in southwestern Colorado removed to Utah. In denying this request the
Commissioner of Indian Affairs noted: “In the distribution of our Indian population, to those who regard
their presence as a detriment, Colorado seems to have been much more fortunate than many of her sister
States. Minnesota, Michigan, and Wisconsin each have over three times as many, Montana five, and
California six times as many, North Dakota and South Dakota four and ten times as many,
respectively, and the State of Washington five times.”
42
Standing Rock Reservation, South Dakota,
Allotments
43
Federal Water Law Vacuum
Water law was not an issue in east but it became so
in arid west where Indians were located under
Indian Removal Act or by reservation or General
Allotment Act. Due to non-existence of federal
water law as west was settled, non-Indian settlers
developed their own customs, laws and judicial
interpretations to administer allocation of public
water resources within states.
44
Prior Appropriation Doctrine
“First In Time, First In Right”
Attributes are:
• basis of right is beneficial use;
• right is stated in terms of definite quantity, nature of use and time of use;
• right may be terminated by abandonment or forfeiture;
• priority date is the date on which beneficial use began;
• right is transferable;
• land ownership adjacent to stream is not requirement to obtain water right;
and
• senior appropriators’ rights must be fully satisfied before junior appropriators’
rights are satisfied.
45
Contentious
• In times of shortage, junior users may receive none of their allocations
after senior users take their share.
• In Colorado, water rights appropriated under state law may be reduced in
subsequent litigation based on current technological determinations on
water actually needed for irrigation which may have been overstated in
prior state decrees. As a result, private water rights owners today may
not want to litigate and take chance of their water rights being reduced.
46
Indian Water Rights
Not Raised Until 1900’s: Winters v. U.S.
• Winters case involved Tribe’s right to water associated with
Fort Belknap Reservation established in 1888 for Assiniboine
and Gros Ventre Indians.
• In 1900, non-Indian defendants built dams and reservoirs
and, by means of canals and ditches and waterways, diverted
waters of Milk River from its channel, above points of
diversion by United States and Indians which deprived United
States and Indians of use of water. [This was a common
occurrence on Indian Reservations which the BIA did not
allocate the resources to prevent.]
47
Indian Reserved Water Rights
Continuous and Expansive
• U.S. Supreme Court explained that lands provided under Fort
Belknap Agreement for purpose of developing an agrarian
society “were arid and, without irrigation, were practically
valueless.” Water was thus necessary for agriculture.
• U.S. Supreme Court held that federal government did reserve
water rights for Fort Belknap Reservation and for a use which
would be necessarily continued through years.
48
Need for Water on Reservations Enhanced
due to Character of Land Reserved
• Establishing Indian Reservations on arid lands, requiring irrigation, or lands
wholly unsuitable for agriculture was a common occurrence. Even worse,
and extremely common, was having granted arable lands, failing to provide
any instruction or agricultural implements, which made farming
impossible, even though such items were agreed to by Treaty. Thus, the
acres reported as farmed by Indians for that particular reserve would be
null or very low demonstrating lack of beneficial use of water for farming.
Even worse was not providing sufficient rations, such that Indians were too
weak to farm.
• Superintendent of Dakota Territory, 1877, Lower Brule Reservation
reported:
“The greatest drawback to our Indians farming to any extent is the fact
that they are entirely without oxen, wagons, harness, plows, and other
farm-implements.”
49
Scope of Winters Rights
Priority and extent of Indian reserved water rights are affected by
• purposes of Indian reservation,
• date when Indian reservation was created,
• quantification of water sufficient to accomplish those
purposes, and
• sources of water that may be used to fulfill particular water
rights.
Amount must satisfy present and future needs of reservation.
Vest on date that Congress reserves land and are not lost if tribe
does not maintain continuous use.
50
Winters Decision – Considered an
Unfortunate Lapse of Supreme Court
Westerners refused to recognize that Indians had first call on water
whether or not they had made “beneficial use” of it.
Region’s lawmakers insisted that individual states retained complete
authority over water.
Idaho’s William E. Borah told his colleagues in the Senate, “The
Government of the United States has no control over the water rights
of the state of Idaho.”
As for the Winters decision, Utah’s Senator George Sutherland
dismissed it as “one of those unfortunate statements that sometimes
courts, and the highest court, lapse into.”
