Briefs filed by the Tribe and the United States to obtain summary judgment on the water districts’ equitable defenses asserted in response to the Tribe’s claim for a declaration of its federally reserved rights to groundwater.
Here:
2015-09-18 – Dkt 137 – US Notice and Motion for Partial Summary Judgment…
2015-09-18 – Dkt 138 – ACBCI Notice and Motion for Partial Summary Judgm…
Prior materials here.
Daniel Lee has published his note, “Statutes of Ill Repose and Threshold Canons of Construction: A Unified Approach to Ambiguity After San Carlos Apache Tribe v. United States” in the Seattle University Law Review.
Here is the abstract:
Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members. The river is also sacred to the Tribe and central to the Tribe’s culture and spirituality. Initially, the federal government had recognized the Tribe’s dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation. Acting as the Tribe’s trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and awarded significant water rights to private parties and other Indian tribes. In particular, this Note focuses on the Federal Circuit’s decision in 2011 that the San Carlos Apache Tribe could not seek damages against the United States for improperly diminishing the Tribe’s reserved water rights to the Gila River under the Decree because the court determined that the statute of limitations had run. This Note argues that the case was wrongly decided. It then proposes two new analytical devices to overcome the recent trend of courts denying remedies to tribes based on supposedly unambiguous language of treaties, statutes, and decrees.
Jesse H. Alderman has posted his paper, “Winters and Water Conservation: A Proposal to Halt ‘Water Laundering’ in Tribal Negotiated Settlements in Favor of Monetary Compensation,” on SSRN. The final version of the paper appears in the Virginia Environmental Law Journal. Here is the abstract:
In the century since the U.S. Supreme Court, in Winters v. United States, granted Indian tribes reserved water rights, few tribes have received the promised delivery of water, while at the same time, the Department of Interior — the same agency tasked with a fiduciary duty to hold all tribal assets in trust — constructed massive, multibillion-dollar water projects without cognizance of senior Indian rights. The water transformed much of the West from arid desert to a green expanse of farmland and steel-and-mirrored urban centers with populations rivaling cities in the water-rich East. However, the pace of development has placed unsustainable strain on the groundwater aquifers and surface waters of the parched Interior West, all while untold millions of acre-feet of water are still owed to Indian tribes under Winters. As state courts and the U.S. Supreme Court have proven hostile to Indians, tribes have increasingly settled their Winters claims through negotiation with states, cities, and other junior appropriators. The benefits of these negotiated settlements have proven illusory. While tribes turn their “paper rights” into “wet water,” they are often shortchanged, and bound by agreement to market water to competing municipal economies off-reservation. The linchpin of most negotiated settlements is federal investment in otherwise politically unpalatable water delivery projects, made possible by the purported necessity of settling senior Indian claims. This form of exchange might critically be called “water laundering.” This Article argues that negotiated settlements are bad public and environmental policy. As an alternative to those negotiated settlements, this Article proposes that tribes should instead seek financial compensation for their inchoate Winters rights by suing the federal government for a century of abject breach of its fiduciary duty to hold water in trust for the benefit of tribes. This suit should be modeled on the recent Cobell class action litigation, where Congress ratified a $3.4 billion settlement with the Departments of Interior and Treasury for similar mismanagement of Indian allotment lands. A class action approach would allow the tribes to receive the maximum financial value, and vindicate rights long neglected by the federal fiduciary, all while averting further overconsumption of the West’s perilously scarce water resources.
Here.
An excerpt:
The Wisconsin Legislature has approved amendments to Wisconsin law intended to pave the way for Gogebic Taconite to mine iron ore in the Penokee Hills of Ashland County. Wisconsin’s tribes have been outspoken in their opposition. The Bad River Chippewa, whose reservation lies directly in the path of any mine runoff, has been especially vocal.
The six Chippewa tribes have asserted that their treaties with the federal government give them special status and entitle their concerns to greater weight. They are right.
By the 1842 treaty at La Pointe, the Chippewa ceded to the United States approximately 12 million acres, including the Penokee Hills, receiving in return an amount that the Indian Claims Commission later called “unconscionable.” A treaty, the Supreme Court observed in United States vs. Winans, is “not a grant of rights to the Indians, but a grant of right from them – a reservation of those not granted.” In the 1842 treaty, the Chippewa reserved “usufructuary” rights in the territory they ceded, including the right to hunt, fish, trap, harvest wild rice and engage in other activities to make a living from the land.
Here is the opinion in Dept. of Ecology v. Acquavella:
And the briefs are here:
Here is the opinion in … oh, we’ll call it Johns v. United States.
An excerpt:
Under the particular and complicated facts of this case, there is no practical benefit to placing issue remarks on Claimants’ water rights stating that lands within their place of use were once within a former Indian reservation. Although the remark is historically accurate, it serves no useful purpose. Waters in Basin 41QJ are not physically available for diversion or use by the Blackfeet Nation, and any aboriginal water rights once in existence there have been terminated. The Blackfeet Tribe sued and recovered compensation for this termination. The Blackfeet have not made a claim to water from Basin 41QJ in their Compact with the State of Montana and the United States. The Tribe has not objected to the water rights in this case. No injury has been demonstrated to the Tribe or its members if these or any water rights in Basin 41QJ are diverted in accord with their actual priority dates. The United States concedes the priority dates of Claimants’ water rights are valid and enforceable against other non-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.
Turtle Talk 