Full text of "Indian water rights : hearings before the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary, United States Senate, Ninety-fourth Congress, second session ... June 22 and 23, 1976"

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INDIAN WATER RIGHTS

HEARINGS

BEFORE THE

SUBCOMMITTEE ON
ADMINISTRATIVE PRACTICE AND PROCEDURE

OF THE

COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE

NINETY-FOURTH CONGRESS

SECOND SESSION

INDIAN WATER RIGHTS

JUNE 22 AND 23, 1976

Printed for the use of the Committee on the Judiciary

jearcff
braryj

78-186

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1977

FRANKLIN PIERCE LAW CENTER

Concord, New Hampshire 033 0. 1

ON DEPOSIT MAR 3 - 1977

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INDIAN WATER RIGHTS

s'.<

HEARINGS

BEFORE THE

SUBCOMMITTEE ON
ADMINISTRATIVE PRACTICE AND PROCEDURE

OF THE

COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE

NINETY-FOURTH CONGRESS

SECOND SESSION

INDIAN WATER RIGHTS

JUNE 22 AND 23, 1976

Printed for the use of the Oommittee on the Judiciary

earch

78-186

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1977

FRANKLIN PIERCE LAW CENTER

Concord, New Hampshire 033Q1

ON DEPOSIT MAR 3 - 1977

Boston Public Library
Boston, MA 02116

COMMITTEE ON THE JUDICIARY

JAMES 0. EASTLAND, Mississippi, Chairman

JOHN L. McCLELLAN, Aikansas ROMAN L. HRUSKA, Nebraska

PHILIP A. HART, Michigan HIRAM L. FONG, Hawaii

EDWARD M.KENNEDY, Massachusetts HUGH SCOTT, Pennsylvania

BIRCH BAYH, Indiana STROM THURMOND, South Carolina

QUENTIN N. BURDICK, North Dakota CHARLES McC. MATHIAS, Jr., Maryland

ROBERT C. BYRD, West Virginia WILLIAM L. SCOTT, Virginia
JOHN V. TUNNEY, California
JAMES ABOUREZK, South Dakota

Francis C. Rosenberger, Chief Counsel and Staff DirectOT

Subcommittee on Administrative Practice and Procedure

EDWARD M. KENNEDY, Massachusetts, Chairman

PHILIP A. HART, Michigan STROM THURMOND, South Carolina

BIRCH BAYH, Indiana CHARLES McC. MATHIAS, Jr., Maryland

QUENTIN N. BURDICK, North Dakota HUGH SCOTT, Pennsylvania
JOHN V. TUNNEY, California

Thomas.M. SusMan, Chief Counsel

Philip J. Bakes, Jr., Assistant Chief Counsel

Caroline J. Croft, Research Assistant

Theresa A. Burt, Staff Member

,;-. , • • ■ William A. Coates, Minority Counsel

(n)

CONTENTS

TUESDAY, JUNE 22, 1976

Statements

Pag©
Opening statement of Senator Kennedy .' 1

Testimony

Taft, Hon. Peter R., Assistant Attorney General, Lands and Natural

Resources Division, Department of Justice 3.

Chambers, Hon. Reid P., Associate Solicitor, Department of Interior,
accompanied by Scott McElroy, attorney. Division of Indian Affairs,
Solicitor's Office, Department of the Interior 11

Bloom, Paul L., general counsel, New Mexico state engineer and Inter-
state Stream Commission 21

Prepared Statements

Bloom, Paul L 29

Chambers, Hon. Reid P 19

Taft, Hon. Peter R 8

WEDNESDAY, JUNE 23, 1976

Testimony

Panel consisting of Mel Tonasket, president. National Congress of Ameri-
can Indians; Wendell Chino, president, Mescalero Apache tribe; Veronica
Murdock, vice chairman, Colorado River Indian tribes; Dan Old Elk,
chairman of the Native American Natural Resource Development
Federation, and Roger Jim, Yakima Indian Nation 33

Prepared Statements

Tonasket, Mel 52

Chino, Wendell __ 51

Elk, Dan Old 57

Additional Statements

Native American Rights Fund 60

Colorado River Tribal Council (resolution) 65

Native American National Resource Development Federation (NANRDF)

(initial report) 67

(HI)

OVERSIGHT HEARINGS ON INDIAN WATER RIGHTS

TUESDAY, JUNE 22, 1976

U.S. Senate,

SUBCOJIMITTEE ON AdMINISTRATRT3

Practice and Procedtjee of the

Committee on the Judiciary,

Washing ton, D.C.

The subcomniittee met, pursuant to notice, at 9 :38 a.m., in room 2228,
Dirksen Senate Office Building, Senator Edward M. Kennedy (chair-
man of the subcommittee) presiding.

Present : Senators Kennedy (presiding) and Abourezk.

Also present: Thomas M. Susman, chief counsel, and AYilliam A.
Coatas, minority counsel.

OPENING STATEMENT OF SENATOR KENNEDY

Senator Kennedy. We will come to order.

