Laserfiche WebLink
<br />DRAFT -- August 11, 1999 <br /> <br />Principle 4. The Departments shall be sensitive to Indian culture, religion, <br />and spirituality. <br />Principle 5. The Departments shall make available to Indian tribes <br />information related to tribal trust resources and Indian lands, and, to facilitate the mutual <br />exchange of information, shall strive to protect sensitive tribal information from disclosure. <br /> <br />The Order also directs the Departments to "...give deference to tribal conservation and <br />management planning..." <br /> <br />However, in the course of the development of this landmark Secretarial Order, southwestern <br />tribes expressed the concern that it did not adequately address ostensible anomalies and <br />inequities in connection with the exercise of Indian water rights. Most, but not all, Indian <br />water rights are based on the Reserved Rights Doctrine, which originated with the U.S. <br />Supreme Court decision in Winters v. United States, 207 U.S. 564 (1908), and was more fully <br />explained in Arizona v. California, 373 U.S. 546 (1963). These decisions state that when <br />lands are reserved for Indian use, the United States and the tribe impliedly reserve appurtenant <br />water, then unappropriated, for the purposes of that Indian reservation. <br /> <br />These rights are quite substantial, although they have not yet been fully quantified or <br /> <br /> <br />adjudicated for many reservations. Many of these rights have not yet been exercised due to <br /> <br /> <br />many tribes' lack of capital to develop their water resources. Most importantly, in many <br /> <br />stream systems these rights have very early priority dates, and thus are senior to all or most of <br /> <br /> <br />existing non-Indian water uses in those stream systems. As explained in this report, the <br /> <br />process and criteria for the implementation of Section 7 of the ESA appear to reverse the <br /> <br />priority system recognized in Western States, and to create obstacles to the exercise of senior <br /> <br />Indian water rights. This concern takes on an added dimension where Congress has enacted <br /> <br /> <br />modern legislation to enable Indian tribes to exercise their water rights, including many Indian <br /> <br />water right settlements enacted over the last decade. <br /> <br />5 <br />