WSPC02585

• File Number: 8064
• Description: Indian Water Rights
• State: CO
• Basin: San Juan/Dolores
• Water Division: 7
• Date: 3/17/1997
• Author: Todd M Olinger
• Title: Summary of Indian Water 1997
• Water Supply Pro - Doc Type: Report/Study

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0947

Session I: Western Water Trends and Directions

Institutional Reform

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The trend in water law throughout the West is away from rigid rights and
strict enforcement and toward improved management. The tribes' role in
this trend is significant. Tribal control (local control) of water also fits with
the ideal of watershed management. Tribes participate at this level as well.

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It is a fundamental tenet of Indian law that Indians can control the people
and territory within their reservations. In the exercise of sound stewardship
and their sovereign powers, tribes enact and enforce water codes.
Unfortunately, the approval of these codes by the United States government
has been stalled by a moratorium that has been in effect since June 1975.
More than two decades ago, a few western states successfully put political
pressure on the Department of the Interior, and the moratorium they
achieved persists today. The moratorium responded to the concerns that
tribes would manage water in ways that were contrary to the interests of
non-Indian water users. Tribes themselves may be able to overcome the
moratorium problem without a change in federal policy. They can simply
amend their tribal constitutions to remove the requirement of secretarial
approval of those codes. The Secretary apparently will approve this
amendment. Does this mean that there is no policy problem? There is a
policy problem so long as the trustee reaffirms, year after year, by its
inaction, that it will not approve tribal water codes. Maybe this refusal does
not rise to the magnitude of a breach of trust, but it is at least a timid
politically response, It ignores the contributions that tribes can make to the
overall improvement of water management in the West.

Many tribes have adopted laws that enable them to control water quality as
allowed under the federal Clean Water Act. History will record with favor
the steadfast insistence of the Isleta Pueblo that the city of Albuquerque
treat its sewage, and the efforts of the Salish and Kootenai tribes of the
Flathead nation to preserve the purity of Flathead Lake. These are not
excesses or unreasonable assertions of tribal authority, but exercises in
sound stewardship and other tribes should follow their examples. I presume
that the Supreme Court will uphold the EPA's approval of the Isleta water
quality program.

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The interconnectedness of what happens throughout a watershed from
headwaters to estuaries and from peak to peak is being reflected in a trend
throughout the West, The trend is toward watershed management. People
within drainages are joining together to solve their own water problems.
Tribes, when given the opportunity, have well-managed entire drainages
encompassed within their reservations. The Warm Springs effort at
integrated resource management-management of all resources in the
reservation environment for generations into the future, is a good example,

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