Federal Trusteeship and Western Water

By Chris Story

INDEX

I. Introduction

The Origins of Federal Trusteeship with Western Water

The Winters Doctrine- 1908

The McCarren Amendment-1952

Arizona v. California- 1963

Continued Conflicts- 1968-81

II. Contemporary Issues- 1982-present

III. Clarification of the Federal Role

Federal Tribal Relationship

IV. American Indian Legacy in the Colorado Basin

V. American Indian Reserved-Water Rights in the Colorado Basin

VI. Settlement of American Indian Reserved Water Rights

VII. Methods of Resolution

VIII. Conclusion- A case study

IX. Assertions by Indians of Indian Rights Concerning Natural Resources and Trusts

X. Bibliography

Top of Document

In an environment where water is life itself, the dominant attitude toward this precious resource reveals an overall lack of respect and understanding. Water means power in the West, not life. As a result, water planning is the Colorado River Basin revolves around economic development, which tends to promote over use. The reserved water rights of American Indians lie at the forefront of the controversy over water development in the Colorado River Basin. The complex relationship between resources, technology and social organization in the Colorado River Basin can be evaluated through the perspective of American Indian society. To Native Americans, water is not a resource but a way of life, and is entwined all around with symbolism and ritual.

Click on picture or words to see full size picture.

Past federal policy has created conflict between Indians and non-Indians by allocating water supplies designated for the development of tribal economies and standard of living to non-Indian interests. The Federal water planning scheme has also created a conflict of interest within the Department of the Interior as Federal agencies struggle to fulfill dual responsibilities. The future of Indian reserved water rights, and possibly the future of the Indian Tribes, relies on a recent pledge to uphold Federal trust obligations.

Origins of the Federal Trusteeship and the Policy for Western Development Prior to The Winters Doctrine

The specific role of the Federal Government as a trustee to the rights and affairs of American Indians was established by the U.S. Supreme Court in 1832 in Worchester v. Georgia. The case granted full protection of the Federal Government and set the standard for the interpretation of treaties and agreements between American Indians and the United States. "Owing to the inferior bargaining position of the tribes, ambiguities in treaties were generally to be decided in the Indians' favor; that 'the language used in treaties with the Indians should never be construed to their prejudice' "(Burton 1991, p. 21). However, the Federal Government did not act according to this declaration of equity. American Indians' rights were protected by law, but had little to do with the government's plan for western resource development.

The Mining Acts of 1866 and 1870 recognized local systems for acquiring water, and the Desert Lands Act of 1877 granted local water rights to homesteaders. In 1877, the General Allotment Act allowed for the sale and lease of allotted Indian lands and subsequent water rights, resulting in huge transfers of reservation land to non-Indians. Western tribes lost over one hundred million acres of reservation land, more than half of the tribal land holdings at that time (Richardson 1983, p. 52). Politically motivated congressional action came to a head in 1902 under the Federal Reclamation Act, this granted states theoretical power over superior Indian claims under the auspices of prior appropriation.

Click on words or image to see full size picture.

In the midst of intense non-Indian development during the late 1800's, the Supreme Court was able to confirm the federal position as trustee to American Indian reserved rights in 1905. United States v. Winans addressed the issue of resource development on reservation land, affirming principles established in Worchester v. Georgia "all resource-development rights not specifically surrendered by the tribes in treaties or agreements were to be considered as having been retained by the Indians"(Burton 1991, p. 21).

The roots of controversy were revealed in the early history of American Indian reserved rights. In just forty years following the creation of the majority of reservations in the West, the conflict of interest within the Department of the Interior became apparent. A twin policy evolved in which the Federal Government gave its blessing to non-Indian resource development while simultaneously defending the rights of American Indians to those same resources. Early Supreme Court decisions such as Worchester v. Georgia supported the preservation of reservation land and resources as the nation pursued a policy of protectionism and separation of American Indians from European culture. In the later half of the 19th century, however, the great push toward western growth warranted adopting a new policy. Non-protectionism and then assimilation became the goal of the Department of the Interior, allowing for greater flexibility regarding U.S. obligation to American Indians.

