The case is State of New Mexico ex rel. State Engineer v. Abbott (D. N.M.):
Indian water rights
Charles Carvell on North Dakota Indian Water Rights
Charles Carvell, Director of the Division of Natural Resources & Indian Affairs in the North Dakota Attorney General’s Office, has published “Indian Reserved Water Rights: Impending Conflict or Coming Rapprochement Between the State of North Dakota and North Dakota Indian Tribes, in the North Dakota Law Review.
Here is an excerpt:
This article summarizes the foundation of North Dakota water law, that is, the prior appropriation doctrine. It then reviews the path by which non-Indians took homesteads on North Dakota Indian reservations, which in turn explains, first, the significant modern-day presence of non-Indian residents and non-Indian-owned land on reservations; second, the state’s effort to control some on-reservation water and its use; and third, it explains a fundamental source of tension between tribes and the state. The article recounts tribal assertions of jurisdiction over on-reservation water resources and their adamant rejection of North Dakota water law. It then reviews the 1908 Winters decision and its development during the past few decades, with an emphasis on the standard by which Indian reserved water rights are often measured, that is, practicably irrigable acres. How this standard might apply on North Dakota reservations, and if it should apply, are also addressed. The article concludes with an overview of the relationship between the tribes and the state regarding water.
NYTs on Gila River Water Rights
From the NYTs:
GILA RIVER INDIAN COMMUNITY, Ariz. — More than a hundred years ago, the Gila River, siphoned off by farmers upstream, all but dried up here in the parched flats south of Phoenix, plunging an Indian community that had depended on it for centuries of farming into starvation and poverty.
If that was not bad enough, food rations sent by the federal government — white flour, lard, canned meats and other sugary, processed foods — conspired with the genetic anomalies of the Indians to sow an obesity epidemic that has left the reservation with among the highest rates of diabetes in the world.
Now, after decades of litigation that produced the largest water-rights settlement ever in Indian country, the Indians here are getting some of their water back. And with it has come the question: Can a healthier lifestyle lost generations ago be restored?
Reviving the farming tradition will prove difficult, many tribal members say, because the tribes, who number 20,000, including about 12,000 on the reservation, have not farmed on a big scale for generations. Fast food is a powerful lure particularly for the young, and the trend of late has been to move off the reservation, to work or live.
Blumm et al. on the McCarren Amendment and Indian Water Rights
Michael Blumm, David Becker, and Joshua Smith (all of Lewis & Clark) just posted, “The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the McCarran Amendment Era: A Promise Unfulfilled.”
ABSTRACT: Western state water law has been notorious for its
failure to protect streamflows. One potential means of providing
the missing balance in western water allocation has always been
Indian water rights, which are federal rights reserved from state
laws. These federal water rights normally have priority over
state-granted rights because they usually were created in the
19th century, well before most Western state water allocation
systems were even established.
Over two decades ago, in 1983, Justice William Brennan assured
Indian tribes that their reserved water rights would not be
compromised by subjecting them to state court adjudications under
the so-called McCarran Amendment, an appropriations rider given
expansive interpretation by the Supreme Court in the 1970s and
1980s. Justice Brennan’s belief that state courts – comprised
largely of elected judges – could treat tribal claims
evenhandedly, despite the high stakes and entrenched interests
involved in Western water rights adjudications, has never been
evaluated.
This study aims to begin to fill that gap by examining the
results of six Western water right adjudications – five of which
were decided by state courts – involving the Klamath, Wind,
Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The
results suggest that Justice Brennan’s optimism was quite
misplaced: in none of the cases studied did a court order
restoration of streamflows necessary to fulfill the purpose of
the tribe’s reservation. Instead, the state courts created a
number of new legal principles to limit or diminish tribal water
rights, in an apparent effort to reduce the displacement of
current water users.
The paper concludes that in the McCarran Amendment Era tribes
must resort to extrajudicial means of restoring streamflows
necessary to fulfill the purposes of their reservations. It shows
how some tribes have employed settlements – and even state law –
to achieve partial streamflow restoration, which is all that now
seems possible in an era in which their claims are usually judged
by skeptical state court judges who face reelections in which
entrenched water users exert considerable influence.
Turtle Talk 