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Last modified
1/26/2010 11:19:59 AM
Creation date
10/9/2006 3:27:01 AM
Metadata
Fields
Template:
Water Supply Protection
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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<br />Indian Waler-7997: Trends and Directions in Federal Water Policy <br /> <br />I <br />I <br />I <br /> <br />So, in the state general stream adjudications in the 1940s and 1950s, all <br />water rights were being determined except the most senior rights-those of <br />the United States and, in the case of the tribes, the Indian reserved rights. <br />Congress remedied this situation by ~nactingthe McCarTan Amendment, <br />which waives the United States' sovereign immunity from suit for purposes <br />of adjudicating all rights to a river or other water source. As long as the <br />general adjudication proceeding is undertaken in a court, the sovereign <br />immunity waiver applies, and the United States can be joined. <br /> <br />When the United States is joined, it is clear that the courts have jurisdiction <br />under the McCarTan Amendment to adjudicate, not only the federal reserved <br />and state water rights, but the Indian reserved water rights as well. That is <br />very clear in Supreme Court jurisprudence. <br /> <br />I <br />I <br />I <br /> <br />.. 723 F.2d 1394 (1984). <br /> <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br />I <br /> <br />Assuming that the United States is brought into a general stream adjudica- <br />tion, what is some of the case law regarding general stream adjudications? <br />First, we know that the federal courts have jurisdiction to adjudicate the <br />reserve rights, but the federal courts will abstain in adjudication of reserved <br />rights in deference to state proceedings, with some exceptions. Second, there <br />is a theory that the state courts are set up pursuant to a comprehensive state <br />statutory scheme to accomplish their general stream adjudications. As such, <br />the federal courts generally let the state courts adjudicate everybody's rights <br />together rather than try to do a piecemeal federal adjudication of water . <br />rights. <br /> <br />However, federal court deference to the state general stream adjudication <br />will not occur where the federal court proceeding (to declare, for instance, the <br />existence and scope of an Indian reserved water right) is well on its way to <br />completion before a general stream adjudication in state court is commenced. <br />The classic case on this point is United States v. Adair,14 in which the <br />9th Circuit declared and described the Kalmath Tribe's federal reserve water <br />rights, but the actual quantification of the tribal water rights based on the <br />Federal court declaration was accomplished in a state general stream <br />adjudication. <br /> <br />Note that the determination of reserved waters is governed by federal and <br />not state law. Whether you are in federal or state court, federal law <br />determines the scope, size and use of the federal reserved water rights. <br /> <br />Now, let's turn to state general stream adjudications and to an issue that is <br />unresolved in state general stream adjudications: whether or not, and to <br />what extent, state administrative agencies can playa role in the adjudication <br />of Indian reserved water rights. There is one case that has addressed this <br /> <br />18 <br /> <br />I <br />
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