8093

• UCREFRP Catalog Number: 8093
• Author: Natural Resources Law Center.
• Title: Instream Flow Protection In The West - Revised Edition - 1993.
• USFW Year: 1993.
• USFW - Doc Type: \
• Copyright Material: NO

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these Indian water rights include instream flows needed to support the fishing and
hunting rights that tribes retained pursuant to treaty.

The strength of this instream flow protection mechanism was recently
demonstrated in a case involving the Tribes of the Flathead Reservation in northwestern
Montana who argued with local irrigators over water distributed by the federal Bureau of
Indian Affairs (BIA). Initially, the tribes filed suit claiming that the BIA had historically
delivered too much water to non-Indian irrigators, thereby reducing instream flows and
destroying important fish populations. In 1986, the BIA altered its distnbution criteria,
protecting instream waters in order to support tribal fishing rights guaranteed by the 1859
Treaty of Hells Gate. The irrigation districts in turn sought an injunction, claiming that
the reduced diversions injured their members.

The federal district court judge ruled in favor of the non-Indian irrigators, stating
that the BIA must be guided by the principle of "just and equal distribution of all waters
of the Reservation." The Ninth Circuit Court of Appeals overturned this finding in
November 1987, referencing its finding in a previous case that language similar to that in
the Treaty of Hells Gate,

accompanied by a history indicating that one of the essential
purposes in creating the reservation was to preserve Indians'
right to fish, created a reserved [instream] water right in the
Tribe.23

The court then invoked the concept of first in time, first in right, concluding:

Because any aboriginal fishing rights secured by treaty are
prior to all irrigation rights, neither the BIA nor the Tribes
are subject to a duty of fair and equal distribution of reserved
fishery waters.24

Consequently, the BIA must continue to administer the water distribution network to
ensure that sufficient flows remain in the natural stream to support tribal fishing
activities.

Opportunities in the Private Sector

Tribal instream flow rights are frequently viewed with caution by water user
groups that want maximum flexibility under state law to use and manage local waters.
Similarly, instream flow rights held by private individuals or organizations are often
perceived as constraints to future water development. As a consequence of this latter
fact, most western state legislatures have authorized only governmental agencies to hold
in-place water rights under programs that balance competing instream and consumptive

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