Tribes could turn the tables on water control

Posted: Aug 21, 2018

It seems like every week there’s another article about the future of western water—how much we’ll have, where it will come from, and who will get it. Since it’s key to our sustainability and growth, it’s something we ought to be talking about. But there’s a key element that is largely ignored in the mainstream media: the role of American Indians.

One exception is a recent article in the Denver Post, about the completion of a huge new reservoir outside Durango. While the Nighthorse reservoir holds enough water to serve over 300,000 households per year, it was not built exclusively to serve our bulging ‘burbs.

Lake Nighthorse is part of the Animas-La Plata Project, which was born of a settlement between the federal government and the two tribes that live in Colorado—the Southern Ute and Ute Mountain Utes. The water will be shared by the Utes and by five other entities, including the State of Colorado, the Animas-La Plata Water Conservancy, the Navajo Nation, the San Juan Water Commission and the La Plata Conservancy District. Fully two-thirds of the water will be set aside for the tribes.

The agreement settles some complex and protracted water conflicts, and its enactment also offers an opportunity to take a look at the history of tribal water rights and what they mean for the future fights over the so-called “new gold” of the West.

The bottom line on tribal water rights was drawn when the U.S. Supreme Court decided Winters v. United Statein 1908. The Court said that when Congress set aside land for American Indian reservations—for the purpose of transforming tribes from nomads to farmers—it implicitly set aside enough water for them to make use of that land.

While Winters didn’t benefit tribes alone (some non-Indians farming on reservations benefitted from the decision), it sided with tribes in a way that was surprising for that era. In his opinion on whether or not the Milk River and Gros Ventre tribes on the Fort Belknap Reservation were entitled to senior water rights, Justice McKenna seemed to address critics of the decision and stand on moral ground.

“We realize that there is a conflict of implications, but that which makes for the retention of the waters [by the Indians] is of greater force than that which makes for their cession,” he said. “The Indians had command of the lands and the waters, command of all their beneficial use, whether kept for hunting, ‘and grazing roving herds of stock’ or turned to agriculture and the arts of civilization. Did they give up all this? Did they reduce the area of their occupation and give up the waters which made it valuable or adequate?”

At the time, the Winters doctrine came as a shock to Western states accustomed to the notion that water law was their province. The states’ system of “prior appropriation” or “first in time, first in right” says that the first party to put water to beneficial use takes priority over all later users. Since most reservations were established before non-Indian settlements (in 1868, for example, for Colorado’s Utes), Winters makes tribal water rights senior to virtually all downstream users. Moreover, unlike state water rights which are lost if they are not used, tribal rights are retained into the future regardless of whether or not they have put that water to beneficial use.

Since then, there have been some major cases that have refined, or restricted, Winters. In Arizona v. California in 1963, the U.S. Supreme Court reasserted that reservations need  enough water to satiate their present and future needs. Importantly, the case established a favorite standard for determining the amount of water tribes are entitled to. The wonky term “practicably irrigable acreage” (PIA) was coined to describe the only “fair way” (according to the Special Master and the Justices) to calculate how much water Indians were legally entitled to—basically, the amount of water it would take to grow crops on the reservation.

A couple of other U.S. Supreme Court cases, including Cappaert v. the United States (1976) and the United States v. New Mexico (1978) spoke to federal reserved water rights on non-reservation lands (i.e. national forest). Cappaert says that rights must meet “primary purpose” and “minimal needs”requirements, meaning that the key use of the water must be established and no more water should be allocated than is needed to satisfy that purpose. The U.S. v. New Mexico said if the resource is to be used for a “secondary purpose,” water rights must then be secured under state law. While the cases did not speak specifically to Indian reservations, some settlement discussions since then have suggested that these rules should apply to tribes.

Despite the magnitude of Winters, and subsequent decisions, tribes’ rights were just “paper water” for the better part of a century. Unlike their non-Indian counterparts, tribes have had few resources with which to develop the water. Throughout history, Indians were rarely the beneficiaries of the massively-subsidized federal reclamation projects of the kind that benefitted white settlers. Without the resources or legal support to assert their rights, some tribes lack potable water in their homes to this day.

To date, a fraction of water rights claims have been settled; just 29 out of 565 tribes. These agreements, ratified by Congress (a hurdle each of these deals must clear) are like snowflakes—made up of water but none identical. The middle ground established in recently-resolved cases sees tribes taking less than their maximum allocation of water in return for investment in capital projects (reservoirs, dams, pipelines) that help them manage the water. With these settlements tribes are, in effect, giving up some of their paper rights, in exchange for “wet” water. 

The $513 million Nighthorse reservoir is just one of six recent settlements which have seen the government commit over $2 billion to development projects. As a result of those agreements, 1.5 million acre-feet of water annually is now under the control of sovereign tribes in several states. Sixteen additional settlements are now being hashed out.

But Ben Franklin might have had a crystal ball trained on the modern West when he said, “When the well is dry, we learn the worth of water.” In recent years, as competition for water has increased and western water officials try to satisfy all parties’ needs for a stable allocation, tribes may find themselves with more leverage than they’ve had historically.

The federal government appears to be moving more swiftly to reach settlements—some of which have already dragged on for years—that maintain as much water as possible for established, and expanding, infrastructure. Steve Moore of the Native American Rights Fund (NARF), a non-profit law firm based in Boulder, Colo., says, “The Obama Administration, to its credit, has an interest generally in moving Indian water settlements.”

One major question going forward is whether or not it’s legal for tribes to market water off-reservation—a dynamic that could dramatically shift the balance in water power-plays.

Surely the Justices who decided Winters didn’t envision a ballooning population, in a time of drought, in this arid land but they intended (as did subsequent legal decisions) for reservations to be sustainable homelands for tribes; places where Indians could be politically and economically viable and independent.

If tribes decide, on their paths to self-sufficiency, to exercise their senior water rights under Winters by selling that resource to burgeoning subdivisions, should the law be interpreted to prohibit it?

 In answering this question, we hear echoes of the past. When Winters was decided 103 years ago, the Montana legislature said the doctrine would “seriously and permanently stifle prosperity.” Today, the settlements have been characterized by some as a “bonanza” for American Indians, who are being given an “unfair advantage.”

 NARF’s Moore argues that, “Settlements ought to be viewed as a resolution of the moral and legal obligation of the United States to protect an essential trust asset–water rights and resources. They should not be viewed as ‘pork’.” With its moral clarity, the Winters’ Justices spoke even more succinctly: “By a rule of interpretation of agreements and treaties with the Indians, ambiguities occurring will be resolved from the standpoint of the Indians,” they said.

~Heather Hansen


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