Hi my name is Julie Nania and I am the water Director for High Country Conservation Advocates in Crested Butte Colorado. Today I'm going to be talking to you a little bit about tribal water uses in the Western United States, and also about Federal Reserve water rights. So to start with, Native American Indian tribes were the original inhabitants of these lands. As such they've been using water in the United States since time immemorial. So the rivers and lakes, and streams, that we often think about, well they've been using these for fishing, for subsistence purposes, gathering shellfish, and to irrigate crops. But in addition to these traditional subsistence based activities that we think about, they've also been using these waters for a variety of cultural and religious purposes. So when we talk about cultural and religious purposes, we're talking about things such as performing ceremonies, and also things that are integral to the actual identity of the tribe. So for instance the Cocopah tribe down in Southern United States, it's very name is actually derived from its relationship to the river. So Cocopah also means the river people. So the use and enjoyment of these rivers and waters goes back a really long ways here. So when we talk about this use, it was somewhat disrupted with the westward expansion. So when European settlers came in and started pushing west, they often push tribes off of their native homelands. Often these removals were done by force, and they were forced to reservation lands. Most reservation lands didn't necessarily encompass areas that had been part of their historic homelands. So they are essentially separated from their traditional waters and traditional uses to a certain degree. So this plays in when we start talking about their rights today, and how this kind of movement to this reservation land has changed that relationship with water. So the first way that it's really changed that relationship is when reservations were created they were created by treaties. These treaties became kind of the governing document that really told how the tribal relationship with resources could be controlled legally and maintained. So in this treaty language they often had explicit reservations on land for the Indian tribes. However the treaties never mentioned anything or water for the most part. Now taking a step back they did actually sometimes reserve the right to continue fishing. So they would have language such as the tribes have reserved the right to continue fishing at the usual and accustomed places. Courts have subsequently found that these fishing rights may actually entail tribes to in-stream flow rights. But when we're talking about the arid southwest, because they didn't quite have that same cultural fishing, we tend not to have any in this language. So essentially the treaties were silent on whether or not the tribes had reserved water for any purpose on the reservation. So it wasn't until 1908 that the US Supreme Court had to look at this question and say did tribes reserve water to use on reservation lands? In 1908 the tribes of the Fort Belknap reservation in Montana had challenged some upstream irrigators to the right to use the Milk River in Montana. So essentially these upstream irrigators we're diverting too much water and had impaired the uses of the tribes on the reservation who were also trying to irrigate and grow crops. So the United States Supreme Court was tasked with looking at this issue to see who had kind of the more supreme right to use that water. Was it the irrigators that had established that right under state law or was it the tribes that had been on that reservation and using it before the irrigators came along? So what the court did is the Supreme Court found in favor of the tribes and it said that when the Indian tribes had reserved that reservation land they'd also impliedly reserved enough water to fulfill the purposes of that reservation. So this was a big progress. Essentially, they said yes they have reserved water with these lands but they left a lot of questions unanswered. They didn't say how much water they had reserved. They also didn't say what purposes that water could be used for. Since the treaty language didn't explain any of that we had a lot of kind of hanging questions. So subsequent court cases have gotten in on some of these questions. For instance in Arizona v California it's one of those cases that is best known for apportioning the Colorado River but it also involved with the rights of five Indian tribes. The court looked at those rights and it was asked to quantify what those rights would be. So essentially the Supreme Court took the view of the special master in the case that the tribes had reserved enough water to essentially irrigate all practicably irritable acres on the reservation. So this is kind of one of those terms of art that becomes important because practicably irritable acreage is used now to try to quantify what the reservation right was in most instances. But this isn't the only means of quantification. Other courts, including the Arizona Supreme Court, have looked to standards such as the homeland standard which instead of looking at this agricultural means of quantifying, has looked to see while the ultimate purpose of the reservation is as the homeland. This could include uses for economic development potentially for some of these religious or cultural uses. It has