Michael Blumm on Federal Reserved Water Rights

Michael C. Blumm has posted “Reserved Water Rights as a Rule of Law” on SSRN. Here is the abstract:

The reserved water rights doctrine is — and always has been — a controversial doctrine in Western water law circles because it provides a federal trump over state systems of water allocation. First articulated by the U.S. Supreme Court over a century ago, states and their water rights holders have always resisted implementation of federal water rights because the federal government and its trustee Indian tribes often have different water priorities than the states, long committed to diversionary rights largely for irrigated agriculture.

In Idaho, opposition to federal water rights largely succeeded in defeating water for wilderness, national forests, national recreational areas, and other federal conservation lands in the decisions by state courts in the massive Snake River Basin Adjudication (SRBA). Now, in an Idaho Law Review article, two advocates for state water rights who helped defeat federal water rights in the SRBA proffer a theory that, if accepted by other Western states, would export their Idaho victories.

This response to their effort explains why their theory is flawed and should be rejected by Western state courts. Their argument was in fact not adopted by the Idaho Supreme Court, which employed other reasoning for rejecting federal reserved water rights. This essay maintains that, although Congress certainly has the power either to affirm or reject water rights for federal lands, the idea that water rights may be lost by mere congressional discussion of the doctrine followed by a decision not to take action cannot be interpreted as a rejection of a legal doctrine over a century old. There is no support for interpreting congressional inaction to reverse a long settled legal doctrine like federal reserved water rights — and the costs imposed on federal interests, especially in terms of instream flows, would be significant.

Outstanding New Paper on Federal Trust Land Acquisitions by Frank Pommersheim

Frank Pommersheim has published an important new paper titled “Land Into Trust: An Inquiry into Law, Policy, and History” in the Idaho Law Review. A PDF is here:

49 Idaho Law Review 519

Here is the introduction:

The land-into-trust policy of the Indian Reorganization Act (“IRA”) is an express legislative attempt to undo, or at least ameliorate, the massive loss of Indian land that resulted from the federal government’s allotment policy of the late nineteenth *520 and early twentieth centuries. The allotment policy occasioned a severe reduction in the national Indian land estate without any benefit to the affected Indians and tribes including the vaunted goals of assimilation and the reduction of poverty in Indian country. The extensive loss of land produced much economic hardship, cultural strain, and erosion of tribal governing authority.

The subsequent attempt of IRA law and policy to reverse this process of severe land loss raises significant questions about the ability of law, and Indian policy in particular, to repair history without creating new conflict that reprises, even deepens, old animosities. This article will survey and analyze this process from both a policy and empirical point of view. In addition, this piece will review the nitty-gritty administrative procedures for putting land into trust, the various procedural challenges to this process, as well as substantive legal challenges to the validity of the land-into-trust portions of the IRA, especially in the state of South Dakota. Finally, the article will tally the empirical results to date, and conclude by examining non-litigation strategies and solutions with an eye on their ability to meet the needs of all concerned.

HIGHLY recommended.

Three New Indian Law Articles in Idaho Law Review


Thad Blank, Time to Recommit: The Department of Justice’s Indian Resources Section, the Trust Duty, and Affirmative Litigation, 48 Idaho L. Rev. 391 (2012).

Benjamin J. Fosland, A Case of Not-So-Fatal Flaws: Re-Evaluating the Indian Tribal Energy and Self-Determination Act, 48 Idaho L. Rev. 447 (2012).

Katheryn A. Bilodeau, The Elusive Implied Water Right for Fish: Do Off-Reservation Instream Water Rights Exist to Support Indian Treaty Fishing Rights, 48 Idaho L. Rev. 515 (2012).

Judith Royster on Conjunctive Management of Reservation Water Resources

Judith Royster has posted a paper forthcoming in the Idaho Law Review titled, “Conjunctive Management of Reservation Water Resources: Legal Issues Facing Indian Tribes.”

Here is the abstract:

Conjunctive management is the integrated management of all water sources as a single system. As complicated as conjunctive management of state water resources is, things become even more complicated when conjunctive management involves tribal water resources as well. On virtually all Indian reservations, two governments exercise regulatory authority over some of the water allocation and use decisions. Those allocation and use decisions are based on different laws and different legal principles. To complicate matters further, surface water decisions may be made on a different basis than groundwater decisions and, even if the same legal regime determines both, the decisions may not be integrated with one another.

Against that background, Indian tribes face substantial legal impediments to conjunctive management of reservation waters. In particular, three aspects of federal and state law frustrate effective tribal participation in conjunctive management. First, Indian tribes are, in many instances, barred by federal action from creating comprehensive, enforceable water codes. Without a water code, management of any kind, much less conjunctive management, becomes problematic. Second, the reserved rights doctrine does not include a clear, universal right to groundwater. Instead, the determination of whether tribes have rights to groundwater as well as surface water is left to individual court decisions and settlement acts, with a resulting wide variation among tribes in groundwater rights. Because conjunctive management is the integration of surface and groundwater regimes, the variability of tribal rights to groundwater hampers comprehensive approaches. And third, the lack of conjunctive management in some states can impact tribal reserved rights to water. While states have long been legally obligated to protect tribal rights to surface water in their allocation of state surface water rights, protecting tribal reserved rights to all water sources requires states to take account of tribal rights in the states’ allocation of groundwater as well.

Indian Law-Related Panels at AALS

Thursday, January 8, 2009, 8:30-10:15

Section on Indian Nations and Indigenous Peoples
Columbia 3, North Tower/Lobby Level, San Diego Marriott Hotel & Marina

New Directions for International Law and Indigenous Peoples

(Program to be published in Idaho Law Review)

The United Nations’ adoption of the “Declaration on the Rights of Indigenous Peoples” in September 2007 marked an historic moment for the world’s 300 million indigenous peoples. The Declaration is the first time that the United Nations has formally recognized indigenous peoples’ rights to self-determination and control over their lands and natural resources. This year’s program will address the following issues related to the Declaration: How can the Declaration be used to improve the lives of indigenous peoples; What national laws and policies violate the Declaration, and what are the most effective remedial measures to address these violations?; and, How will the Declaration influence Congress, the administration and the courts?

Business Meeting at Program Conclusion.

Robert T. Coulter – Speaker
Angelique A. Eaglewoman – Speaker
G. W. Rice – Speaker
Wenona T. Singel – Moderator

Continue reading

Idaho Law Review — Call for Papers


This call for papers seeks submissions for the AALS Indian Nations and Indigenous Peoples Section’s 2009 publication of selected papers.  The Section will meet during the American Association of Law School’s Annual Conference on January 8th, 2009.  The Indian Nations and Indigenous Peoples Section Meeting will focus on “New Directions in International Law and Indigenous Peoples.”  The University of Idaho Law Review will be publishing the papers on this topic accepted for publication.

The papers should address the themes of international law developments impacting the lives of Indigenous Peoples.  With the passage on Sept. 13, 2007 of the UN Declaration on the Rights of Indigenous Peoples, the international community has taken a major step in the direction of being responsive to the efforts of Indigenous peoples to bring awareness to global and local issues.  Subject areas for papers may include: international human rights and Indigenous peoples; applying specific international documents to Indigenous issues; the increasing intersectionality of international and Indigenous law; the changing discourse over Indigenous peoples’ status in the international arena; influences of international law within Indigenous communities and jurisprudence; and related topics along these lines.

Continue reading