Judicial Termination of Treaty Water Rights: The Snake River Case

Abstract

This article criticized the Idaho district court's resolution of the Nez Perce Tribe's water rights in the Snake River Basin Adjudication (SRBA). The scope of the tribe's claims were considerable, since they included the right to maintain their fishing practices at the time of their 1855 treaty, The article examined the SRBA decision, the purposes of the 1855 treaty, the nature of the tribe's off-reservation water rights, and the unprincipled termination of those rights by the 1999 SRBA court's decision. The article's call for a correction by the Idaho Supreme Court, which the epilogue to the article noted included a conflict-of-interest on the part of the SRBA court, was later obviated by a settlement between the tribe and the state.

Keywords: water rights, Indian tribes, federal reserved rights, federalism, treaty fishing rights

JEL Classification: H23, H44, H77, H82, K11, K32, N52, O13, O44, P28, Q13, Q22, Q25, Q28, Q42, Q48, Q58