In the American West, most rights to use water are regulated by state laws founded on the principle of "first in time, first in right": in times of water shortage, the oldest water right is satisfied in full before junior water rights are satisfied. In the East, most rights to use water are governed by each state's common-law-based riparian system, in which water runs with land ownership. In addition to these state water rights, the U.S. Supreme Court has long recognized that federal Indian water rights also exist and must be satisfied in the water priority system.
Federal Indian water rights are defined and governed by a body of federal law that recognizes that Indian tribes have unique property and sovereignty rights to the water on their reservations. Generally, the Supreme Court has upheld tribal government jurisdiction over both tribal members and activities on the Indian reservations. And, within the last twenty years, tribes increasingly are quantifying and using their federal water rights, subject to tribal and federal laws governing the regulation of the water. Because Indian reservations were established before most water uses began in the West, tribes often hold the oldest, and thus most valuable, water rights. In both the West and the East, Indians have occupied land since time immemorial and thus have strong ancient priority claims to water for tribal uses in these areas. The state and federal courts examine what water was reserved for use on the Indian reservations, how tribal water rights are quantified and used, and how these water rights are regulated and enforced. Because of the great value of federal Indian water rights in times of increasing water scarcity, Indian water rights are under attack in the courts and in political arenas. The core doctrines of Indian water law, however, will likely remain undisturbed.
Federal Indian water rights are substantively governed by federal law and characterized in three ways: aboriginal rights, Pueblo rights, and Winters rights. Federal water rights for lands that tribes have occupied since time immemorial are accorded a priority date of time immemorial and are known as aboriginal water rights. New Mexico Pueblo water rights also have early priority dates derived from Spanish land grants and the 1848 U.S. Treaty of Guadalupe Hidalgo with Mexico. Most federal Indian water rights, however, are based on Winters v. United States (1908). That decision held that when tribes agreed to the creation of reservations by federal authorities, they made vast land cessions in return for guarantees that certain lands would be permanently reserved for their use and occupation. The tribes reserved to themselves every aspect of ownership and, implicitly, sovereignty not expressly relinquished to the federal government or unequivocally abrogated by the federal government. In Winters, the U.S. Supreme Court held that when Indian reservations were established, the tribes and the United States implicitly reserved, along with the land, sufficient water to fulfill the purposes of the reservations. In reaching this decision, the court reasoned as follows:
The Indians had a command of the lands and the waters—command of all their beneficial use, whether kept for hunting, "and stock," or turned to agriculture and the art of civilization. Did they give up all this? Did they reduce the area of their occupation and give up their water which made it valuable or adequate?
Some courts have held that non-Indians who purchase former Indian allotment lands pursuant to the General Allotment Act (1887) acquire the right to use whatever federal water right the Indian allotment had, with the same priority date as the reservation. Indian lands held in trust by the United States for individual Indians, known as allotments, are entitled to a reasonable share of any tribal water right, computed on the basis of agricultural needs. To ensure that federal Indian water is used primarily for the benefit of the tribes, however, special rules apply to the use by non-Indians of tribal Winters water rights on former allotments.
Indian water rights, although created and vested as of the date of the reservation—or earlier, in the case of aboriginal rights—are not quantified unless litigation or congressional action has determined the size of the right. Between 1908 and 1963, tribes' water rights rarely were quantified. In addition, a few congressional quantifications and one judicial quantification were inadequate in that they were not based on standards that would provide tribes with water for all present and future needs. (In water adjudications, water rights are determined with finality and, in the case of Indians, for all time.) The federal McCarran Amendment (1986) waives the United States's sovereign immunity from suit for purposes of adjudicating Indian water rights in state-court general-stream adjudications. (A general stream adjudication determines the rights of all claimants to water from a particular water source.) As a result, Indian water-rights litigation and negotiation abound throughout the country. Winters water rights have been found to exist for a variety of purposes, including those of agriculture and fisheries as well as general homeland purposes.
In the case of Big Horn I (1988), the first state general-stream adjudication to reach the U.S. Supreme Court, the court found that the tribes were not entitled to a reserved right for ground water, as compared with surface water, in that case; other cases, in which the matter was addressed more directly and comprehensively, have found that tribal Winters rights may be satisfied from both surface and ground water. Satisfaction of Winters rights from either ground or surface water is logical, since in most instances surface and ground water are interrelated.
