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Water Rights, Water Quality, And Regulatory Jurisdiction In Indian Country, Robert T. Anderson

Articles

In the seminal Indian water rights case, Winters v. United Slates (1908), the Court posed this question: "The Indians had command of the lands and the waters-command of all their beneficial use, whether kept for hunting, 'and grazing roving herds of stock,' or turned to agriculture and the arts of civilization. Did they give up all this?" The Court's answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theories to …

Indian Water Rights, Practical Reasoning, And Negotiated Settlements, Robert T. Anderson

Articles

This Article first reviews the few Indian water rights cases that the U.S. Supreme Court has decided. The Article then traces a threshold issue common to Indian water rights litigation in the federal and state courts: how to determine the purposes of a reservation for which a reserved water right should be implied. A review of major Indian water rights cases demonstrates the generally confusing state of the law in significant respects, especially with regard to the "purposes" determination.

This Article posits that the relative uncertainty in this area has created an environment in which creative, practical solutions to conflicts …

Indian Water Rights And The Federal Trust Responsibility, Robert T. Anderson

Articles

Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid West. Modem litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few U.S. Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non- Indian uses while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history …

Indian Water Rights: Litigation And Settlements, Robert T. Anderson

Articles

This article provides a brief overview of the law of Indian and federal reserved water rights and continues with an examination of the Snake River Water Rights Act. The Act serves as a vehicle for discussion of what is right and what is wrong with the current Indian water rights settlement process. Finally, the article suggests that the Administration modify the portion of its criteria and procedures for Indian water settlements dealing with federal financial contributions. These criteria and procedures need to more accurately reflect the realities of past settlements and promote more successes like the Snake River Water Rights …