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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0950

Session I: Western Water Trends and Directions

Nonetheless, that is the task of the United States Government when it has a
claim that somebody is taking Indian water. For how can we know that
somebody is taking Indian water if the Indian water right is not quantified?
Some tribes say, "It's our water., It fiows through the reservation. It always
did, it always will. The entire river source is our water right. We do not
need to quantify our claim to that water,"

How then do you stop the non-Indians who are diverting the water upstream
if you do not have a water right that has a size, a number, a quantity to it?
Is it true that the tribe owns all the water in the stream or not? We have to
have a court declare, or some legislature mandate, that result. Otherwise,
the tribe has a claim to all the water in the river, but no ability to tell other
people not to take it because there has not been an adjudicated claim to the
river-or at least to some amount of water from the river.

There have not been a whole lot of adjudications that have gone forward. In
fact, to date, there is only one general stream adjudication in this country
that has gone to the United , States Supreme Court and that, of course, is the
Wyoming general stream adjudication in Big Horn. All other general stream
adjudications, and there are many of them out there, have been languishing
for years and years.

What is a general stream adjudication, and how does an Indian right get
involved in a general stream adjudication? A general stream adjudication
can be accomplished in either federal or state court. Everybody involved in
the river or having a claim to the river's water is brought into the court.
There is nothing magical about a general stream adjudication. It is simply a
court declaration of all the rights to the water in the river, based either on
state law or-in the case oflndian reserve rights-federal law. A number of
state court general stream adjudications occurred in late 1940s and the early
1950s. The states were starting to try to determine who had what water
rights and adjudicate them. To accomplish this task, the states tried to bring
the United States as a party to the adjudications, since the United States
owned lots ofland throughout the West that had federal reserve water rights
as well as owning some non-reserve state water rights.

Specifically, the United States owns three types of water rights: state water
rights, federal reserve water rights, and finally, as trustee for the tribes,
federal Indian reserve water rights. Prior to the McCarran Amendment" in
1955, the United States could not be brought into these general stream
adjudications, because it could not be sued without first waiving its sovereign
immunity.

" 43 D.S.C. ~ 666 (1994).

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