This new flexibility was manifested in reclamation projects, such as the mining acts and Federal Reclamation Act, which were not aimed at improving the lives of American Indians. Federal deference to local and state law began the trend toward political influence in reclamation project decisions. Prior to the Winters Doctrine, American Indian water rights maintained the following:

• Water for use by a given reservation was reserved on the date the reservation was established.
• Water rights accompanying reservation land were retained even if unused water rights were unlimited as long as they fulfill the purpose of the reservation.
• Water was considered to be a grant of rights by the Indians to the United States.

Click on words or image to see full size picture.

Winters v. United States is assuredly the most significant Supreme Court decision in the history of American Indian reserved rights. The case represents the pinnacle of federal protection of tribal rights and resources, at a time when the nation again adhered to a policy of protectionism/separation. The Winters Doctrine Established supremacy of Indian reserved water rights over state appropriative rights on the basis of priority date. Winters also expanded on previous decisions in Worchester and Winans, while reaffirming the Federal status as trustee. According to the Winters Doctrine:

• Water may be reserved for both present and future requirements of the tribe.
• Water was reserved to irrigate all the practicably irrigable acreage.
• Water rights accompanied tribal land holding.

In 1921, Skeem v. United States expanded the definition of irrigable acreage established in Winters. However, one year after this important affirmation of the Winters Doctrine, the Colorado River Compact failed to consider Indian water rights in the scheme of western water allocation. The brief allusion to American Indians in the compact was an indication of the inconsequential role of those rights to overall project planning. The compact mentioned that, "Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian Tribes” (Burton 1991, p. 24).

Development over the next thirty years was characterized by massive water control works designed to benefit non-Indians. Examples were: the Boulder Canyon Act(1928), the Hoover Dam(1935) and the Colorado Big Thompson Project(1937). The United States had obviously reverted back to a policy of non-protectionism/assimilation.

Click on words or image to see full size picture.

The McCarran Amendment of 1952; Breakdown Of The Federal Trust

Top of Document

The McCarran Amendment represented a turning point in the trust relationship between American Indians and the Federal Government. For the first time, Federal deference to local and state law became legitimate. The sovereign immunity of the Federal Government over reserved water rights was waived in certain cases and "a new era of adjudication is now here that will require the United States to 'submit to the jurisdiction of state courts for the adjudication of its water rights, whether reserved or acquired for the benefit of federal enclaves” (Foreman 1981, p. 70). The amendment led to further development of the Colorado River Basin under the Colorado River Storage Project Act, which included the construction of Glen Canyon Dam (completed in 1963). In 1976, The McCarran Amendment was extended to include American Indian reservations. The McCarran Amendment also resulted in the "termination" of 109 American Indian bands and tribes, and the loss of 1.4 million acres of tribal land (Burton 1991, p. 28).

Arizona v. California 1963; Congressional Action on Behalf of the American Indian

Top of Document

The claims of American Indians to Colorado River water were finally addressed in 1963 during the conflict between Arizona and California over water allocation. Five central Arizona tribes of the Ak Chin, Fort McDowell, Gila River, Papago and Salt River Reservations (3,500 individuals), were granted 900,000 acre/feet of water from the Colorado. This yearly apportionment accounted for more than 10% of the entire lower basin share (Burton 1991, p. 9). The Navajo Indian Irrigation Project (NIIP) was also underway, and promised the delivery of 508,000 acre/feet per year via an irrigation project to be constructed by the Bureau of Reclamation.

The apparent generosity of the state of Arizona was not an act of good will, but rather a means to an end. California was winning the battle over lower Colorado basin apportionment by prior appropriation. In order for Arizona to compete, it had to demonstrate that its need for water was greater than that of the rapidly growing California. Since one outcome of the 1963 Arizona v. California conflict charged the fulfillment of Winters Doctrine Reserved Rights to the state in which the reservation was located, Arizona was able to justify large irrigation works. The Central Arizona Project (CAP) and the San Juan/Chama Project were given authorization in order to satisfy the needs of a growing economy and to fulfill the federal trust responsibility. With the construction of these and other projects, it became clear that the development of Indian water was tied to the politically powerful non-Indian interests.

As a result, Arizona gained access to Colorado River water on behalf of Indian water rights while controlling the allocation of that water on behalf of local economic development. The five central Arizona tribes received only 20 of CAP water, and the NIIP has yet to be completed. By 1967, Federal reservations were using only 1% of the water supply to the eleven western states (Sukhwal l991, p. 349).

Click on words or image to see full size picture.