The U.S. Supreme Court has recognized that to achieve the important goal of finality in water adjudications, Indian water rights must be quantified for both present and future uses. The most commonly used method for quantifying Indian water rights is the practicably irrigable acreage (PIA) method. This method quantifies the amount of water needed to irrigate arable lands on the reservation.
Big Horn I was the most widely watched Indian water case before the U.S. Supreme Court of its time. In 1989 the court, in a tie vote, affirmed the Wyoming Supreme Court's comparatively large award of 1868 priority water rights to the Shoshone and Arapaho tribes. The PIA method was the issue before the U.S. Supreme Court, but the Wyoming Supreme Court had ruled on many Indian water issues. The final dimensions of Indian water rights are unclear, however, since the Wyoming case continues as part of an ongoing general-stream adjudication, and Indian water issues continue to be litigated in many parts of the country.
Importantly, tribes can dedicate their reserved water, once quantified, for uses other than the purpose upon which the right was originally defined. Thus PIA and other quantification methods are a basis for quantifying but not restricting the use of the Winters rights. As noted above, one badly divided court has concluded that certain restrictions may exist on the use of tribal water rights.
In some instances, tribes have been awarded water based on future need although those tribes have no present use for the water. In such circumstances, tribes have sought to lease their water to nontribal users to create needed tribal income. Congress in several instances has expressly authorized such leases, and some case law supports tribal rights to lease tribal water for nontribal use, especially on the reservations. The federal Non-Intercourse Acts, however, require congressional permission for Indian property interests to be alienated even on a temporary or lease basis. Indian rights to lease their Winters water have proved quite controversial in the water-scarce western states, because non-Indian junior-priority water users have become accustomed to using Indian water for free.
A debate continues regarding which sovereign has jurisdiction over water use on the reservations, where there may exist state, federal, and tribal concerns or any combination thereof. In Colville Confederated Tribes v. Walton (1981), the tribe was held to have jurisdiction over federal Indian reserved water rights to the exclusion of the state. In controversies over the Bighorn River, in Montana, the court established a seemingly dual administration scheme that appears to be under judicial supervision, whereby the tribes administer tribal water rights and the state monitors non-Indian and Indian on-reservation water rights, along with off-reservation rights to a stream that flows both on and off the reservation.
Some courts are wary of granting tribal administration over non-Indians in certain areas where non-Indians are the majority. In Brendale v. Confederated Tribes and Bands of Yakima Indian Nation (1989), the Yakima Nation was found not to have authority to zone fee land areas on the reservation owned in significant part by nonmembers, but to have authority to regulate areas owned predominantly by Indians. On the other hand, the Walton decision expressly recognized important tribal interests in regulating both Indian and non-Indian water use on the reservation, regardless of reservation land ownership patterns. Significantly, many other decisions, following the lead case of Montana v. United States (1981), have held that tribes have sovereign authority over all persons on a reservation, including non-Indians on fee lands, when significant tribal interests are at stake.
Tribes contend that they have regulatory authority over water use by non-Indian successors to allottees, or Walton rights holders, because of basic principles of tribal sovereignty in matters that directly affect the tribes' welfare, and because the non-Indians have entered into a consensual relationship with the tribes to share in the use of those tribes' treaty-based water. Also, tribes argue that treaty-based water rights derive from the tribes' ownership—an ownership that has never been abrogated. The U.S. Supreme Court has long confirmed tribal sovereignty in these instances.
The regulation of the use of reservation water and of its quality by tribes, and not states, is essential to protecting the significant interests tribes have in reservation water resources. Principles of sound water regulation compel tribal regulation of all users along a river, not just Indian users. Moreover, tribes have special congressional mandates supporting tribal regulation of water quality on the reservation as part of a national scheme for protecting water quality.
See also
Fishing and Hunting Rights;
Treaties.
David Getches, Charles Wilkinsen, and Robert A. Williams, Jr., Federal Indian Law Cases and Materials 3d ed. (Minneapolis, Minn.: West Publishing Company, 1993).
Susan M. Williams
Sisseton-Wahpeton Dakota Nation
Gover, Stetson & Williams
