Indian Water Rights, Practical Reasoning and Negotiated Settlements

Indian reserved water rights have a strong legal foundation buttressed by powerful moral principles. As explained more fully below, the Supreme Court has found implied reserved rights when construing treaties and other legal instruments recognizing or creating tribal reservations when access to water is necessary to fulfill the purposes behind establishing the reservation. The precise scope and extent of these rights in any treaty are unknown until quantified by a court ruling or an agreement ratified by Congress. When litigation is the quantification tool, tribal claims are generally caught up in massive general-stream adjudications. These adjudications are massive because to obtain jurisdiction over the Indian water rights (and over the United States as trustee to the tribes), states must adjudicate all claims to a given river system; they may not engage in piecemeal litigation of only the Indian and federal claims. The result can be that there are thousands of state water right holders who must be joined as parties to exceedingly complex litigation that takes too long and costs too much. Moreover, even when such adjudications are litigated to a conclusion and tribes win a decreed water right, such a “paper right” may do little to advance tribal needs without the financial ability or the infrastructure to put the water to use. At the same time, the general failure of the United States to assert and protect tribal rights until the 1970s, along with its zealous advancement of competing non-Indian uses, created expectations among non-Indians that their state-law water rights were secure. In fact, many non-Indian rights are far from secure. This article first reviews the Indian water rights issues that the Supreme Court has decided. The article then traces a critical issue common to Indian water rights litigation in the federal and state courts: how to determine the purposes of the reservation for which a reserved water right should be implied. The review of Indian water rights cases demonstrates the generally confusing state of the law in significant respects, especially with regard to the “purposes” determination. The relative uncertainty in this context fits neatly into the portions of Professor Frickey’s scholarship that call for less litigation and more sovereign-to-sovereign negotiation. Finally, the article reviews the approach taken by the parties and Congress in several recent Indian water rights settlements. There have been over two dozen Indian water rights settlements since the 1970s, each usually preceded by years of litigation. Given the Supreme Court’s abandonment of long accepted substantive and interpretive rules of Indian law, many tribes now prefer government-to-government negotiations for settling natural resource disputes in lieu of “all or nothing” litigation