Indian Water and the Federal Trust: Some Proposals for Federal Action

Abstract

Indian tribal reserved rights to water constitute trust assets under the protection of the federal government. Nonetheless, the federal government's duty of protection, and remedies against the government if it fails in that duty, are seldom recognized by law. Congress could protect tribal water rights through enactment of comprehensive regulatory legislation, but such legislation would run counter to the modern trend of recognizing increasing tribal control over natural resources and would interfere with tribes' authority to manage their water. There are, however, a number of steps that Congress and the Department of the Interior could take in fulfillment of the federal trust responsibility for Indian water rights. These proposals, briefly outlined here, would assist tribes with the development and management of their water resources and remove obstacles that presently exist in federal law to the assertion of tribal authority over water.

Keywords: Indian law, Indian water rights, tribal water rights, reserved water rights, federal trust responsibility