Native American Rights

Access to water is another area in which Native Americans enjoy special rights. The issue of WATER RIGHTS has been most pertinent in the western part of the United States, where most Indian reservations are located and where water is the scarcest. In the West, rights to water are determined by the "appropriative" system, which holds that water rights are not connected to the land itself. Rather, the right to water belongs to the first user who appropriates it for a beneficial use. That appropriator is guaranteed the right to continue to take water from that source, unhindered by future appropriators, as long as the water continues to be put to a beneficial use. When the appropriator ceases to use the water, he or she loses the right to it. In contrast to this appropriative system, states in the East, where water is plentiful, follow the "riparian" system, which gives the owner of land bordering a body of water the right to the reasonable use of that water. All riparian owners are guaranteed the right to a continued flow of water, whether or not they use it continuously.

Native American water rights combine the features of the appropriative and riparian systems. The legal foundation for Indian water rights is the 1908 U.S. Supreme Court case Winters v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340. That case involved a Montana Indian reservation that had a river as one of its borders. After the reservation was established, non-Indian settlers diverted the river's water, claiming that they had appropriated the water after the reservation was created but before the Indians had begun to use the water themselves. The U.S. Supreme Court ruled against the settlers, finding that when the reservation was created, reserved water rights for the Indians were necessarily implied. It was unreasonable, the Court argued, to assume that Indians would accept lands for farming and grazing purposes without also reserving the water that would make those activities possible.

A second important case involving Native American water rights is Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963). In that case, as in Winters, the U.S. Supreme Court held that the establishment of a reservation necessarily implied the rights to the water necessary to make the land habitable and productive. Arizona went beyond Winters, however, in also ruling on the quantity of water to which the reservation had a right. Although competing water users argued that the amount of water reserved to the reservation should be limited to the amount that was likely to be needed by the relatively small Indian population, the Court ruled that the Indians were entitled to enough water "to irrigate all the practicably irrigable acreage on the reservation," a much more generous allotment.

Based on Winters and Arizona, Native American water rights today are determined by a set of principles called "Winters rights." First, Congress has the right to reserve water for federal lands, including Indian reservations. Second, when Congress establishes a reservation, it is implied that the reservation has the right to water sources within or bordering the reservation. Third, reservation water rights are reserved as of the date of the reservation's creation. Competing users with earlier appropriation dates take precedence, but those with later dates are

subordinate. Fourth, the amount of water reserved for Indian use is the amount necessary to irrigate all of the practically irrigable land on the reservation. Finally, Winters rights to water are not lost through non-use of the water. All of these rights apply to both surface water and groundwater.

Even with the acknowledgement of Native Americans' Winters rights, water use in the West continues to be highly contested, as reservations fight to maintain their rights against the competing demands of state governments and non-Indian users. Several issues are yet to be resolved, such as the precise quantity of water that is needed to irrigate all "practically irrigable acreage" and the question of whether states can regulate non-Indian water users on Indian reservations. Because of the high costs and other difficulties involved in litigation, many tribes and states are choosing to try to negotiate water rights and then ask to Congress or the courts to approve their agreements.