Indian Water Rights, Practical Reasoning, and Negotiated Settlements

Abstract

Indian reserved water rights have a strong legal foundation buttressed by powerful moral principles. As explained more fully below, the Supreme Court has implied reserved tribal water rights when construing treaties and other similar legal instruments. 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 rights 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 few Indian water rights cases that the U.S. Supreme Court has decided. The Article then traces a threshold issue common to Indian water rights litigation in the federal and state courts: how to determine