Water Rights in the USA - Protecting Sacred Water | Owe Aku Bring Back the Way &International Justice Project

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Water Rights in the USA - Protecting Sacred Water

June 30, 2015


Water is the most important aspect of all life on this planet.  Water is what makes Mother Earth a unique, viable, beautiful place in our universe.  

It is our responsibility to protect and preserve it for coming generations and for the planet Herself.  First, though, we must understand how “water law” works in the 

United States to know what we’re up against in this struggle. 

Owe Aku’s International Justice Project has put together this brief summary in an attempt to explain a bit about the state of and challenges to American water policy.


The following serves as a summary of Indian Water Rights under Federal Indian Law.  This brief overview has included neither international law (most of which the United States has repeatedly refused to acknowledge in terms of Indigenous peoples) nor the enduring validity of treaties (also acknowledged under international law, but not by the Americans).  Other than the cases and journals specifically cited, it is all based on:  Canby, William C., Jr. American Indian Law in a Nutshell. 6th ed. St. Paul: West Academic, 2015. Print.


QUICK SUMMARY OF UNITED STATES WATER LAW


There have been two approaches in the United States to Water Law. In the East it is called the “riparian” approach.  The East was already heavily populated with settler-colonists as the laws were developing.  Under the “riparian” approach someone owning land attached to water was considered to “own” that water which is then evenly divided amongst the people with access to a particular body of water. American Indian Law in a Nutshell.


A different system evolved in the West.  By the time the invasion of settler-colonists began in earnest across the Mississippi, under various unilateral colonial laws (including the Doctrine of Discovery) and a continuing failure in law to clarify Red Nations’ rights to original title, most western lands were considered to be owned by the federal government.  Water policy then developed into what’s known as “appropriative rights.” The basic principles of this system were: 


1. Water may be appropriated separately from land; Id.

2. Whomever was “first in time” to the supply had the primary right to it; and Id.

3. The right was lost when the water was not “put to use.”  (The concept of ‘inadequate”            use of “resources” by Red Nations’ peoples would be consistently used to appropriate land,    water and natural resources as if only settler-colonists knew how things are adequately appropriated.) Id.


WINTERS RIGHTS


The appropriative rights doctrine would later be a major issue in Montana, when settler-colonists started using up a great deal of water from the Milk River, which supplied most of the water to the Fort Belknap Indian Reservation. The settler-colonists argued that, under the theory of “beneficial use” dictated by appropriative rights, the right to water goes to whomever uses it properly first. Rather than doing any sort of analysis of who was “first in time” or who was using the water more beneficially, the Supreme Court stated “The case, as we view it, turns on the agreement of May, 1888, resulting in the creation of Fort Belknap Reservation.” Winters v. U. S. (1908) 207 U.S. 564, 575.


The Court declared that since it was the United States government that established Red Nations’ reservations, the Red Nations’ claims superseded any claims of the settler-colonists in appropriating water rights  Id.(again conveniently side-stepping the issue of original title or the rights extended under treaties between Red Nations’ and american governments.]  While the agreement did not explicitly mention water was being reserved, the Supreme Court found that it was a necessary implication, as it would not have made sense for the government to set aside reserved lands, with the intention of giving the Red Nations peoples the ability to farm it, without also giving them the rights to access the water. Id.


Another landmark case that further expounded on Indian Water Rights under federal law was  State of Ariz. v. State of Cal., 373 U.S. 546 (1963) . While the main suit was in regards to a dispute over the Colorado River between the two states, the rights of the many Red Nations along the river also came into question. The court found that, because the reservations were founded by statute and executive order, it was clearly the intention of congress and the president to reserve the water because “that water from the river would be essential to the life of the Indian people and to the animals they hunted and the crops they raised” Id. Those rights were created under federal law at the time of the creation of the reservations, and therefore preceded almost all other claims to the water.  


The other question was, just how much water should the tribes be able to reserve? The non-Indians argued it should be limited to the amount likely to be needed by the Indian population in the foreseeable future, this number being very small at the time due to genocidal American policy and European diseases having grossly reduced the populations of Red Nations.  The Court found that the future needs and any prediction of population growth were unforeseeable, so the only fair measurement would be “practicably irrigable acreage”, measuring the water supply by the amount of land rather than the population size. Id.


The combined principles of Winters and Arizona v. California are the following:


Winters rights are federal law, which defines their extent.

Establishment of a reservation by treaty, statute, or executive order includes an implied reservation of water rights in sources within or bordering the reservation.