addressed this more broadly. Even after Arizona when they started to look at quantification, we had this big kind of lurking question. How can tribes use their water? While the Supreme Court hasn't yet addressed this and there have been some conflicting opinions when other courts have. For instance with the issue of in-stream flow rights, and in-stream flow rights are the rights to keep water in the river essentially, the Eastern Washington courts have come to a different conclusion than the Wyoming's State Supreme Court. So in Eastern Washington they looked at this and said, "Yeah, that's an acceptable use of water. We're going to permit two tribes to use water for in-stream flows." In Wyoming, they looked at that and said, "Well, like any other water rights user the tribes would have to submit to the state appropriation system," which effectively prevented them from using their rights for that purpose. So we can see these kind of conflicts over use because there hasn't been a Supreme Court opinion clarifying and because the treaties were largely silent on this issue. So what does that mean for tribes that are trying to use their waters like they traditionally did or historically? One of those things was for in-stream flow uses. Well it means that more often they are seeking the settlement agreement process. So in settlement agreements the tribes are able to sit down with the state, the federal government, and other interested parties and they can actually negotiate the terms of their settlement to reflect their traditional cultural values as well as their economic and agricultural needs. So what we've been seeing now is that a tribe will sit down and they'll start negotiating the terms of quantity. How much water, for what reasons this water can be used. So purpose. These settlement agreements can also include things such as funding for water development, and may also include or address things like endangered species concerns or concerns of the state or other federal stakeholders as well. These settlement agreements are then ratified by Congress and those become the law controlling how the tribe can use and recognize as water rights. So one great example of a settlement agreement in the Colorado River Basin is the Zuni Indian Tribe Water Settlements right of 2003. So this Settlement Act is also known as the Zuni heaven settlement. It gets that name for a specific reason. So the Zuni Indian tribe for years and actually as they would tell it, since time immemorial as well has been pilgrimaging to a spot in Arizona for cultural and religious reasons. This spot's called Zuni heaven and it's known because it's got this beautiful wetland oasis that's really integral to a lot of their religious and cultural ceremonies. So when irrigators moved west this is one of those areas that was damaged by upstream irrigation. Diverters kept depleting the river and eventually the wetlands almost went dry. So the Zuni Tribe got together and had really worked to put this land into protection and in the 80s they were able to achieve protection for this land as a reservation. However as we discussed earlier these treaties and executive orders setting aside reservations didn't necessarily talk about the water reservation. So before 2003 they went back and started negotiating to try to protect the waters that really made those wetlands what they were. What they were able to do is negotiate a settlement agreement that protected non-consumptive uses. So essentially it kept water in the wetlands and allowed them to continue practicing these ceremonies like they had done so for so many years. I think the direct language of this settlement is pretty telling because the act explains that water use by the Zuni Tribe should be able to be used for wildlife or in-stream flow use or for irrigation to establish or maintain wetlands on the reservation. This shall be consistent with the purpose of the reservation. So essentially by incorporating this protective language into the Settlement Agreement they were able to reclaim and protect some of these very important historic and cultural uses. So one of the additional benefits of settlement agreements is tribes are also able to sometimes negotiate for development infrastructure. A great example of where this is particularly important on the Navajo Nation we have a situation where many folks have to truck water sometimes 40 miles one way to their homes just for domestic drinking water supplies. Well, the Navajo Nation, which is a reservation the size of roughly West Virginia, has been in a long process of negotiating the settlement of its water rights agreements. Effectively one thing they could potentially do and are trying to do is to provide a means to create and develop that domestic delivery system to provide access to water. We have this history where these historic uses were impaired when tribes were moved off of reservations, moved back on and then also some of these challenges presented by having these legal documents that effectively did preserve some water to go with the reservations, but didn't really lay out the terms by which that water was quantified or used. So we've had these court decisions and they've been able to clarify and to define some parameters for those uses and recognition. But more effectively tribes have been able to use these settlement agreements to really get in their own terms to help better protect their uses and desires.
