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

That is a big question in water rights, because water rights are a unique
species of property not really owned by anybody. It is a right to use water.
Governments permit and regulate the right to use water. There may be an
individual property interest in that nght to use-there is debate about
that-but I think there is a use right in individuals. So how do you bind
people after you adjudicate an Indian reserve right? How do you get
everybody bound to that result short of a general stream adjudication in
which everybody with an interest or claim in the same water source is
brought in and has their day in court? The big advantage in these general
stream adjudications, if they are done right (and I'll tell you what I think is
doing them right is), is that the senior water rights can be determined for all
time with finality. Nobody can claim later on, "I wasn't there-I didn't
participate." Because there is a procedure and a comprehensive statutory
scheme for bringing everybody in and saying, "You get your day in court and
you do not get another day in court. It's done. Indian reserve rights are
quantified, no question about it."

Where general stream adjudication have done what is logical, which is to
start with the oldest rights first and then move forward, in order to see
whether there's any water left after all the seniors are taken care of, the
tribes have had good experiences. In particular, I would like to cite the
Aamodt general stream adjudication in New Mexico.

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Now, that has been going on a very long time. It has taken the court, in my
view, excessively long to adjudicate the rights. I think one of the criticisms
of general stream adjudications is that the courts need to hasten the process.
The courts, I think; really want the parties to settle, and we're going to have
a whole halfday on the problems of settlement now and why settlements are
not happening.

So the United States is in the odd position today of deciding, "Shall we make
our policy on settlement stronger and try to get settlements done, because
the United States is trustee here and failure to act can result in monetary
damages by Indian tribes against the United States Government for failure
to protect the Indian water right." The United States right now, it seems to
me, ought to be thinking, "Well, should we get the courts to expedite some
rulings here or should we negotiate?"

Let me tell you about Aamodt. This summer the Indian Pueblos sat down in
Aamodt and said, "You know, this case has been going on for twenty years
and non-Indians still get all the water. We have been adjudicated at least
preliminarily, although not in a final order, as the senior water right holder.
Yet, every year we get what is left over when the non-Indians are done.
Now, what is fair about that? It has been twenty years since we began."

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