Arroyo

              i ARROYO
Vol. 3 No. 3
Settlement of
Indian Water
Rights,
a Priority Issue
Aconcern
for Indian water
rights has come to be one of
the nation's most important
water resource issues. Its importance
is demonstrated by the fact that
Indian water rights claims are pres-ently
being adjudicated in almost
every western state. These rights are
usually very senior and also unquan-tified.
How conflicts over these
claims will be settled will affect water
use and management throughout the
West.
The parties affected by water
rights conflicts have different objec-tives.
Tribes are interested in secur-ing
and using their rights as a means
of achieving economic self-suffi-ciency,
furthering tribal sovereignty,
and maintaining cultural pluralism.
Non-Indian water users seek to
safeguard long-established water uses
and remove uncertainties about
future water entitlements. States wish
to assert state authority and responsi-bility
for water allocation and to pre-serve
the integrity of state water laws
and administrative systems. The
federal government has many
interests. Along with its trust respon-sibilities
to Indian tribes, the federal
December 1989
Tohono O 'Odham ollas, or clay water jars.
Society, Tucson.)
government is also involved with
such issues as environmental protec-tion,
commitments to users of federal
project water, and responsibilities to
minimize the financial burdens
placed upon the nation's taxpayers.
Further, the nation is moving into
a new era in the management of its
water resources. A new emphasis on
stretching existing water supplies
through better management to satisfy
growing water needs is apparent.
Federal water resource development
activities have diminished, and new
cost-sharing and other rules are in
place, which shift much of the
burden of large-scale water develop-ment
from the federal to the state
and regional level. Much of the
c. 19O (Photofrom Arizona historical
t'
initiative has passed to states and
other sub-federal entities as well.
Tribes have become more active
politically and more competent
technically. Above all, a new flexibil-ity
has appeared in our water alloca-tion
and management institutions, as
water transfers and water marketing
become increasingly common.
However, the development of
these new water policies often means
that the various interestsIndian,
agricultural , industrial , urbanare
competing for limited water re-sources.
Society is faced with the
problem of mediating their conflict-ing
claims to determine the most
beneficial uses of limited water
resources.
WATER RESOURCES RESEARCH CENTER UNIVERSITY OF ARIZONA
Resolving Indian water rights
Confh( ts within this Context of
multiple aspirations and viewpoints
has been extremely difficult. Litiga-tion
has settled few claims defini
ti\ ely, and negotiation mnd legislation
have been only slightly more success-ful.
All parties share a common
interest in finding better and more
lasting ways of settling these dis-putes.
Since the flo s of many western
rivers are fully claimed, recognition
of an\ additional rights, such as
Indian water rights, could only ei mir
at the expense of established watel
users or existing claimants. The
challenge facing indian tribes and
non-indian vater risers in the est is
to exaciline ail possible pathways tO
i1iO\ e from simplistic supply realloca
tion solutions to altcrnati e arrange-ments
in v hk h all can benefit.
Overview of Indian Water
Rights
The primary basis of Indians'
claims to water is the doctrine of
reserved rights. In 1908, the United
States Supreme Court, in (t,iitecl
States i'. Wi,ite;c, held that Indian
reservations vere cnt ïtlecl to enough
water to satisfy the prirposes for
which the lanci was originally re-served
from the public domain. l'lìe
priority claie of the water right is the
date the reservation was established.
lso, unlike other appropriative
water rights acquired under state law,
the usual precondition that water be
di\ erteci and applied to one of a few
"beneficial rises" does not apply, and
Winters rights cannot he forfeited
through non-use.
Although this decision by the
Supreme Court firmly placed Indian
water rights within the legal frame-work
of the prior appropriations
doctrine, little guidance was provided
by either the court or the federal
government to western states as to
how these rights could he integrated
into \'vesterfl \vater allocations. 'T'he
doctrine of )r appropriation is the
previiling system for establishing
'a ater rights in the \X est and is best
srJiTuulali/.e(l b the apla)risln , 'First
in tinte, fusi in cight. '''I' lie first to
I )r'nehiciallV use \vatcr has the highest
priority. Further, if ater is not li5Cdi
ontiuuously, the right can be
Icc I and bi flclr )ned or h )rf e it c'cl.
.\cc onrpanving ti e devek pment of
this doctrine lias been an historical
cleferreii e on the part of the federal
governrenr to stale laws.
