Indian Tribal Rights to Groundwater

Abstract

There are a number of methods or analyses under which Indian tribes may claim rights to groundwater. Several tribes have asserted rights to groundwater as part of their federally-reserved water rights under the Winters doctrine. Untested so far is an alternative theory of reserved rights under the Shoshone rule that constituent elements of trust land are, like the land itself, held in trust for the tribes. In addition, state law groundwater rights, based on ownership or use, should be available to tribes that wish to assert them. And finally, several water settlement acts address tribal rights to groundwater as well as surface water. This article surveys those approaches to Indian rights to groundwater.

Keywords: Indian water rights, tribal water rights, reserved water rights, groundwater, water rights