Robert T. Anderson, Indian Water Rights, Practical Reasoning, and Negotiated Settlements, 98 Calif. L. Rev. 1133 (2010), https://digitalcommons.law.uw.edu/faculty-articles/386
California Law Review
Indian water rights
This Article first reviews the few Indian water rights cases that the U.S. Supreme Court has decided. The Article then traces a threshold issue common to Indian water rights litigation in the federal and state courts: how to determine the purposes of a reservation for which a reserved water right should be implied. A review of major Indian water rights cases demonstrates the generally confusing state of the law in significant respects, especially with regard to the "purposes" determination.
This Article posits that the relative uncertainty in this area has created an environment in which creative, practical solutions to conflicts have emerged in the Indian water settlements approved by Congress. This practical approach is consistent with the approach manifested in the few Supreme Court decisions that reached the merits of Indian water disputes and fits neatly into the portions of Professor Frickey's scholarship that call for less litigation and more sovereign-to-sovereign negotiation. There have been over two dozen Indian water rights settlements since the 1970s, each usually preceded by years of litigation. Given the Supreme Court's abandonment of long accepted substantive and interpretive rules of Indian law, many tribes now prefer government-to-government negotiations for settling natural resource disputes to "all or nothing" litigation. Non-Indian water right claimants also often endorse such an approach since their rights are frequently suspect not just because of potentially senior tribal rights, but due to infirmities under state law.