The Administrative Practice and Procedure Subcommittee today
reopens hearings on Federal protection of the natural resources of
American Indian tribes. Our first overview of this subject in 1971
involved hearings in 4 States, some 200 witnesses, and over 500 pages
of testimony. Throughout those hearings I observed that on inost
fronts, our Government has failed woefully to fulfill its obligations
and responsibilities to protect Indian rights and resources.

I also indicated that our record would serve as a benchmark for
measuring future progress. Since those hearings I have been pleased to
see substantial progress toward the securing of land and water and
hunting and fishing rights for ?. number of tribes.

Congress has participated in that progress. "\Ye have restored
tribal status to the Menominee Indians. We have transferred 185,000
acres of land adjacent to the rim of the Grand Canyon in trust for
the Havasupais. And we have authorized and funded the purchase of
privately owned land in the mineral strip to place unclouded title in
trust for the San Carlos Apache tribe.

The Interior Department has taken a discernibly more enlightened
attitude toward its trust responsibility involving Indian land and
water rights. The Chemeuheuvi shoreline has been returned to that
tribe by secretarial order. The Cocopah reservation has been doubled
in size. The Mohave tribe has been recognized as owner of the long-
disputed Hay and Wood reserve. Powers of the Coleville and Spokane
tribes over regulation of hunting and fishing have been secured through
a solicitor's opinion. The Navajo irrigation project has been dedicated.
A Presidential order returned 21,000 acres to the Yakima tribe.

(1)

The Justice Depaiiment is also assuming its rightful place in carry-
ing out Federal trusteeship obligations to Indian tribes, and it is being
supported actively by the Interior Department and in this new role.
A special Indian Trust Section has been established within Justice to
represent Indians in natural resource cases. A number of significant
cases have been filed : to adjudicate water rights for the Pyramid Lake
Paiute tribe ; to protect ground water for the Papagos ; to settle Crow
and Northern Cheyenne water rights, and to secure hunting and fish-
ing rights to Northwest tribes.

Of course there remains much to be done. A number of water rights
adjudications still must be filed, and the basic inventory work has not
been completed in many areas. The Queclian tribe's title to 25,000 acres
of land remains clouded by an old erroneous solicitor's opinion whicli
lias not been overturned. Many small California rancherias remain in
limbo, despite violation of the termination statutes by the Federal
Government. Destructive strip mining proceeds apace on the Navajo
reservation. The Five Central Arizona tribes have been shortchanged
by the Secretary of Interior in allocating Central Arizona project
water — an action that appears nothing less than scandalous.

This morning, rather than going through the full litany of mi-
finished business facing the Justice and Interior Departments, we will
focus on the result of a recent decision by the U.S. Supreme Court and
on its implications for American Indians. Ironically, our first hearings
in 1971 followed on the heels of the Court's Eacile River decision, which
contained a foreboding that Indian water rights might be-^ among the
other federally reserved rights subjected to State court junsdiction
under the McCarran amendment.

The fears voiced by many of our witnesses 41/^ years ago have un-
fortunately been realized wth the Court's recent opinion in the case
of Colorado R'lvcr Water Conservation District vs. United States,
commonly called the Akin case.

These hearings were called to determine the potential consequences
of Akin to Indian tribes and to see what the Executive and the Con-
gress might do about them. Indian water rights — no matter how crit-
ical to a tribe's future, no matter how well inventoried, no matter how
brilliantly defended by Government attorneys, cannot receive full pro-
tection in State court forums. For the security of Indian water rights
rests not only upon a full commitment from the Executive and the
complete support of the Congress, but also upon the availability of an
independent and dispassionate Federal judiciary to adjudicate those
rights. The Akin case may make this impossible.

Our witnesses today, representing Federal departments. Indian
tribes, and State interests, will address themselves to the implications
of the Akin decision for Indian water rights and the future economic
developinent of Indian reservations.

As we discuss legal theories, court decisions, water rights do'^trines.
and acre- feet analyses however, we should keep in mind that not only
the development of natural resources is at stake, but the futiire of
many Indian tribes. This future for Indian people has most obviously
been whether a tribe will be able to sustain agricultural self-sufficiency,
to develop mineral resources, to maintain a fishery or a recreational
area. It has corresponding implications for social welfare — employ-
ment opportunities and tribal income to support educational and other

projects. It also has a spiritual side. T remember the late Bob Jim
testified before this subcommittee that Mount Adams was not just a
piece of ground to which the tribe was laying claim, but historically
to his tribe the mountain was the symbol of life's renewal, the giver
of live to all living things. He said : "At the end of life it is to the
mountain that the spirit of the Yakima returns."

I remember a Navajo medicine man, Descheeney Nez Tracy, who
through an interpreter told us : "The water rights that we feel are ours
through our traditional legends and our ceremonial ways, these waters
are very sacred to us. The mountains are very sacred to us."

I remember Nellie Harner's moving words that Pyramid Lake "* * *
is a religious symbol to us. You cut your finger or have a very bad
cut, you go to the Pyramid Lake and bathe yourself, you first ^ive a
prayer to the lake spirit. * * * I think we have disturbance in the
cities because there is no tie of those people to the earth, to the lake."

This year we are celebrating our Nation's bicentennial, but Amer-
ican Indians have not joined in that celebration. Our 2 centuries of
national life have, for Indian people, consisted all too often, of battles
with the white men, followed by promises which were broken and com-
mitments which remained unfulfilled.