51
Winters Decision Used to Uphold Klamath Water
Rights to Protect Endangered Salmon and Sucker
Fish in Upper Klamath Lake
• On Nov. 14, 2019, U.S. Court of Appeals for Federal Circuit upheld
senior water rights of Klamath Tribes and other downriver Klamath
Basin Tribes in Baley v. United States, No. 18-1323 (Fed. Cir. 2019).
• Water levels had to be maintained to protect imperiled coho salmon
in Klamath River and two species of sucker fish in Upper Klamath
Lake. Salmon and sucker fish are important to cultural, economic, and
spiritual well-being of Klamath Tribes.
• Also, U.S. Bureau of Reclamation announced in May 2021 that, for the
first time ever, it would cut irrigation water to about 180,000 acres of
agriculture to protect Klamath water rights.
52
Turtle Mountain Band of Chippewa Indian
Allottees Water Rights Established
in July 12, 2021 Montana Water Court Case
• The Turtle Mountain Band of Chippewa Indians’ reservation
is located in North Dakota, but since it was so small — just 12
miles long by 6 miles wide —Congress authorized members
of the Tribe to take allotments on approximately 40,000
acres of land in Montana.
• More than 7,000 allottees sued to quantify their water rights
and determine uses and point of diversion. Allotments over
time have become very fractionated.
• Priority date is April 21, 1904.
53
Aboriginal Right to Water
United States v. Adair
United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) - Ninth
Circuit held Klamath Tribe of Oregon possessed aboriginal title to
certain lands, hunting and fishing rights, and “by the same
reasoning, an aboriginal right to the water used by the Tribe as
it flowed through its homeland.” This right carried priority date
of “time immemorial.” In an 1864 treaty Klamath Tribe
relinquished millions of acres of their homeland to U. S. in
exchange for guarantees, including protections for tribal right to
harvest fish in their streams and lakes.
54
Allocation of Scarce Water Resources
•International
•Federal
•State
•Tribal
55
Stream System Water Right Adjudications
Water rights are formalized through stream
system water right adjudications. Filed in state
court, involve all water users on a designated
stream system within state’s boundaries, apply
federal and state law, require extensive
technical work, take decades to complete and
are very expensive.
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McCarran Amendment (1952)
Congress passed McCarran
Amendment under which state
courts could hear disputes
involving Indian reserved water
rights.
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Conflict between Federal, Tribal and
State Water Rights
•Federal government’s role to balance privately
held water rights allocated under state law
with federal government’s duty to manage
federal and Indian reserved water rights in
best interests of American people and Indian
tribes fraught with conflict due to scarcity of
water.
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Water Conflicts in West – between Countries, States,
Federal Government and Indian Tribes
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Colorado - 1 International Treaty, 9 Compacts, 2
Court Decrees, 2 Agreements, 1 Settlement Act
Pertaining to Rio Grande, Tijuana and Colorado Rivers,
Animas-La Plata, South Platte, Republican, Costilla, Arkansas,
North Platte and Laramie Rivers, Pot Creek and Sand Creek.
• Involving:
• Countries: Mexico
• States: Nevada, New Mexico, Utah, Wyoming, Nebraska,
Texas, Kansas and Arizona
• Indian Nations: Southern Ute and Ute Mountain Ute Tribes
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Colorado Asserted Its Water Rights Claims
Early in Comparison to Tribes Seeking
Quantification of Their Water Rights
International Treaties
• Mexican Treaty on Rio Grande, Tijuana and Colorado Rivers – 1945
Interstate Compacts
• Colorado River Compact 1922 Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming
• La Plata River Compact 1922 Colorado and New Mexico
• South Platte River Compact 1923 Colorado and Nebraska
• Rio Grande River Compact 1938 Colorado, New Mexico and Texas
• Republican River Compact 1942 Colorado, Kansas and Nebraska
• Costilla Creek Compact 1944 (Rev. 1963) Colorado and New Mexico
• Upper Colorado River Compact 1948 Colorado, New Mexico, Utah, Wyoming and Arizona
• Arkansas River Compact 1948 Colorado and Kansas
• Animas-La Plata Project Compact 1969 Colorado and New Mexico
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Colorado Asserted Its Water Rights Claims
Early in Comparison to Tribes Seeking
Quantification of Their Water Rights (con’t)
U. S. Supreme Court Cases
• Nebraska v. Wyoming, 325 U.S. 589 (1945) North Platte River
• Wyoming v. Colorado, 353 U.S. 953 (1957) Laramie River
Agreements
• Pot Creek Memorandum of Understanding – 2005 (1958) Colorado and
Utah
• Sand Creek Memorandum of Agreement – 1997 Colorado and Wyoming
Settlement Act
• Colorado Ute Indian Water Rights Settlement Act of 1988
• Colorado Ute Indian Water Rights Settlement Act Amendments of 2000
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Interstate Water Compacts Did Not Impair
Water Rights of Tribes
63
Interstate Water Compacts Did Not Impair
Water Rights of Tribes (con’t)
Representative language respecting tribal water rights:
Rio Grande River Compact, 1938, Colorado, New Mexico
and Texas:
Nothing in this compact shall be construed as
affecting the obligations of the United States of
America to Mexico under existing treaties, or to the
Indian tribes, or as impairing the rights of the Indian
tribes.
