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.