Only if we can firmly and permanently secure to Indian tribes their
natural resources will we have reason to hope that they will join us in
our Nation's next centennial celebration.

Our first witness is Peter Taft, the Assistant Attorney General for
Lands and Natural Resources Division of the U.S. Department of
Justice. We have representatives of the Yakima Nation, William K.
Yalbys, who is the chainnan ; Roger Jim, Sr., chairman of the legis-
lative committee, and James B. Hovis, the legal counsel. They are
with us in the audience and we will not have time to let them testify
but we will be sure that their views will be made a part of our official
record and their views made known.

]Mr. Taft, unfortunately as the witnesses understand, and through no
fault of our own, the leader has called a session which starts at 9
o'clock. Usually nothing starts until 1 o'clock. We have the tax reform
bill which I and a few others are very much involved with, but not
a majority, unfortunately. I may have to go. We will make every ef-
fort to move this along. We want to ma,ke the record complete.

STATEMENT OF HON. PETER R. TAFT, ASSISTANT ATTORNEY GEN-
ERAL, LANDS AND NATURAL RESOURCES DIVISION, DEPART-
MENT OF JUSTICE

Mr. Taft. I am glad to have the opportunity to come here and speak
to the subcommittee. In the statement we filed, we have gone into two
oversight issues which were raised in 1971 and 1972. I would like to
inform you that we have just finished some 43 days of hearings relating
to the right to reopen the water adjudication affecting Pyramid Lake.
We are hopeful we will be successful in that. It is being briefed at this
time.

Senator Kennedy. We want to take note of that. This has been some-
thing we have been following very closely for 4 or 5 years. I think it is
A^eiy reassuring to have this kind of action by the Department.

Because of your own personal interest, I loiow you are going to do

your best. I want to say how much I appreciate it and I know I speak
for other Senators on the subcommittee.

]Mr. Taft. If we can reopen that decree I am sure we will be success-
ful. The Supreme Court recently came down with the Pupflsh case
which stood for the fact that in that instance we were entitled to liave
the water necessary to maintain the monument for the Pupfish. It is
the same kind of thing that would be involved in Pyramid Lake.

I would also like to point out that we have as you noted, created an
Indian resources section. Myles Flint is the acting chief. I would like
to say that I think the experience of 1 year has been very valuable.
We have there a group of attorneys whose sole concern is to represent
the tribes and their interests. Even if there may be from time to time
conflicts within the United States as a whole, nonetheless with this
group there is no conflict.

Their primary concern is to represent the tribe and the tribe's con-
cerns. In a practical sense that has had a very important efi^ect. We
have over 200 cases we have filed on behalf of the tribes. I would say
that the conflicts that may exist either within the United States or
sometimes within or between the Secretary of Interior and the tribes
really represent a very small percentage of those that we have, perhaps
less than 5 percent.

INIost of them I feel are going very well. Directing my attention to
the AMn case itself, and the McCarran amendment, as you know, we
filed suit in Colorado, I believe it was in November 1972, to adjudicate
the water rights of the two tribes. We filed in the Federal court.
Ultimately, a motion to dismiss was filed which was granted and which
ultimately was upheld by the Supreme Court.

The theory of the Supreme Court was that the State of Colorado
had a special procedure set up for water rights. They had divided the
State into the various basins that are involved and they have a court
for each one. They have what is effectively a continuing adjudication
going at all times which is finding new rights, and which is readjusting
past rights according to priorities and which is litigating such things
as abandonments. The Supreme Court felt that this State proceeding
should be granted in effect the equivalency of a priority over the Fed-
eral courts in adjudicating State water rights, that they had a special
proceeding, and they had a special adjudicatory and administrative
setup which the Supreme Court felt would interfere with a Federal
court adjudicating the same rights.

It used the McCai^'an amendment, which effectively waives the right
of the United States to be sued only in the Federal courts and permits
it to be sued in the State courts. The effect of this, I think, is very
unfortunate and how broadly it will be extended to other States is
hard to say.

Colorado is a bit unusual in the type of procedure that it has but
I think it is fair to say that every State has some special administrative
operation that deals with water rights.

Unfortunately, there is the further fact that almost any State you
may go into, or any Federal court, when you present a Federal judge
with a case that can have as many as 10,000 defendants, as we have in
Pyramid Lake, if he has a way out, it is very likely he will use it.

If there is a State proceeding, even if it may have been filed after
the Federal court — and there is often then a rush to the courthouse

between the State and the Federal courts — there is likelihood that the
effect of Akin will be the Federal courts will defer to State courts
fairly much across the board.

As a result, I think we must conclude that Indian water rights from
this point on are in the majority of instances going to be adjudicated
in State courts as long as the AlcCarran amendment is in effect and
applicable to the adjudication of Indian rights,

I say this is unfortunate and I believe it is borne out in both a history
of what the courts have found over 100 years and by the facts as we
know them today. I think there has been a historic conflict between the
tribes and the States with the United States, the balance of power on
the side of tribes in its trust responsibility.

Supreme Court cases, as much as 100 j-ears ago, have noted the fact
that thei-e has been a historic hostility between the States and the
tribes and that, indeed, it is the Federal interest that has protected the
tribes whei'ever they may be.