1968-1981; Continued Conflict of Interest Over American Indian Reserved Water Rights

Top of Document

The National Water Commission (NWC), created in 1968, pushed for further settlement of American Indian claims to western water. In 1973, the NWC set forth some recommendations to the Federal Government (Sukhwal 1991, p. 351).

• Give financial assistance to Indian Tribes.
• Offer to lease at fair market value water rights for a period not in excess of fifty years.
• Compensate or provide an alternative water supply to a holder of state-conferred water rights, whose rights are impaired by the construction or operation of an Indian water project.

1973 also saw the creation of the Water Resources Council (WRC), which formulated a policy on the basis of principles and standards. The principles and standards gave equal emphasis to economic development and environmental quality, and supported the American Indian cause. However, neither the recommendations of the NWC nor the policy of the WRC were accepted due to political pressure from western senators and congressional representatives.

The renewed conflict between Arizona and California implied that water in the West was "a property right which the United States may utilize or dispose of for the benefit of the Indians" (Weatherford 1988, p. 41). This decision contradicted the earliest reserved rights documents which held that water was considered to be a grant of rights by the Indians to the United States. As previously mentioned, the McCarran Amendment was expanded to include tribal lands and resources in 1976 under the Colorado Water Conservation District v. United States. This decision was a major obstacle to an equitable solution to the Indian reserved-rights conflict, and represents the apex of federal deference to state and local law. In short, the Supreme Court gave concurrent jurisdiction to state and Federal courts. The states gained authority over:

• The right to quantify reserved-rights claims.
• Limiting the diversity of water use on the reservation.
• Prohibiting off-reservation sale of water.
• Prohibiting the inclusion of ground water as a part of reserved rights claims.

Click on words or image to see full size picture.

American Indians such as the Pyramid Lake Paiutes, Shoshone and Arapaho suffered devastating loses as a result of the McCarran Amendment. The only pro-Indian Federal Government action during this period was a 1979 Supreme Court decision which redefined the purpose of the reservation to include uses other than irrigation.

II. CONTEMPORARY ISSUES 1982-PRESENT; REAGANOMICS AND THE RESERVATION

Top of Document

Despite the setbacks resulting from the McCarran Amendment, the period from 1965 through 1980 also offered the greatest opportunities for the settlement of resource conflict. Select tribes received generous allocations and began to improve their standard of living. " Great strides were made in this short period and the future looked fairly bright. Suddenly, in early 1981 those opportunities began to disappear and progress came to a halt. Within two years the delivery of services by Federal agencies to Indians was in a shambles." (Richardson 1983, p. 59).

This deterioration of Federal support can be attributed to the policy of Indian self-determination or self-government promoted by the Reagan administration. This policy had evolved over the previous decade but was taken to an extreme during the 1980's. The executive department held that past Federal policies were responsible for the condition of life on the reservation. They proposed that American Indians would prosper without interference from the Federal Government. The prevalent manifestation of self- determination was not simple non-interference, but huge budget cuts. The President and Congress immediately reduced the annual budget of the Bureau of Indian Affairs from 3.5 billion to 2.5 billion (Richardson 1983, p. 59).

Under the Reagan Administration the purpose of self-determination became obscured. The intent of the executive branch was, however, quite clear -- the federal government had again adopted a policy of assimilation concealed in a smoke screen of non interference. Historically, non-protectionism/assimilation was linked to development and exploitation of Indian land and water. This pattern continued during the integration policies of the 1970s and 1980s, but land and resource took the place of land and water. "We believe that a hidden agenda is calculated to reduce the effectiveness of the Indian tribal governments in managing their own affairs to allow the corporate interests and the various states to acquire Indian-owned natural resources, including land and precious water," claimed one tribal chairmen (Richardson 1983, 59).

The BIA policy during the Reagan years also favored the quantification of reserved water rights "at levels fulfilling the objectives underlying the reservation, not at levels responsive to off-reservation market demands for water" (Weatherford). This objective further illustrates the Reagan administration's push toward assimilation by denying water needs for future use granted in the Winters Doctrine. Since policy recommended that quantification be limited to the underlying purpose of the reservation, the BIA naturally supported the off-reservation lease of water rights. Economic independence of American Indian tribes could then be financed through surplus water rights in an open water market. This twin policy could not possibly have served the purpose of self-determination, and represents the conflict of interest which exists today.

