Negotiating Tribal Water Rights

by COLBY, BONNIE G.; Thorson, John E.; BRITTON, SARAH; Getches, David H.

• ISBN13: 9780816524556
• ISBN10: 0816524556
• Format: Paperback
• Copyright: 2005-04-19
• Publisher: Univ of Arizona Pr

Summary

Water conflicts plague every river in the West,with the thorniest dilemmas found in the many basins with Indian reservations and reserved water rights--rights usually senior to all others in over-appropriated rivers. Negotiations and litigation over tribal water rights shape the future of both Indian and non-Indian communities throughout the region, and intense competition for limited water supplies has increased pressure to address tribal water claims. Much has been written about Indian water rights; for the many tribal and non-Indian stakeholders who rely upon western water, this book now offers practical guidance on how to negotiate them. By providing a comprehensive synthesis of western water issues, tribal water disputes, and alternative approaches to dispute resolution, it offers a valuable sourcebook for all--tribal councils, legislators, water professionals, attorneys--who need a basic understanding of the complexities of the situation. The book reviews the history, current status, and case law related to western water while revealing strategies for addressing water conflicts among tribes, cities, farms, environmentalists, and public agencies. Drawing insights from the process, structure, and implementation of water rights settlements currently under negotiation or already agreed to, it presents a detailed analysis of how these cases evolve over time. It also provides a wide range of contextual materials, from the nuts and bolts of a Freedom of Information Act request to the hydrology of irrigation. It also includes contributed essays by expert authors on special topics, as well as interviews with key individuals active in water management and tribal water cases. As stakeholders continue to battle over rights to water, this book clearly addresses the place of Native rights in the conflict. Negotiating Tribal Water Rightsoffers an unsurpassed introduction to the ongoing challenges these claims present to western water management while demonstrating the innovative approaches that states, tribes, and the federal government have taken to fulfill them while mitigating harm to both non-Indians and the environment.