S pr i iren on in pa ri I y tire pri )r
a)pro)nial i( )5 doctrine I iich
en(()liraged expansive 'a ater devel-opurent.
t he rapidl growing \\'eslern
states hulk allocated 'a ater resources
in man\ areas to mm-Indian settlers,
ihis rapid development 'a as facili -
tated in a large nie,isnire by tire
Reclamation Act of 1902. 'l'he Act
enabled large vater storage and
delivery projects to be constructed.
opening ast arcas for non-Indian
irrigation and settlement.
I lowever, because most of the
Indian reservations 'a ere created in
advance of extensive non-Indian
settlement, indian rights are generally
senior to rights held by non-Indian
water users. For example, the
priority date for the water rights of
the Gila River Indian Colnmunih is
18h9, a time when the ri ers in the
area flowed freei' and 'a hen the area
was sparsely populated and little
irrigated.
Indian water rights still remain
largely unrisedl and unquant ified.
While the Winters doctrine estab-lished
a place in \\ estern water law
for Indhian reserved rights it also
explicitly excepted these rights from
the limiting safeguards of the prior
appropriation doctrine, part icuha rl\
the exclusion of the rights to loss
through non-use. -\ltbough these
rights 'a ere first recognized in 1908
Indian tribes, in general, have lacked
the capital to prit the water to use,
and unlike non-Indian western
settlers, have received little support
froni the federal government in the
development of adequate water
supplies.
in Arizona and other restern
states, until recent years, very little
foderaI money or technical support
was provided to develop 'a atcr
supplies for Indian tribes. Even
efforts designed to benefit Indi,in
uil )es such as the construction o!
Coolidge I )aiì have often pri )vided
sulrstantial ly na cre to non-Indian
riciglìb irs. t times these efforts
bave actual y provided Indians wnh
no lx'nc'fits at all, as was the casi.'
'a juli the 'hat rioinoIiak i)aui built ihr
the Toirono O( )cllraiu as a reco'aI ion
lacilit\. It now lrolnl onlc inches of
'a ater and has provided no Ix-ire! its
to the tribe.
\s a consc'q ucnee, I rid ian cIa ru i
weic easily ignored and tire de elop-nient
of nc ,n-Icrchian rvater supplies
could continur' unfett.'red with only a
limited ree( gnitd in that Indian rights
'a ould someday lra e to be recog-nized.
Rut as long i5 these extensive
tribal 'a ater rights claims remain
unresolved, western states-'icl their
non-indian water risers foce rincer
tainty in their plans to manage and
rise water.
Practicably Irrigable Acreage
Although
the Winters doctrine es-tal)
hishedl the legal foundation
tor Indian water elainrs, it left several
important issues unresolved. Even
after a nrunber of conirt cases,
questions concerning the nutrire and
scope of Indian 'a ater rights remain.
These q riestir ns include: \X hat
sonirces of 'a ater can Indian tribes
claim1 Can the reser cdl rights
doctnne be applied io groundwateni
Can Indians lease water for rise by
others off t be reservation? Anni most
importantly for tire 'a estern states and
non-indian 'a ater risers: I-low innieb
water arr' tire indian tribes entitled to?
To date, the U.S. Supreme Corut
lias recognized only one standard for
quantificationpracticably irrigable
acreage (PIA). In 1963, in Ai'izo;ia y.
(]alif()rflicl. the Court allocated the
waters of the lower Colorado River.
In a(klition to determining the water
rights of the states of Arizona
California, and Nevada, the court also
quantified federal reserved rights of
five Indian reservations along the
Colorado River and other federal
rights. In quantifying the Indian
rights, the court granted the reserva-tions
enough water to irrigate all
practicably irrigable acreage within
their boundaries. This quantification
standard is known as practicably
irrigable acreage (PIA). Under this
standard, five Indian reservations
were granted approximately 900,000
acre-feet of water. Arizona also
received rights to 2.8 million acre-feet
of water, but future Indian claims to
Colorado River water must be met by
Arizonas allotment.
