Indian Water Rights Settlements Page: 2 of 28
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Indian Water Rights Settlements
Summary
In the second half of the 19" century, the federal government pursued a policy of confining Indian
tribes to reservations. These reservations were either a portion of a tribe's aboriginal land or an
area of land taken out of the public domain and set aside for a tribe. The federal statutes and
treaties reserving such land for Indian reservations typically did not address the water needs of
these reservations, a fact that has given rise to questions and disputes regarding Indian reserved
water rights. Dating to a 1908 Supreme Court ruling, courts generally have held that many tribes
have a reserved right to water sufficient to fulfill the purpose of their reservations and that this
right took effect on the date their reservations were established. This means that many tribes have
water rights senior to those of non-Indian users with established water rights and access.
However, although many Indian reservations hold senior water rights, the quantification of these
rights is undetermined in many cases.
Tribes have pursued quantification of their water rights through both litigation and negotiated
settlements. The settlements involve negotiation between tribes, the federal government, states,
water districts, and private water users, among others. They aim to resolve conflict between
rights-holders and allow the parties to determine specific terms of water allocation and use with
certainty. Over the last 50 years, negotiated settlements have been the preferred course for most
tribes because they are often less lengthy and costly than litigation. Additionally, many
stakeholders have noted that these agreements are more likely to allow tribes not only to quantify
their water rights on paper but also to procure access to these resources in the form of
infrastructure and other related expenses, at least in some cases.
After being negotiated, approval and implementation of Indian water rights settlements require
federal action. As of 2015, there have been 33 federally approved Indian water rights settlements.
Twenty-nine of these settlements have been enacted by Congress, and four have been approved
by the U.S. Departments of Justice and the Interior. Federal projects associated with approved
Indian water rights settlements generally have been implemented by the Bureau of Reclamation
or the Bureau of Indian Affairs (both within the Department of the Interior), pursuant to
congressional directions. Congress has appropriated discretionary and mandatory funding (and, in
some cases, both) for these activities, including in recent appropriations bills.
One of the primary challenges facing Indian water rights settlements is the availability of federal
funds to implement ongoing and future agreements. Indian water rights settlements often involve
the construction of major new water infrastructure to allow tribal communities to access water
they hold rights to, and obtaining scarce federal funding for these projects can be difficult.
At issue for Congress is whether to approve proposed new Indian water rights settlements and
whether to fund new and ongoing settlements. Some argue that resolution of Indian water rights
settlements is a mutually beneficial means to resolve long-standing legal issues, provide certainty
of water deliveries, and reduce the federal government's liability. Others argue against
authorization and funding of settlements (either in general or with regard to specific activities
within settlements).
This report provides an overview of Indian water rights settlements. It analyzes issues
surrounding water rights settlements and the negotiation process, as well as implementation
challenges and related issues for Congress.Congressional Research Service
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Stern, Charles V. & Kim, Samuel. Indian Water Rights Settlements, report, August 14, 2015; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc807161/m1/2/: accessed April 18, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.