Inevitably, this nins over into the courts. Similarly, I think we have
a situation which is developing day by day now in the State of Wash-
ington where, in effect, the State courts and the State administration
both have totally abandoned the protection of Indian treaty rights in
fishing and have thrown the total burden of enforcement of fishing
rights not only for Indians but also in effect for commercial and sports
fishermen, into the Federal court. They have thrown up their hands.
They have abandoned any semblance of recognition of obligations to
the "tribes in that instance. I think it is fair to say that very' much
the same thing will come up wherever water rights or Indian rights
as a whole come head to head with strong conmiercial interests within
a State.

Water, as you know, is the central interest in the arid West. The
reserve right— both the Indian right cand the Federal right — is unusual
for the States to deal with. The Indians are just beginning to use
their rights. Often they come in with a first priority because their
reservations were set up long before many of the other projects and
other uses became effective in the States. What that means is you may
have a total State commercial operation going and the Indians will
come in and bvunp them off because they will come in first, and as they
use their rights up, they will start to bump the State and local interests
one by one. The effect of this, I think, would be to create great political
concern and. unfortunately, hostility to Indian rights.

I would like to point out also, a difficulty we have in keeping uni-
formity of interpretation of Indian rights. There are probably 15 or
more States in the West. If Indian rights are to be adjudicated in the
State courts, in effect you have the potential of 15 different interpre-
tations.

Then you have only a single way to get uniformity among them and
that is on certiorari "in the Supreme Court. The Supreme Court may
deal with three or four Indian cases a year. To think that uniformity
may be maintained in this way over 10 or 15 States is very unlikely,
especially when the States and State courts may be using circuitous
wavs to cut down Indian rights.

On the other hand, if you put it in Federal court, and adjudicate it
in Federal court, effectively you go up two courts of appeal and they
have recourse to the Supreme Court. If the Supreme Court is over-

seeing two courts of appeal, it is easy to get a uniform interpretation
of Indian rights. I would further point out that as any attorney knows,
the finding of facts can be perhaps the most important point in any
case.

If you get a judge who is going to find facts, those facts are concrete.
Appeals courts will not interfere with them. In the event there is any-
thing to support them at all, the result is you come into a situation
again where hostility may affect findings of fact. Instead of having a
full loaf to which the Indians may be entitled, as a result of the fact-
finding procedure they may end up after time with half a loaf. That
half a loaf will not get reviewed at any point by the State or even the
Supreme Court. I feel that is a terribly important point and one reason
why the McCarran amendment is very unfortunate as applied to
Indian rights.

Senator Kenxedt. Should we give exclusive jurisdiction to the Fed-
eral courts in this area ?

Mr. Tafp. For the Indian water rights, that is correct. I would point
out one problem there. As a practical point, it is that you do not want
adjudications going with as many as 10,000 defendants which is what
we have in Pyramid Lake : One series going in a State court and one
series going in a Federal court. The point we would make is there are
means whereby the Indian right alone can be adjudicated in the Fed-
eral court effectively by making the State a class action defendant,
or by having free right of intervention from those that wish to appear.

So the Indian right can be adjudicated simply and directly with a
good State defense to it and the Federal court establishing the amount
and the priority. With those findings, then, the State water engineer,
or the State proceedings can simply plug that in. That is exactly what
these continuing hearings on adjudications in Colorado do, for in-
stance. They make particular findings with respect to a particular user
and they then plug that into the system of priorities.

Senator Kennedy. Is that working in Colorado?

Mr. Taft. That works. It does work. I think it would be important
that whatever procedure we devise to make sure

Senator Kennedy. You mean not only water rights, but also include
all the Indian rights ?

Mr. Taft. For the most part we don't have a problem with respect
to other kinds of rights because we don't have the waiver that the
McCarran amendment provides. We do protect the other rights in the
Federal courts. Really it is a peculiar

Senator Kennedy. "V^Tiat about reclamation and park service?

Mr. Taft. That deals more with the question of whether you have
a conflict within the United States, itself. It comes up in a small per-
centage of the cases that we have, really.

It is a conflict of interest, in a sense, in two places. It is often said
that the Department of Justice is the one that has the conflict when it
goes to court because it has to represent reclamation and the tribe at
the same time and whatever conflicts there may be.

However, it also is one that exists within Interior, structurally. They
ask us to sue. They ask us the kinds of positions we take. We tend to
follow directly what they request. Often the conflict is adjudicated,
if you will, within Interior before it comes to us. We then go into

Federal court, often with effectively what may be a compromise or
what may be a pure assertion of Indian rights.

In a practical sense — in recent years that lias been protected by the
fact that Indians now have their own counsel. They are veiy active in
the courts. I would say almost every important case that we have had,
the tribes have moved to intervene. Often they have perhaps filed the
case first and asked us to join them. We have worked things out I think
as well as we can. The pure Indian interest is represented by the tribe
and its counsel. I look on that as an important safeguard to assure that
we are doing a proper job and to assure that we have the true tribal
voice. Often what we think is best for the tribe is not what they think
is best.

Senator Kennedt. Would the Department of Justice support the
exclusive jurisdiction in the Federal courts?

