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

Indian Waler-1997: Trends and Directions in Federal Water Policy

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years in which the United States has been held liable in the United States
Claims Court for a breach of trust because it failed to protect Indian water
rights. But there have not been many cases in this jurisprudence, except
where an Indian tribe (in Arizona, for example) had been using water for a
farm project and then upstream juniors started developing their farms and
taking that water. Here the United States has been liable in money
damages for breach of trust, for failure to stop those upstream diversions
that had caused the tribal farm project to go under.

But over the years there have only been a couple of cases in the Claims Court
on this subject, It was not until the early 1980s that the U.S. Supreme Court
asked and answered the question, "under what terms and conditions will the
United States be liable for a breach of its trust responsibility to Indian
tribes?" It did so in a set of companion cases called United States v.
Mitchell!'

In those cases, the Supreme Court held that in order for the United States to
be liable in money damages, there has to be an obvious waiver of the United
States' sovereign immunity from suit, even if there is a claim that the United
States breached its duty to the Indian tribes to protect their water rights or
their water resources.

The United States Supreme Court further held that the Tucker Act, which is
the general statute for the Claims Court itself, isn't a sovereign immunity
waiver. Instead tribes must look elsewhere to see whether the United
States, regardless of the fact that it has a fiduciary duty, intends to allow
itself to be sued for breach of its duty.

In United States v. Mitchell, the Supreme Court held that since the United
State is general trustee to Indian tribes, if there is a trust that we can
demark or describe, then there is going to be relief in monetary damages
where the United States has breached that trust. Well, then how do we
know that there's a trust that gives rise to monetary damages?

The Supreme Court gave two answers: Monetary damages are appropriate
when Congress expressly addresses the breach of trust and Federal liability
for monetary damages in a statute, or where the United States undertakes
virtually daily supervision of the tribal trust asset. In the latter instance, if
the U,S. mismanages the tribal resource, it will be liable in monetary
damages for breach of its trust.

So I think it's very important for this Commission to address, head-on, the
United States' trust responsibility to preserve and protect Indian water

" 463 U.S. 206 (1983),

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