WSP08807

• File Number: 8220.106
• Description: Animas-La Plata
• State: CO
• Basin: San Juan/Dolores
• Water Division: 7
• Date: 10/26/1990
• Author: Judith Jacobsen
• Title: The Navajo Indian Irrigation Project and Quantification of Navajo Winters Rights
• Water Supply Pro - Doc Type: Report/Study

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But does the agreement to share shortages quantify Navajo Winters rights?44 Before

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answering this question, it is necessary to discuss existing Indian law relevant to

quantification of Winters rights; provisions of NIIP's authorizing legislation that may
be read to affect Indian water claims-the shortage-sharing provision and section 12(a);
the law governing allocation of water within the Colorado River Basin; and the

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legislative record on NllP. Sections addressing each of these issues follows.

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The Law Relevant to Ouantification

The law explicitly on quantification of Indian Winters rights is scanty.45 It is not

possible to construct a line of caselaw from Winters to contemporary cases of Winters

rights quantification. Thus one must turn for guidance to the larger body of Indian

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law. The portion of Indian law relevant to quantification of Winters rights--wmch are

property rights created by judicial interpretion of treaties-is the law relating to the

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power of Congress over Indians and their property. This body of law starts with the

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become law, your Navajo Irrigation Project would have first priority to those waters.
You would not bave shortages. Everybody else would." Id. The shortage-sharing provision
is discussed further, .infrn. in the section entitled "Sharing Shortages."

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44Writers concluding that NllP quantified Navajo Winters claims do so on the basis
of the shortage-sharing provision. ~ citations, supra. note 3.

~ere is no case law squarely on the question of how Indians can quantify their
otherwise inchoate Winters rights to water. The only case that explicitly addresses Indian
water rights other than Winters and Arizona v. California is Wyominl! v. United States,
109B S. Ct. 2994 (1989). That one-sentence, 4-4 opinion of the U.S. Supreme Court
affirms The Wind River Adjudication. 753 P. 2d. 76 (Wyo. 1988), an award by the
Supreme Court of Wyoming to the tribes of the Wind River Reservation based on PIA.
~ Echohawk, "Tribal Water Rights," supra. note 21.