Mr. Taft. In the normal course we defer to Interior to take what
they determine to be the position in the best interests of the tribes.
Assuming the Department of Interior were to back that, I think it is
fair to say that we would strongly join them.

Senator Kennedy. From the judicial point of view, I would think
from what you have said liere, that your review of the law and the
study of the history and the protection of these rights, you feel your
task would be more helped by the Federal court jurisdiction.

Mr. Taft. I think that is correct. That is the position we took in fact
in the Akin case. As a matter of policy, we would support.

Senator Kennedy. Now do you think Congress intended in the his-
tory in the McCarran amendment to subject any water rights to State
court jurisdiction?

INIr. Taft. I think it is quite hard to say. I think the court was
affected by this concept of having two adjudications going witli thou-
sands of defendants in two courts at the same time. In a certain sense
in the Akin case, the Supreme Court abandoned the position it has
always taken that any ambiguities are interpreted in favor of the tribe.
I think it is very fair to say that the McCan^an amendment is ambigu-
ous in this area. Instead of interpreting the ambiguity in favor of the
tribe, it deferred to the State courts. Fortunately within the last week
or so the Supreme Court came down with a tax case in which it strongly
reaffirmed the doctrine that interpretations are made in favor of Indian
tribes where there is any vagueness. To a certain extent, the court made
an exception to their normal rule of interpretation, perhaps because
of the unusual nature of adjudications in this area.

Senator Kennedy. I know it has been suggested that the reason the
Supreme Court applied the McCarran amendment to Indian rights
was because the Justice Department failed to distinguished Indian
water rights from, other Federal reserve rights. Is this a fair charact-
erization of the Government stand ?

IMr. Taft. I don't think that is correct. We have made the same
claim for Federal rights as we have for tribal rights. The arguments
we made are much stronger in favor of the tribes than they are in
favor of the other U.S. water rights. We have made the same argu-
ment for our own rights.

Senator Kennedy. I want to thank you for your appearance here.
I have asked about this specific issue as you probably know, from
every prospective Attorney General that has been here and I am going

ito continue to ask it as lone; as T am a member of this committee. We
personally feel that there has been a very fundamental failure of a
very basic responsibility and that has been in the protection of Indian
rights. The Justice Department has to play an extremely important
role. It has been somethinof that far too few Attorneys General have
been even aware of. When they have been made aware of it — with some
exceptions — ^they have cooperated. I think quite clearly the efforts you
are making now could not be done unless you had an Attorney General
that was concerned about it. I think that has to be include^d. But this
is an area of tremendous importance for the country and for the people
that are affected.

Do you have a special budget for your department ?

Mr. Taft. There really is no special budget for the section ; they get
an assignment of attorneys which can be changed by our own
determination.

Senator Kennedy. How manv do you have ?

Mr. Taft. We have eight with authorization for nine. We iust lost
one to New Mexico. However, they have the full use of the U.S. attor-
neys oifRces throughout the country. They have a caseload of about 200
cases. I feel at this time that they can fullv handle them.

Senator Kennedy. They can probably handle a few more, too.

Mr. Taft. I am sure more will come along.

Senator Kennedy. Do you have any Indian lawyers there?

Mr. Taft. We have one. The section was created and the attorneys
were taken from within our own group. It is not as if we hired nine
new ones. Our hiring authority right now is fairly stringent.

Senator Kennedy. We are going to continue to inquire whether we
can be of any help or not in that area. We want to continue to press
this. I think the record that has been made bv your Department has
been very important. We want to make sure that you are getting the
kind of support that you deserve.

Thank you very much. We appreciate the opportunity to work with
you. We thank you for your interest. I think it is a good record.

[The prepared statement of Peter R. Taft follows :]

Prepaeed Statement of Peter R. Taft

As As-sistant Attorney General, I am honored to be s:iven the opportunity to
appear before this subcommittee on a matter of such importance to the Indian
community.

Before proceeding: with my testimony on the effect of the recent Runreme
Court decision, Colorado River Conservation Dixtricf, et nl. v. United Stnfesi.
FNo. 74-940, 74-949,] I woTild like to take this opportunity to briefly update the
subcommittee on the development of certain mattens which were the suliject
of hearings conducted by this subcommittee in 1971 and 1972. During those
hearings, this subcommittee sought information as to what action the Lands
Division had taken to resolve the Pyramid Lalce controversy, and the manner in
which Indian litigation is handled by the division.

In October of 1972, the United States sought leave of the United States Supreme
Court to file suit against the States of Nevada and California to resolve the
Pyramid Lake, controversy. In .Tune of 1973. the Court declined to exercise its
original .iurisdiction. and indicated that the litigation should proceed in the
respective Federal district courts for Nevada and California. In December of
1973, such a suit was filed in Nevada, United Statefi v. Trttckee-C arson Irripntinn
District, et al. [civil no. R-2987 .TEA,] in United States District Court for Nevada.
Named were the State, major water users, and over 15.000 other parties either
individually or as part of a class. Since then, parties have been served, certain
preliminary matters heard, and a lengthy and complex trial just conducted on

the issue of whether the prior water adjudication on the Truckee River serves
as a legal bar to the present action. This proceeding alone consumed 43 trial
days, involved 24 witnesses and saw the introduction of approximately 1,500
exhibits. At the conclusion of the trial, evidence had been received by the court
on every aspect of controversy from an analysis of the hydrological situation and
possible impact of the right on upstream users to a full review of the historical
aspect of the problem. It will be some time before this aspect of the case is finally
briefed, argued and submitted to the court. However, in the interim, the Depart-
ment of the Interior in preparation for further litigation has funded and is
conducting numerous and extensive studies concerned with the restoration and
maintenance of the Pyramid Lake fishery. A great deal of progress has been
made on this matter since our last appearance before the subcommittee.

