Tribal Water Study Legal Principles Colorado River water users association December 14, 2017 Caesar's Palace Margaret j. vick, jsd

Overview Disclaimer Ten Tribes: Chapter 5 Water Law: Chapter 2 Limitations of TWS: Chapter 8

Disclaimer Assumptions are used in the modeling with explanations in the text. When appropriate, a range of assumptions are used Assumptions to not represent a legal position or interpretation of the Law of the River Nothing in the Report is intended for use against any of the 29 tribes in the Basin, any Basin state, the federal government or the UCRC. Nothing in the Report is intended to interpret, diminish or modify the rights of any of the tribes, the states, the federal government or the UCRC. Reclamation and the Partnership continue to recognize the entitlement and right of each of the ten member tribes and of each of the Basin states under existing law to use and develop the water of the Colorado River system.

Ten Tribes Participating in Study: Ch. 5 Reservations Three reservations are crossed by state boundaries of 3 states Ft. Mohave: Nv, Ca, Az Navajo: Ut, NM, Az Ute Mountain Ute: Ut, NM, Co Two reservations are crossed by state boundaries of 2 states CRIT: Ca, Az Quechan: Ca, Az Both Basins: Navajo Nation:

Chapter 5 cont. Five Lower Basin Tribes along the mainstream: Rights decided by US Supreme Court in Az v Ca Ft. Mohave Indian Tribe, Chemehuevi Indian Tribe, Colorado River Indian Tribes, Quechan Indian Tribe and Cocopah Indian Tribe Quantified with early priority dates None have infrastructure to fully utilize Lack mechanisms for transfers, for flexibility in water use, and lack funding for infrastructure that isbe included in Indian water settlements for other tribes Upper Basin Tribes Ute Indian Tribe, Ute Mountain Ute Tribe, Southern Ute Tribe, Jicarilla Apache Nation, Navajo Nation (also has rights in Lower Basin) Each Tribe’s water rights are unique Include decrees, settlements, Acts of Congress and other agreements Based on diversions or depletions or both

Law of the River 1922 Compact Article VII “Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes.” 1908 US Supreme Court decision, Winters v. United States “[R]ight to water is impliedly reserved in the agreement establishing the reservation.”* The agreement is construed “in light of the purposes of the reservation system, the paractical need for water in the arid West, and the canon of construction for Indian treaties and agreements.”* ”The creation of the reservation impliedly reserved water rights a of the date the reservation was created.”* *Cohen’s Handbook of Federal Indian Law, 2005 ed., §19.02*

Ch. 2: Indian Water Rights Federal reserved rights are held in trust for the benefit of the Tribe The United States has a trust responsibility to protect and maintain rights reserved by or granted to tribes by treaties, agreements, executive orders, federal court decrees, and state court decrees. The Indian Trust Assets (ITAs) entitled to protection under the trust responsibility include tribes’ federally reserved water rights on and off-reservation. Sufficient to fulfill the purposes for which the reservation was established Lower Basin mainstream tribes: “It is impossible to believe that when Congress created the great Colorado River Indian Reservation and when the Executive Department of this Nation created the other reservations they were unaware that most of the lands were of the desert kind—hot, scorching sands—and 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.”* (Arizona v. California, 373 U.S. 546, 599 (1963) Supreme Court in Az v Ca rejected arguments for other quantifications: Land reserved without water, Tribal population, reasonably foreseeable needs

Indian Reserved Rights v. State Law Based Water Rights: Ch. 2 Measurement – Quantification Tribal: Purposes of the Reservation State: Beneficial use Priority Date Tribal: Establishment of the reservation or time immemorial State: First beneficial use plus state law requirements for recording or registering Forfeiture and Abandonment Tribal: Available for present and future uses. Not lost for non-use State: Statutory time period of non-use may result in abandonment or forfeiture Water Supply Tribal: Surface and groundwater (Agua Caliente) State: State law determines if groundwater is appropriable

Limitations of the TWS: Ch. 8 Current Water Use Measurements on-reservation are limited or unavailable Effects of Future Tribal Water Use Time scale is difficult to determine Effects on water availability for other users limited by CRSS spatial resolution Upper Basin: The effect on specific water users from full development of tribal water rights cannot be accurately determined CRSS is not an accounting model Does not track priorities or state water rights systems Tribal Water Study is: “Plausible indicator of the effect of tribal water use on the water supply of the Colorado River.”

Conclusion The Partnership Tribes intend to make full use of their water rights (most of which are senior priority rights) and have, or are in the process of, developing and implementing tribal water development plans. One of the objectives of the Tribal Water Study was to project future tribal water development and use through the year 2060 in order to provide non-tribal water users in the Basin with a better understanding of and more certainty about the future availability of Colorado River water with the full development of perfected tribal water rights. (Chapter 8)

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