Table of Contents

List of Illustrations	ix
List of Abbreviations	xi
Foreword	xiii
David H. Getches
Acknowledgments	xvii
Funding Organizations	xviii
Introduction	xix
Intent of Publication	xix
How Best to Use This Book	xxii
PART ONE The Context for Indian Water Settlements
Historical Background	3	(6)
European Incursions	3	(1)
American Indian Policy	4	(1)
Sidebar 1.1 The Allotment Era	5	(4)
Legal Background	9	(10)
General Stream Adjudications and the McCarran Amendment	9	(1)
Federal Reserved Water Rights	10	(1)
Standards for Quantifying Winters Rights	10	(2)
Pueblo Water Rights	12	(1)
Tribal Sovereignty	13	(1)
Federal Trust Relationship	14	(2)
Federal Obligations to Indian Tribes	16
Sidebar 2.1 The Winters Decision	11	(2)
Sidebar 2.2 Concerns with the PIA Standard	13	(6)
Indian Water Rights and the New West	19	(12)
Demographic Changes and the New Economy	19	(4)
Climate Change and Cyclical Drought	23	(1)
Changes in Presidential Administration	24	(1)
National and International Economic Trends	24	(1)
Water-Management Capacity of States and Tribes	24	(2)
Adaptive Watershed Management	26	(1)
Interstate Water Issues	27
Sidebar 3.1 Agriculture, Federal Farm Programs, and Water Availability for Tribal Settlements	20	(5)
George B. Frisvold
Sidebar 3.2 Implications of Climate Variability and Water Supplies for Tribal Water Settlements	25	(6)
Carmen Carrion
PART TWO Stakeholders
Hopes and Concerns	31	(10)
Mutual Goals	31	(1)
American Indian Tribes	31	(1)
Non-Indian Water Users	32	(1)
Environmental Advocates	32	(1)
Western State Governments	33	(2)
The Federal Government's Many Hats	35
Sidebar 4.1 Tribes and Environmental Objectives	34	(2)
Sidebar 4.2 State Water Agencies	36	(5)
Perspectives	41	(16)
Tribal Perspective: Interview with John Echohawk	41	(2)
Pueblo Perspective: Interview with Nelson J. Cordova	43	(4)
Urban Perspective: Interview with George Britton	47	(3)
Federal Perspective: Interview with David J. Hayes	50	(7)
PART THREE Making Settlements
Settlement Processes	57	(22)
Preparing for Negotiations	57	(4)
Coordinating Litigation with Negotiations	61	(2)
Developing Information and Positions	63	(5)
Federal Review and Approval	68	(1)
Funding Settlements	69	(6)
Authorization by States and Tribes	75	(1)
Court Approval	75	(2)
Implementation	77
Sidebar 6.1 Experienced Negotiators' Tips for the Settlement Process	59	(5)
Sidebar 6.2 Freedom of Information Act	64	(2)
Sidebar 6.3 Thoughts on Working with Tribes	66	(4)
Sidebar 6.4 Experienced Negotiators' Tips for Moving a Bill through the Federal Maze	70	(2)
Sidebar 6.5 Congressional Authorization Process	72	(1)
Sidebar 6.6 The Appropriations Process in Indian Water Rights Settlements	73	(6)
Settlement Components	79	(16)
Sources of Water	80	(1)
Strategies to Obtain Water for Tribal Settlements	80	(2)
Water Markets, Transfers, and Exchanges	82	(2)
Water Management and State-Tribal Jurisdiction	84	(1)
Financial Components of Settlements	85	(2)
Economic Efficiency Considerations	87	(2)
Tribal Administration of Water Resources	89	(1)
Enforcement and Dispute Resolution	89	(1)
Other Settlement Features	89
Sidebar 7.1 Monetary Compensation as a Component of Settlements	86	(4)
Sidebar 7.2 Economic and Financial Considerations for Settlements	90	(5)
Making Water Available for Indian Water Rights Settlements	95	(12)
James P. Merchant
Water Sources in Past Indian Water Rights Settlements	95	(2)
Use in Future Settlements of Water Conserved by Agriculture	97	(10)
PART FOUR Learning from Collective Experience
Representative Settlements and Settlement Efforts	107	(48)
Quantification Resulting from Litigation	107	(5)
Wind River Litigation	107	(5)
Ramsey Kropf
Settlements Resulting from Strong Congressional Leadership	112	(6)
Ak-Chin Water Settlement	112	(3)
Truckee-Carson-Pyramid Lake Water Settlement	115	(3)
State Government Settlement Initiatives	118	(9)
Navajo Indian Irrigation Project	119	(2)
Fort Hall Indian Water Rights Settlement	121	(3)
Northern Cheyenne Compact	124	(3)
Barbara Cosens
Tribal Settlement Initiatives	127	(3)
Warm Springs Water Rights Settlement	127	(3)
Beth S. Wolfsong
Other Water Users' Settlement Initiatives	130	(8)
Gila River Settlement and Little Colorado River Negotiations	130	(5)
Salt River Pima-Maricopa Indian Community	135	(1)
Zuni Heaven Settlement	136	(2)
Settlements Addressing Endangered Species Act Issues	138	(14)
Colorado Ute Water Rights Settlement	138	(6)
Scott McElroy
Shivwits Band of the Paiute Indian Tribe of Utah	144	(2)
M. Evelyn Woods
Klamath Water Crisis	146	(6)
Stephen E. Snyder
When Is a Settlement Settled?	152	(3)
Southern Arizona Water Rights Settlement Act	152	(3)
Conclusion	155	(8)
The Winters Legacy	155	(1)
Factors Producing a Settlement	156	(1)
How Final Is Final?	156	(1)
Observations and Recommendations	157	(4)
To Celebrate or Not to Celebrate?	161	(2)
Notes	163	(8)
Appendix	171	(6)
Bibliography	177	(6)
Authors and Contributors	183	(2)
Index	185