During the hearings in 1971 and 1972, attention of the subcommittee was
directed to the potential conflict which exists between the administration of the
affairs of the Government and the fulfilhnent of the trust obligation of the
United States to the protection of trust resources of the American Indians.
Specific questions were raised as to how litigation involving trust resources was
conducted by the Lands Division. At that time, Indian resource litigation was
conducted under the direct supervision of the General Litigation Section of the
Lauds Division. This section had responsibility not only for this type of litigation,
but also for a multitude of other types of litigation involving Federal lands
and waters, as well as certain suits brought by the various tribes and individual
Indians against the United States or the responsible Federal officials.

In May 1975, the Attorney General created a new section in the Lauds Divi-
sion known as the Indian Resources Section. This section is responsible for
litigation where the United States is acting in its trust capacity on behalf of
the American Indians. At present, litigation under the auspices of this section
is concerned chiefly with water rights, hunting and fishing rights, suits involving
the protection of other types of Indian trust assets and the jurisdiction of Indian
tribes to govern and control activities of their members within their reserva-
tions to the exclusion of state and local governments. AVhile the creation of the
new section has not eliminated the potential for conflict, it has resulted in creat-
ing a cadre of attorneys within the Department whose sole focus is on matters
involving the fiduciary responsibility of the United States to the Indian tribes.
Turning now to the specific inquiry of this subcommittee. On March 24, 1976,
the Supreme Court rendered its decision in Colorado River Water Conservancy
District, et al. v. United States [74-940], heard together with Akin, et al. v.
United States [74-949], or as we refer to it, the Akin decision. The following cir-
cumstances were involved. In November 1972, the Government filed suit in the
Federal District Court in Colorado seeking to adjudicate Winters rights of two
Indian tribes, and reserved rights on Federal lands, as well as other rights based
on state law.

In 1969, Colorado adopted a statutory scheme for the adjudication of water
rights in the State. Under this scheme, the State was divided into seven water
divisions, each encompassing an entire drainage basin of one of the State's larger
rivers. The adjudications in the seven divisions are on a continual or ongoing
basis.

The suit brought by the United States in the Federal District Court involved
the San Juan River and its tributaries, waters located within water division
No. 7. When the Akin action was filed, the United States had not been served in
any State water adjudication proceeding in water division No. 7. (However, the
United States was involved in state proceedings in water divisions 4, 5, and 6,
but no Indian Winters rights were present. )

In .lanuary 1973, the United States was served pursuant to the McCarran
amendment (43 U.S.C. 666), in a State proceeding initiated in division No. 7
for the purpose of adjudicating all of the Government's water right claims,
including those the United States holds in trust for the two Indian tribes.

On motion, the Federal District Court dismissed the proceeding initiated by
the United States, deferring the adjudication to the state proceedings. The Circuit
Court reversed, and the case found its way to the United States Supreme Court,
which, while holding that the McCarran amendment did not repeal the jurisdic-
tion of the Federal District Courts to hear suits for the adjudication of Federal
water rights, nonetheless, went on to hold the McCarran amendment granted
to the states jurisdiction over waters reserved on behalf of the Indians.^ Thus,

1 Whether or not this holding would be applicable in States with specific enabling act pro-
visions excluding State jurisdiction over Indian rights is not decided. The Colorado enabling
act does not contain such a provision.

we have the situation where water rights reserved to Indians by the United
Stales (Whiter!^ rights) now may be determined and decided in state tribunals.
Even when an action is already underway in Federal Court, the Akin holding
permits, under proper circumstances, the Federal District Court to defer to state
proceedings.

There is no dispute but that in the arid west it is now essential that rights to
the use of water be determined. Water in this region is without doubt the most
valued of resources, its availability fundamental to virtually all types of develop-
ment and economic growth. Without a determination as to tiie legal allocation of
water resources, full development and utilization cannot be achieved. The critical
•question is whether, as suggested in the Akin decision. Indian water rights should
be .iudicially determined by the tribunals of the western states.

The fundamental policy that Indians be free of state jurisdiction is deeply
rooted in the Nation's history. The Indian tribes obtained their property rights
by virtue of dealings with the United States, and it has been a longstanding
practice that such rights be determined in the Federal courts. Congress has
permitted the exercise of State criminal and civil jurisdiction on Indian matters
only after close scrutiny and then by a clear and concise grant of jurisdiction.
The states have been in the past and remain today often the prime adversary
in the effort to have these rights judicially recognized and protected.

