Tribes could turn the tables on water control

Lake Nighthorse is part of the Animas-La Plata Project, which was born of a settlement between the federal government and the two tribes that live in Colorado—the Southern Ute and Ute Mountain Utes. The water will be shared by the Utes and by five other entities, including the State of Colorado, the Animas-La Plata Water Conservancy, the Navajo Nation, the San Juan Water Commission and the La Plata Conservancy District. Fully two-thirds of the water will be set aside for the tribes. The agreement settles some complex and protracted water conflicts, and its enactment also offers an opportunity to take a look at the history of tribal water rights and what they mean for the future fights over the so-called “new gold” of the West. The bottom line on tribal water rights was drawn when the U.S. Supreme Court decided Winters v. United States in 1908. The Court said that when Congress set aside land for American Indian reservations—for the purpose of transforming tribes from nomads to farmers—it implicitly set aside enough water for them to make use of that land. At the time, the Winters doctrine came as a shock to Western states accustomed to the notion that water law was their province. The states’ system of “prior appropriation” or “first in time, first in right” says that the first party to put water to beneficial use takes priority over all later users. Since most reservations were established before non-Indian settlements (in 1868, for example, for Colorado’s Utes), Winters makes tribal water rights senior to virtually all downstream users. Moreover, unlike state water rights which are lost if they are not used, tribal rights are retained into the future regardless of whether or not they have put that water to beneficial use. Since then, there have been some major cases that have refined, or restricted, Winters. In Arizona v. California in 1963, the U.S. Supreme Court reasserted that reservations need enough water to satiate their present and future needs. Importantly, the case established a favorite standard for determining the amount of water tribes are entitled to. The wonky term “practicably irrigable acreage” (PIA) was coined to describe the only “fair way” (according to the Special Master and the Justices) to calculate how much water Indians were legally entitled to—basically, the amount of water it would take to grow crops on the reservation...more