What Rights Do Native Americans Have in Water:
State v. Acquavella (In re Yakima River Drainage Basin, 177 Wash. 2d 299, 296 P.3d 835 (Wash. 2013) (en banc). Part I
Native Americans have had their water rights curtailed or, exttinguished, by European/American settlers, since the latter reached the west. As the Congressional Research Service confirmed in an April 2019 report, observing that: “In the second half of the 19th century, the federal government pursued a policy of confining Indian tribes to reservations. These reservations were either a portion of a tribe’s aboriginal land or an area of land taken out of the public domain and set aside for a tribe. The federal statutes and treaties reserving such land for Indian reservations typically did not address the water needs of these reservations, a fact that has given rise to questions and disputes regarding Indian reservedwater rights.” (Congressional Research Service (“CRS”), Indian Water Rights Settlements, Updated April 16, 2019, https://fas.org/sgp/crs/misc/
Consequently, within the framework of the state-governed western prior appropriation law regime, a number of native American tribes possess water rights that were and are “senior” to those of water users of European origin, who were “granted” water rights by the various state governments. Indeed, based on the latter water rights, the settlers were provided access that were recognized subsequent those of the natives. The natives’ rights were recognized as “reserved rights” in the seminal case of Winters v. United States, 207 U.S. 564 (1908). (McKenna J.)
What has become known as the Supreme Court’s Winters doctrine, was the Court’s attempt at clarifying the water rights of native Americans in disputes where water rights were not clearly defined. Nevertheless, since a number of native tribes hold senior water rights, as a consequence of the Winters reservations, the measure of these rights is indeterminate in frequent cases. The Basin’s waters are over-appropriated (there are approximately 2,300 water rights in the basin, http://www.umt.edu/bridges/ resources/Documents/Blog-Items/C1-Water-Security-West.pdf), and establishing who has priority water rights iscritical to provide certainty for water users. Accordingly, a number of tribes have persisted in their own assessment of their water rights via litigation and negotiated settlements. (See CRS ibid.) “The settlements involve negotiation between tribes, the federal government, states,water districts, and private water users, among others. They aim to resolve conflict between rightsholders and allow the parties to determine specific terms of water allocation and use with certainty.”
A 2013 case, that was adjudicated by the Washington Supreme Court, serves as an example of the fight and litigation over water rights. The case, State v. Acquavella (In re Yakima River Drainage Basin, 177 Wash. 2d 299, 296 P.3d 835 (Wash. 2013) (en banc)), an appeal from the Court of Appeals. There the parties, as appellants and cross-appellants, brought several challenges to the conditional final order of the trial court, in which it determined the various parties’ water rights. The Court held that in a dispute over water rights in the Yakima River Basin, between the Yakima (tribal) Nation and European or, non-tribal titleholders: (1) the size of the Yakima Nation’s land holdings had to be recalculated; (2) the Yakimas’ had a right to water storage; and that (3) the Nakima’s are required to provide the Europeans/non-tribal water users with rights to, within certain limits, excess water. (I want to acknowledge my appreciation and use of the April 17, 2013, article by Shannon Love, In re Yakima River Drainage Basin, in the University of Denver Law Water Review, http://duwaterlawreview.com/in-re-yakima)
The Yakima River flows approximately 215 miles from the outlet of Keechelus Lake in the Cascades of central Washington State in a southeasterly direction and empties into the Columbia River. During that trek the Yakima drains some 6,155 square miles (slightly less than the size of Hawaii, which measures 6,459 square miles). The River Basin is one of the most exhaustively irrigated areas in the United States. Its population in 1990 was about 238,000.
Since the 1855 treaty between the United States government and the Yakima Nation, when the Yakima were forced unto a reservation, the Basin’s water have been litigated over. Pursuant to the Winters Doctrine, the creation of a reservation also established an implied water right to meet the reservation’s entire current and future water needs. In 1908, the United States created a “Code Agreement”, which divided the Yakima River’s water rights as follows: 25% to the Yakima Nation and 75% to the non-tribal water users on the northern side of the Basin’s Ahtanum Creek (a/k/a the “Northside users”). Thereafter, in 1977, the Washington Department of Ecology (“DOE”) filed an action to determine surface water rights in the Yakima River Basin. (“Since 1978, the federal government has entered into 36 water rights settlements with 40 individual Indian tribes. These Indian water rights settlements are a means of resolving ongoingdisputes related to Indian water rights between tribes, federal and state governments, and otherparties (e.g., water rights holders). The federal government is involved in these settlements pursuant to its tribal trust responsibilities. Many of these settlements have been authorized by Congress to provide funding for projects that allow tribes to access and develop their waterresources.” CRS ibid. at Introduction).
Nevertheless, since 1977, several cases have been adjudicated and have also, culminated in the case sub judice before the Washington Supreme Court, between the United States, the Yakima Nation, DOE, the Washington Department of Natural Resources (“DNR”) and a number of private parties. The Supreme Court of Washington (“Court”) considered the following issues on appeal: (1) whether any cases or, agreements before and since 1977, determined either the Northside users’ water rights or the Yakima Nation’s acreage, i.e, the measure of water required to irrigate the entirety of the irrigable acreage on a reservation; (2) whether non-Yakima Nation water users have any rights to the Tribe’s excess water; (3) whether the Tribe has any water storage rights; and (4) whether the trial court accurately applied the future use exception.