A few very brief quotations taken from cases heard by the Federal judiciary
■.serve to emphasize this point in its historical context. In 1886, the United States
iSupreme Court in United States v. Kagama [118 U.S. 375, 383-84], a case involv-
ing Federal criminal jurisdiction over Indians, stated :

These Indian tribes are the wards of the Nation. They are communities
fJependent on the United States, dependent largely for their daily food,
dependent for their political rights. They owe no allegiance to the States,
and receive from them no protection. Because of the local ill feeling, the
people of the States where they are found are often their deadliest enemies.

In 1974, the Supreme Court noted in Oneida Indian Nation v. County of Oneida
[414U.S. 551, 678], that:

There has been recurring tension between Federal and State law ; State
authorities have not easily accepted the notion that Federal law and Federal
courts must be deemed the controlling considerations in dealing with the
Indians.

Then in litigation Involving the protection of Indian fishing rights in the State
of Washington, the Ninth Circuit Court of Appeals - stated that :

The record in this case, and the history set forth in the Pnyallup and
Antoine cases, among others, make it crystal clear that it has been recal-
citrance of Washington State officials (and their vocal non-Indian com-
mercial and sports hshing allies) which produced the denial of Indian rights
requiring intervention by the district court.

Almost without exception, it has been the states which have most strongly
opposed the recognition of water rights reserved to Indians, and these efforts
are fully supported by the various State engineers who often have quasi-judicial
functions. It is true in the ongoing Pyramid Lake litigation. It is true in the
litigation now being conducted in Montana to establish water rights for the
Crow and Cheyenne tribes. It is true in litigation in the State of New Mexico,
involving Pueblo water rights and other Indian water rights. It is true in the
States of Washington and Colorado. If this examination were to include the
full expanse of Indian trust assets, it would be shown that where major Indian
rights are being asserted, the states are in general opposition to the recognition
of such rights.

The reason for the attitude of the states toward Indian interests has many
facets, but the record is clear : The states, who in theory at least have an equal
responsibility to all of their citizens, uniformly side with the non-Indian interests
:against the Indian interests, today as they did 100 years ago.

Confronted with the Akin interpretation of the McCarran amendment, we novp
faco the prosi)ect of having the rights of Indians to use water, the singular most
valuable resource of the Indian tribes in the west, determined in state pro-
ceedings. This prospect, coupled with the adverseness of the states to Indian

2 Concurring opinion of Judge Burns in United States v. State of Washington, 520 F.2d
676, 693 (C.A. 9, 1975).

interests, presents serious ramifications. Tlie evidence in these proceedings would
he taken before a local judge, often popularly elected from one or more counties,
or a master appointed by him. This would be the level where evidence is heard
and determined and review above this level is limited. Appeal would have to
follow through the state appellate system, finally reaching the State Supreme
Court. It is at this point, and this point only, where Federal i-eview is available,
but only by the United States Supreme Court upon grant of certiorari. As a
result, we may be faced with a multitude of separate state interpretations of
Federal law, and the applications of fact in accordance with that law with little
opportunity for review by the Federal courts. Added to this is the fact that for
years, he states have fought against recognition of so-called Winters rights. Now
they are expected to ensure that such rights are fully recognized and protected.
Perhaps everything will operate smoothly, but past experience is not encouraging,
and review by the Federal judiciary, by the very nature of the system, is limited.
Allowing Indian water rights to be determined in the Federal courts permits a
full review of their claims in the Fedei'al system, permits Fedei'al courts to
decide Federal questions, and ensures full and adequate protection of this most
valuable resoiirce of the tribes.

The underlying justification given for the exercise of state jurisdiction, even
when Federal courts already have exercised jurisdiction over water determina-
tions, is the need for a "unified proceeding." This justification is untenable. First,
an explanation of what is involved in a so-called water adjudication. In .such
an adjudication, often 100 or more water rights are ascertained in a single
action or continuing action. The purpose is, of course, to determine all rights to
the use of water on a given water course. But in fact, a water adjudication
proceeding is not one legal determination, but a separate determination of each
and every right ; it is simply a series of separate proceedings in which each
claimant is required to establish the legal requirements necessary for the recog-
nition of his right. This is true for the small user up to an irrigation district
or the United States seeking a right for an Indian tribe.

Water adjudication proceedings often last years and, as in the case of those
in the State of Colorado, are ongoing to reflect the changing status of water
rights. But there is no need for the rights of the Indians to be adjudicated in
the same proceeding with all other rights. What is actually important in water
resources, in terms of "unification," is not where the rights are determined, but
how they are administered afterwards. Unified administration is of utmost im-
portance in water management. But the fact that one right is determined in a
Federal Court and another in State Court does not mean that when the rights
are administered, they cannot or should not be administered in a unified manner.
A different tribunal does not mean that the rights cannot be administered to-
gether, for in fact the opposite is true and always has been. For over a century,
the process of establishing water rights has been in motion, and it is common to
have rights established in an early State Court proceeding incorporated into a
later proceeding, and all rights administered together. So would be the case with
Indian rights established in Federal Courts.

As a result of the Supreme Court's recent decision in Akin interpreting the
McCarran amendment, we are now faced with the prospect of determining Indian
water rights in State Court, a result which is neither necessary nor in the best
Interests of the Indian community.

