Reservation Water Rights

• Problem Statement
• Contaminination
• Policy

Problem Statement

There is no legislation detailing exactly how much water is allowed to Native Americans. This is in part because there is no universally accepted way of calculating the specific amount of water a reservation needs. There is conflict over whether water should be allocated based on population or potentially irrigated land. As a result, it is easy for Native Americans to be undersupplied, and hard for them to argue for their right to more water. There is also uncertainty regarding the extent of control Native Americans have over the water they are allocated. Can they treat it as they wish, to sell or trade? In addition, contamination issues on reservations pose another challenge as we search for a solution. All of these problems have to be taken into account when finding a solution to the water crisis in the west because it is essential to ensure that these groups are not deprived of drinkable water in the process of imposing more stringent control on the water supplied to people in the West.

To see our solution, click here, or continue reading for a more detailed overview of the problem.

There are 304 Native American Reservations in the United States. Their location can be seen on the map to the left.

Adapted from: National NAGPRA. National Park Service, US Department of the Interior. Accessed on 26 November 2008. http://www.nps.gov
Map Index

Contamination

One issue facing Native American reservations is the quality of the water they are supplied. In some cases, their water does not even meet EPA standards (EPA, 2007). There are numerous cases where water in Native American Reservations are, or are going to be, contaminated. One such example of this is in the Santee Sioux tribe and the Omaha tribe in northeastern Nebraska. It was found that a higher percentage than the regional average of reservation wells had high levels of nitrate-nitrogen and coliform bacteria. These toxins are known to cause health issues. It was found that 24% of wells sampled in the Santee Sioux tribe had greater levels of the toxins than EPA standards. Also, in the Omaha tribe, 27% of the wells sampled had levels of nitrate-nitrogen greater than EPA standards and 40% of the wells sampled had levels of coliform bacteria greater than EPA standards (McGinnis, S. & Davis, R., 2000). It is claimed that these contaminates are leaking into water sources due to the age of the wells used. Finding funding poses the greatest hindrance to fixing these contamination issues. While there are water contamination problems on Native American Reservations, solutions to these problems are mainly hindered by their cost.

Policy

The current policy in place regarding water rights for Native Americans living on reservations in the west is based on the Winters Doctrine. This doctrine rules that the establishment of reservations automatically implies that the water sources within and on the borders of the land are also reserved. This applies from the day the reservation is created, and if the Native Americans choose not to use the water they do not lose the right to it (Winters v. United States - Further Readings, 2008). However, there is confusion regarding whether the Winters Decision includes a right to groundwater or just includes a right to surface water.

This doctrine was the result of a 1908 court case "Winters vs the United States." This case came to court because Henry Winters, along with the Matheson Ditch Company and the Cook's Irrigation Company bought up lands upstream of the Fort Belknap Indian Reservation in Montana and then diverted the water from the Milk River for their own use. They claimed that, in accordance with the water laws in the west, they had the right to the water since they were the first to use it. The United States argued that the water belonged to the Indians since it was not reasonable to confine them to a reservation to end their nomadic way of life if they were not given the water to become pastoralists. The judge found in favor of the Native Americans.

The Winters ruling was further clarified by the 1963 Arizona v. California case which concerned the waters of the Lower Colorado River. (Winters v. United States - Further Readings. Net Industries, 2008). It was ruled that, instead of making allocations based on population size, the amount of water allocated would be based on the acreage of land which could potentially produce crops if irrigated. Once the water has been awarded, the Native Americans can apply it to any use they choose, not necessarily the one it was intended for. This system of allocation, called the Practicably Irrigated Acreage (PIA) method, has been widely adopted but its use is not enforced. This form of allocation awards water based on future need, and since the tribes do not currently need that water they may seek to lease it out. The problem with the PIA system is that it is possible for most of a stream's flow to be allocated to a large reservation which has only a few inhabitants, with consequent negative effects on smaller reservations or non-Indians living in the area.

While guaranteeing Native Americans all the water they need for irrigation may seem generous on the surface, these numbers are easily changeable since the amount of water needed for irrigation and the amount of land that would benefit from irrigation is negotiable. This changeability makes it easy for the government to provide insufficient water supplies and it also makes it hard for Native Americans to advocate for more water if they do not have enough. The lack of a specific ruling about Native American water rights also makes it difficult to understand what authority Native Americans have over their allocated water. "Could the rights ...be bought, sold, or traded for other water rights?" (Winters v. United States - Further Readings. Net Industries, 2008). In some cases, these uncertainties have been addressed on a tribe-by-tribe basis; however, no overall ruling by the federal government has been decided upon.

An example of a case where this issue has been addressed is the water settlement reached by the Nez Perce Tribe. The Nez Perce Reservation is located in Idaho and the 30 year agreement is between the State, the tribe, and the local communities. Conflict arose because the tribe claimed the right to protect the in-stream flows to preserve the fisheries, while the State argued that this would negatively affect the rights of other water users to divert water. Another claim related to the water the tribe needs for consumption. The settlement quantified the on-reservation, consumptive use reserved water right at 50,000 acre feet per annum, coming mostly from Clearwater River sources, although extra water can be supplied from other sources as long as it does not injure other people's water rights. In addition, it promised to provide $23 million to build a water supply and sewage system. The United States has also promised to give $50 million to a trust fund for the tribe to use in acquiring land and water rights, and improving fisheries and developing water resources. (The Nez Perce Water Rights Settlement, 2004).

Clearly each reservation will have a slightly different situation and details of a water agreement would have to be finalized in discussion with them, but to see our general plan for an overall solution, please follow the link below:

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