Although the Special Master's
report, upon which the Court deci-sion
was based, was careful to point
out that PIA might not be the most
appropriate standard of quantification
in all cases, it remains the most
authoritative statement to date
quantifying Indian water rights. The
use of the PIA standard in the Wind
River adjudication in Wyoming was
recently upheld, albeit narrowly, by
the Supreme Court in June 1989. The
Court tied 4-4, with Justice O'Connor
abstaining, leading sorne to speculate
that the issue will be visited again by
the Court.
Despite judicial recognition of PIA,
limitations to its use have been
debated since zlì-izona o. California.
The reliance on PIA is to the disad-vantage
of reservations located in
rocky, mountainous regions, with
land unsuitable for irrigation, such as
the White Mountain Apache Reserva-tion.
The Apaches would gain little
by a strict use of the l'tA standard
compared to reservations with large
amounts of agricultural land along
the Salt or Gila Rivers ,.such as the
Gila River Indian Community, which
claims over 1.5 million acre-feet of
water based upon the PIA standard.
The PIA formula is also critiCizedl
because it seems to recognize only
agricultural dlevelopment as a pur-pose
of the reservation, ignoring
other potential tribal economic
activities, such as municipal, recrea-tional
andi energy-relatedl develop-ment.
Although unidentified by the
PIA formula, these activities may
provide greater tribal economie
benefits than agriculture.
Finally, the extensive application
of the PIA formula is undermined by
a basic and elementary fact: Not
enough water resources are available
in the West to satisfy all Indian water
claims based on a l'lA standard. PIA-based
Indian water claims in the
West could amount to approximately
45.9 million acre-feet per year. This,
in effect, represents approximately
3.5 times the average annual flow of
the Coloradlo River,
Arizona wouldl be the state most
greatly affected by Indlian water rights
awards based! on PIA standards.
Approximately 25 million acres of
Arizona, or one-third of its land area,
is heidI in trust by the federal govern-ment
for the state's Indlian tribes. The
potential HA-based claims of all
Arizona tribes are estimated to be
between 10 to 30 million acre-feet of
water per year, many times the state's
entire sippiy.
Adj Ud i cati o n
In recent years most western states
have initiated efforts to quantify
the rights of Indian tribes .,State
officials are in agreement that Indian
water rights questions must be
resolvedl before western water rights
are broadly settled. The settlement
of a claim can he accomplished
through litigation, negotiation or
legislation. Each represents'
different strategy, an alternate or
complementary route to the same
goal of settlement. Which strategy or
strategies are best andl most effective
3
to secure just settlements have been
discussed and debated.
AltlTough sOnic western states
have established various administra-tive
procedures and special water
courts to settle conflicts over water
rights, general stream adjudications of
water rights are the most common
and comprehensive method in which
to settle competing claims to water
rights. Most often, general stream
adjudícations are initiated by non-
Indians to force quantification and
reduce uncertainty. Courts may
combine several suits into a general
stream adjudication in which the
reserved and private water rights to
an entire watershed are determined.
An adjudication of water rights is a
special kind of lawsuit that deter-mines
the type, the amount, and the
priority date of the right of every
water user in a particular watershed.
The couurt will decide whether or not
a water user has a legal right to use
water, and then the quantity and the
priority of that right. A final decree
establishes the relative rights of all
the parties, including those of the
federal government and the Indian
reservations.
Such adjudications are now in
progress in Arizona for the Gìla River
and Little Colorado River watersheds.
First initiated in 1978, the two
adjudications will eventually deter-mine
the water rights of most water
users in the state, including Indian
tribes and the federal government.
Eleven tribes have filed claims in the
Gua River watershed, the principal
watershed! in Arizona incorporating
the state's two largest population
centers, Tucson and Phoenix. The
Little Colorado adjudication invol\ us
the Hopi andl the Navajo, the latter
Arizona's and the nation's largest
tribe.
The adjudications will eventually
settle the claims of the Indians and
others in the state, but they are
monumental undertakings. The Gua
River Adjudication is estimated to be
the largest lawsuit ever filed in the
United States, affecting 60,000 parties.
Ic use of the complexity, i lie 'ace
of tiìe p )cedings lias been slO\v.
