Indian Water Rights: Relevant Case Law
As jurisdictions seek to develop sustainable water supplies, disputes between non-Indians and Indian tribes will continue, joined by disputes that position one Indian tribe against another. New challenges include issues of a tribe’s right to store its water in aquifers and the impact of climate change on a tribe’s water rights.
“‘Drink only a little water!’ This is the kind of admonition Papago fathers used to whisper to their sons and daughters to awaken them in the morning. … The Papago people prided themselves on their thirst-endurance, and well they might, for they inhabited one of the most arid regions in North America.” – Henry F. Dobyns, “The Papago People,” Indian Tribal Series (1972), at 1.
The federal government “can be kindly described as having been less than diligent in its efforts to secure sufficient water supplies for the [Indian] community to develop its arable lands and achieve meaningful economic self-sufficiency and self determination.” – Rep. Morris K. Udall, 134 Cong. Rec. E562-02 (Mar. 8, 1988).
“[T]he hard reality is that years-long litigation over [Indian] water rights works to no party’s benefit, exacts enormous financial costs and creates further obstacles to long-range economic planning and development.” – Carl Artman, Assistant Secretary for Indian Affairs, U.S. Department of Interior, March 18, 2008.
First is a brief discussion of the two basic doctrines of water law in the United States: (a) the Riparian Doctrine and (b) the Prior Appropriation Doctrine. Second is a discussion of three cases which are the foundation by which water rights for Indian tribes have been established. Third is a discussion of the decisions by state and federal courts that are noteworthy and expand on the concepts established in the foundational cases.A sustainable water supply is an important element of any viable community. The purpose of the material that follows is to provide a summary of the cases that, read together, establish the basis by which Indian tribes in Arizona and the western United States have the right to a sustainable water supply.
In considering an Indian tribe’s entitlement to water, one should consider the following:
- How does an Indian tribe establish its right to use water?
- How much water or flow rights is an Indian tribe entitled to and from what water sources?
- What uses can be made of the water and on what lands?
- Can an Indian tribe transfer its rights to use the water to others?
- What court determines an Indian tribe’s rights to water?
- How do members of an Indian tribe obtain the right to use water to which an Indian tribe is entitled?
INTRODUCTION: WATER LAW DOCTRINES
Within the United States there are two prominent water law systems: riparian water law applicable in the eastern states and prior appropriation law applicable in the western states. Indian reserved rights vary from both of these water law systems. It is helpful to have a brief introduction to each of these doctrines before addressing the law of Indian reserved water rights.
The Riparian Doctrine. Water law in the eastern portion of the United States is governed by the principles of riparian law:
- The owner of land that borders a water body, river or lake, has the right to a reasonable use of water, which right is shared with all other riparian land owners.
- The right cannot be lost by nonuse. Shortages must be shared among all riparian users.
- One riparian owner’s use may not unduly interfere with the use by other riparian land owners.
- The right to use water is appurtenant to the land and is not generally severable from the land.
- Non-riparian landowners have no entitlement to the water.
Like riparian law, federal reserved Indian water rights arise from land ownership rather than from diversion and use, may be asserted at any time and are not lost by nonuse.
The Prior Appropriation Doctrine. Early miners in the western United States often needed water from the natural streams and riparian lands for mining operations which were located on public lands. Diversionary structures were built and the water was transported from the river to the mining operations. The “first in time, first in right” use of water was the beginning of the doctrine of prior appropriation law. The attributes of the appropriation doctrine are as follows:
- The basis of the right is beneficial use.
- The right is stated in terms of a definite quantity, nature of use and time of use.
- The right may be terminated by abandonment or forfeiture.
- The priority date is the date on which beneficial use began.
- The right is transferable.
- Land ownership adjacent to a stream is not a requirement to obtain a water right.
- Senior appropriators’ rights must be fully satisfied before junior appropriators’ rights are satisfied.
The Desert Land Act, 19 Stat. 377 (1877) provided that all water on public lands was “free for appropriation and use of the public for irrigation, mining and manufacturing purposes.” In the seminal decision of California-Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935), the Court recognized that the Desert Land Act severed the land and water estates on the public domain such that land was acquired through the federal government programs while water rights were established under traditional state practices and laws. Early appropriation law protected investments in diversions and did not recognize an appropriation right when there was no diversion.
