9.3 Water Rights Settlements and Negotiations

Water rights settlements and negotiations are crucial for Native American tribes. These processes help resolve long-standing disputes over water access and use, balancing tribal needs with those of other stakeholders.

The Winters Doctrine, which established tribal water rights, forms the foundation for these negotiations. Settlements often involve quantifying rights, developing infrastructure, and creating economic opportunities for tribes while ensuring water security for all parties.

Water Rights Doctrines

Key Legal Principles Governing Water Rights

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• Winters Doctrine establishes that when the federal government creates an Indian reservation, it implicitly reserves sufficient water rights to fulfill the reservation's purpose (irrigation for agriculture)
• Prior Appropriation grants water rights to the first person to divert water from a stream and put it to beneficial use, following the principle of "first in time, first in right" (mining operations in the western U.S.)
• Riparian Rights entitle landowners with property bordering a watercourse to make reasonable use of the water, as long as it does not interfere with the reasonable use of other riparian owners downstream (farming along the Mississippi River)

Federal and Tribal Reserved Water Rights

• Reserved Water Rights are water rights that are implied when the federal government reserves land for a specific purpose, such as national parks, forests, or wildlife refuges (Yellowstone National Park)
  • These rights are not subject to state water laws and cannot be lost through non-use
• Federal Reserved Water Rights are a type of reserved water right that applies specifically to Indian reservations and other federal lands
  • The priority date for these rights is the date the reservation was established, giving tribes senior water rights in many cases (Wind River Reservation in Wyoming)

Quantification and Adjudication

Determining and Legally Recognizing Water Rights

• Quantification is the process of determining the amount of water associated with a particular water right, often expressed in acre-feet per year
  • It involves considering factors such as the reservation's purpose, historical water use, and future needs (Gila River Indian Community in Arizona)
• Adjudication is the legal process of determining the validity, priority, and quantity of water rights in a specific watershed or basin
  • State courts or specialized water courts typically conduct adjudications (Snake River Basin Adjudication in Idaho)

Key Legislation and Measurement Standards

• McCarran Amendment waives federal sovereign immunity, allowing state courts to adjudicate federal reserved water rights, including those of Indian tribes (Arizona v. San Carlos Apache Tribe)
• Practicably Irrigable Acreage (PIA) is a standard used to quantify reserved water rights for Indian reservations based on the amount of land that can be practically irrigated
  • PIA considers factors such as soil quality, topography, and the availability of irrigation technology (Big Horn River Adjudication in Wyoming)

Tribal Water Management

Negotiated Settlements and Water Marketing

• Negotiated Settlements are agreements between tribes, states, and the federal government that resolve water rights disputes and provide certainty for all parties involved
  • Settlements often include provisions for infrastructure development, water conservation, and economic development (Navajo Nation Water Rights Settlement in New Mexico)
• Water Marketing allows tribes to lease or sell a portion of their water rights to other users, providing a source of revenue for tribal communities
  • Tribes must consider the potential impacts on their own water needs and cultural values (Jicarilla Apache Nation in New Mexico)

Tribal Water Governance and Sovereignty

• Tribal Water Codes are laws enacted by tribal governments to regulate and manage water resources within their reservations
  • These codes can address issues such as water allocation, conservation, and quality (Navajo Nation Water Code)
• Groundwater Rights are an essential component of tribal water rights, particularly in arid regions where surface water is scarce
  • Tribes often assert jurisdiction over groundwater beneath their reservations (Agua Caliente Band of Cahuilla Indians in California)
• Tribal Sovereignty refers to the inherent authority of tribes to govern their own affairs, including the management of natural resources like water
  • Tribes work to protect their sovereignty in water rights negotiations and litigation (Winters v. United States)