Native American Water Rights

Water Rights has been an issue for Native Americans in the past and still is today. It can at times become an issue for state and federal governments. In the American West gold is no longer the most precious resource, water is. In the dry western climates there is an unquenchable thirst in agriculture, industries, and growing urban areas. The lack of water has not been enough to satisfy the conflicts and claims that arise from government entities fighting over water. Among those that fight to claim water is the American Indian tribes. Native Americans have held water rights dating back to the Treaty of Obligations. It has constantly conflicted with the state and federal water rights system. There are currently fifty major water right law disputes throughout the western United States. All of these fifty disputes involve huge quantities of water, which in turn could have huge economic benefits tot he victor. When it comes to determining water rights there are two forms of defining them. On the eastern side of the United States they use a system called riparian rights. This system came down from English law, which states that all who own land along a water source have the right to use it. This system is great for areas with a large amount of rainfall. In the western states with low annual rainfall this method becomes a problem for those down stream. As a result water rights are controlled by the state government. Their system is called, “Prior appropriation which can be best summed up in the phrase "first in time, first in right."1 Along with this issue there are other groups who have claims to the water rights. They include that states, the federal government, and the American Indians. Because of this competition for water conflicts, repercussions and even law suits arise.

The Native American policy for water rights is based upon a “1908 U.S. Supreme Court Winters decision. The ruling, known as the Winters Doctrine, continues to guide Indian water-rights policy a century later. The gist of the ruling was that tribes had implied — or automatic federally reserved water rights when reservations were created.” 2 There ability to claim water is mainly based upon two methods which is prior appropriation and reserved rights also known as Winters doctrine. The reserved rights, Winters Doctrine, came from “the Supreme Court opinion in the case of Winters v. United States, in which the Supreme Court held that, when Indian reservations were established, the Indian nations and the United States implicitly reserved, along with the land, sufficient water to fulfill the purposes of the reservations, which in most cases was farming.”1The verdict from this case becomes vague on what is considered a sufficient amount of water for the Indian reservations. However Indian tribes who have not been issued a reservation do not fall under Winters Doctrine. For example the Karuk Tribe has no water rights because they do not have a reservation. They gave up these rights by no longer being a part of a reservation. As a result a law suit was filed against the federal government for not taking care of the needs of this tribe. In recent issues the Blackfeet Tribe is currently exercising their Winters Doctrine in order to receive bigger water share rights. As a result “the tribe would gain control of a significantly larger portion of 1.2 million acre-feet of annual flow that leaves the reservation in streams and rivers.”3 The Blackfeet tribe plan to use this additional water to acquire new storage silos, irrigation, and market water off the reservation. The tribe also has future plans to build an ethanol fuel plant. This particular issue hurts most of the ranchers down stream who rely on this water. As a result many ranchers may not be able to have a source of water due to the Blackfeet tribe's water right claim. This constant battle between state and Indian rights isn't new. “Today's water fight between states and tribes has its genesis in the late 1800s and the early 1900s, when the federal government began constructing huge water diversion systems to get water from streams and rivers to areas where settlers grew crops.”3

An enormous amount of water is needed in order to continue to grow crops, supply cattle, and sustain community water systems with the vast population increase. Indian tribes are constantly using

Winters Doctrine of 1908 to be able to turn wet rights into money. An example, “Montana's Rocky Boy's Indian Reservation received $50 million in 1999, which the tribe is using to partner with area communities on a huge drinking-water system for north central Montana.”3There is a constant battle to retain water from the Indian Nation which can conflict with the state and federal governments needs. Governor Bill Richardson and his administration had 19 New Mexico Pueblos agree to work in good faith and fairly resolve issues between the Native American government and U.S. Government. “Native American Water Resources Program, created by the Governor in 1995, is aimed at promoting a spirit of coordination, communication, and good will between Tribal and state governments as separate sovereignties.”2 This works in some cases to benefit Native American tribes to secure economic increase. In New Mexico, the Navajo Nation reached an agreement that would give the Navajo 56 percent of the water flow from the San Juan River. As a result the tribe is seeking an $800 million dollar settlement deal from Congress, which is one of the largest deals ever made.3 Native American tribes are not always able to achieve their water right goals and may be denied the need for water rights. “On the Blackfeet Indian Reservation, which has about 10,000 residents, ranchers are sometimes forced to haul water to livestock, and domestic wells continually dry up, Wilson said. The Babb school sometimes is forced to shut down because its well goes dry.”3Even though they have all theses water rights they are not able to use them and have issues with clean water. The Blackfeet tribe is using a very small amount of water, which is not enough for their needs. If the tribe wins this dispute by using Winters Doctrine against the state, they are looking for a significant increase in their use and storage of water. The problem with this dispute is that they may be denied because of the large claim amount. In summary, Winters Doctrine's vague definition of sufficient water needs continues to be a road block for American Indian Tribes on reservations. In turn, this frustrates the state and federal governments agenda in obtaining their own water rights.