Like prior appropriation law, federal reserved Indian water rights have a priority date and a quantification. Because Indian water rights date from at least as early as the date of the reservation, the Indian water rights are often the most senior rights within a basin. However, many of the rights have not been quantified.
THE FOUNDATION CASES
Three United States Supreme Court cases form the foundation of the determination of federal reserved Indian water rights. Each of these cases is discussed below.
United States v. Winans, 198 U.S. 371 (1905)
The Winans brothers operated four state-licensed fish wheels near Celilo Falls on the Columbia River as well as several federal homestead patents to shoreline lands. The brothers excluded members of the Yakima Tribe from their traditional fishing places and destroyed buildings the Indians erected for curing fish. The Yakima Tribe was a signatory to a series of treaties between the United states and the Indian tribes of the Pacific Northwest. The federal government brought suit, but the district court declined to enjoin the Winans, ruling that state licenses and federal patents enabled them to exclude both Indians and non-Indians alike. United States v. Winans, 73 F. 72 (D. Wash. 1896).
On appeal, the Supreme Court ruled that “the treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those [rights] not granted.” Id. at 381. Under this “reserved rights doctrine,” tribes retain all elements of their original Indian title until the tribes affirmatively act to give them up. A right cannot be lost through silence. These reserved rights impressed a “servitude,” a “right in land” that ran against not only the federal government and its grantees such as the Winans, but also against subsequently created states.
The Winans Court held that this right of access to fish imposed a “servitude upon every piece of land subject to the treaty, a “right in land” to cross over and temporarily occupy lands in order to exercise their fishing rights. The priority date for such rights was “time immemorial.”
Winters v. United States, 207 U.S. 564 (1908)
The Winters case involved the Indians of the Fort Belknap reservation in Montana, whose territory had been increasingly diminished by a succession of treaties throughout the latter half of the nineteenth century, resulting culminating with an 1888 statute which ratified an agreement confining them to 1400 square miles mostly suitable for grazing. Winters v. United States, 143 F. 740, 742 (9th Cir. 1906).
There was little water on the Fort Belknap Reservation, although its northern boundary was fixed at the center of the Milk River. In 1889, after Montana achieved statehood, the federal government began diverting water from the Milk River for the domestic and irrigation needs of its officers and agents in charge of the reservation. In 1898, the government initiated an Indian irrigation project. A number of non-Indian irrigators, including ditch, irrigation, and cattle companies, constructed diversion works upstream of the reservation on tributaries of the Milk River pursuant to the federal Desert Lands Act and the water laws of the state of Montana. Under the Desert Lands Act of 1877, 640 acres of public land could be acquired for 25 cents per acre upon proof that the land had been irrigated. 43 U.S.C. §§ 321-39. The 1877 Act required water rights to be acquired under the state of Montana’s prior appropriation law.
A drought in 1905 made it impossible for both the Indian and non-Indian needs to be met and the federal government filed suit to protect the Indian diversion. The federal government won at trial and on appeal, the Supreme Court affirmed. Writing for the Court, Justice McKenna ruled that the federal government did not relinquish all water rights by reason of the Desert Land Act.
On the contrary, the 1888 statute impliedly reserved water in the Milk River for the Indians. Justice McKenna explained:
The power of the Government to reserve the waters and exempt them from appropriation under state laws is not denied, and could not be … . That the Government did reserve them we have decided, and for a use that would necessarily continue through the years.
Id. at 576. With its decision in the Winters case, the Supreme Court created a second concept of implied reserved water rights, one that was necessary to satisfy the purpose of the reservation. Winters water rights are federally created. Requirements for obtaining water rights under state law do not govern. Winters rights arise from the act of reserving lands for particular purposes, typically transforming nomadic Indians into productive agrarians. The priority date in Winters was the date the government established the reservation.
Arizona v. California, 373 U.S. 546 (1963)
Winans established a right that dates from time immemorial, while Winters established a right that dates from the date of the reservation, but it wasn’t until 1963 that the Supreme Court addressed the quantification of the entitlement.
Arizona v. California was brought by Arizona against California and some of its agencies in an original action to determine the rights to the Colorado River. The United States intervened. The other Colorado River basin states were joined or intervened in the lawsuit. As part of the allocation of the waters of the Colorado River, the Supreme Court addressed the quantification of the reserved water rights of several Indian tribes along the Colorado River. The Court found that the “only feasible and fair way by which reserved water for the reservations can be measured is irrigable acreage.” 373 U.S. at 600-01. Using the “practicably irrigable acreage (PIA) standard” as the measure of reserved rights on reservations, the Arizona v. California Court found that the statute and executive orders which established the five reservations implicitly reserved about a million acre-feet of water for about 135,000 irrigable acres of land. Id. at 595-96. This award included water for at least one reservation, the Cocopah Tribe’s reservation, which did not border on the Colorado River, thus suggesting that reserved rights may be drawn from water sources that do not traverse or border a reservation. 376 U.S. 340, 344 (1964).
