Native American Water Rights

Thirty-four Indian reservations are located within the Colorado River basin, with the status of their water claims ranging from quantified in court, quantified through negotiated settlements, or still unquantified (Pontius, 1997). A number of tribes located outside the boundaries of the basin, such as the Mescalero Indian Reservation in New Mexico, have traditional or aboriginal interests in the basin as well. Each of these 57 reservations has very different interests, needs, and desires concerning the management of the Colorado River (Gelt, 1997; Pontius, 1997). The 1908 the Winters v. United States Supreme Court decision established the doctrine of Indian reserved water rights. The court held that such rights existed whether or not the tribes were using the water and dated to the time that the reservations were created. This decision was reaffirmed by Arizona v. California (1963), which awarded water rights to five Indian reservations in the Lower Basin. The court determined that an Indian tribe's quantified reserved right must be taken from and charged against the apportionment of water of the state where the tribe's reservation is located. Large outstanding Indian water rights claims in the Colorado River basin include Gila River (Arizona), 1,599,252 af; Hopi (Arizona), 140,406 af; Navajo (Arizona), 513,042 af; Tohono O'odham (Arizona), 650,000 af; and White Mt. Apache (Arizona), 179,847 af. The Gila River and Tohono O'odham settlements are included in a package that is currently (2004) being considered by Congress. If approved, the Gila River Settlement will be the largest in U.S. history, involving 643,000 af of water, multiple parties, and multiple side agreements.

The settlement of Arizona v. California had significant long-term implications for water management in the Colorado River basin. First, this case established the process for quantifying Winters' rights, potentially resulting in relatively large amounts of water for Indian tribes. Second, this case placed Indian water rights squarely within the framework of western water law, not only by quantifying the rights but also by holding that the Colorado River Indian tribes were included in Arizona's apportionment. This landmark decision means that Indian water rights were put in direct competition with other users within state allocations, increasing the pressure on surface water supplies, especially during drought. However, to the degree that Indian settlements result in the ability of other users to lease water from the tribes, these settlements will be a major source of water for municipal and industrial uses in the future.

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