WSPC01188

• File Number: 8064
• Description: Indian Water Rights
• State: CO
• Date: 1/1/1987
• Author: American Indian Reso
• Title: Tribal Water Management Handbook
• Water Supply Pro - Doc Type: Report/Study

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2242

INDIAN WATER IN MODERN TRIBAL POUCYMAKING

5

Williams v. Lee4 was the 1959 court decision that staned the modem era. In Williams
the United States Supreme Court recognized an expansive tribal sovereignty, even
when non-Indians were involved. Later, the social programs of the Kennedy-
Johnson years provided funding for programs to support tribal govenunents. By then
the stage was set for the wide range of progressive actions taken by the Nixon and
Ford administrations at the request of tribal leaders. Tribal govenunents had long
been donnant, and the legislation and court decisions of this policy era allowed tribes
to reactivate, to develop programs, and to become modem governments able to
operate in contemporary society.

Many laws were adopted in response to tribal initiatives. The Alaska Native
Oaims Settlement Act of 19715 guaranteed to Alaska Natives approximately 40
million acres--about 2% of all land in the United States. The Menominee
Restoration Act of 19736 reversed the tennination of the Menominee Tribe of
Wisconsin and was perhaps the most dramatic symbol that tennination had ended as
official federal policy. The Indian Self-Detennination Act of 19757 reflected a
fundamental philosophical change concerning the administration of Indian affairs:
tribal programs were to be funded by the federal govenunent, but the programs were
to be planned and administered by the tribes themselves. The 1975 Act envisioned
an end to federal domination of tribes and programs by the Bureau of Indian Affairs.
The Indian Child Welfare Act of 1978 (ICW A)8 addressed in an expansive manner
one of the most critical problems facing Indian tribes-the control of their children's
lives. The lCW A provided for tribal court jurisdiction over most adoptions and
guardianships of Indian children, and set strict protective standards in those situations
where state courts were allowed to continue to assume jurisdiction. The American
Indian Religious Freedom Act of 19789 established a measure of federal protection
for traditional Indian religious practices. Legislation adopted in the 1980s has
allowed Indian tribes to pursue development projects by issuing tax-exempt bonds.

The last twenty-five years has been an extraordinarily active period for litigation
involving Indian tribes. During this period the courts have recognized expansive
Indian resource rights. In its 1963 decision in Arizona v. Californla,lO the Supreme
Court reaffinned the Winters doctrine (discussed in great detail in Chapter 4), and
ruled that Indian tribes have water rights sufficient to irrigate all "practicably
irrigable acreage" within their reservations. In 1979, the Supreme Court upheld the
right of Indian tribes in the Pacific Northwest to take 50% of all salmon and steelhead
passing their traditional off-reservation fishing sites.] 1 Recent Indian law cases also
have recognized broad tribal power to regulate persons, including non,lndians,
seeking to hunt or fish within the reservations. The Indian litigation offensive
involving natural resources also has included several major eastern land claim cases
in which tribes ultimately have been awarded large tracts of land, originally thought
to have been transferred away by nineteenth century treaties with states. 12

The tribes also have suffered their share of setbacks on resource issues. The
most notable examples involve Supreme Court decisions in 197613 and 198314 which
recognized the authority of states to adjudicate tribal reserved water rights. The
perceived importance of fmality in water law led the Court to rule that previously
adjudicated Indian water rights nonnally will not be disturbed, even if the prior