A CENTURY OF CASE LAW DEVELOPMENT
In the past 100 years, since the Winans and Winters decisions of 1905 and 1908, the law of federal reserved Indian water rights has been modified, enhanced and refined through a number of significant decisions in state and federal courts. The following addresses issues raised in some of the more important of those decisions.
The Basis of the Water Right. A key principle to establishing an implied water right is determining the purpose of the reservation. Many reservations were established to encourage nomadic Indians to become farmers. In Winters, the Court established the right of an Indian tribe to obtain sufficient water for its agricultural needs. The right is a newly created right that commences with the date of the Reservation. Winans rights, in contrast, preserve pre-existing uses, rather than establish new uses. These rights are often based on non-consumptive uses of water. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754, 764 (Mont. 1985). A water right for hunting or fishing “consists of the right to prevent other appropriators from depleting the streams waters below a protected level in any area where the non-consumptive rights applies.” United States v. Adair, 723 F.2d 1394, 1411 (9th Cir. 1983) In Adair, the Ninth Circuit found dual purposes for establishing the Reservation: the provision of a homeland to maintain an agrarian society and preservation of the tribe’s access to fishing grounds.
The Wyoming Supreme Court determined that the purpose of the Wind River Reservation was a permanent homeland for the Indians. In re Rights to Use Water in Big Horn River, 753 P.2d 76(Wyo. 1988), aff’d by an equally divided court sub. nom., Wyoming v. United States, 492 U.S. 406 (1989) (“Big Horn II”). The Court found that there was an intent to reserve water when the Reservation was created in 1868. The Wyoming Supreme Court rejected the special master’s report that reserved water for irrigation, stock watering, fisheries, wildlife and aesthetics, mineral and industrial and domestic, commercial and municipal uses. Based on the language of the treaty “to provide the Indians with a homeland where they could develop their civilization,” the Court concluded that the purpose was purely agricultural and found that there was no implied reserved right for a fishery, or for mineral and industrial uses. The reserved right for municipal, domestic, livestock and commercial uses were included within the agricultural purpose. There was no implied reserved water right for wildlife or for aesthetic preservation.
The Arizona Supreme Court reiterated that the basis of the right should include sufficient waters to satisfy the future as well as present needs of an Indian reservation. In re General Adjudication of all Rights to Use Water in the Gila River System and Source, 195 Ariz. 411, 420-21, 989 P.2d 739, 748-49 (Ariz. 1999). Such a determination of the purposes of an Indian reservation is fact specific. The Arizona Supreme Court did, however, reject the notion that Arizona Indian tribes have a reserved right “to all of the waters appurtenant to their reservations.” Id. at 421, 989 P.2d 749 n. 10. In a subsequent decision, the Court expanded its discussion of the purposes of an Indian reservation, eschewing intensive analysis of historical documents, for a number of reasons including the reality that the historic documents do not reflect the ”true reasons” that a reservation was created – to force Indians “onto reservations so that white settlement of the West could occur unimpeded.” In re General Adjudication of all Rights to Use Water in the Gila River System and Source, 201 Ariz. 307, 315, 35 P.3d 68, 76 (Ariz. 2001). The Court concluded that Indian reservations were created as permanent homelands. 201 Ariz. at 315, 35 P.3d at 76. “The Court’s function is to determine the amount of water necessary to effectuate this purpose, tailored to the reservation’s minimal need.” Id. at 320, 35 P.3d at 81.
Priority of the Right. In western states governed by the prior appropriation doctrine, priority dates are a crucial attribute of a water right. The priority date of a federal reserved Indian water right will depend on whether the use was predevelopment or newly contemplated by the creation of the reservation. For Winters rights it is the date on which the reservation was created. Winters v. United States, 207 U.S. at 576. In contrast, Winans rights date from time immemorial. United States v. Winans, 198 U.S. 371 (1905). Some tribes have both types of rights, reservation date and time immemorial. See Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 712 P.2d 754, 764 (Mont. 1985); United States v. Adair, 723 F.2d 1394, 1411, 1414-15 (9th Cir. 1983).
