Indian Water Rights: What Goes Around Comes Around

USA Today had an interesting article about Indian tribes exercising their Federal reserved water rights that the Supreme Court guaranteed in a 1908 court case, Winters vs. United States. These rights are sometimes known as Winters rights.

Here is a little document describing these reserved rights, which have been applied to Federal lands other than Indian reservations:

Download FedResWaterRights.pdf

Here are the first few paragraphs of the story:

GREAT FALLS, Mont. — For decades, ranchers and farmers across the West have tapped into rivers and streams on or near Indian reservations. Now, as drought conditions plague big parts of the region, they're concerned their access to those sources could dry up.

Although the U.S. Supreme Court gave tribes the primary rights to streams on their reservations in 1908, until recently, 19 tribes in the West had not exercised those rights. This year, tribes in Montana, New Mexico, Idaho, Nevada and California are on the verge of securing their claims.

That could result in less water, or higher water prices, for non-Indian agricultural producers and communities downstream, according to Victor Marshall, an attorney who represents irrigators in New Mexico's San Juan Valley.

Marshall acknowledges that Indian tribes have more water coming to them. But he argues the amounts they are seeking are more than they can realistically use on the reservation.

One serious problem is that not all these "Winters rights" have been quantified, so state water officials are concerned because they don't yet know how these claims will impact their state water budgets. In deciding Indian water allotments, courts have usually used a concept called "practicable irrigable acreage" (PIA). The tribes are entitled to the amount of water needed to irrigate these PIAs. But how do you define PIA?

The article continues:

States and tribes must negotiate how much the tribes have coming before the federal rights are exercised, said Craig Bell, executive director of the Western States Water Council in Salt Lake City. He expects Congress to consider seven or eight settlements in 2008. Congress has ratified 21 Indian water rights deals in the past 25 years, Bell said.

After reaching an agreement with the states, tribes ask Congress for millions of dollars to build reservoirs and pipelines.

Give and take produced satisfactory results to both sides in the largest Indian water rights settlement in history in 2004 in Arizona, according to John Hestand, senior water counsel for the Gila River Indian Community, and John Sullivan of the Salt River Project, which delivers water to the Phoenix area.

The 40-year, $2.4 billion deal involved the Pima, Maricopa and Tohono O'odham tribes and non-Indian users.

The largest bill before Congress this year is the Navajo's claim to the New Mexico portion of the San Juan River, which would authorize $800 million over 20 years. Votes could come this spring in Senate and House committees.

New Mexico state engineer John D'Antonio said concerns being raised in some quarters about the Navajo bill are overblown. He said the deal would benefit non-Indians, too. "We've got to reconcile the sovereignty issue with the state-based rights," D'Antonio said. The Blackfeet Tribe in Montana, which reached a settlement with Montana in January, will ask Congress for more than $200 million, said Don Wilson, the tribe's water rights director.

In other pending cases:

•A bill giving Shoshone and Paiute —who share the Duck Valley Reservation straddling the Idaho-Nevada border — $60 million passed the Senate Committee on Indian Affairs in July 2007. It awaits action by the full Senate.

•A $21 million bill quantifying the water rights of the Soboba Band of Luiseño Indians in Riverside County, Calif., was introduced in the House in December. A hearing before a subcommittee of the House Committee on Natural Resources is scheduled March 13.

If you look at yesterday's post, you'll see that the Western governors listed Indian water rights as a major issue. This has long been of concern to the governors, but with climate change potentially diminishing water supplies and the prolonged drought in the Southwest, it looms larger than ever.

We live in interesting times, with the "best" yet to come.

'"Jackson Hole: where California plays and Mexico works." -- "suggested" new slogan for Jackson Hole, WY, Jackson Hole News & Guide, as reported in the High Country News, 18 February 2008

Comments

[Native American researcher]

Yes, this will be very interesting to see how much water the tribes actually claim and how it effects states' water budgets. I am just excited that they are starting to do this. States have been working on false numbers, hoping that tribes would never exercise their Winters rights - now that they are, they will have to recalculate their totals and perhaps we can stop wasting so much on our Kentucky Bluegrass lawns in the desert.