TI ie G i a Rive r Ad ud kai h m c( ci it
has iiiade prel in i na i-v rol i ngs ( ) n
some of the moie complex issues
lacing the court, including: I) that
groundwater i n general is m u a ppn
priable. making an exception only
when pumping can be shown to
importantly and alniost iiuirriediatelv
affect surface ílo\\ s: and 2) that
Indians reserved rights can apply to
appr()priahle groundwater. 1 -lowever,
1)0th these rulings may he appealed
to the State Supreme Court. then
possibly to the US. Supreme Court,
The federal government, the state
of Arizona. il-te inchan tribes and non-
Indians are participating and \vill
participate in the adjudication at
various levels. The following sec-tions
discuss sonic of the responsi-bilities
of the federal, state, and tribal
entities.
The Role of the Federal
Government
Tlie federal government's most
piOmiieit responsibilities in the
adjudication are to represent tribal
interests in securing vater rights and
to press for other federal claims.
Other federal entities who have filed
claims in ti-te adjudication include the
I)ejxn'tn'ients of Agriculture. Defense.
and tlie Interior,
l'he federal government is a large,
inultilaceteci organization. whose
separate components often have
different and even conflicting respon-sibilities,
'T'he federal government's
al)ility to represent Tnclian interests
effectively in water rights litigation
while simultaneously representing the
interests of l'ecleral agencies, depart-mei'its
and offices, has been ques-ti(
med -
Some of the important questions
that have been raised are: Could the
Department of Interior activities on
behalf of Indians be affected by ti-te
interests of oilier federal agencies,
say the Army Corps of Engineers? Or
can agencies even within the Intc'rior
I )eparlmenl---tlìe Bureau of Reclama-lion
or the Fish and Wildlife Service.
h r exainplemnf'luencc' fc'cleral
adv( )cacy (mf Indian interests il the
light of their own concerns? 'l'hcse
aft' worrisome issues to many
(ml ),sei'vei's,
li--t defending Indian waler rights,
the Iccleral government also \d orks to
quantify the amount of' water to h'
c'kiinc'cl, The c'onti'ovc'rsial. though
pi'ececlentecl, PIi\ stanclai'd was
applied to Indian reservations in
Arizona by the Bui'eau ol' Indian
Affairs ( RIA), 'l'i-te RIA conI 'acted
suc-li spec'iahists as soil scientists,
agi') )n( (mists. d.c-c inomists. agricultural
engi nc'ei's, and hvch roh (gists t))
determine PIA ai'eas on each i'esei'va-taon.
I lO\\ ever. both the governiiient
aridi ti-te tribes themselves have filc'd
claims that aie i-tot based upon PIA,
A so c'hai mccl is water needed h
such reser\ ation uses as ch unest ic,
mining. foi'esti'y - fire f'igl hing, inclus-try,
and recreatioi'ì and tourism. In
f'act, a br) )ad view of ti-te Wintci's
doctrine is being taken lo inclucleanv
activity that a tribe might c'ngage n
to econ unically develop its i'esc'v-a-t
ion,
The Role of Arizona State
Government
The state (mf Arizona has multiple
roles in acljrmdication. i\hoig with
its judiciary duties, the statc' is
involved in adjudication tlu'( iugh thc'
activities of ti-te Depai'tment (mf Water
Resources (ADWR). t isually con-cei'ned
with enforcing state water
laws amici issuing permits. Al )WR lias
taken on a chif'l'ei'ent i-ole in acljuchica-taon.
'l'he agency is acting as a
ted' h nidal a riti of' ti e c mu rt - gai lie ri ng
inloi'mnati()n auch conducting f ielcl
'cvcmrk to cletei'niine the justification of
all water claims, Indian and non-
Indian, AI)WR is not. however. part
( (f' tIme dec'ision-niaking pi'(mc'dss,
i-t (_.i t h -t er 'a n k i ng n or q ria rit i fy ing
c:oinpeting claimiis. Such decisions
\\ill b)c' nmcIe l' the judge.
Al )\VR's m'eslnmnsibilities include
ubeicloping hi\dii'ogi'aphic sui'vev
ic-ports t I 15E ), \vitli t\v() types (mf
b 15Es I x'ing pm'c:h)mrc'dh. One typc' ( (i
h SR is hc'iiig dld\ ekmpecf l'or eac'lm of
the pi'iiicipal tribuitai'v watei-sl-tc'ds of
the (,ila Ri\em' aiicl is iiamnl\' d'no-dc'
riech \y it h t h-te claims ( mf n m-I nd ja n
water cisc'i's.
