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Last modified
8/11/2009 11:39:23 AM
Creation date
9/30/2006 10:04:16 PM
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Publications
Year
1996
Title
The Colorado River Workshop Issues, Ideas, and Directions
CWCB Section
Water Conservation & Drought Planning
Author
Grand Canyon Trust
Description
An open forum for discussion of management issues between managers, water users, and stakeholders of the Colorado River Basin
Publications - Doc Type
Brochure
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<br /> <br />28 <br /> <br />with the tribes' large and senior rights to the river and <br />that leasing arrangements would help to address this <br />inequity (Checchio and Colby 1993:25). <br /> <br />Currently, non-Native American land owners are con- <br />fronted with the possibility that the water they have <br />been using, and to which they believe they have a legit- <br />imate entitlement, was in fact reserved for Native <br />American tribes. Some observers (Checchio and Colby <br />1993:1-3) have calculated that the water entitlements of <br />Arizona tribes, many of which remain to be quantified, <br />will easily surpass the state's surface water supplies; <br />most of which presently are used by other parties. <br />Therefore, the quantification of water rights for the <br />many Native American tribes that have a claim to the <br />Colorado River waters may dramatically effect the cur- <br />rent heavily appropriated distribution of those waters. <br /> <br />The real issue is how will Tribes, as sovereign govern- <br />ments, have their water concerns integrated into the <br />broader management of the Colorado River Basin; <br />inspite of existing water compacts, agreements, and <br />appropriations that do not represent Native American <br />tribal water rights, sovereignty or participation. For <br />example, if tribal water rights had been quantified in the <br />Colorado River, the amount of revenue generated <br />through the use of tribal water for hydropower genera- <br />tion would have been enormous and the tribes would <br />have benefited directly from the use of their water. This <br />issue raises important questions regarding the basis for <br />tribal water rights quantification in an over-appropriat- <br />ed basin and may provide important economic oppor- <br />tunities for tribes in the future (Vandemoer 1996:4). <br />This issue is difficult to answer but it remains central to <br />the consideration of a basin wide management plan. <br /> <br />Due to the high costs and the inflexibility in judicial <br /> <br />quantification of reserved water, many states and tribes <br /> <br />are beginning to negotiate rather than litigate the <br />extent of reserved rights and then petition Congress or <br />the courts to approve their agreements (Getches et al <br />1993:775). However, negotiated paper water alloca- <br />tions do not always mean that the Native American <br />reservation will see "wet" water. Compounding this <br />issue, is that courts in different states have dispensed <br />conflicting rulings on whether tribes possess instream, <br />noncomsumptive rights for fisheries and religious pur- <br />poses (Getches et al1993: 775). <br /> <br />Another important and as yet unresolved question is <br />whether tribes or states control non-Native American <br /> <br />use of water within Native American reservations. <br /> <br />Several tribes have established their own water admin- <br />istration agencies, and tribal water codes that include <br />comprehensive water management schemes which are <br />coming into conflict with state water laws (Getches et <br />aI1993:775). <br /> <br />Another issue concerning Native American water rights, <br />within the context of discussing management issues in <br />relation to the broader Colorado River Basin, is whether <br />they extend to groundwater as well as surface waters. As <br />stated above, Winters rights extend to streams, lakes, <br />and springs which arise upon, border, or traverse the <br />reservation (Getches et al1993: 787). The United States <br />Supreme Court has not ruled on whether the Winters <br />rights also extend to groundwater that underlie the <br />reservation. In Cappaert v. United States, 426 U.S. 128 <br />(1976), the Supreme Court for the first time extended <br />federal reserved rights to groundwater whenever a <br />"hydrological connection" between surface and ground- <br />waters can be shown (Burton 1989:159). Therefore, <br />development and/or resource procurement activities <br />(e.g., mining) by Federal agencies, state agencies, private <br />industry, within the Colorado River Basin, could have a <br />potential effect on the Winters Doctrine rights of tribes <br />
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