The Historical Evolution of the Methodology for Quantifying Federal Reserved Instream Water Rights for American Indian Tribes

Abstract

Tribes throughout the Northwest traditionally relied upon the fish in their territory for their physical, cultural, and spiritual survival. For many indigenous people, that interrelationship continues today. As a result, in the face of incredible odds,the tribes of the Northwest have been steadfast in their defense of these aquatic relatives and the rights secured by their ancestors. That effort, through litigation, restoration, and conservation management, has focused on maintaining a good environment for culturally important aquatic species. Fish require many things; their success is predicated on good habitat, food, water quality, and water quantity. Tribal efforts have addressed each of these and each deserves considerable attention for their dedication and innovation. This article focuses on a sliver of that effort: the historical development of methods tribes have used to ensure adequate quantities of water remain in streams to maintain a healthy habitat for fish.

Keywords: indigenous rights, reserved water rights, fishing rights, law and science, legal history, instream flows, Physical Habitat Simulation modelling, Instream Flow Incremental Methodology, environmental justice, environmental risk