III. CONTEMPORARY ISSUES CLARIFICATION OF THE ROLE OF THE FEDERAL GOVERNMENT IN THE AFFAIRS OF AMERICAN INDIANS

The Federal State Relationship

As revealed through the historical perspective, these responsibilities are apparently incompatible. The United States has followed a policy of "facilitating non-Indian western water resource appropriations under state laws (via reclamation projects) on the one hand, while occasionally defending the Indian reserved-water rights in Federal Court on the other" (Burton 1991, p. 29). See time line figure 1.2.

Federal deference to state law originated as a result of early reclamation project planning. The construction of large water works within the Colorado River Basin served as a basis for the generation of powerful local organizations and institutions. Water conservation districts, agricultural conservancy districts, engineering firms, manufactories and suppliers, land developers and research institutes exert huge influence over legal considerations and project planning.

Since the McCarran Amendment, federal courts have shifted in favor of the states due largely to a wide range of social and political influence. "States in many cases have been able to challenge Supreme Court decisions with little or no reaction from the Supreme Court" (Burton 1991, p. 38). Wyoming v. United States (1989) provides an example of the Supreme Court's response to political influence. Under Wyoming v. United States, the Supreme Court affirmed a Wyoming Supreme Court decision to quantify the water rights of the Shoshone and Arapaho Tribes of the Wind River Reservation on the basis of practicably irrigable acreage (Membrino 1992, p. 1). This decision ignored the 1979 Supreme Court decision ruling that practicably irrigable acreage was not the sole purpose of most Indian reservations, and therefore not the only foundation on which reserved rights should be perfected. "The congressional sense of justice on the subject of Indian water rights was heavily offset by financial and political considerations" (Burton 1991, p. 1). Wyoming v. United States is damaging to the cause of Indian reserved rights, providing an example to other states and establishing a precedent for future similar cases.

Despite the fact that Federal Administration and federal courts are increasingly less responsive to judicial consistency and equity in regard to tribal right and resources, both Congress and the western states deny any adverse interest in American Indian affairs. The motive behind the states insistence on local control over water resources is revealed by conditions set forth in the Winters Doctrine. Accordingly, Winters rights are guaranteed indefinitely and infinitely. Unquantified Indian reserved rights jeopardize the states' ability to invest in water development projects with any great certainty. "Effective water planning requires inventory and quantification of all water rights on each stream, but officials responsible for the administration of streams do not have clear quantification standards and mechanism" (Sukhwal 1991, p. 350). The policy of western states, water developers and private interests to terminate existing reserved water rights is understandable, but undoubtedly adverse to tribal development.

The desire to quantify Indian claims, and the sooner the better, exposes legitimate, yet biased fear of an expansive definition of Indian reserved water rights. "As dozens of Indian tribes occupy lands within the Colorado River system and can make Winters Doctrine claims, these represent, in the aggregate, a massively destabilizing collection of unresolved claims. These generally early priority and potentially large-magnitude rights will, when adjudicated, at least cloud and perhaps eventually preempt many water rights under which non-Indian users have invested untold millions of dollars and on which their livelihoods depend," (Weatherford 1986, p. 142).

The frustration of the state and local interests as well as the dissatisfaction of American Indians over the “blank check” approach to water resource management by the Federal Government is well warranted. Under the self-determination/assimilation policy beginning in the l900s, the Federal Government chose to remain responsive to competing powers and judicial decisions while avoiding some hands-on involvement. The self-determination policy redefined the role of the Federal Government to be less specific and more flexible in regard to Indian affairs.

Unfortunately, during the 1980's, this policy was also characterized by huge budget cuts and an overall lack of commitment to protect tribal rights and resources from state appropriations and private interests. President Clinton's recent and historic meeting with tribal leaders reaffirmed the national policy of self-determination. The executive confirmed the tribes position as domestic dependent nations by signing a directive recognizing the sovereignty of tribal governments, and promised to "fulfill the trust obligations of the Federal government" (Associated Press 1994, p. 3A). According to Sam Maynes, lawyer for the Colorado Utes, the Federal Government has tried to avoid part of its trust obligation by claiming that the BIA is the sole Federal Agency responsible for the tribes, when in fact, all Federal Agencies share the trust responsibilities. Clinton's promise appears to be an attempt to reestablish the federal trust and to reaffirm a policy of protectionism/separation as well. The proclamation to usher in a new era of respect and help for American Indians should be welcome news to tribal leaders skeptical of the Reagan Administration's interpretation of self-determination. Clinton's Statement "I believe in your rich heritage and in our common heritage...As you know, our history has not always been a proud one, but our future can be." at least instills the hope that the next decade will provide greater opportunities for tribal prosperity (Bettelheim 1994, p. 1A).

