Professor Robert Anderson February 2019 Indian Water Rights Professor Robert Anderson February 2019

Overview Indian water rights rooted in federal law, including aboriginal title as recognized in U.S. Deep conflicts between Indian and non-Indian rights Indian treaties, agreements, statutes and Executive Orders at foundation of tribal water rights Expensive and lengthy litigation; settlements

Water to Fulfill the Purposes for Creating an Indian Reservation Indian reserved water rights are based on federal law Winters doctrine: associated with establishment of Indian reservations for agricultural purposes Aboriginal water claims for instream flows, sometimes called Winans rights

United States v. Winans -- Rules Implied easement to cross non-Indian land to reach usual and accustomed fishing stations State may not defeat right by authorizing non-Indian fishing with wheel that would prevent fish from reaching U & A Creation of State has no effect on federal rights reserved by treaty

Winters v. United States (1908) Indian reservation in 1888 established for agricultural purposes State appropriators precede Indian use, but after 1888 Court implies reserved Indian rights as of the date of the reservation – 1888 --- to fulfill agricultural purposes of the reservation P. 707 of book. Review highlighted language on 708-709 3. Agricultural purpose of reservation easy to ascertain -- nearly all treaties and Indian Affairs Commissioners Reports from earlier.

Winters v. U.S.: Non-Indian water use for irrigation precedes Indian use Non-Indians Milk River Fort Belknap Res.

Post-Winters Developments Open-ended court decrees (lack of certainty) Allotment water rights and transferability recognized (U.S. v. Powers) Extensive non-Indian development/Tribal rights ignored; Poor record in developing and protecting Indian water. Quantification standards explored in several cases See p. 712 for open-ended decrees Powers and allotments covered later at 755 Note 1 on p. 716-17 for poor record

Arizona v. California (1963) Water rights litigation over agricultural reservations along Colorado River Sufficient water reserved to meet present and future needs of the reservation Practicably irrigable acreage (PIA) is the measure for land not historically irrigated Case begins on p.713; Congress divided up the Colorado River among the states

Arizona v. California Equal Footing Doctrine involves submerged lands not waters U.S. may reserve water after statehood Executive Orders may reserve water Non-Indian federal reservations have reserved rights

Nevada Lake Mead Nat’l Rec. Area Arizona v. California (1963) – Colorado River Indian & Federal Reservations Fort Mojave Indian Res. Lake Havasu Nat’l Wildlife Refuge Chemehuevi Indian Res. California Colorado River Indian Reservation Court rejects equitable apportionment Court rejects arguments that E.O. could not reserve water; and could not reserve water at all after statehood, p. 715 Agricultural purposes clear. PIA is the measure – not “reasonably forseeable needs.” Arizona II on p. 717 refuse to reopen, casts some doubt on PIA as too generous. Arizona Imperial & Cibola Nat’l Wildlife Refuges Fort Yuma (Quechan) Indian Reservation Cocopah Indian Reservation Mexico

Litigation Explosion in the 1970s McCarran Amendment authorizes state court jurisdiction of federal and Indian rights, 43 U.S.C. § 666 Ariz. v. San Carlos Apache Tribe (tribal rights subject to adjudication in state court) Nevada v. United States (res judicata – Pyramid Lake) This will be the main place to discuss the McCarran Amendment. It was contentious and took a while, but the result is simple. States may adjudicate Indian water rights.

Instream Flow Protection Confederated Tribes of the Colville Reservation v. Walton, 647 F.2d 42 (9th Cir. 1981) (instream flows to support replacement fishery; salmon fishery destroyed by Grand Coulee Dam) United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) (right to maintain stream flows to a protected level; Klamath rights survived termination) Department of Ecology v. Yakima Res. Irr. Dist., 850 P.2d 1306 (Wash. 1993) (on and off reservation claims) United States v. Anderson, 591 F.Supp.1 (E.D. Wash. 1982) (water temperature; still in litigation in 2015) 1. Klamath reservation established for dual purposes; follows narrower federal reservation standards, but dual purposes, p. 720-21. Look at note 13 on p. 721 – Judge Canby.

Reserved Rights to Groundwater Tweedy v. Texas Co., 286 F. Supp. 383 (D. Mont 1968)(assumes Winters applies to G.W.). In re Big Horn River, 753 P.2d 76 (Wyoming 1988) (refusing to be first court to apply reserved rights doctrine to G.W.). Southern AZ Water Rights Settlement Act, P. L. No 97-293, § (1982)(disclaims any intent “to establish whether or not the Federal reserved rights doctrine applies, or does not apply to groundwater”).

Groundwater, cant. In re Gila River System, 989 P.2d 739, 748 (Ariz. 1999) (reserved rights may apply to groundwater where necessary and if other waters are not available to satisfy the need). Confed. Salish & Kootenai Tribes v. Stults, 59 P.3d 1093, 1099 (Mont. 2002)(“We see no reason to limit the scope of our prior holdings by excluding groundwater from the Tribes' federally reserved water rights in this case.”). 

Agua Caliente “[W]hile we are unable to find controlling federal appellate authority explicitly holding that the Winters doctrine applies to groundwater,8 we now expressly hold that it does.” Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262, 1270 (9th Cir. 2017)

Sturgeon v. Frost, No. 17-949 (after remand from, 136 S. Ct

Two Arguments First, did ANILCA strip NPS jurisdiction by providing that Alaska Native Corporation land and State of Alaska land within NPS units is not subject to federal authority? See 16 U.S.C. § 3103(c). Second, if so, are navigable waters properly considered “public lands” under Katie John reserved rights rulings? See 720 F.3d 1214 (9th Cir. 2013). Case was be argued on November 5, 2018.

Carrying Hovercraft Out

Baley v. United states, pending, (Fed. Cir. 2018) Water not delivered under Bureau of Reclamation contracts to Klamath Irrigation Dist. and others in 2001 due to ESA § 7 and senior Indian reserved waters. Oregon Supreme Court answers certified question by stating that contract water rights may be considered property depending on contract terms. Ct. of Federal Claims ruled that some K rights to water are vested property interests, but denied taking based on Indian reserved rights. 134 Fed. Cl. 619, 679-80 (2017). Now on appeal to Fed. Cir.

The End Thank you.