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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TRIBAL WATER MANAGEMENT HANDBOOK

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decisions were plainly unfair to the tribes. Nevenheless, tribal claims to natural
resources just twenty-five years ago were cloudy at best. Today, Indian tribes across
the country possess reasonably well-established rights to water, fish and wildlife,
land and minerals.

Litigation over natural resources has been complemented by court opinions that
recognize inherent tribal sovereignty. In 1978, the Supreme Court ruled that tribes
possess no criminal jurisdiction over non-Indians, t5 but later decisions have held that
tribes possess important aspects of regulatory jurisdiction over non-Indians who enter
reservations. As a result, in many instances tribes can talt non-Indian activities, zone
non-Indian land, and regulate non-Indian businesses. The tax.ation cases have an
important additional benefit: businesses operating within Indian Country often are
not subject to state taJtation, a situation that provides some companies with an added
incentive to locate on Indian reservations.

One of the most significant developments in recent case law is the affinnation
that Indian tribes are independent governments with governmental responsibilities,
such as providing roads, police protection, social programs, and other services for
their citizens. This development in the modem era is symbolized by the 1982
Supreme Court decision of Merrion v. Jicarilla Apache Tribe. t6 In Merrion the
Court noted, with appropriate irony, that it is Indian tribal governments who are
charged with providing the benefits of "civilized" society to all reservation residents,
non-Indians and Indians alike:

The power to taJt is an essential attribute of Indian sovereignty because it is
a necessary instrument of self-government and territorial management.
This power enables a tribal government to raise revenues for its essential
services. . " The petitioners [non-Indian oil companies] avail themselves
of the "substantial privilege of carrying on business" on the reservation.
They benefit from the provision of police protection and other
governmental services, as well as from "the advantages of a civilized
society" that are assured by the eltistence of tribal government. Numerous
other governmental entities levy a general revenue taJt similar to that
imposed by the ]icari1la Tribe when they provide comparable services.
Under these circumstances. there is nothing eltceptional in requiring
petitioners to contribute through taxes to the general cost of tribal
government. t 7

These recent decades of legislation and litigation have worked no magical trans-
fonnation, but they have produced a steady, honest progress that has benefitted most
tribes. Vine Deloria, ]r., a noted Indian scholar and author, summarized the period
by stating that "in spite of the brief fling with tennination of federal supervision,
tribal governments emerged in the closing decades of the twentieth century in a much
better position and with higher status than they had entered it." Robert L. Bennett,
fonner Commissioner of Indian Affairs, similarly concluded that "Indian tribes are
beginning to enjoy their newly found opportunities under the policy of self-
determination as a means for strengthening their inherent sovereign pow~rs. . .. Self-
determination as a concept, now developed into policy, is here to stayiaild the Indian
tribes are glad of it and will make the most of it." The victory has not been total, but