The Federal Tribal Relationship

Top of Document The principal reason why the majority of American Indian reserved rights claims have yet to be perfected is that American Indians maintain an entirely different view of the federal trust and of natural resources in general. "Our dead never forget the beautiful world that gave them being...Every part of this soil is sacred in the estimation of my people. Every hillside, every valley, every plain and grove, has been hallowed by some sad or happy event in days long vanished. Even the rocks, which seem to be dumb and dead as they swelter in the sun along the silent shore, thrill with memories of stirring events connected with the lives of my people, and the very dust upon which you now stand responds more lovingly to their footsteps than to yours, because it is rich with the blood of our ancestors and our bare feet are conscious of the sympathetic touch." Chief Seattle-(Vanderworth 1971, p. 121).

Click on words or image to see full size picture.

The most important aspect of the American Indian viewpoint is that most tribes refuse to acknowledge the quantification of their water rights as being subject to the Winters Doctrine or any other federal documentation. Many claim aboriginal rights, which maintain that a tribe has ancient rights to natural resources that preceded and survived the establishment of federal reservations. To date, there has never been a legal clarification of the boundary between reserved rights and aboriginal rights (Folk-Williams 1982, p. 3). Nine basic points summarize the Indian viewpoint of water rights (Foreman 1981, p. 32). See figure 1.3.

• Indian water rights are not federal rights.
• Successors in interest to formerly allotted Indian land do not acquire reserved rights, but these reside with the Indian nations from time immemorial.
• Indians are no the owners of beneficial rights, but of the full equitable title to their water rights.
• The Secretary of the Interior does not have jurisdiction to control, administer and allocate water on reservations, only the Indian nations and tribes do.
• An amendment exempting Indian rights from the applicability of the McCarran Amendment should be enacted.
• The administration will implement "Immediate development of [and] establish a fund to pay the cost of litigating Indian water rights by the tribes themselves."
• The Departments of Justice and Interior will not adopt any contradictory positions regarding Indian tribes.
• Indians should be on a regional and national water planning commissions .
• "Quantification of Indian Winters rights is neither necessary nor desirable at this time. A final determination, made at any given date, is inconsistent with the open-endedness of the right itself."

• Establishing jurisdictional boundaries between state and Indian authority.
• Consenting to legal efforts as a trustee to Indian land.
• Consenting for or against off-reservation water leasing.
• Consenting for or against Indian use of federal water projects.
• Confirming willingness to pay for solutions.

IV. AMERICAN INDIAN LEGACY WITHIN THE COLORADO RIVER BASIN

Top of Document

"...You have noticed that everything an Indian does is in a circle, and that is because the power of the world always works in circles...all our power came to us from the sacred hoop of the nation, and so long as the hoop was unbroken, the people flourished...But the Washichus have put us in these square boxes. Our power is gone and we are dying" - Black Elk (Nash l990, p. 15). Due to assimilation during the formation of Indian reservations, present reservations are made up of remnants of collectively owned tribal land and individually owned or family owned allotments. There are twenty-nine reservations within the Colorado River Basin and approximately 260,000 individual residing on reservation land (Weatherford 1988, p. 1). Tribal group include the Shoshone, Ute, Southern Paiute, Navajo, Hopi, Apache, Havasupi, Walapai, Yavapai, Pima, Chemehuevi, Mohave, Halchid-Homa and Yuma. See figure 1.4.

Total reservation land area comprises twenty-eight million acre and 16.5% of the basin. However, of land reserved by for BIA irrigation projects 65% (on the average) is used by non Indians, and in some cases, that figure exceeds 80% (Richardson 1983, p. 48). The key players involved in the defense of American Indian rights and resources are the National Congress of American Indians (NCAI) and the National Tribal Chairman's Association (NTCA).

V. CONTEXT OF AMERICAN INDIAN RESERVED-WATER RIGHTS WITHIN THE COLORADO RIVER BASIN

Top of Document

The context in which concerns over Indian reserved rights is played out is highly complex. The relationship between resources, politics and social organization has evolved in such a way that a complete understanding of all the issues would be difficult if not impossible. The following attempts to provide a general overview of some of the dominant aspects of the Indian reserved rights dilemma.