Subsequent additions to an Indian reservation may be associated with additional water rights. Rights associated with additions to a reservation will not be given a retroactive priority date to the date of the original reservation but shall obtain a priority date of the additional reserved land. Arizona v. California, 460 U.S. 605, 641 (1983) (“Arizona III”). In rare cases, non-Indian settlers may be determined to have water rights senior to that of an Indian reservation. The Oregon Supreme Court found that a non-Indian flour mill owner had rights prior to those of Indian allottees on the Umatilla Reservation, although it did find senior water rights for the tribe sufficient for household use and the watering of livestock. Byers v. Wa-Wa-Ne, 169 P. 121 (Or. 1917).
Quantification of the Right. Quantification of federal reserved Indian water rights became a critical issue in the western states. It wasn’t until 1963 that the Supreme Court established PIA as the standard for quantifying water rights as applied to Indian reservations that relied on irrigated agriculture for an economic base. Arizona v. California, 373 U.S. 546 (1963) (“Arizona I”). This standard was reconfirmed in Arizona III, in which the Court granted the motions to intervene of the five Arizona Indian tribes in order to amend the 1964 decree to provide water for all the irrigable lands within the reservations. Under such a standard the tribe (or the federal government on behalf of the tribe) must establish that the land is irrigable. In Arizona III, the States claimed that certain lands were too sandy and could not be practicably farmed. The States later dropped their claim after the Special Master found that the soils were not sandy. 460 U.S. at n.30.
In Byers v. Wa-Wa-Ne, 169 P. 121 (Or. 1917), the Court concluded that the reservation lands were either unable to be used for agriculture, being rocky and gravelly, or not in need of water for agricultural production, as capable of being profitably farmed without irrigation. Thus, the water rights that dated from the date of the reservation were limited to household use and the watering of livestock.
In In re Rights to Use Water in Big Horn River, 753 P.2d 76(Wyo. 1988), aff’d by an equally divided court sub. nom., Wyoming v. United States, 492 U.S. 406 (1989) (“Big Horn II”), the Wyoming Supreme Court defined PIA as those acres susceptible to sustained irrigation at reasonable costs and considering, first, the arability of the land, second, the engineering feasibility and third, the economic feasibility. The United States Supreme Court granted certiorari on the single issue of whether some modification to the PIA standard should be adopted in those cases in which there appeared no necessity for additional water be allocated to the tribes and where there is the existence of state water rights long in use by non-Indians. After oral argument, Justice O’Connor recused herself, and the Wyoming Supreme Court decision was affirmed by a 4-4 decision. Observers writing about the Court have indicated that Justice O’Connor would have retreated from the existing PIA standard.
The Arizona Supreme Court has concluded that the PIA standard is not always appropriate and has concluded that quantification should include a consideration of the following factors: tribal history including water use for rituals and traditional activities, tribal culture and water using tribal practices, the tribe’s geography and natural resources including groundwater, the tribe’s economic base and the reservation’s economic infrastructure, past water use, present and projected future population. In re General Adjudication of all Rights to Use Water in the Gila River System and Source, 201 Ariz. 307, 315, 35 P.3d 68, 76 (Ariz. 2001). “Limiting the applicable inquiry to a PIA analysis not only creates a temptation for tribes to concoct inflated, unrealistic irrigation projects, but deters consideration of actual water needs based on realistic economic choices.” Id. at 317, 35 P.3d at 79. The Court rejected PIA as the exclusive quantification measure of Indian water rights. Id., 35 P.3d at 79.
