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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"shortage" that might occur in a dry period. For example, such an arrangement
underlies the San Juan-Chama Diversion and the Navajo Indian Irrigation Project in
New Mexico. As new users seek water in the future, the holders of senior water
rights in the West, including many Indian tribes, can be expected to be approached by
parties wanting to purchase some of Ihe priority contained in those rights. New ways
to moderate and to share the risk of watcr shortage probably will develop in response.

Politicians v. Brokers: Emerging Pricing and Marketing

For the most part, water in the West has been allocated politically for private
benefit Governments have handed out, without charge, rights to use the water. In
some instances governments also have subsidized the construction and operation of
dams, canals and olher waterworks. As a result, water rights generally have not been
bought and sold for a price that reflects either the economic value of water or the
actual cost of water developmentJ6 In other words, a water "market" has not
existed. The pressure for water marketing and full-cost pricing is building, however,
as water is being reallocated. Some specialized water markets involving brokers
already exist. These markets can be seen, for example, along the Front Range in
Colorado.

Water's economic value increases when increased dcmand or decreased supply
make it more scarce. To the degree that a market operates in the reallocation of
water, water priccs will rise as scarcity worsens. Higher water prices, in turn, will
mean less waste and more water conservation.

Appropriation v. Reservation: Promises Old and New

During the settlement and development of the West, governments made
different water promises to different people, and those promises have not always
been kept In the latter half of the nineteenth century, Congress essentially told the
western states and their citizens that non-navigable waters in the public domain were
available for the taking. Yet while the states, for the most part, promised the first
water users the better rights, the federal government also recognized reservations for
Indians, promising support and protection for the survival of these homelands.

Early in this century the federal government established a reclamation program,
which held out the promise of subsidized irrigation development for arid lands.
Shortly thereafter the United States Supreme Court recognized the reserved water
right in the Winters case. Winters established the principle that all reservations of
land from the public domain also reserve by implication water needed for the
achievement of the purposes of the reservation. Unlike an appropriative water right,
Ihe reserved right remains valid even when it is not being used. When a senior
reserved right finally is exercised, it can cut off water to the holder of a junior
appropriative right who has relied on Ihe water for years. Such displacement, and
conflict, is on the horizon in Indian Country.

As large-scale reclamation projects were planned and aulhorized, congressional
promises of future subsidies and development were made to many areas of the West,
including Indian reservations. Some of those projects have been variously scaled
down, delayed, restructured financially to reduce the subsidy, or canceled, Old and

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