Sepu'ate IISRs ar e being l)i'c'Pt'L'dl
f) )i' t nd ian resei'\'ati(mns to ref'lec't the
sl-tc'c'ializc'dh \\ iter claims niacle br'
ti'ihcs. T'or exantple, Indian claims
inc'luichc' ater for irrigati( n'i l)asc'dh
urpoi'i PIA. Al)\\7R u-il1 thlercf'ome
stuichy thc' agríc'rmltuim'al f)(mtential (mf the
resc:i'vatt( )ns, S) mml analysis will l-te
dl( 'ne: irrigation neecis evaluated:
vial)le crops identif'iecI yields auch
rd'tumrns estimated: capital c(msts
c'(miflplitedl: etc, Further, i'esei'-'ath in
b 15Es will review \ arioums hydrologic.
enginc'ering and c'con) (il-tic' considera-tO
)fls that may influence tite qimantif i-cation
ol water rights b\- the coui'ts,
ihe state is als( ( defending its own
water rights ï n adj cid ic-at h mi-t, 'll'me
Arizona Att(mm'ne\-' General's of'ficc'
m'epresents all state agencies with
\vater rights, inchumchmng ti-te Ariz )na
Game and Fish Commission andh the
State Parks Depam'tinent and is also
clef endi i ng \ ater rights (mi-t all sta te
trust lands.
Of equal interest is a nierai) ,n of
u hom the state cF mes not represent in
Indian water rights litigation oi'
negotiations its citizens, t nlike
soi-tic (mthier states. Arizona lacks ti-te
auuhoritv to i'epresent state water
nsc'rs in the settling of Indian water
rights claims, l' funding to supp)mm't
neg( >tiatedh seitlenients. however, thc'
state chocs protect the intem'ests (ml
i-toi-t-h ndlian water users, F >r ex-aiiipfe,
the state c )nt ributech S
nil f ion to a tribal development I cinch
pam't (mf' the Salt River Pua-N-lan-copa
water rights settlement, By
mlh( c'ating the fumncis. the state is
facilitating a settlement to resolve
uncertainties facing Indian and non-
Indian water users within the state.
The Role of Tribal
Governments
Indians
do not make up a single
bloc or a unified position in the
adjudications. As mentioned, 11
tri)escire involved in the Gila River
adjudication and two tribes in the
Little Colorado River adjudication,
each with differing views and posi-tions
taken toward the proceedings.
More importantly, each of these res-ervations
also has dïffering needs and
objectives to accomplish through the
pursuit of water supplies, whether
through the adjudication or through
negotiated settlements, or some
combination of the two. In essence,
each tribe will develop its own
strategy for settling its water rights
claims.
Tribes can voluntarily participate
in the adjudication proceedings for, if
they do not, their water rights will
still he litigated by the federal
government acting as their trustee. A
tribe that voluntarily participates
makes a formal motion to intervene
in the proceedings. If the motion is
granted, the tribe becomes a party to
the proceedings, with the court
having jurisdiction over it. The
Navajos, Hopis, San Carlos Apaches.
Tonto Apaches, and Gila River Tribe
have followed this course of action.
Other tribes are not participating
in this manner since they have not
made formal motions to intervene in
the proceedings. Instead, they rely
mainly on the U.S. Department of
Justice to represent their interests.
Tribes may follow this strategy for a
variety of reasons. For example, a
tribe may lack funds to become more
formally involvecl or a tribe's priority
may he to resolve its water claim
through negotiations, rather than
adjudication; or a tribe may dispute
the authority of a state court to
determine its water rights.
Adjudication has provided an
incentive for tribes to negotiate their
claims rather than trust sclely to the
legal proceedings. Tribes that are
presently considering negotiations
include the Gua River Indian Corn-munity,
the Fort McDowell Tribe and
possibly the San Carlos Apaches.
Only the White Mountain Apaches
are actively boycotting adjudication.
They consider it flawed and illegal,
subject to later judicial invalidation.
Despite this position, however, the
tribe is being represented by the U.S.
I)epartrnent of Justice in the adjudica-tion.
ItÍinlh;vsJx)lteli' c1cç/.,;/ O/SlllifiS/7
Negotiation
Although
most parties believe that
the adjudication is essential to
improving water management in the
state, not all agree that it is the most
appropriate method for settling
Indian claims. Some Indians and
most non-Indians argue that negoti-ated
settlements, ratified through
legislaticn, can better address the
problems surrounding the settlement
of Indian water rights claims. These
negotiated and legislated settlements
are usually the product of lengthy
negotiationsat the local level and
then extensive congressional action.
