Water Right Claims in Indian Country: From Legal Theory to Economic Reality
by Rodney T. Smith
“Under the Winters Doctrine, Indians have a legal right to sufficient water to fulfill the purposes of their reservations…The resolution of Indian water claims will involve substantial water resources. In western states, potential Indian claims may exceed 45 million acre feet per year (Western States Water Council 1984, 83), with a market value between $20 billion and $50 billion. In 1989, almost 75 percent of these claims were in litigation and another 13 percent in negotiation… In sum, greater awards translate into less reliable water supplies for all non-Indians, which reduces the return on capital invested in irrigation development before the court decision.”
– Anderson, Terry L. Editor; Property Rights and Indian Economies; 1992; p. 167-171; Rowman & Littlefield Publishers, Inc.; 4720 Boston Way; Lanham, MD 20706
Indian Intentions Threaten Water Talks
Associated Press and the Billings Gazette
December 20, 2002
POLSON (AP) – Water rights negotiations between the state and the Flathead Indian Reservation hit an apparent setback here after tribal leaders said they intended to do their own inventory of reservation water.
The surprise announcement Wednesday came minutes after the state again rejected the Confederated Salish and Kootenai Tribes’ proposal to give control of all water on the reservation to the tribes as a framework for future negotiations.
State officials say they have serious concerns about the proposal and claim the tribes have refused to address them adequately.
The tribes’ announcement stunned state negotiators. Chris Tweeten, the state’s chief negotiator, said the decision does not bode well for future negotiations.
“I have serious concerns that a unilateral approach is a process that won’t produce consensus,” said Tweeten, chairman of the state Reserved Water Rights Compact Commission.
But tribal spokesman Clayton Matt emphasized that the tribes intend to continue the water-rights talks.
Wednesday’s session, which included state, federal and tribal officials, was the fourth in two years since the tribes renewed negotiations on water rights in the Flathead.
Federal officials told state negotiators that they agreed with the tribal interpretation of federal law that all water on the reservation should be viewed as belonging to the tribes, at least until there is a complete inventory of all the water and its uses.
The tribes’ proposal to “quantify” the water they claim goes to the heart of the current negotiations. The Montana Supreme Court repeatedly has said the state cannot grant water permits, water rights or water changes for private property on the reservation until the water use and supply is inventoried or “quantified.”
Quantification is the process of comparing water supplies with existing beneficial water uses in a specific area. The outcome will be vital to determine if enough water exists on the reservation to allow municipalities and owners of private property any claim to new water rights. If it is found that water is already over-allocated to prior claimants, new water rights might not be granted at all.
Tribal officials have emphasized that they will respect existing users’ claims.
No future negotiations have been set, but the sessions typically have been called twice a year. Under this schedule, no new negotiations will occur until after the Legislature completes its 2003 session, sometime in March or April.
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