Winters in the East: Tribal Reserved Rights to Water in Riparian States
34 Pages Posted: 24 Feb 2008
In the eastern United States, the riparian system of state water rights developed on the predicate of sufficient water to go around. Whatever the truth of that predicate in the past, an adequate supply of water fo all uses may not be more myth than reality. In their attempts to address the issue of riparian water rights in an era of limited water, however, eastern states have so far ignored one of the most important issues in fashioning an integrated system of water allocation: the rights of the Indian tribes to water as a matter of federal law. This article begins by dissecting the existing law of the Winters doctrine - of Indian tribal rights to water - into fundamental principles that transcend the specifics of the state law system with which tribal rights must be coordinated, and implementing principles that are necessary to assure a workable water allocation system involving both federal and state-law water rights. The article concludes that the fundamental principles of reserved water rights - sufficient water to fulfill the purposes for which lands are set aside for Indian tribes - are as viable in the eastern United States as in the western. The implementing principles that have developed in western prior appropriation jurisdictions, however - quantification and priority dates - may be less useful in the east. The differences between the state-law systems of riparian rights and prior appropriation may require different approaches to the implementation of Indian tribal water rights into an integrated workable whole. Some possible approaches to implementation in eastern states are discussed.
Keywords: Indian water rights, tribal water rights, riparian rights
JEL Classification: K39
Suggested Citation: Suggested Citation