• Historic Disregard for Indian Reserved Water Rights
• Indian reserved rights played a minimal role in federal project planning.
• Reclamation planning programs created a conflict of interest within Department of the Interior.
• Indians missed the dollar days of water development.
• Future tribal gains in the arena of water resource development may be subordinate to federal project planning.

• An enormous lack of consistency in the circumstance and content of settlements of all types.
• The current system of exercising the federal trust obligation perpetuates economic dependence of Indian tribes.
• The Supreme Court often reject claims in order to confirm the finality of previous decisions.
• The Supreme Court and society's conception of justice regarding Indian reserved rights is ephemeral.

• Some federal reclamation projects use water subject to unquantified Indian claims.
• Surface water withdrawals exceed supply.

• There is a lack of coordination between Indians and non-Indians regarding water resource planning and management.
• No present clarification of the regulatory authority of tribes, states and the federal government exists.
• Both the states and the tribes want federal protection without federal intervention.
• The Federal Government has vowed to protect Indian water rights and state use of reserved water.

• The dispute over Indian lease of water rights without congressional consent.
• The riparian law does not allow water rights to be transfered.
• The dispute over the existence of Indian reserved rights off the reservations.

VI. SETTLEMENT OF AMERICAN INDIAN RESERVED RIGHTS DILEMMA FIVE OBJECTIVES

Inclusion of American Indians In The Water Planning Process

Hands-on participation of the actual members of the reservation is equally important. Federal programs implemented to aid economic development on the reservation are usually imposed. This lack of direct involvement generates hostility and skepticism. Political elites often assume that the rural/reservation population is incapable of cooperation toward improving water works. According to Maria Reynolds, member of the Big Mountain Support Group, smooth operation of water works does not require centralized control. Organization on the local level also promotes community awareness and raises the community's influence over outside individuals and off reservation organizations.

Click on words or image to see full size picture.

Determination of the Purpose of the Reservation

Determination of what a tribe wants to achieve with its resources is another critical element in achieving workable solutions to the reserved rights conflict. Different tribes have different standard for the quality of life. Many tribes do not have traditional experience with agriculture, yet they are obligated to consider quantification of their water rights based on practicably irrigable acreage. A "comprehensive and integrated investigation and survey of the soil, mineral, timber, water, scenic, religious and ecological resources of the reservation" should be financed by the Federal Government in order to establish which purpose or purposes would best suit a particular reservation in terms of its water allocation (Weatherford 1988, p. 45). This subject will be addressed in greater depth in the case study of the Navajo Reservation.

Verification of the Federal Trust Obligation

Definition Of The Indian Right To Lease Water Off-Reservation

Enhancement Of The Settlement Process

VII. METHODS OF RESOLUTION AND POSSIBLE SOLUTIONS TO AMERICAN INDIAN RESERVED DISPUTES

Top of Document

Indian Settlements In Context

The feature most dominant in the settlement of water rights claims, whether negotiated or litigated, is a forfeit of large, unquantified Winters Doctrine rights in favor of a guaranteed smaller sum of wet water. "A strong parallel exists between negotiations over the creation of Indian reservations in the nineteenth century and current negotiations over the development of Indian water resources." (Burton 1991, p. 33). Another, equally important characteristic of water rights settlements is the failure of the Federal Government to support, financially and legally, existing treaties with Indian tribes. "What contemporary agreements have in common is the collective expenditure of hundreds of millions of federal tax dollars to return tribal lands and water resources which the federal government had earlier neglected to protect from non-Indian appropriation under state law" (Burton 1991, p. 131). Since the Clinton administration also supports negotiation, the question which permeates the issue of water development for American Indians in the West is will these patterns continue or will the 1990's be an era of history making. See figure 1 for a summary negotiation/litigation.

VIII. CONCLUSION - A CASE STUDY OF THE HOPI/NAVAJO RESERVATION

Top of Document The history of the Navajo/Hopi reservation is as complex as that of the reserved rights controversy itself. The current situation is a result of mismanagement and exploitation of Navajo/Hopi rights and resources. Any interpretation of the Navajo/Hopi situation must begin with an examination of the Navajo Indian Irrigation Project (NIIP, 1962). In order to obtain 508,000 acre/feet of wet water a year, the tribe waived its senior Winters rights claims over the San Juan River. The water was to be delivered via the federally funded San Juan/Chama Project. To date, not a single hectare of water has been delivered through NIIP. The Federal Government has given the Endangered Species Act as a reason for the failure of delivery, despite the fact that New Mexico's apportionment from the San Juan/Chama project for urban development has been completely fulfilled.

