Robert T. Anderson, Indian Water Rights and the Federal Trust Responsibility, 46 Nat. Resources J. 399 (2006), https://digitalcommons.law.uw.edu/faculty-articles/388
Natural Resources Journal
federal trust responsibility, Indian water rights
Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid West. Modem litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few U.S. Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non- Indian uses while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history of Indian water rights and concludes that the traditional practicably irrigable acreage quantification standard should be adhered to by the courts—supplemented by the homeland theory that awards water to fulfill all purposes behind creation of a reservation. The author also argues that the Executive Branch should adopt firm budgetary policies that promote settlements as an Administration priority in order to ameliorate historic inequities in western water development.