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Indian Nations in the US

National Congress of American Indians | November 11th, 2003

Summary

Table of Contents: Understanding Contemporary Tribal Government Brief History of Federal Indian Policy Answers to Frequently Asked Questions About Indian Na

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Indian Reserved Water Rights Under the Winters Doctrine: An Overview

Congressional Research Service (CRS) | June 8th, 2011

Summary

Although the federal government has authority to regulate water, it typically defers to the states to allocate water resources within the state. The federal government ma

Although the federal government has authority to regulate water, it typically defers to the states to allocate water resources within the state. The federal government maintains certain federal water rights, though, which exist separate from state law. In particular, federal reserved water rights often arise in questions of water allocation related to federal lands, including Indian reservations. Indian reserved water rights were first recognized by the U.S. Supreme Court in Winters v. United States in 1908. Under the Winters doctrine, when Congress reserves land (i.e., for an Indian reservation), Congress also reserves water sufficient to fulfill the purpose of the reservation. As the need for water grows with the development of new industries and growing populations, the tension arising from the allocation of scarce water resources highlights the difficulties that often surround reserved water rights, particularly in the western states. Western states generally follow some form of the prior appropriation system of water allocation. The prior appropriation system allocates water to users based on the order in which water rights were properly acquired. Because Indian reserved water rights date back to the government’s reservation of the land for the Indians, these water rights often pre-date other water users’ claims. Although the prior appropriation system’s reliance on seniority provides a degree of certainty to water allocation, Indian reserved water rights may not have been quantified at the time of reservation. Because Winters did not dictate a formula to determine the quantity of water reserved, courts apply different standards to quantify tribal reserved water rights. As a result, other water users may not know whether, or the extent to which, Indian reserved water rights have priority. Because of these uncertainties, Indian reserved water rights are often litigated or negotiated in settlements and related legislation. This report will examine the creation of Indian reserved water rights under the Winters doctrine. It will analyze the scope of the doctrine, including the purposes for which the water right may be claimed and the sources from which the water may be drawn. It will also discuss various quantification standards that courts have used in attempting to clarify Indian reserved water rights. Finally, it will examine the effect of the McCarran Amendment, through which Congress extended jurisdiction to state courts to hear disputes involving Indian reserved water rights.

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Indian Water Rights in the West

Western States Water Council | December 1st, 1983

Summary

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Indian Water Rights Settlements

Congressional Research Service (CRS) | March 27th, 2017

Summary

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

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 reserved water rights. Dating to a 1908 Supreme Court ruling, courts generally have held that many tribes have a reserved right to water sufficient to fulfill the purpose of their reservations and that this right took effect on the date the reservations were established. This means that, in the context of a state water law system of prior appropriations, which is common in many U.S. western states, many tribes have water rights senior to those of non-Indian users with water rights and access established subsequent to the Indian reservations’ creation. Although many Indian tribes hold senior water rights through their reservations, the quantification of these rights is undetermined in many cases. Tribes have pursued quantification of their water rights through both litigation and negotiated settlements. The settlements involve negotiation between tribes, the federal government, states, water districts, and private water users, among others. They aim to resolve conflict between rights holders and allow the parties to determine specific terms of water allocation and use with certainty. Over the last 50 years, negotiated settlements have been the preferred course for most tribes because they are often less lengthy and costly than litigation. Additionally, many stakeholders have noted that these negotiated agreements are more likely to allow tribes not only to quantify their water rights on paper but also to procure access to these resources in the form of infrastructure and other related expenses, at least in some cases. After being negotiated, approval and implementation of Indian water rights settlements require federal action. As of 2017, 36 Indian water rights settlements have been federally approved. Of these, 32 settlements were approved and enacted by Congress and 4 were administratively approved by the U.S. Departments of Justice and the Interior. After being congressionally authorized, federal projects associated with approved Indian water rights settlements generally have been implemented by the Bureau of Reclamation or the Bureau of Indian Affairs (both within the Department of the Interior), pursuant to congressional directions. Congress has appropriated discretionary and mandatory funding (and, in some cases, both) for these activities, including in recent appropriations bills. Several Indian water rights settlements have been considered and enacted, including three that were enacted in the 114th Congress. A primary challenge facing new settlements is the availability of federal funds to implement ongoing and future agreements. Indian water rights settlements often involve the construction of major new water infrastructure to allow tribal communities to access water they hold rights to, and obtaining federal funding for these projects can be difficult. As a result, some settlements have been renegotiated to reduce their federal costs. At issue for Congress is under what circumstances (if any) to approve new Indian water rights settlements and whether to fund (and in some cases amend) new and ongoing settlements. Some argue that resolution of Indian water rights settlements is a mutually beneficial means to resolve long-standing legal issues, provide certainty of water deliveries, and reduce the federal government’s liability. Others argue against authorization and funding of settlements, either in general or with regard to specific activities associated with individual settlements. This report provides an overview of Indian water rights settlements. It analyzes issues surrounding water rights settlements and the negotiation process, as well as implementation challenges and related issues for Congress.