The lack of San Juan River water forced Navajo/Hopi tribes to consent to the use of pristine spring water in contracts with coal and uranium developers. The most pressing issue on the thirteen million acre reservation today centers on the over use and contamination of the these pristine springs. See figure 1.6. The springs represent a major asset to the tribes as a cultural and ecological resource, not to mention the fact that the springs are a source of drinking water.

It is my opinion that the definition of the reservation should be expanded in order for the Navajo/Hopi Nation to claim water based on the preservation and decontamination of this valuable resource. If nothing else lease agreements would help fund this endeavor while the reservation awaits delivery from the NIIP or from other sources. There are many reservations in the West on which the preservation of wilderness areas could be a focal point for the quantification of reserved rights. Considering the American Indian perspective of the natural environment, it is possible that this basis of water rights perfection would be a more logical and acceptable means of establishing tribal self- determination.

Click on words or image to see full size picture.

Bibliography

Associated Press. "Skeptical Indians Hear Vows by Clinton." Rocky

Mountain News 30 Apr. 1994, 3A.

Bettelheim, Adriel. "Indian Leaders Meet With Clinton." Denver

Post 30 Apr. 1994, final ed.: 1A.

Burton, Lloyd. American Indian Water Rights and the Limits of the

Law . Lawrence: The University or Kansas Press, 1991.

Department of the Interior. Office of Hearings and Appeals.

Federally Reserved Water Rights in Wilderness Areas 1988.

Washington D.C. U.S. Government Printing Office 1991.

Ditmer, Joanne. "Running On Empty." Denver Post 20 Mar. 1994, lA.

Dunkin, Sara. Telephone Interview. 25 April 1994.

Enge, K. and S. Whiteford. The Keepers Of Water And Earth.

Austin: University of Texas Press, 1989.

Folk-Williams, John A. What Indian Water Means To The West. Santa

Fe: Western Network, 1982.

Foreman, Richard L. Indian Water Rights. Danville: The Interstate

Printers and Publishers, Inc., 1981.

Kickingbird, Kirke, Alexander Tallchief Skibine and Lynn

Kickingbird. Indian Jurisdiction. Washington D.C.: Institute

for the Development of Indian Law, 1983.

Lavender, David. Colorado River Country. New York: E.P. Dutton,

Inc., 1982.

Limerick, Patricia Nelson. The Legacy Of Conquest. New York: W.W.

Norton & Company, 1987.

Maynes, Sam. Telephone Interview. 3 May, 1994.

McCool, Daniel. "Intergovernmental Conflict and Indian Water

Rights: An Assessment of Negotiated Settlements." Publius

v.23 (1993):85-101.

Membrino, Joseph R. Land And Water Review. Laramie: University of

Wyoming. v. XXVII., n. 1, 1992.

Mitchell, John C. "James Bay: Where Two Worlds Collide" National

Geographic v. 184., n. 5A, 1993:66-75

Nash, Roderich Frazier. American Environmentalism. New York:

MaGraw Publishing Company, 1990.

New Courses For The Colorado River. Weatherford, G. D. and Brown,

F.L. ed. Albuquerque: University of New Mexico Press, 1986.

Pevar, Steven. The Riqhts Of Indian Tribes. Carbondale and

Edwardsville: Southern Illinois University Press, 1992.

Reynolds, Maria P. Big Mountain Support Group. Personal Interview

16 Apr., 1994.

Richardson, Jim and John Aloysius Farrell. "The New Indian Wars."

Denver Post (1383);1-57.

Sukhwal, B.L. "Native Americans Water Rights in the Water Scarce

Western United States, Its Causes, Consequences and Probable

Solutions." GeoJournal v. 4 (1991):347-353.

Vanderwerht, W.C. Indian Oratory. Norman: University of Oklahoma

Press, 1971.

Weatherford, Gary, Mary Wallace and Lee Herold Storey. Leasing

Indian Water. Washington D.C.: The Conservation Foundation and

John Muir Institute, 1988.