American Indian Culture and Research Journal

One can best characterize the relations between Native Americans and the United States federal government as complex and violent. As the United States expanded across the continent, the federal government was forced to come up with a policy to deal with these people occupying the West. Important questions concerning land ownership, tribal autonomy, and citizenship arose during the nineteenth century and the United States sought to deal with these questions through special Indian legislation. In time, legislation and court decisions created a semi-consistent Indian policy. In general, this policy assumed that Indians were not citizens of the United States, yet owned their lands, and that the federal government had some responsibility to "protect" their land. As a price for this protection, many Indians were forced to give up control of their land and some internal tribal sovereignty. Throughout the nineteenth century and into the twentieth century, a group of New Mexico Indians, the Pueblos, enjoyed a peculiar status that provided exemption from federal protection and control. This status came to an end, however, in 1913 due to a United States Supreme Court decision, and the change created considerable uncertainty in New Mexico regarding land ownership and tribal autonomy. A reaction followed in the 1920s when non-Indians and the Pueblos made new attempts to adjust to the problems which resulted. Tracing the origins of these Indians' special status, describing the problems that arose when their special status no longer existed, and analyzing the reactions and eventual solution are the subjects of this inquiry.

The history of the application of the European doctrines of discovery and conquest to American Indian tribes in the eighteenth and nineteenth centuries--and the evolution of policies which defined tribes as "domestic dependent nations"--is well known. The subsequent saga of massacres, depredations and broken treaties which resulted from the exercise of territorial imperatives on both sides has likewise occupied the pens of many historians. What is less familiar is that the struggle for land and sovereignty did not end in the bloody snows of Wounded Knee in 1890 but has continued, for even greater stakes, into the present century. Preoccupied until recently with the dramatic military confrontations of the nineteenth century, historians of federal Indian policy have paid too little attention to the erosion of Native land and water rights persisting to the present day. Because of the marginal nature of much of the Indians' remaining land and resources, this neglectful situation has become even more detrimental to tribal interests. Since land has long been essential to tribal existence, and since so many of today's tribes depend on their ability to utilize and control their own resources, these issues are far too grave to ignore. Increasingly in the twentieth century, the United States has used its power of eminent domain to seize large parcels of Indian land for the construction of flood control and reclamation projects. While federal water agencies claim these dams provide multiple benefits for the general public, Native Americans seem always to be the last to receive these advantages. In the Missouri River Basin the Pick-Sloan Plan--the joint water development program the Army Corps of Engineers and the Bureau of Reclamation designed in 1944--caused more damage to Indian land than any other public works project in America. Whether or not these Federal agencies deliberately chose Indian over non-Indian land for their project sites, as some tribal leaders have charged, their plans ultimately affected twenty-three different reservations.

I. INTRODUCTION The issue of Indian water rights is presently a vital issue in tribal, state and federal relations. Highly sensitive and controversial, this matter has often pitted the tribes and the federal government against the various western states in an attempt to resolve the competing interests of Indian and non-Indian water users. At the core of the issue is whether state or federal courts will provide the jurisdictional forum for the adjudication of Indian reserved water rights. The purpose of this paper is to examine the jurisdictional aspects of those competing interests in light of court decisions addressing the issue of Indian water rights. Beginning with a general historical overview of water rights, this presentation opens into an examination of Indian water rights as developed in case law. A discussion of Indian water rights in Montana follows, in which there is special emphasis on the problems of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation in light of recent Montana legislation and circuit court opinions. The remainder of expository materials include a consideration of tribal efforts to establish water codes despite political and bureaucratic barriers. The final section analyzes the problem of competing interests of Indian and non-Indian water users from a policy perspective. II. HISTORICAL BACKGROUND OF WATER RIGHTS To understand the disputes over Indian water rights and the legal principles applicable to them, it is necessary to examine the two major systems of water rights in the United States. The primary systems for allocating water are the riparian system of the water abundant eastern states and a few western states and the appropriative system employed in most of the arid western states.

ARIZONA V. CALIFORNIA et al. No.8, Orig., March 30, 1983 is the latest in a series of related decisions ultimately affecting the water rights of certain Indian tribes situated on the Arizona-California border area. The tribes include the Colorado River Indian Tribes, Fort Mojave Indian Tribe, Chemehuevi Indian Tribe, Cocopah Indian Tribe and Fort Yuma, or Quechan, Indian Tribe. The battle began in 1952 when Arizona sued California and others in the United States Supreme Court. The Court settled the matter of apportioning Colorado River water among California, Arizona, Nevada, Utah and the United States (on behalf of the affected Indian tribes) in 373 U.S. 546 (1963) and a subsequent decree in 376 U.S. 340 (1964). On behalf of the Tribes the U.S. acquired rights to a share of the water based on the practically irrigable reservation acreage as determined in the Special Master's report of 1964. Eventually the U.S. and the five tribes attempted to adjust the allocation to supply their irrigable lands for which earlier decisions had not accounted and for irrigable lands later found to be within reservation boundaries. The Justices agreed that the Tribes should be allowed to intervene in the continuing Arizona/California water dispute as the Special Master had decreed in his August 28 1979 preliminary report but did not concur to any significant extent with the Special Master's recommendation that the Tribes receive a larger water allocation. The Court decided that the 1964 determination of the Indian water rights in 1964 precluded relitigation of the dispute.