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Indian Water Rights Settlements

Congressional Research Service (CRS) | November 27th, 2017

Summary

This report provides an overview of Indian water rights settlements. It analyzes issues surrounding water rights settlements and the negotiation process, as well as imple

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Indigenous communities, groundwater opportunities

American Association for the Advancement of Science (AAAS) | August 3rd, 2018

Summary

Instead of managing fresh water as one integrated resource, laws frequently treat groundwater separately from more visible, monitored, and managed surface waters. One und

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Klamath Basin Settlement Agreements

Congressional Research Service (CRS) | October 21st, 2015

Summary

The Klamath River Basin on the California-Oregon border is a focal point for local and national discussions on water allocation and species protection. Previously, water

The Klamath River Basin on the California-Oregon border is a focal point for local and national discussions on water allocation and species protection. Previously, water and species management issues have exacerbated competition and generated conflict among several interests—farmers; Indian tribes; commercial and sport fishermen; federal water project and wildlife refuge managers; environmental groups; hydropower facility operators; and state, local, and tribal governments. Drought conditions and a call for water by senior water rights holders in 2013 have again brought these issues to the forefront. In 2010, the Secretary of the Interior and the governors of Oregon and California, along with multiple interest groups, announced the results of a multiyear negotiation process to resolve long-standing issues in the basin: two interrelated agreements, supported by the federal government and signed by the two states and numerous other parties. These agreements, known as the Klamath Basin Restoration Agreement (KBRA) and the Klamath Hydroelectric Settlement Agreement (KHSA), together aim to provide for water deliveries to irrigators and wildlife refuges, fish habitat restoration, and numerous other related actions. Generally, the KBRA provides for actions intended to restore Klamath fisheries and for assurances for water deliveries to wildlife refuges and federal project irrigators under certain circumstances, among other things. The KHSA lays out a process that could lead to the removal of four privately owned dams on the Klamath River. This dam removal would be one of the largest and most complex projects of its kind ever undertaken. Some parts of the Klamath agreements are being carried out under existing authorities. Studies to inform a determination on dam removal under the KHSA by the Secretary of the Interior are complete, and some restoration actions have been initiated. However, congressional authorization is required for the most significant components of the agreements to be implemented. The KBRA and KHSA did not address all outstanding issues in the basin. A water rights adjudication by the state of Oregon (in progress since the 1970s) is ongoing. In 2013, the adjudication reaffirmed “time immemorial” tribal water rights in the upper part of the Klamath Basin, confirming that tribal water rights are senior to those of other water rights holders. This resulted in a “call” on water rights (i.e., notice by senior water rights holders that their demands exceed available flows), and led to reductions to water supplies for some junior users during the low water year of 2013. To resolve these issues and prevent such a scenario from occurring again, a separate settlement agreement (the Upper Klamath Basin Settlement Agreement) was negotiated by stakeholders and finalized in April 2014. To be implemented, the agreement would need to be authorized along with the KBRA and KHSA. The KBRA and KHSA were originally set to expire in 2012 if no authorizing legislation was enacted, but they have since been extended (most recently through 2015). Parties may also withdraw individually from the agreements, and several parties initiated this process of withdrawal. In the 114th Congress, S. 133 would authorize the Klamath agreements, including a suite of new federal actions that have received support from disparate parties and are required for the agreements to be implemented. Previous legislation in the 113th Congress (S. 2379) was ordered to be reported out of the Senate Committee on Energy and Natural Resources on November 13, 2014.

