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 Water-1997: Trends and Directions in Federal Water Policy

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future needs of the tribe is a very scary thing, and it's not well-regarded
when you sit down across the table from non-Indians. They often tell us,
"Well, let's get your needs taken care of for 30 years or 50 years."
Adjudicating rights for all time is not an easy task for either the tribes or the
non-Indians to pursue. So with that backdrop, the United States has a trust
responsibility to preserve and protect Indian water. Indian water rights are
very threatening to the existing economy and expectations of non-Indians.

Next, I would like to discuss, against this backdrop, whether or not the state
general stream adjudications are adequate forums to resolve Indian water
right quantifications. I want to cover this area in two parts. First, I will
overview the law of general stream adjudications. Then I will make a few
comments and raise a few questions for the Commission's benefit regarding
whether or not general stream adjudications are adequate forums for
resolving Indian water rights, and if not, what are the possible alternatives
to this forum.

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Indian reserve water rights, as I said earlier, vest as a property right at the
time the reservations were created, Where a tribe has been using water
since time inunemorial, there is a federal doctrine that tribes have an
aboriginal water right-that is, a water right with a "time immemorial"
priority date. But when the water rights vest at the creation of the
reservation, the priority date in western water law is the date of the creation
of the reservation. As David pointed out, throughout the West, most of the
water law is based on the prior appropriation doctrine.

California has riparian-type rights and th,ey talk about complications. You
try to put Federal reserve rights that are Prior Appropriation rights in a
state water right scheme with priority and riparian rights, and it becomes
very complicated. But Indian rights, again, with priority dates as of the
creation of the reservation and vesting as of the creation of the reservation,
are unquantified.

Now, there are a lot of Indian tribes that are very nervous about quantifying
their water rights for the reasons that I previously explained. How do you
quantify a water right for all time? What methodologies are available to
accomplish this result? Are they firm, are they fair, are they clear? Does
everybody understand them? Is there a dispute about it? The answer to all
of these questions is "no." There are a lot of methodologies available for
quantifying water rights, and there is a lot of dispute over how to apply these
methodologies, especially with regard to Indian water rights for agricultural
purposes, With agricultural rights, the practicably irrigable acreage
standard has given rise to a lot of dispute over how water is to be quantified.

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