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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Session I: Western Water Trends and Directions

issue. In 1994, the 9th Circuit held, in United States v. Oregon, 15 that the
United States was required to participate in an adjudication of water rights
by a state administrative agency as long as the state agency's administrative
action was part of a single statutory scheme that essentially. paved the way
for an adjudication by the court.

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In Big Horn, Wyoming, one of the things that we resisted for years was
having the state agencies playa role at all in determining, declaring,
describing the reserved water rights, because, like it or not, the reality is
state and tribal governments have a long history of a hostile relationship.
Non-Indians on Indian reservations may claim that tribal courts are forums
that are unfriendly to them, and that they do not have fair participation in
tribal government. Tribes feel much the same about state courts. Tribes are
often the minority by far, and they do not have any political influence over
the selection of state court judges, by vote or otherwise.

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There's a long history of fighting between states and tribes over sovereignty
issues; most recently in Congress over the Safe Drinking Water Act and the
Clean Water Act when the tribes sought to be treated as states under the
Acts. The states fought against giving tribes the ability to regulate the
environment on their reservations. So this is not an old fight. It's very much
a modern fight and a battle for power. So tribes are nervous about going into
state courts because those judges are elected fairly periodically, and we feel
as though we are going to get home-towned in state courts. There is some
evidence thlit we do get home-towned in the state courts and that is most
unfortunate.

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In United States v. Oregon, the court said, "Well, the state agencies can play
a role." In Wyoming, we said, "The state agencies should play no role
because they are biased. They are not going to give us a fair shake."
Because if they do give us a fair shake, that means all of the state permitees
have to cut down their uses, and they might not get any water at all. Our
fear is that no state agency or political judge is going to give Indians a very
large water right in that context.

Is it a well-founded fear? It is hard to say. We have some evidence that
perhaps it is, but time will tell. In United States v. Oregon, the single
statutory scheme that paved the way for an adjudication by the court, was
one in which there was no ability of the state administrative agency to make
binding findings on either law or fact.

Well, how is that working out today then? Let us take Nevada for example.
There is a general stream adjudication going on at the Las Vegas Valley

" 44 F.3d 758 (1994).

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