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Klamath River Basin Issues: An Overview of Water Use Conflicts

Congressional Research Service (CRS) | June 13th, 2002

Summary

Severe drought in 2001 affected the Klamath River Basin, an area on the California-Oregon border, exacerbating competition for scarce water resources and generating confl

Severe drought in 2001 affected the Klamath River Basin, an area on the California-Oregon border, exacerbating competition for scarce water resources and generating conflict among several interests – farmers, municipal and industrial users, commercial and sport fishermen, other recreationists, federal wildlife refuges, environmental groups, and Indian Tribes. The conflicts over water distribution and allocation are physically and legally complex, reflecting the varied and sometimes competing uses of limited water supplies in the Upper Basin. On April 6, 2001, the Bureau of Reclamation (Bureau), which has supplied water to farms in the Upper Basin for nearly 100 years, announced that “no water [would] be available” for farms normally receiving water from the Upper Klamath Lake, so that scarce water could be used to protect species listed as endangered or threatened under the Endangered Species Act (ESA). Water was available to some farmers from other sources (e.g., wells and other Bureau sources); however, many farmers were not able to plant or harvest crops due to severe cutbacks in water supplies. Emotions ran high on all sides of the issues, and the water control gates were unlawfully opened by protesters. Although the Basin has received significantly more precipitation in 2002, many issues remain in dispute. In addition, several judicial decisions have affected the issues with respect to the listed species as well as tribal rights. On May 31, 2002, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service both issued Final Biological Opinions on the Bureau’s 10-year Operation Plan for the Klamath Project. The agencies found that the Bureau’s proposed action is likely to jeopardize the continued existence of the two listed suckers and coho salmon, as well as result in the adverse modification of proposed critical habitat; however, both Opinions also included “reasonable and prudent alternatives” for operating the Project that would remove the jeopardizing effects of the proposed action. However, on June 3, 2002, the Bureau formally rejected both Final Biological Opinions, but opted instead to operate under a one-year plan that it asserts complies with the Opinions. Independently, in March 2002, the President appointed a high-level working group to develop solutions. Congress has responded to the controversy in a number of ways, including holding several oversight hearings and appropriating funds for water conservation activities in the area. This report provides background on the geographic, historic, and legal underpinnings of the current conflicts. Because the report focuses on the current conflicts, it deals primarily with Klamath Project operations in the Upper Klamath Basin and effects associated with water releases from Upper Klamath Lake.

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Lower Colorado River Basin Plan letter to the U.S. Bureau of Reclamation, 5/22/23

U.S. Bureau of Reclamation (USBR) | May 22nd, 2023

Summary

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Measuring Progress Toward Universal Access to Water and Sanitation in California: Defining Goals, Indicators, and Performance Measures

Pacific Institute | September 15th, 2018

Summary

In January 2018, over half a million Californians were served by water utilities that were out of compliance with the Safe Drinking Water Act (SDWA). The worst outbreak o

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Indian Nations in the US

Indian Reserved Water Rights Under the Winters Doctrine: An Overview

Indian Water Rights in the West

Indian Water Rights Settlements

Indian Water Rights Settlements

Indigenous communities, groundwater opportunities

Klamath Basin Settlement Agreements

Klamath River Basin Issues: An Overview of Water Use Conflicts

Lower Colorado River Basin Plan letter to the U.S. Bureau of Reclamation, 5/22/23

Measuring Progress Toward Universal Access to Water and Sanitation in California: Defining Goals, Indicators, and Performance Measures

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