Texts & Treatises

Tribal Water Rights: Essays in Contemporary Law, Policy, and Economics

The settlement of Indian water rights cases remains one of the thorniest legal issues in this country, particularly in the West. In a previous book, Negotiating Tribal Water Rights, Colby, Thorson, and Britton presented a general overview of the processes involved in settling such cases; this volume provides more in-depth treatment of the many complex issues that arise in negotiating and implementing Indian water rights settlements. Tribal Water Rights brings together practicing attorneys and leading scholars in the fields of law, economics, public policy, and conflict resolution to examine issues that continue to confront the settlement of tribal claims. With coverage ranging from the differences between surface water and groundwater disputes to the distinctive nature of Pueblo claims, and from allotment-related problems to the effects of the Endangered Species Act on water conflicts, the book presents the legal aspects of tribal water rights and negotiations along with historical perspectives on their evolution.

American Indian Water Rights and the Limits of Law

Gold is no longer the most precious treasure of the American West. Water is. In the arid western half of the United States, the unquenchable thirsts of industry, agriculture, and growing urban areas have nearly drained the region dry. There is no longer enough water to satisfy the conflicting claims of the many groups fighting over it. Among the claimants are American Indian tribes. They hold water rights dating back to treaty obligations of the U.S. government. Rights that often conflict with state water-rights allocation doctrines. They have been locked in legal combat with non-Indian adversaries in more than fifty major water-rights disputes throughout the western United States. The amounts of water involved are huge, as are the potential economic benefits for the victors. In this book, Lloyd Burton traces the history of American Indian water rights. Focusing on the years following the 1908 Supreme Court decision in Winters v. United States, he dissects the irreconcilable conflict of interest within the Interior Department (between the Bureau of Reclamation and the Bureau of Indian Affairs) that dates from that decision. But Burton is not content simply to record and analyze history. He also examines methods of managing disputes in contemporary cases and offers original policy recommendations that include establishing an Indian Water Rights Commission to help with the paradoxical task now facing the federal government: restoring to the tribes the water resources it earlier helped give away.

Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era

Since the beginning of the reservation era, the bitter conflict between Indians and non-Indians over water rights was largely confined to the courtroom. But in the 1980s the federal government began to emphasize negotiated settlements over lawsuits, and the settlements are changing water rights in fundamental ways—not only for tribes but also for non-Indian communities that share scarce water resources with Indians. In Native Waters, Daniel McCool describes the dramatic impact these settlements are having both on Indian country and on the American West as a whole. Viewing the settlements as a second treaty era, he considers whether they will guarantee the water future of reservations—or, like treaties of old, will require tribes to surrender vast resources in order to retain a small part of their traditional homelands. As one tribal official observed, “It’s like your neighbors have been stealing your horses for many years, and now we have to sit down and decide how many of those horses they get to keep.” Unlike technical studies of water policy, McCool’s book is a readable account that shows us real people attempting to end real disputes that have been going on for decades. He discusses specific water settlements using a combination of approaches—from personal testimony to traditional social science methodology—to capture the richness, complexity, and human texture of the water rights conflict. By explaining the processes and outcomes in plain language and grounding his presentation in relevant explanations of Indian culture, he conveys the complexity of the settlements for readers from a wide range of disciplines. Native Waters illustrates how America is coming to grips with an issue that has long been characterized by injustice and conflict, seeking to enhance our understanding of the settlements in the hope that this understanding will lead to better settlements for all parties. As one of the first assessments of a policy that will have a pervasive impact for centuries to come, it shows that how we resolve Indian water claims tells us a great deal about who we are as a nation and how we confront difficult issues involving race, culture, and the environment.

Indian Reserved Water Rights: The Winters Doctrine in Its Social and Legal Context

In its 1908 decision for Winters v. United States, the Supreme Court affirmed a lower-court ruling that the United States and the Gros Ventre and Assiniboine Indians had reserved rights to water in the Milk River through an 1888 treaty which created the Fort Belknap Indian Reservation in Montana. Since 1908 the Winters decision, or Indian reserved water rights doctrine, has played an important and controversial role in the West.

Indian Reserved Water Rights is the first book-length historical study of the Winters case and the early use of the reserved water doctrine. In the book, John Shurts explains how the litigation and its outcome fit well within the existing legal context and into ongoing efforts at water development in the Milk River Valley. He also examines the life of the Winters Doctrine during its earliest years, primarily through a study of water-rights litigation on the Uintah Reservation in Utah.

Negotiating Tribal Water Rights: Fulfilling Promises in the Arid West

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 Rights offers 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.

Water Law in a Nutshell

The new edition adds dozens of recent decisions and key statutory changes. Virtually every principal case in the leading casebooks is cited or discussed, making it an excellent aid for students in any water law course. The revised book deals with changes in evolving areas like groundwater-surface water conflicts, public recreational uses. instream flow protection, federal water development, takings claims, and public interest concerns. Chapter Eight specifically examines Federal Indian Reserved Water Rights.

Command of the Waters: Iron Triangles, Federal Water Development, and Indian Water

Much has been written about legal questions surrounding Indian water rights; this book now places them in the political framework that also includes water development. McCool analyzes the two conflicting doctrines relating to water use—one based on federal case law governing the rights of Indians on reservations, the other sanctioned by legislation and applied to non-Indians—based on the “iron triangles” of bureaucrats, legislators, and interest groups that dominate policy issues. He examines the way federal and BIA water development programs have reacted to conflict, competition, and opportunity from the turn of the century to the 1980s and updates the situation in an introduction written for this edition.

The Future of Indian and Federal Reserved Water Rights: The Winters Centennial

On January 6, 1908, the Supreme Court ruled that when land is set aside for the use of Indian tribes, that reservation of land includes reserved water rights. The Winters Doctrine, as it has come to be known, is now a fundamental principle of both federal Indian law and water law and has expanded beyond Indian reservations to include all federal reservations of land.

Ordinarily, there would not be much to say about a one hundred-year-old Supreme Court case. But while its central conclusion that a claim to water was reserved when the land was reserved for Indians represents a commitment to justice, the exact nature of that commitment–its legal basis, scope, implications for non-Indian water rights holders, the purposes for and quantities of water reserved, the geographic nexus between the land and the water reserved, and many other details of practical consequence–has been, and continues to be, litigated and negotiated. In this detailed collection of essays, lawyers, historians, and tribal leaders explore the nuances of these issues and legacies.

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