Sources of Water to Satisfy the Indian Water Right. In riparian jurisdictions lands must be appurtenant to a water body in order to have a riparian water right. In contrast, appropriation jurisdictions permit and encourage diversions to be made from a water body to transfer water to the point of application. With respect to federal reserved Indian water rights, the right may be satisfied from water on or bordering the reservation. In Winters the Milk River formed the northern boundary of the Fort Belknap Indian Reservation. In Arizona v. California, 373 U.S. 546 (1963) (“Arizona I”), while the Colorado River bordered several of the reservations, the Colorado River neither bordered nor transected the Cocopah Tribe’s reservation, indicating that appurtenant water is not a prerequisite for a reserved water right. Winans rights may be established at even greater distances from a reservation, as such rights are related to traditional water uses such as hunting and fishing which would have occurred both on and off reservation lands. United States v. Adair, 723 F.2d 1394, 1417-18 (9th Cir. 1983)
The United States Supreme Court has not yet directly addressed the issue of whether an Indian tribe can obtain a Winters right to groundwater. Two state courts have addressed the issue and reached different conclusions. In re Rights to Use Water in Big Horn River, 753 P.2d 76 (Wyo. 1988), aff’d by an equally divided court sub. nom., Wyoming v. United States, 492 U.S. 406 (1989) (“Big Horn II”) compare with In re General Adjudication of all Rights to Use Water in the Gila River System and Source, 989 P.2d 739 (Ariz. 1999). The Wyoming Court found that there was no reserved right in groundwater. Acknowledging that logic supports a reserved right in groundwater, the Court supported its determination on the basis that “not a single case applying the reserved water doctrine to groundwater” was cited. Id. at 99-100.
By contrast, the Arizona Supreme Court concluded that if the United States implicitly intended, when it established reservations, to reserve sufficient unappropriated water to meet the reservations’ needs, it must have intended that reservation of water come from whatever particular sources each reservation had at hand, including groundwater. In re General Adjudication of all Rights to Use Water in the Gila River System and Source, 195 Ariz. 411, 417-18, 989 P.2d 739, 745-46 (Ariz. 1999). The Arizona Court went one step further and concluded that as a holder of a federal reserved water right, an Indian tribe with a federal reserved right in groundwater would enjoy greater protection from groundwater pumping by others than do holders of state law rights, to the extent that the greater protections were necessary to accomplish the purpose of reservation. Id. at 420, 989 P.2d at 749. A Washington federal district court held that reserved rights extend to groundwater, without regard to whether surface water sources were inadequate to provide for tribal needs. United States v. Washington Dep’t of Ecology, 375 F. Supp. 2d 1050, 1058 , 1068-70 (W.D. Wash. 2005), order vacated by United States ex rel. Lummi Indian Nation v. Washington Dep’t of Ecology, 2007 U.S. Dist. LEXIS 86162 (W.D. Wash. Nov. 20, 2007).
Change in Use. While most courts have awarded water rights based on PIA, the same courts have indicated that once adjudicated, tribes may change the nature or place of use of their consumptive water rights. The special master in Arizona v. California noted that the decreed water based on PIA did not infer that the tribes could not use the water for other purposes. The parties in Arizona v. California subsequently stipulated that the rights could be used for non agricultural purposes and the Court agreed. Arizona v. California, 439 U.S. 419, 422 (1979) (“Arizona II”). In Colville Confederated Tribes v. Walton, 647 F.2d 42, 49 (9th Cir. 1981), the Court noted that “permitting the Indians to determine how to use reserved water is consistent with the general purpose for the creation of an Indian reservation providing a homeland for the survival and growth of the Indians and their way of life.”
There is conflicting case law regarding a change from consumptive use to instream flow protections. The Ninth Circuit concluded that a tribe may use irrigation water rights for instream purposes. United States v. Anderson, 736 F.2d 1358, 1365 (9th Cir. 1984). The Wyoming Supreme Court in a plurality opinion would not support a transfer of water rights from agriculture to instream purposes. In re General Adjudication of the Big Horn River System, 835 P.2d 273, 278 (Wyo. 1992) (Big Horn III). Any change to provide for instream flows could only be done in accordance with state law and, under Wyoming law, only the state may obtain an instream flow right. Id. at 279. A federal district court judge in Nevada concluded that in determining whether a tribe’s change in use would impact other appropriators, the court would evaluate the injury to junior users as measured by the impact that would result if the tribe used its entire decreed water right. United States v. Orr Water Ditch Co., 309 F. Supp.2d 1245, 1253-54 (D. Nev. 2004).
Transferability. The ability to transfer water rights for off-reservation uses provides a potential source of revenue for a tribe. There are significant obstacles to such transfer including the Non-Intercourse Act’s prohibition against conveyances of Indian property without federal consent. 25 U.S.C. § 177. In In re Rights to Use Water in Big Horn River, 753 P.2d 76(Wyo. 1988) (“Big Horn I”), the tribes did not seek and the United States agreed that a Tribe could not sell reserved water rights to non-Indians. Congressional authorization of the leasing of water rights for off-reservation uses has been authorized as a component of a settlement of the water rights of an Indian tribe. See, e.g. Arizona Water Settlements Act of 2004, Pub. L. No. 108-451, 118 Stat. 3478, as amended, Pub. L. No. 110-148, 121 Stat. 1818 (2007).