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International Water Treaties Did Not Impair
Water Rights of Tribes
Representative language respecting tribal water rights:
International Treaties
• Mexican Treaty on Rio Grande, Tijuana and Colorado Rivers
1945
• Article XVI Nothing in this Compact shall be construed as
affecting the obligations of the United States of America to
Mexico under existing treaties, or to the Indian Tribes, or as
impairing the rights of the Indian Tribes.
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Determination of Indian Tribes Water Rights
•Indian tribes must litigate or negotiate
settlements with private users and states to
determine their water rights. The federal
statutes and treaties reserving land for
Indian reservations typically did not address
the water needs of these reservations.
•Parameters of Indian reserved water rights
had to be determined.
66
Determination of Parameters of Indian Reserved
Water Rights Becomes Crucial
Quantification Standard
In 1963, U.S. Supreme Court approved
special master’s decision on Indian
reserved water rights that used
quantification standard based on
agricultural water requirements. Arizona v.
California, 373 U.S. 546 (1963).
67
Determining Practicably Irrigable Acreage
Three-step process for determining reservation’s agricultural water
requirements based on practicably irrigable acreage.
First, soil scientists determine largest area of arable land that can
reasonably be considered for an irrigation project.
Second, engineers develop an irrigation system based on available
water supply and arable land base.
Third, economists evaluate crop patterns, yields, pricing and net
returns for crops that irrigation project might support.
Fort Mojave Indian Tribe v. United States, 32 Fed. Cl. 29, 35 (1994)
68
PIA Standard Not Applied by All Courts
Arizona Supreme Court in 2001 refused to simply apply
precedential PIA standard for quantifying Indian reserved water
rights. It stated:
A permanent homeland requires water for multiple uses, which
may or may not include agriculture. … Limiting an Indian
reservation's purpose to agriculture, as the PIA standard
implicitly does, assumes that the Indian peoples will not enjoy
the same style of evolution as other people, nor are they to
have the benefits of modern civilization. In Re the General
Adjudication of All Rights to Use Water in the Gila River System
and Source, 35 P.3d 68 (Ariz. 2001).
69
In re Gila River Suggests Other Factors in
Quantifying Indian Reserved Water Rights
Other potential factors include:
(1) tribe’s history of and cultural need for water;
(2) nature of land and associated resources of reservation;
(3) tribe’s economic status and proposed economic development
to extent that they involve a need for water;
(4) historic reliance of tribe on water for proposed purpose; and
(5) tribe’s current and projected population. In re Gila River, 35
P.3d at 79-81.
70
Primary Purpose Standard in
Federal Reserved Water Rights Cases, May Vary
for Indian Tribes
While federal reserved water rights may be applied only for primary
purposes of reservations, not for secondary purposes, Supreme Court
refused to apply this strict standard to Indian reserved water rights.
In Cappaert v. U.S., 426 U.S. 128 (1976), Supreme Court held that federal reserved
water rights are limited to the “amount of water necessary to fulfill the purpose of
the reservation, no more.”
In one case, the Arizona Supreme Court refused to limit Indian reserved rights to
only the primary purpose of a reservation. The court noted the importance of
providing the Indians with "a permanent home and abiding place," as well as the
need for "broader interpretation [of the purposes of Indian reserved rights] in order
to further the federal goal of Indian self-sufficiency.” In re Gila River, 35 P.3d at 74.
71
Water Sources
Indian reserved water rights do not necessarily
require that water source be encompassed within
reserved lands.
Rather, courts have allowed tribes to draw water
from various sources as necessary to fulfill
reservation purpose, limiting potential sources only
to extent that waters must have been
unappropriated at time reservation was created.
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Water Quality
When degradation of water quality would undermine tribe’s
water use for reservation purposes, courts have recognized
water quality as another element of Indian reserved water
rights.
