Question

Using the Winans preserved/ Winters reserved shema, what water rights do you think a court could hold that the five tribes possess?

what unique challenges do you see the five tribes as facing in trying to seek recognition of those water rights and what unique strengths do you think the five tribes have with respect to those rights?

Answer 1

Answer.

In the history of federal law in the United States, there exist three cases which are the foundation by which water rights for Indian tribes have been established. Within the United States there are two prominent water law systems: riparian water law which is applicable in the eastern states and prior appropriation law that is applicable in the western states. Like riparian law, federal reserved Indian water rights arise from land ownership rather than from diversion and use, they may be asserted at any time and are not lost by nonuse of the water. However, accoridng to the Prior Appropriation doctrine, all water on public lands was made free for appropriation and use of the public for irrigation, mining and manufacturing purposes.

Indian reserved rights on the other hand vary from both of these water law systems. the Indian water rights are often the most senior rights within a basin. However, many of the rights have not been quantified.

both the Winans and the Winters case involved Supreme Court judgements about the federal power over the water resources in the protected lands.

Winters water rights are federally created and the Requirements for obtaining water rights under state law do not govern. This is done in accordance with the act of reserving lands for particular purposes, typically transforming nomadic Indians into productive agrarians. The priority date in Winters was the date the government established the reservation. established a right that dates from the date of the reservation. In the Winans case however, the Supreme Court established a right that dates from time immemorial and it grants the right in land ownership to the Native American population, and it thus ran against not only the federal government but also its grantees such as the Winans fishing company .

if this is applied to the case of the five tribes and their appeal to entitlement of the water resources, we can analyse that a key principle to establishing water right is determining the purpose of the land reservation. Many reservations were established to encourage nomadic Indians to become farmers. In Winters doctrine for instance, the Supreme Court established the right of an Indian tribe to obtain sufficient water for its agricultural needs. This right commences with the date of the Reservation. Winans rights on the other hand, preserve pre-existing uses, rather than establish new uses and are often based on non-consumptive uses of water.

disputes between non-Indians and Indian tribes will continue with the increasing move towards sustainable water spresources. Some of the New challenges in the water rights include issues of climate change and its impact on a tribe’s water rights and a tribe’s right to store its water in aquifers. Based on the Winans case, the five tribes would appear to have a shared ownership over the water resources and their rights would be secured indefinitely and would apply even after the land get so transferbale, but the Winters doctrine would posit that such claims would remain valid only till the resource is being used for non commercial practices. However, The challenges for Indian tribes to obtain and maintain sustainable water supplies will continue even if these court doctrines have established a guideline for reaching a conclusion on water disputes.