Judicial Determination of Federal Reserved Indian Water Rights. Federal and state courts have concurrent jurisdiction to adjudicate the water rights of Indian tribes. State court jurisdiction requires satisfaction of the requirements of the McCarran Amendment which waives the immunity of the federal government. 66 Stat. 560, 43 U.S.C. § 666. Pursuant to the McCarran Amendment the sovereign immunity of the federal government is waived for the adjudication of the rights to the use of water in a river system or other sources in a state court proceeding, including the adjudication of federal claims to water rights and those of federally recognized Indian tribes.
In Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), the Supreme Court upheld a district court’s dismissal of an action for federal adjudication of water rights in favor of a contemporaneous state court adjudication. In Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1984), the Supreme Court reversed the decision of the appellate court and deferred to the state court proceedings in the states of Arizona and Montana to adjudicate the water rights claims of Indian tribes. The principles established in Colorado River and reaffirmed in San Carlos Apache Tribe are referred to as the “Colorado River abstention doctrine,” which provides that, in most cases, a federal court should defer to a contemporaneous and comprehensive state water rights adjudication. In contrast, in United States v. Adair, 723 F.2d 1394, 1411 (9th Cir. 1983), the Ninth Circuit reviewed the reasoning of the district court to retain jurisdiction and upheld that decision on the basis that the court was merely determining the priority of water rights among lands within the boundaries of the former Klamath Indian Reservation. In addition, federal adjudication would avoid waste, the federal court could hear the case in a convenient location for the parties and the district court ruled only on questions involving application of the federal Indian law doctrine of reserved rights.
Water Rights of Allottees and Subsequent Owners. Water rights for allotment lands was first recognized in United States v. Powers, 305 U.S. 527 (1939). The seminal case on allottee water rights is Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) (“Colville I”), cert. denied, 454 U.S. 1092 (1981), modified, 752 F.2d 397 (9th Cir. 1985) (“Walton II”), cert. denied, 475 U.S. 1010 (1986). An allottee’s right is a right of use of a tribe’s entitlement. This right has been described as a “just share” or a “ratable share” based on the relationship between the total PIA acres and those PIA acres within the individual allotment. Powers, 305 U.S. at 532; Walton II, 752 F.2d at 401.
The Walton I decision also established the rights of subsequent non-Indian owners of an allotment. Walton was a non-Indian owner of allotment land. The Tribe sought to enjoin Walton from use of surface water or groundwater in the No Name Creek basin. Seven allotments were created in the basin in 1917: the middle three allotments were owned by Walton, and the two on either end were owned by the United States and held in trust for the Colville Tribe.
The Ninth Circuit found two purposes of the reservation and established water for both agriculture based on the PIA standard and for the development and maintenance of fishing grounds. An allottee’s right to the reserved water is based on the number of irrigable acres the allottee owns. The Indian allottee’s priority date is the date that the reservation was created. An Indian allottee does not lose entitlement to the water by nonuse. 647 F.2d at 50-51.
If the allotment is acquired by a non-Indian, that individual cannot acquire more extensive rights to reserved water than were held by the Indian allottee. The non-Indian allottee must perfect the right to use the water within reasonable diligence after title transfers. Failure to use the water within a reasonable period of time will result in a loss of the right.
In United States v. Anderson, 736 F/2d 1358 (9th Cir. 1984), the Court held that land reacquired from non-Indian allottees would have the date of the reservation if the right had not been lost after transfer to the non-Indian. For lands where the water rights have been lost, water rights associated with reacquisition would be based on any rights granted under state law and any rights implied to the land as of the date of repurchase.
Refinement of the law relating to federal reserved Indian water rights is expected to occur as state and federal courts address unresolved issues. As jurisdictions seek to develop sustainable water supplies, disputes between non-Indians and Indian tribes will continue, joined by disputes that position one Indian tribe against another. The Arizona Supreme Court rejected objections to the settlement of the Tohono O’odham’s water rights brought by the Pascua Yaqui Tribe. In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 173 P.3d 440 (Ariz. 2007). New challenges include issues of a tribe’s right to store its water in aquifers and the impact of climate change on a tribe’s water rights. The challenges for Indian tribes to obtain and maintain sustainable water supplies will continue.