A chief complaint against the
adjudication process is that it requires
great amounts of time and money.
Cases can drag on for twenty or more
years, while lawyer fees mount for all
parties. The Gila River adjudication
is estimated to run for at least 20
years at a total cost of many millions
of dollars.
Another frequently cited probleni
with litigation is that the results are
often unsatisfactory for many water
users who participated. For example,
the recently completed Wind! River
Adljudication in 'l7yoming involved an
estimated $75 million, with a cost to
the state of $40 million, and some of
the parties have resorted to informal
negotiations because they found the
impacts of the ruling to he unaccept-able.
Others cite the complications that
can arise when the courts, operating
in a vacuum and separate from other
important water policy decisions,
become the sole dieterminants of
water rights. Tribes and other parties
in the conflict thus lose some control
over the proceedings and the even-tual
resolution, as a judge makes the
crucial decisions. Also, state courts
have had the authority to adjudicate
Indian claims only since 1984, and
tribes are apprehensive about the
expertise and the objectivity of state
court systems. Federal courts, in
particular. have been kinder to
Indians than have state courts or state
or federal legislatures.
Further, litigation tends to work
out situations according to legal
definitions of the issiJ&s 2lnd rigid
procedure rather than the real
interests of the parties. As a result,
complex issues are not always
comprehensively addiressed. ncr is
there the flexibility that a less struc-tured
procedure would allow.
Marketing opportunties, temporary
transfers of water to ease re-alloca-tions,
and augmentation of existing
supplies are among sorne of the
significant options the courts cannot
consider.
However, preparing for litigation,
even if a suit is never filed, may serve
a valuable purpose for a tribe.
Litigation can act as an incentive or,
more bluntly stated, as a threat to get
the defendants to the bargaining
LiI)I&. For the O'Odhatn, a lawsuit
vas the initial step toward estal)[ish-ing
negotiations. the process that
ventually settled the tribe's tvater
claims.
Rather than relying soieiy upon
litigatk)n, tribes and other conceined
parties may choose to negotiate an
Indian water rights settlement. In
negotiations, either with the assis-tance
of a professional mediator or
without, representatives of all af-fected
partieS, both Indian and non-
Indian, must work out a settlement ot
mutua I benefit. The result ing settle-ment
can then he ratified by the
court through stipulation.
Negotiation can be an attractive
option to resolve Indian water rights
claims for several reasons. Negotia-tions
often take less linie than judicial
proceedings, and generally are less
expensive. Further, negotiations can
work on a gathering of issues,
addressing a broad and comprehen-sive
agenda. The Salt River l'ima-
Maricopa Indian community's re-cently
completed negotiations
included settlement of most, if not
all, issues that made up at least seven
pending lawsuits,
Also, more comprehensive benefits
are possible through negotiations.
Judicial decisions are limited to a
consideration of amounts of tvater
and relative priority dates, Through
negotiations the Tohono O'( )dhamn
established their water claim and
ensured the flow of water, with
sources and amounts clearly identi-fied.
They also were awarded
substantial funds to assist in the
devek)pment of the vater supplies.
Additional negotiated bencfits
included financial support to operate
and maintain the system to deliver
the water, as well as funds to im-prove
irrigation systems on tite
reservation.
Finally, rather than the adversial,
destructive relationships that often
result fromii a lawsuit, negotiations are
more likely to encourage construc-tive,
engaging interactionsno
insignificant advantage.
Indian Water Rights
Settlements in Arizona
Anuml'er
of Indian water rights
conllicts have been settled in
Arizona through the use of negoti-ated
legislative agreements. In 1962
an early it'ìdliIn water rïghts claiin in
Arizona was settled with the Navajo
'Uribe over its rights to the San Juan
River. Later, three other Arizona
tribes have settled their water rights
claims th rough negotiated legislative
settlements: the Ak-Chin Indian
Community, the San Xavier and
Schuk Toak districts of the Tohono
O'Odham Reservation and the Salt
River Pima-Maricopa Indian Commu-nity.
