American Indian Reserved Water Rights: The Federal Obligation to Protect Tribal Water Resources and Tribal Autonomy

Article excerpt

I. 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

A. Historical Redress Based on Asymmetry in the

Development of Western Water Resources

B. Distributional Justice

C. 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

A. 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

B. 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

I. 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.

II. 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. …