40 Pages Posted: 30 May 2008
Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid west. Modern litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few United States Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non-Indian uses, while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history of Indian water rights and concludes that the traditional practicably irrigable acreage quantification standard should be adhered to by the courts - supplemented by the homeland theory that awards water to fulfill all purposes behind creation of a reservation. The author also argues that the Executive Branch should adopt firm budgetary policies that promote settlements as an Administration priority in order to ameliorate historic inequities in western water development.
Keywords: water rights; Indian tribes; allotments; Winters; trust responsibility; settlements
JEL Classification: K11; K32
Suggested Citation: Suggested Citation
Anderson, Robert T., Indian Water Rights and the Federal Trust Responsibility. Natural Resources Journal, Vol. 46, No. 2, 2006. Available at SSRN: https://ssrn.com/abstract=1138864