The water rights are reserved as of the date of creation of the applicable portion of the reservation. Competing users with prior appropriation dates under state law take precedence over Indian rights, but those with later dates are subordinate. (it appears under appropriation rights the rights of settler colonists apply to the amount they appropriated; it would seem unreasonable that they can then later take more than their share and “bottle” or dam it.  Of course “unreasonable” is not a bar to Federal Indian Policy.) This will not likely come up as an issue for most Red Nations, because “tribal reserved rights carry very early priority dates, they are often among the most senior, if not the most senior, water rights on a stream system” Judith V. Royster, Climate Change and Tribal Water Rights: Removing Barriers to Adaptation Strategies, 26 Tul. Envtl. L.J. 197, 204 (2013)

The quantity of water reserved for Indian use is that amount sufficient to irrigate all the practicably irrigable acreage of the reservation. At least one state modified it to “purposes” of the reservation.

Winters rights to water are not lost by non-use.


In short, a treaty or executive order guaranteeing land to be held by a Red Nation grants rights to the water on and adjacent to the reserved land. The title to those rights is seen to commence ONLY as of the date of the treaty or order being made. While it has not been explicitly established through case precedent on a federal level, according to “American Indian Law in a Nutshell”, one of the go to academic guides for Indian law, it is likely to also apply to groundwater, and possibly even water sources that are not on or adjacent to the reservation itself but still would provide the needed supply of the reservation. 


While the language is “practicably irrigable acreage”, that is not a firmly delineated amount, and is typically up to a court to determine. It is within the power of a state court to determine, as seen in In re Yakima River Drainage Basin, 177 Wash. 2d 299, 334, 296 P.3d 835, 852 (2013), (where the Supreme Court of Washington was seeing a case on Indian Water Rights, and ordered the case sent back to a lower state court to determine what the practicable irrigable acreage would be). 


Federally recognized tribal governments are under no obligation to solely use the reserved water for agriculture, and may use it for whatever reason deemed necessary.  This is exemplified in the Ninth Circuit Court decision that the Colville Indians could use it for purposes of creating fishing grounds (Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981).  “Providing for a land-based agrarian society . . . was not the only purpose for creating the reservation. The Colvilles traditionally fished for both salmon and trout. Like other Pacific Northwest Indians, fishing was of economic and religious importance to them.”


The rights of the tribe to water under the Winters doctrine still applies to tribes that had the land divided up to Indian allottees. They typically will get the share of the “practicable irrigable acreage” in terms of how much land they were allotted. Non-Indian allottees will also have access to Winters Rights, but unlike tribal members, they lose the rights to the water if they do not use it. This only applies to allotted, not ceded or homesteaded formerly owned lands. Indian water rights may be leased along with Indian lands, but it has not been clearly decided if the water rights alone can be leased from lands not being leased.  It is highly unlikely the rights could be sold, as it would violate the doctrine of the trust responsibility of the United States, and “because of the extreme resistance by the tribes to the permanent alienation of tribal property.” Naturally, “highly unlikely” does not mean impossible, as the government has had no problem violating those principles in the past. 


“TAKING”


Winters Rights are seen as property, like the land, held by tribes that have a reservation through treaty or statute. Therefore, if those rights were taken, it would demand compensation as dictated by the Fifth Amendment. If the reservation was established through an executive order, it may require no compensation:


“The President has the power to withdraw land from the public domain by executive order for the purpose of creating Indian reservations. An executive order making an addition out of the public domain to an Indian reservation established by treaty makes the Indians no more than tenants at will of the government on such addition, since the President has no authority to convey anything more than a transitory possessory interest of which the Indians may subsequently be dispossessed by the federal government.” 41 Am. Jur. 2d Indians; Native Americans § 60


This was seen in “Sioux Tribe of Indians v. United States”, where the courts stated there was a difference in the lands granted to the “Sioux” through initial treaties, and further lands added on through executive order for the intent of ending the illegal liquor trafficking into the reservation. The court said:


“It is significant that the executive department consistently indicated its understanding that the rights and interests which the Indians enjoyed in executive order reservations were different from and less than their rights and interests in treaty or statute reservations. The annual reports of the Commissioner of Indian Affairs during the years when reservations were frequently being established by executive order contain statements that the Indians had ‘no assurance for their occupation of these lands beyond the pleasure of the Executive,' that they ‘are mere tenants at will, and possess no permanent rights to the lands upon which they are temporarily permitted to remain,' and that those occupying land in executive order reservations ‘do not hold it by the same tenure with which Indians in other parts of the Indian Territory possess their reserves.’ Sioux Tribe of Indians v. United States, 316 U.S. 317, 327-28 (1942)


If the land is Treaty land, the government cannot just come and take the rights without some sort of compensation (again, it is critical to point out that this is against the tenets of international law as well as a contradiction to the American’s own law, stating that treaties are the supreme law of the land, not executive order or congressional statute.  Compensation has never been accepted by the Lakota Oyate in exchange for treaty rights under domestic or international law).  If the land was granted through executive orders, there will likely be no compensation.

