Water rights 101
Posted: August 05, 2005
by: Jean Johnson / Indian Country Today

PORTLAND, Ore. - ''3 Accused of Shooting Up Oregon Town; Water Dispute Cited,'' ran a New York Times late edition headline in December 2001. The town was Chiloquin, home to the Klamath Tribes. The shooters were young white men from a nearby farming community, incensed that Klamath Basin irrigators weren't getting their accustomed share of the arid region's water during a dry spell.

It's just a single incident, but with pundits saying water will be to the 21st century what oil was to the 20th, there's no time like the present - whether you live in the parched American West or elsewhere on the planet - to get a handle on the way things work.

Water rights are among the more complex subjects a person can tackle. Still, the basics are, well, basics. And armed with a few fundamentals, folks can assess the news better - not to mention fathom just why it is that tribal councils often spend megabucks on lawyers, historians and advisers trained in the field of water law.

When it comes to their water, people want two things: enough and nice. In the parlance of the enviro-legal world, that means quantity and quality.

Sometimes it's about quantity

The federal government might have mounted one egregious policy after another to wheel and deal the tribes out of their natural resource base, but the courts had more integrity from the get-go. In 1908 the Winters v. United States decision determined that it made sense that when the feds establish a reservation, policy-makers reserve enough water for people to live there.

Winters has been the friend of the tribes since then when it comes to water quantity. Not only did the doctrine set a powerful precedent in case law, it also made clear that tribal rights to water dated back to whatever year a particular reservation was established. That's important, because it means Indians have the oldest claims - what are known as senior water rights.

Holding senior water rights puts the tribes in prime position in the West - at least theoretically - where in times of shortage, those with the oldest rights get served first. Put another way, the doctrine known as ''prior appropriation'' rules the roost in the bone-dry region west of the Mississippi River, and those that ''were first in time are first in right'' to the planet's precious lifeblood.

Theories, of course, are one matter. How things shake out in practice is where the rubber meets the road - or water ripples through its courses - slaking the thirst of human beings.

The states, private users, municipalities, corporations, you name it: it's this non-Indian phalanx that has tried time and gain to gut the tribes' Winters rights. The crowd even comes up with something called ''paper'' water and ''wet'' water, conceding ''paper'' rights to the tribes while commandeering the wet stuff for mainstream society and its fixation on profits at all costs.

All a person has to do to see how this works is cast an eye toward the southwest deserts of Arizona, where the Tohono O'odham, Ak-Chin, Pima, Maricopa, Fort McDowell, Gila River and San Carlos Apaches have stood in the equivalent of a wind tunnel for a over century to get a fair shake. And forget about the first half of the 20th century when the dislocated tribes were holding on by a slender, demoralized thread.

Only after the Indian veterans came home from World War II with the ways of the larger world under their belt and went to college, did things begin to inch forward in the 1950s. Still, it took the passage of the Indian Self-Determination and Education Act of 1975 to really open the door on tribal autonomy. It was after that in the late 1970s through today that one water settlement after another was either negotiated or duked out in the courts.

The latest victory, of course, belongs to dwellers in the Plateau country - the Nez Perce. Realizing that the tribe had come of age and had enlisted the considerable prowess of the Native American Rights Fund people, the raft of non-Indian water-users in Idaho finally dragged their feet to the door of a water quantity settlement in which the Nez Perce Tribe did themselves very proud.

Pride. That's what Water Quality 101 is all about: Indian pride. It's high time, and the Winters court of 1908 would most certainly agree.

Sometimes it's about quality

It makes sense that water's pretty worthless unless it's clean enough to use. That last thing people want is a drink loaded with strange cancer-causing weirdities. Or water too foul for crops and livestock, not to mention the fish in the streams. Even if it's just washing dishes and clothes, human beings appreciate cool, clear flows untainted by substances with names only scientists can pronounce.

But water quality is a tricky area - especially for the tribes. Quantities of water were reserved for reservations under the Winters decision, but the courts have been less clear on tribal access to sufficient flows of quality water.

In 1987, Congress addressed this problem in part by amending the Clean Water Act so that if they met certain requirements, tribes could be treated as equals to the states under the federal law. But even under the CWA, tribes may only regulate the quality of surface waters within reservation boundaries. They can establish water quality standards, regulate the discharge of pollutants from point sources (specific, discrete sites) and design programs to help control non-point sources of pollution, or chemicals and waste arising from agricultural and ranching practices.

Perhaps most importantly, in amending the CWA, Congress said the tribes could have a voice in regulating off-reservation point sources located upstream of reservations and tribal territories. Thus states are required by federal law to consider water quality standards of downstream tribes when the states set effluent limitations.

Downstream. Effluent. Tribes. Three words that, when put together, can make American Indians very nervous. That's why the victory the Iselta Pueblo won over the city of Albuquerque on water pollution in the early 1990s created a ripple throughout Indian country. ''Yes,'' the bench said - after city policymakers bowed out of negotiations with the tribe and got their attorneys to take the matter of downstream water quality to court. Albuquerque did indeed have to control its appetite for water so that sufficiently clean flows would be available for their Iselta neighbors downriver on the Rio Grande.

But tribal clout under the CWA only goes so far and does not reach one of the most important sources of water pollution - ''water uses authorized by state water allocation systems,'' according to Judith V. Royster, associate professor and co-director of the Native American Law Certificate Program at the University of Tulsa College of Law.

Put another way, if water users upstream from a tribe draw heavily on a stream - or even drain it dry, as irrigators have a history of doing during late summer or in drought years - and then return flows laced with salts, pesticides and a range of pollutants from industry, tribes have few clear legal means by which to protect themselves from the discourtesy.

That said, tribes can, in a piecemeal fashion, challenge specific state allocation permits like one Alaska Native village did. Wrote Royster, villagers ''successfully challenged state diversion permits for placer gold mining on the grounds the mining diversions could potentially dewater the stream. The village used the stream for a subsistence and a commercial fishery, and argued that at least 50 percent of the stream flow was necessary to maintain the fish habitat. The court found the state had failed to adequately consider these fish and wildlife concerns when it issued the water rights permits.''

Yet Royster, who teaches primarily in the fields of federal Indian law and natural resources law, thinks an approach like the above is too inefficient to provide the broad protection that will cause the states to start minding their manners. Instead, she suggests that Winters has been an underutilized mechanism that could help tribes gain access to basic water quality that the United States prides itself in having - in theory at least - for all communities of people.

The law professor cited a 1935 case in which the San Carlos Apache tribe in Arizona succeeded in getting upstream irrigations to not dewater the stream to the extent that flows reaching the tribe were too salty for tribal farmers. (When water is used for irrigation and percolates through fields, it becomes salinized in the process.) Royster pointed out that in recognizing the idea that water quantity and water quality are linked, the 1935 court established a precedent in using Winters rights in the area of water quality issues.

Indeed, Royster concluded: ''It is only common sense. If the reason for the Winters right to a quantity of water is to fulfill the purposes for which reservations were set aside, and those purposes will fail without water of adequate quality, then the Winters right must include a right to water quality.''

While Royster's logic is a relatively new one, as tribes increasingly test the argument in the courts - and hopefully encounter a fair-minded judicial system that will support their assertions - Winters could take its place on the water quality wave of the future, ensuring that American Indians take their places alongside other Americans in accessing the cool, clear, clean stuff.

1998 - 2005 Indian Country Today. All Rights Reserved