Federal courts have ruled that reserved water rights holders
can seek legal protection from water quality degradation by
other water users. Reserved water right impaired when other
users’ actions increased salinity of water used by Tribe for
irrigation of agricultural crops. United States v. Gila Valley
Irrigation District, 961 F.2d 1432 (9 Cir. 1992).
73
Settlements Can Address Source, Quantity, Type,
Use, Quality and Marketability of Water
and Required Infrastructure
Given prospect of having state courts adjudicate Indian reserved water rights
given all of various issues which must be addressed and state courts perceived
hostility, negotiated settlements are preferred by tribes.
In addition to identifying and quantifying water source, settlements can
•address type of water (e.g., groundwater, surface water, effluent water, stored
water);
•types of uses that are held under reserved water rights (e.g., domestic,
municipal, irrigation, instream flows, hunting and fishing, etc.);
•water quality issues; and
•ability to market, lease, or transfer reserved water.
As of 2015, 20 of 29 congressionally enacted settlements permitted some form
of marketing, leasing, or transferring of water.
74
DOI Entities Coordinate Water Rights
Settlements with Tribes, States and Private Users
Within DOI, two entities coordinate Indian water settlement policy.
• Working Group on Indian Water Settlements, established in 1989 and
comprised of all Assistant Secretaries and Solicitor - make
recommendations to Secretary of Interior.
• Secretary of Interior’s Indian Water Rights Office (SIWRO) is responsible
for coordinating Indian water rights settlements and interfacing with
settlement and implementation teams in field.
• Federal teams typically are composed of representatives from Bureau of
Indian Affairs (BIA), Bureau of Reclamation (Reclamation), U.S. Fish and
Wildlife Service (F&W), Office of Solicitor and Department of Justice
(DOJ).
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Negotiated Settlements Preferred by DOI,
Rather than Litigation
1990 DOI Policy Statement, “Criteria and Procedures for the Participation
of the Federal Government in Negotiations for the Settlement of Indian
Water Rights Claims” expressed position that negotiated settlements,
rather than litigation, are preferred method of addressing Indian water
rights.
Indian tribes don’t want paper water rights. "I'd rather be upstream with
a shovel and a ditch than downstream with a decree." -- Western Water
Aphorism
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Water Rights Settlement Agreement Steps
•Pre-negotiation
•Negotiation
•Settlement – presented if required to
Congress for approval
•Implementation
•Can take decades.
77
Indian Water Rights Settlements
To Date – 38
•Since 1978, 38 Indian water rights
settlements have been federally
approved.
•Of these, 34 settlements were approved
and enacted by Congress and 4 were
administratively approved by U.S.
Departments of Justice and Interior.
78
Indian Tribes Pending Water Rights Litigation;
Requests for Settlement
• Currently pending litigation relates to water
rights of about 65 Indian Tribes in 12 states.
More requests for federal litigation assistance
are pending.
• With over 200 Tribes in the West who need
access to clean, reliable water and with extreme
drought conditions in those states with these
Tribes, settlement requests will continue.
79
Colorado Ute Indian Water Rights
Settlement Act of 1988 – Lake Nighthorse
Colorado Ute Indian Water Rights Settlement Act of 1988
(Southern Ute and Ute Mountain Ute Tribes) recognized tribal
water rights for surface water and tributary groundwater.
Project facilities include Ridges Basin Dam and Reservoir, Lake
Nighthorse, Durango pumping plant, pipeline for delivery of
Navajo Nation water supplies, among others.
• Fully two-thirds of water will be set aside for Tribes. It took
forty years to complete.
• Only problem, per UMUT member, Manuel Heart, is “It's like
a pitcher on a high shelf we can't reach.” UMUT is in Towaoc,
63 miles from Lake Nighthorse.
80
Lake Nighthorse
81
Confederated Salish and Kootenai Tribes (CSKT)
Finalized $1.9 Billion Water Rights Settlement
• After decades of negotiations, on September 17, 2021, the
Confederated Salish and Kootenai Tribes (CSKT) finalized a $1.9
billion water rights settlement that resolves thousands of tribal
claims tied to waterways throughout western Montana. The
Compact and Settlement Act quantify the Tribes’ water rights
and authorize $1.9 billion in funding for a variety of purposes.
• Congress has budgeted about $900,000,000. But that still leaves
a billion dollars unfunded. The bipartisan Infrastructure Bill may
be used as a source to fund all or part of the remainder.