The Ak-Chin T ndlian Community
first settled its water rights claims in
1978. Problems arose, however, with
the proposed water supply and the
settlement vas renegotiated in 1984.
The new agreement allocated 75,000
acre-feet of water and a total of $43
million for compensation, agricultural
development. and flood protection.
The Ak-Chin community is to he
supplied 58.000 acre-leet of CAP
water, with the remaining water
coming from resources prey k )usly
contracted to the Yuma-Mesa Divi-sion
of the Gua Project. The division
is to receive $1 1.7 million worth of
l-,enefits from the federal government
in exchange for relinquishing its
claim to the water. Further, a trust
fund of $2 million was established to
enable state and industrial users to
purchase agricultural water in low
CAP waler yeats.
Researcher Susanna Eden at the
linivesity of Arizona Water Resources
Research Center analyzed the Ak-
Chin settlement to identify factors
that promoted a satislactory resolu-tion
of the dispute. She foLind that
the major participants were well
prepared for and highly committed to
negotiations, with each perceiving
that their positions would be 'erv
much improved by a settlement.
6
'i'hese f'actors significantly contril)oted
to the success of the negotiations.
Another settlement, this one with
the Toliono O'Odhani, ifl\'Ol\'Cdl
allocating 76,000 acre-feet f tvater.
'Flic 1982 settlenient also provides ap-proximately
$21 .5 niillion to constiuct
andl rehabilitate reservation irrigation
systei-ns and for a trust fund to
support on-reservation dlevelopmeni.
The allocation of 'realer to the tribe
includes CAP water, some limited use
of grOundl'cvater, and water to be
obtained by tIte Secretary of the
Interior through an exchange of
effluent provided ly the City of
Tucscn. Local non-Indlian water
users and the state are contributing
about $3 million and $2.5 million
respectively to the trust lundI. The
federal government is bearing the
balance of the cost.
The 1988 agreement negotiated
with the tite Salt River Pima-Maricopa
Indian community is particularly
complex. It involves a number ol
water transfers and leases between
water users in the Phoenix area,
including the cities of Phoenix,
Chandller, Mesa, and Scottsdale, and
the Salt River Project (SR!') and other
water providiers. The reservation was
allocated 122,400 acre-feet of water
and approximately $67 mill ion to
establish a trust fund for on-reserva-tion
development and for past Court
of Claims payments due the tribe.
The water tIte reservation is io
receive includes storedi SRP water,
groundwater, CAP water and \vater
from the Roosevelt Water Conserva-tion
District. Costs to local non-tndian
water users are esnmatedl to
be i6 ni ill ion and the econ )m ic
worth of about 30.000 acre-l'ed't of
water.
Involved and complex, the Salt
River settlement lias been the focus
of various research projects. For
example, researcher Ken A. Rait.
natural resources research specialist
in the t JA I )epartnient of Agricult ural
Economics, identified what he
believes are two constraints of the
Salt River settlement that will affect
tI1( ndin (ol1tnuI1Ry's flcxibiiity
use it watr. I-k xprsses concern
t1iL incc the scitletnent set the
(lflIflIflitS per-acre \\ater 11o(
lion at an ai()r1flt consideral)lv less
than the alk)Cati()fl to fariers in the
Phoenix Active Management Area.
the reservat ion \vill n( )t be al)le to
achieve the iirpses for \vhich it
was created. 1he second constraint
he discusses is how the settlement
liniits the communitvs opportunities
to market its water.
The above descriptions of specific
Indian water rights cases demonstrate
that the negotiated settlement of
Indian water rkhts claims is a
complex and lengthy process. As a
result, despite certain advantages.
negotiations are oftc'ii difficult to
initiate, conduct, and implement.
The advantages of negotiations
would be more evident and, there-fore,
more accepted if better informa-tion
were available about this process
and the variables that affect its
outcome.
A 1JA research team headed by
William B. Lord, professor of hydrol-ogy
and water resources, Lucien
Duckstein professor of systems and
industrial engineering, and assistant
research anthropologist Thomas R.
McGuire has developed a framework
to facilitate the negotiations of Indian
water rights conflicts. The research-ers
chose the San Pedro River Basin,
an area involved in the Gila River
adjudication, as a case study.
