WSP00897 - Laserfiche WebLink

Home Browse Search

permits issued by the state would be limited to excess water (Ed. Excess to the awarded Indian reserved water right). If those permits represent rights that may be empty, so be it." The tribe has adopted an interim water code claiming water administration jurisdiction on the entire reservation over Indians and non- Indians alike. Non-Indians have been issued permits under the code (Folk- Williams, 1982). Other Indian tribes have adopted water codes asserting jurisdiction over water rights on their reservations. They include tribes in Montana, New Mexico and Utah. All three states have taken the position that the tribes do not have jurisdiction over non-Indian water rights on reservations, and the Governor of Montana issued a position paper to that effect (Folk-Williams, 1982). Most states challenging the authority of Indian tribes to administer water rights on a reservation object mainly to tribal attempts to administer both Indian and non-Indian water rights. Generally conceding that the tribes can administer Indian reserved rights, the states believe they have the authority to regulate all waters on reservations not so reserved. These states also argue that even if the tribes could exercise authority to manage all water on a reservation, it would be necessary for the Secretary of the Interior to cooperate in the matter, which he has not done (Folk-Williams, 1982). South Dakota Assistant Attorney General John P. Guhin suggests the McCarran Amendment could be interpreted to mean that not only are the United States and Indian tribes subject to the state courts in water right matters following a general adjudication but that the United States and the tribes are also subject to the state administrative process following a general -20-