One controversy that continues to afflict Indian water rights is that the Winters Doctrine does not provide clear quantifiable limits of water usage entitled to Native tribes. Typically, legally define water usage limitations by survey and legal recognition is an extremely costly route to take for the tribes (p.286). The most economical route tends to be through negotiations, administrative action, or legislation (p.286). One such example of this was the Ak-Chin tribe located approximately an hour south of Phoenix, Arizona. Ultimately, resulting in the development of the Public Law 95-328 (1978).
This law was spurred by the drastic decrease in the water table for the Ak-Chin reservation. This being something a substantial blow to the community as at the time they were primarily an agricultural-based economy. It was found that this decline in the water table was the result of the federal government failing to “prevent the mining of groundwater”. Due to this abdication of duty on the part of the U.S. Government, it was held liable to build a spring well and delivery apparatus from federal lands to meet the required amount of water entitled to the tribe through Winters Rights. The law set in motion that an interim supply of water is provided by 1984. That a permanent supply is allocated by no later than 2003 (p.6). The provision of water would be supplied through the Central Arizona Project Aqueduct (p.6). This has resulted in the Ak-Chin tribe expanding their” irrigated agriculture by 10,000 acres” resulting in an improvement in economic conditions on the reservation by 1991 (p.13). Because of the 1978 act and 1984 amendment. By 1993, the tribe had next to no unemployment and no social services expenditures (p.3).
The 1984 amendment provided more than just the interim supply of water needed for cultivation purposes. $15 million was provided for purposes of obtaining usable water. $ 28.7 million was also transferred to the tribe for economic development. The date for the permanent supply of water shifted to 1988 (p. 7). The amendment expanded water consumption entitlement to “75,000 and 85,000 acre-feet, depending on precipitation levels each year (p.8). This amendment was deemed controversial at the time because it reallocated unused water from the Gila River Project to tribe versus “other state appropriators ” (p.8).
Then came the 1992 amendment to the water activities for the Ak-Chin Tribe. This amendment allowed off-reservation leasing of the Ak-Chin water supply. Considering the ever-evolving nature of American Indian Law there was then the 2000 amendment. Designed to provide great clarity on leasing requirements for Ak-Chin water. Manifesting itself in S. 1913- Ak-Chin Water Use Amendment Act of 1999.
SEC. 2. TECHNICAL AMENDMENTS TO AK-CHIN WATER USE ACT OF 1984.
(a) Short Title.–This section may be cited as the “Ak-Chin Water
Use Amendments Act of 1999”.
(b) Authorization of Use of Water.–Section 2(j) of the Act of
October 19, 1984 (Public Law 98-530; 98 Stat. 2698) is amended to read
“(j)(1) The Ak-Chin Indian Community (hereafter in this subsection
referred to as the `Community’) shall have the right to devote the
permanent water supply provided for by this Act to any use, including
agricultural, municipal, industrial, commercial, mining, recreational,
or other beneficial use, in the areas initially designated as the
Pinal, Phoenix, and Tucson Active Management Areas pursuant to the
Arizona Groundwater Management Act of 1980, laws 1980, fourth special
session, chapter 1. The Community is authorized to lease or enter into
options to lease, to renew options to lease, to extend the initial
terms of leases for the same or a lesser term as the initial term of
the lease, to renew leases for the same or a lesser term as the initial
term of the lease, to exchange or temporarily dispose of water to which
it is entitled for the beneficial use in the areas initially designated
as the Pinal, Phoenix, and Tucson Active Management Areas pursuant to
the Arizona Groundwater Management Act of 1980, laws 1980, fourth
special session, chapter 1.
“(2) Notwithstanding paragraph (1), the initial term of any lease
entered into under this subsection shall not exceed 100 years and the
Community may not permanently alienate any water right. In the event
the Community leases, enters into an option to lease, renews an option
to lease, extends a lease, renews a lease, or exchanges or temporarily
disposes of water, such action shall only be valid pursuant to a
contract that has been accepted and ratified by a resolution of the Ak-
Chin Indian Community Council and approved and executed by the
(c) Approval of Lease and Amendment of Lease.–The option and lease
agreement among the Ak-Chin Indian Community, the United States, and
Del Webb Corporation, dated as of December 14, 1996, and the Amendment
Number One thereto among the Ak-Chin Indian Community, the United
States, and Del Webb Corporation, dated as of January 7, 1999, are
hereby ratified and approved. The Secretary of the Interior is hereby
authorized and directed to execute Amendment Number One, and the
restated agreement as provided for in Amendment Number One, not later
than 60 days after the date of the enactment of this Act.