Adopting an interdisciplinaiy
approach, the researchers investi-gated
various and interrelated factors
involved in negotiationshydrologic.
environmental, anthropological,
econoni ic. legal. political, and
psychological. Each of these disci-plines
or factors influence the course
of negotiations: hence, the study's
multidisciplinary methodology. To
analyze the information the research-ers
used a variety of linked models.
Through the use of economic,
hydrologic, and game theoretic
models, the impacts of the various
options on the parties were explored.
This modeling allowed the research-ers
to predlid't how various allocation
plans of water and money would
affect the river and the disputants in
the controversy. The preferred
options were then idcntifecl to
resolve the conflict. The project
demonstrated a methodology for
providing t he ink rnialion required to
make negotiations of water rights
disputes easier aocI more productive.
,lÍi,nlrc-'s poliert' 1e.ci,qn ofsun/ish
Leg is ati on
Tfins
far, congressional action lias
been limited to the ratification of
individual negotiated Indian water
rights settlements. These settlements
have recjuired Congressional ap-pro'al
because they contain substan-tial
federal funding and because of
the federal government's trust
responsibility for Indian tribes.
Congressional approval is also
considered insurance against later
challenges to the legality of a settle-ment.
Such disputes could very
possibly arise since Indian water
rights settlements are very complex
legal agreements, with many parties
of diverse interests often involved.
Along with approving negotiated
settlements, Congress could take a
more active legislative role by
proposing and enacting new laws to
facilitate Indian water claim settle-ments.
Clearly this would be an
effective way to resolve various
troubling and controversial matters
relating to Indian water rights.
However, there is little agreement
within the Congress on the funda-mental
issues involved, and no
comprehensive federal legislation is
likely to emerge soon.
Conclusion
Many observers are heartened by
the pmogess they believe is
being macle to resolve Indian water
claims. There have been eight major
settlements since 1982, with possibly
anìother eight to be submitted to
Congress next year for its approval.
Also, as noted earlier, most western
slates are presently adjudicating
vater rights in a further effort to
resolve Indian \vater damm. Much
remains to be clone, however, with
ian' clains to be settled and major
iSsues to be resolved.
For Arizona, a number of key
issues are on the horizon. The most
significant may be what sources of
water will be used to settle Indian
claims. In the settlements to date, a
key component of each settlement
has been the acquistion of water
from sources that are now unutilizeci
or underutilized, such as effluent or
surplus Colorado River water. There
lias been no reallocation of water,
but there have been transfers among
users for which the original water
rights holders have generally been
amply compensated.
'The challenge facing the state is to
apportion available water supplies
among various uses, including the
settlement of Indian claims, in a
manner that is both equitable and
efficient, Some sources of water that
may he used for the settlement of
Indian claims include non-CAP
Colorado River water, CAP water.
effluent, and irrigation district waters.
Obviously, though, any consideration
of use of these sources of water to
settle Indian claims must take place
outside the context of the adjudica-tion.
Another important issue to be
resolved is whether public policy
should encourage I ndian off-reserva-tion
water leasing. Arguments on
both sides of the question have been
advanced. Some argue that reserved
water rights are to directly benefit on-reservation
projects and activities,
and not to provide an indirect benefit
through off-reservation leasing.
Others, who support tribal off-reservation
water leasing, argue that
it allows tribes the full benefit of their
water and advances their self-suffi-ciency.
Congressional approval is
necessary before Indian tribes may
undertake the off-reservation leasing
of Indian water. Thus far, however,
Congress has directly authorized only
the Tohono O'Odham to lease its
water as part of its water claims
settlement.
In sum, however, Indian and non-
Indian water users alike have made
considerable progress toward settling
Indian claims and toward establishing
a dialogue between the parties. As
water rights disputes are essentially
conflicts between neighbors, the new
spirit of cooperation, if it lasts, is
welcome.
THE UNIvEi.sIm' OF
ARROYO
UNIVERSITY OF ARIZONA
Water Resources Research Center
Tucson, Arizona 85721
WRR(
Water Resources Research Center
ARIZONA
TUCSON ARIZONA
The editor thanks the following
people for contributing information to
this newsletter: Joseph Clifford,
Arizona Attorney General's Offioe,
Steve Erb, Arizona Department of
Water Resources; John Leshy, Arizona
State University, and William Swan,
US. Department of interior.
Arroyo, a qu
published by:
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Susanna Eden and Mary Wallace
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