82
New Water Infrastructure Needed to Implement
Water Rights Settlements and
Litigation Determinants
•Primary challenge is availability of federal
funds to implement ongoing and future
agreements.
•Indian water rights settlements often involve
construction of major new water
infrastructure to allow tribal communities
access to water.
83
Guess What? Groundwater
Most Western states handle groundwater and surface water
under separate regulatory and judicial controls. Arizona has a
“reasonable use” standard while California applies a
correlative-rights standard.
In Colorado, there are four different types of groundwater each
with its own allocation system: tributary groundwater,
nontributary groundwater, not nontributary groundwater and
designated groundwater.
An important question on which courts had disagreed is
whether Indian reserved water rights may draw from
groundwater, or if they are limited to surface water.
84
Groundwater Overdrafts in U.S., Problematic for
Tribes without Quantified Rights
85
Agua Caliente Band of Cahuilla Indians
Groundwater Rights Litigation in California
• Agua Caliente Band of Cahuilla Indians reservation overlies
Coachella Valley groundwater basin in California. Surface water
is virtually nonexistent in Valley for majority of year.
• Band brought suit on May 14, 2013, against Coachella Valley
Water District and Desert Water Agency for declaration of Tribe’s
reserved and aboriginal water rights to groundwater to satisfy
present and future needs of Tribe and its members, as well as to
protect Tribe’s water rights from further damage by water
agencies’ overdraft and artificial recharge of Coachella Valley
groundwater aquifer with untreated, lower-quality imported
Colorado River water.
86
Coachella Valley, California
87
Agua Caliente Band
Groundwater Rights Case
•On March 7, 2017, Ninth Circuit ruled that
Agua Caliente Band of Cahuilla Indians has
reserved right to water, and groundwater is
water source available to fulfill that right.
•Defendant water districts petitioned U.S.
Supreme Court for a writ of certiorari on July
5, 2017.
88
Supreme Court Denied Cert on November 27,
2017 in Agua Caliente Band
Groundwater Rights Case
U.S. Supreme Court announced that it would not
hear appeals submitted by California water
agencies. Tribal Chairman Jeff L. Grubbe responded
to decision, “Because of the Supreme Court’s
decision, the favorable rulings from the federal
district court and the Ninth Circuit Court of Appeals
recognizing and protecting the Reservation’s federal
water right are now settled law.”
89
Next Phases of Agua Caliente Band Groundwater
Rights Case: Method for Quantification and
Actual Quantification
• With this “phase one” part of trial decided, Tribe, United
States and state water agencies addressed “phase two”
legal issues. Phase two dealt with (a) method for
quantifying Tribe’s share, (b) whether there is right to
water of certain quality, and (c) whether Tribe owns
groundwater storage space under its reservation.
• “Phase three” legal issues of the case were to include
actual quantification.
90
Major Setback - Agua Caliente Band
Lacks Standing to Pursue
Quantification and Quality Claims
On April 19, 2019, U.S. District Court for
Central District of California, Judge Jesus
Bernal ruled Tribe has standing to pursue
declaratory relief for pore space claim but
does not have standing to pursue its
quantification and quality claims.
91
No Injury Shown by Agua Caliente Band;
No Reconsideration of Ruling
• Judge Bernal found Tribe had not shown it had suffered any
water supply issues. Tribe didn't pump any groundwater
itself; it relied on water districts for its supplies.
• Coachella Valley Water District and Desert Water Agency
had not harmed Tribe with their groundwater pumping
because reservation had sufficient water for its needs.
• U.S. District Court judge denied motion from federal
government to reconsider its ruling. (8/19/2019)
92
236 Tribes in Western U.S. with
Groundwater Rights Not Quantified
As many as 236 tribes in western
U.S. have lands with groundwater
rights that have not been finally
quantified in court or in
settlements.
93
New Mexico Water Basins,
Pueblo Water Rights Are Completely Different
and Not Addressed Herein
94
Suggestion Re Global Indigenous Peoples
Law Course
• I suggest you take an Indigenous Peoples Law Course.
• There are not only going to be continuing water rights cases, but, as
indigenous peoples, become aware of numerous other deprivations
that occurred by federal government, those cases will be brought
also.
• Dartmouth College has a newly endowed chair, designated as the
Mae and John Hueston Distinguished Professorship in Native
American and Indigenous Studies to support the study of Native
American and global Indigenous Peoples. This will be a continuing
area of study.
95
Questions???
•Thank you for coming.
•Please feel free to ask any questions.
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