 

ADJUDICATION AND THE MCCARRAN AMENDMENT


Because the US holds Indian land in trust, it is technically the federal government that holds title to Winters Rights. Therefore, if there is ever an adjudication in court, the federal government must be a party to it. Traditionally the US cannot be sued in a state court without it’s consent, but an amendment called the McCarran Amendment was created in which the US gave consent to be brought to court on any suit regarding water rights. Therefore, while federal law dictates Indian Water Rights, there are possible situations where the suit will take place in a state court. Sometimes the federal government has even allowed for the state to interpret what vague terms like practicable acreage is, since they consider that an issue of fact and not of law, which is within the state’s right to determine: 


The passage of the McCarran Amendment effectively reversed the status quo, allowing state courts to become the primary adjudicators of federal water rights. The Amendment allowed States to join the United States as a party “in any suit . . . for the adjudication of rights to the use of water of a river system,” and waived the federal government's sovereign immunity for the purpose of such adjudications. Unfortunately for the continued utility of the Winters doctrine, in 1971, the US Supreme Court extended the Amendment's waiver of sovereign immunity to federally reserved water rights. Allowing states, which are often hostile to federal control of water resources, to force the US government to litigate its Winters claims before state courts would significantly contribute to the derogation of the doctrine of implied federal water rights, further eroding Indigenous peoples’ human right to water. Justin Huber & Sandra Zellmer, The Shallows Where Federal Reserved Water Rights Founder: State Court Derogation of the Winters Doctrine, 16 U. Denv. Water L. Rev. 261, 268-69 (2013)”


The major concern from this is: 


“General stream adjudications, provided for in every western state, are massive, complex, comprehensive proceedings involving all rights to water in a river system. At the conclusion of the adjudication, the state should have a record of all water rights owners within that river system, including their priority dates, points of diversion, permitted uses, flow rates, and quantity of use.” Judith V. Royster, Climate Change and Tribal Water Rights: Removing Barriers to Adaptation Strategies, 26 Tul. Envtl. L.J. 197, 201 (2013).


Adjudication of any issue in state court is a concern, not merely because Red Nations have a nation-to-nation relationship with the Americans (to which states do not apply), but also because in state courts there is confusion, inconsistency and environmental racism that colors any decision.  This is especially true in the states where Red Nations have large tracts of land under our protection..   


“Once litigation moved to the state courts under the McCarran Amendment,. . . variable standards appeared. . . The three justices in the majority each wrote separately to offer distinct rationales: one argued that the tribes could use their water for agricultural and subsumed uses only, a second that the tribes could not devote water to an instream flow because that use was prohibited by state law, and the third that the tribes could only change the use of their water right after they had put it to agricultural use.”


The McCarran Amendment allows for state courts to adjudicate Indian water rights.  While the state court must apply Federal law, it will be a state judge interpreting that law.

SUMMARY


In brief, under Federal Indian Law, the legal title to water began when the treaties were signed. The amount of water the Lakota are entitled to would be the amount to “practicably irrigate” the lands demarcated in the Treaty, or in this case in abrogated versions of the Treaty. These are federally protected rights to water, which neither government nor state should have a right to infringe on.  Any companies attempts at privatizing water that would infringe on the tribes access should be considered a violation of federal law. However, as we know, violation of “law” has never been an impediment to corporate America, backed by friendly governments, especially in state capitals.  In theory though, much like the settlers in the initial Winters case were not allowed to interrupt the flow of water from the Ft. Belknap reservation, no company should be allowed to interfere with the tribes water source.  In terms of companies that do not take the water away and merely pollute it, it can and should be argued that this is still a violation since the entire idea of the Winters Doctrine is to provide reservations with a reliable water source, and contaminated water is not viable.  However, due to the McCarran Amendment, if the Winters Rights are brought to court, the adjudication will most likely be within state court.  As water becomes ever more rare, ever more precious, and ever more quantified as industrial fodder for extractive industries, the fight to preserve and protect will be the responsibility of the people, not the courts, who have repeatedly proven their inadequate response to human rights issues.  


Wopila to our legal intern, Joseph Kowalski, for his valuable contribution, his dedication and his time.

© John Kent Lebsock 2016