Photo by Tomas Anunziata on Pexels.com

Depending on climate water can be as valuable as gold. Under certain conditions, it can be even more so valuable. Water is essential to life and crucial for regular consumption, bathing, irrigation of crops; it is truly the lifeblood of civilization.  If it was for the fertile banks of the Nile river or the rich and saturated soils of the fertile crescent (Tigris and Euphrates) rise of Egyptian and Mesopotamian empires would have never been possible. Water rights for Native Americans have in recent decades become a crucial touchpoint in the federal guardianship dynamics between the tribes and the U.S. government. While rights to water source appropriation generally fall under either riparian or appropriative conditions, how this is applied to Indian Tribes is slightly more complicated. A running motif that is common throughout American Indian Law. Despite the immense amount of complexity facing Indian water rights, considering it is a life-sustaining resource such matters must be sorted out.

Standard Water Rights For Non-Indians:

As mentioned above, water rights traditionally have fallen into one of two legally recognized categories. This includes riparian and appropriative rights to non-navigable bodies of water for consumption purposes. Riparian water rights tend to be applied in the “water abundant” regions of the United States. Particularly the Eastern seaboard of the United States.  Under riparian water rights, owning land or property that borders on a lake or a stream enables the right of the owner to “reasonable use” (p.277). The right to use is directly connected to land ownership. During times of drought the quotas for consumption among the entitled appropriators are reduced proportionately (p.227). Under the conditions of appropriative water rights, the entitlement to water utilization is not tied to ownership of surrounding lands. It is connected to whoever first can put the water to beneficial use. First come, first serve to harvest dynamic. This variety of water rights determination evolved in the western United States back when most of the land was federally owned. Mines were generally constructed far away from usable water sources meaning that transportation of potable water was costly (p.278). Resulting in the development of a first use policy to ascertain the primacy of water rights.  Meaning that “… water rights are not appurtenant to the land…” (P.278). Making precise dates of water appropriation extremely important. Older appropriators possess a greater deal of certainty in the right to utilize water from a specific source (p.278).

Law governing water rights tend to be formulated by the federal government and shaped by “local custom” (P. 279). Congress adapts legislation so that it conforms to the customs and historical practices of the region. This tends to be reflected in laws such as the Desert land  Entries Act (1877) and  43 U.S.C.A Sec. 321-25 (p.279). Appropriative have been applied to the non-navigable bodies of water in CA, OR, WA, NV, AZ, NM, ND, SD. While the framework for these laws has been formed in federal law it is generally governed by state law.  An example being California Oregon Power Co. V. Beaver Portland Cement (1935) (p. 279). How the states handle water rights varies dramatically state by state. Colorado is a 100 % appropriative system. California and Oregon are mixed systems.  The priority of use and “periods of non-use resulting in forfeiture…” of rights varies by states (p. 179).

Development of the  Winters Doctrine

The basis for tribal water rights evolved out of two cases which have resulted in the contextual rules that are now known as the Winters Doctrine. The first case that provided the foundation of this legal doctrine was Winters V. United States (1908). The Fort Belknap Reservation in Montana was created based upon an agreement. In the middle of the geographical territory of the reservation ran the Milk River.  When the land was set aside for the reservation nothing was detailed regarding water rights.  Then non-Indian settlers began building dams with was disrupting water usage on the reservation.  The Supreme Court ended up ruling that the water rights for the reservation were held by the 1888 agreement allotting to the tribe. Treating the right to water usage part and parcel with having the reservation established near a natural body of water (p. 280).

The second case further developing the scope and parameters of the Winters Doctrine came decades later in 1963. This came in the ruling of Arizona V. California (1963). The issue became the U.S. government attempted to establish water rights for tribes residing near the lower Colorado river by executive order. The court held that at the time of the establishment of these settlements water rights were established. Complaints among non-Indian settlers came about the quantity of water allotted to the natives. Citing a sparse Indian population in the “foreseeable future” (p.281). This was rejected on grounds by the SCOTUS that the reservation was “entitled to enough water to practicably irrigate every acre of the reservation” (p.281).

Conclusions of the Winters Doctrine (Winters Rights) (p.282)

“ 1.  Winters’ rights are creatures of federal law, which defines the extent.

2. Establishment of reservation by treaty, statute, or executive order implies reservation of water rights within the boundaries of tribal land.

3. The water rights are reserved as the date of creation of the applicable portion of the reservation. Competing users with prior appropriation dates under state law take precedence over the Indian rights, but those with later dates are subordinate.

4.  The quantity of water reserved for Indian use is that amount sufficient to irrigate all the practicably irrigatable acreage of the reservation.

5. Winters’ rights are not lost by non-use”.

17 thoughts on “Indian Water Rights

        1. It’s one those “long story” deals. When I was a Ronald Coase fellow in 2006, I got to attend a seminar on “institutional economics” in Barcelona and that’s where I noticed how much attention research about water rights received from the “big shots” in the room, and then two years later I responded to a call for papers about water rights from the national univ of singapore and my proposal was accepted (all expenses paid, by the way!).

          Liked by 1 person

        2. Nice work. You act as an academic entrepreneur. You saw a demand for an area of research and fulfilled the need.

          I suppose listening to various symposiums, lectures, podcasts, etc can be fruitful in terms of developing ideas for research.

          Liked by 1 person

        3. Okay, I have read your paper.

          Since publication have you found any subsequent research that has thoroughly fleshed out the implications of underinvestment in public-private water governance solutions?

          Also, in terms of the punitive “shrinking tax” placed against under performing parties. What are some key drawbacks to this approach?

          Another question I have and this could be due to a lack of comprehension on my end. Typically, from my rudimentary understanding of Neo-Classical economics, the equilibrium point signifies pareto efficiency. I find it interesting that even upon reaching that point it still resulted in underinvestment.

          Liked by 1 person

        1. Wow, even for a non-academic?! I suppose hence speaking of Hazlitt reference ( he was a self-taught economic expert).

          I would also like to incorporate a strong property rights perspective to the equation. Maybe even weaving in the wisdom of Coase’s Theorem in the mix.

          Liked by 1 person

  1. Ok, as promised, regarding the under-investment issue, check this report out from August 2020: https://waterfm.com/new-report-offers-grim-details-on-underinvestment-in-u-s-water-infrastructure/
    Regarding the concept of a “shirking tax” (or what Coase would have called a “Pigovian tax,” i.e. a tax designed to offset a negative externality), my initial reaction (a la Coase and Hayek) is to be skeptical of our ability to amass all the necessary information ahead of time to determine what the optimal amount of the tax should be in any specific case. Lastly, regarding Pareto efficiency, check out this paper by my mentor Guido Calabresi on “The Pointlessness of Pareto”(!): https://digitalcommons.law.yale.edu/fss_papers/2014/

    Enjoy!

    Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.