WSP04842

• File Number: 8067
• Description: Section D General Federal Issues/Policies-Section 7 Consultations
• Date: 7/14/1976
• Author: Frank E Maynes
• Title: Federal Water Rights 1973-83-A General Discussion of the Federal Reserved Rights Doctrine
• Water Supply Pro - Doc Type: Report/Study

OU2U93

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the formation of Indian reservations to all lands removed from the

public domain by the United States. The Indians rights were based on a

private right which was held by them from time immemorial. The federal

right is based on the idea of common law sovereignty and the public

right to develop federally witheld land. In the words of the Supreme

Court, "We have no doubt about the power of the U.S. under these clauses
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[the Commerce clause and the Property clause] to reserve water rights

for its reservations and its property." These decisions created appre-

hension, confusion, chaos and a climate conducive to' lawsuits rather

than development. There are many actions presently pending which deal

with the reserved rights doctrine.

In the case of United States v. Akin the United States as trustee

for the Southern Ute Indian Tribe and the Ute Mountain Ute Indian Tribe

filed for adjudication of their water rights in the San Juan. The case

was recently in the United States Supreme Court on the jurisdictional

question of whether federal or state courts would hear the case. It was

held that state courts had jurisdiction and so the Colorado Water Court

-for District 7 will initially hear the cause on the merits.

The quantification of Indian water rights is a major issue of

these pending lawsuits. The Southern Ute Indian Reservation contains

300,000 acres and the Ute Mountain Ute Indian Reservation contains

569,060 acres. The Pine River Irrigation Project allotted water to the

Southern Ute Indian Tribe on the basis of 16,669 irrigable acres.

The Southern Ute Indian Tribe might want to abandon the irrigable

acreage formula and use one which would allow them to develop their vast

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