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.