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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0948

Session I: Western Water Trends and Directions

State Basin-Wide Adjudications: The Impact on Tribes
Susan M. Williams10

Today I would like to comment on the state general stream adjudications.
First, though, I would like to make a couple of points as a backdrop for that
discussion. One is that there is very important federal trust responsibility at
issue here, but the trust responsibility is not well-defined. Where did it come
from? Federal trust responsibility to Indian tribes dates from a very early
United States Supreme Court decision from an early 1800s case called
Cherokee Nation v. Georgia.ll

In Cherokee Nation, the United States Supreme Court outlined the federal,
tribal and state relationship under the United States Constitution. In
outlining the relationship between tribes and states, the Court held tribes
and states to be separate sovereigns, withthe tribes deriving their
sovereignty from their inherent sovereignty existing since time immemorial
and the states deriving their sovereignty from the United States
Constitution. Moreover, the Supreme Court said that the United States
Government must serve as a guardian and a ward in its relationship with
Indian tribes, In a very interesting decision from a legal point of view, the
Supreme Court held that when the United States conquered territory from
Indian tribes around the country, the United States essentially took the
underlying fee title to the Nation's land as a way of divesting other
sovereigns from any sort of ownership or proprietary entitlement to this
country. By taking fee title to all of this country, the United States undertook
an obligation with respect to Indian tribes to protect them in their uses of
their land. Finally, the United States took on the role of being the sole
government empowered to deal with Indian tribes.

As such, the State of Georgia was held to have no power, whatsoever, in the'
Cherokee Nation Reservation absent Congressional consent. In its decision,
the Supreme Court said the United States, in its guardian/ward relationship,
has a general trust responsibility to preserve and protect tribal land, and-I
would argue-to protect tribal sovereignty over tribal lands. The United
States, in its relations and treaties with Indian tribes, took on that
guardian/ward obligation to protect that tribal character as well as to protect
the tribes' right to own and possess water.

Well, it wasn't for many years-in fact, until the 1980s-that the United
States Supreme Court really described the Federal government's trust
responsibility in more detail. There have been a number of cases over the

10 Attorney at Gover, Stetson & Williams, P.C. in Albuquerque, New Mexico.
n 30 U.S. 1 (831).

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