Senator Kennedy. Seid Chambers, Associate Solicitor of the U.S.
Department of Interior is our next witness.

statement of hon. heid p. chambers, associate solicitor,
department of the interior, accompanied by scott
Mcelroy, attorney, division of indian affairs, solici-
tor's OFFICE, department OF THE INTERIOR

Mr, Chambers. Mr. Chairman, thank yon. I am Reid Chambers, As-
sociate Solicitor for Indian Affairs of the Department of the Interior.
It is a welcome privilege to be here this morning to discuss the impli-

cations of the Supreme Court's recent decision in the companion cases
of Colorado River Water Coiisei^ation District v. United States and
Akin V. United States.

There have been a number of other cases in the Federal courts, I
think it is fair to say that almost all Indian water rights adjudications
prior to this date have been in Federal courts.

As you know, the Akin decision, among other things, held that the
McCarran amendment to the Department of Justice Appropriations
Act of 1953 grants to the courts of the various States jurisdiction to
adjudicate the reserved water rights of Indian tribes.

Let me emphasize that in Akin., the Supreme Court was construing
a Federal statute : the McCarran amendment. Congrass, which shares
the Federal trust responsibility to Indians with the executive branch,
is free under the decision to alter its result by statute should it so
desire. State court jurisdiction under Akin is theoretically concurrent
to that of the Federal district courts. But the decision permits, indeed
it may require, the Federal court to dismiss Indian water rights cases
in certain circumstances.

Senator Kennedy. You think they have equal jurisdiction ; is that
coirrect ?

Mr. Chambers. Yes, sir. It is a race to the courthouse. If a non-Indian
gets to the State court first, it stays in the State court. If the United
States gets to Federal court we ma}^ get bounced back to State court
under a number of factors that were articulated by the Supreme Court
in Akin., and, I might add, vaguely articulated. The standards are not
clear as to when a case should be dismissed and when it should not be.

Senator Kennedy. If it gets to the Federal court first, do you think
the trend will be to move from the Federal court back to the State
court ? Do you think the Federal courts are going to say that under
the Akin decision these cases should be heard in State court? Do you
think this will be a problem ?

Mr. Chambers. I think it will be a problem. I agree with Peter Taft
on that. The Federal jurisdictions vary in the West and there are some
Federal judges that have been enormously protective of Indian rights.
The normal Federal judge, faced with a case like Pyramtiid Lake where
we are suing 14,000 defendants in his district, and which is a complex
case that will take years of judicial time to adjudicate will want to get
rid of that and put it into State court.

Senator Kennedy. It is more likely that it will go back to the State
than it would have been prior to this ?

Mr. Chambers. It is much more likely. The problem is the standards
that the Supreme Court used in Akin are vague when dismissal will
be permitted and subsequently sustained. Really we won't know the
full impact for several years. We will be litigating those standards
for several years in order to determine whether it is proper to dismiss
a case in State court or not. It is unusual for a Federal district court
to dismiss a case where it has jurisdiction. That is the problem in the
Akin case.

Senator Kennedy. Who wins in the race to tlie courthouse usually ?

Mr. Chambers. We are running with a peculiar kind of handicap.
In the Akin case, we won the race to the courthouse. The United States
filed the case before the United States was joined in water district
No. 7, the district that is adjudicating the proceeding.

We have won the race in two cases in Montana, Scott and I worked
nights to get those cases filed in JMontana. We won those and we are
noAV faced with motions to dismiss where we won the race. The States
are citing Akin as support for dismissing those cases. Maybe I shoukl
go over the factors.

The Supreme Court discussed a number of factors which influenced
its decision that dismissal was warranted. Most importantly, the Court
interpreted the McGcuran amendment as evincing a strong Federal
policy to avoid piecemeal adjudications of water rights in a single
stream system. In conjunction with that policy the Court found that
Colorado had a comprehensive State system for the adjudication of
water rights. The proceedings in water division Xo. 7, which antedated
the Federal suit, were characterized by the Court as a single, continu-
ous procedure, inclusive of all claims in that water division, even
though the United States has not been sued in those proceedings prior
to its filing of the Federal court case.

The Court also stated that it was influenced by :

1.) The apparent absence of any proceedings in the Federal district
court after the filing of the complaint prior to the motion to dismiss.

2.) The extensive involvement of the Federal court in State water
rights occasioned by a Federal suit naming 1.000 defendants.

3.) The fact that defendants would be required to travel 300 miles
to appear before the Federal district court, and

■1.) The already existing participation by the Federal Government
in other proceedings in other Colorado water divisions.

Senator Kennedy. Do you support the change in the Akin decision
that the stfitutory language would give exclusive authority back to
the Federal courts ?

]Mr. Chambers. Senator Kenned}', I am not authorized to take a
position for the Department.

Senator Ivennedy. I think I know what your personal position is.

Mr. Chambers. jMy personal position would strongly support such
a change. I thiiik probably all of the Indian tribes in the country feel
the same way. I think you have a couple of problems. One is that the
Akin decision elongates these already protracted water rights cases.

For exa,mple, in the motions to dismiss in the jMontana cases, who-
ever loses is going to appeal. The forum is all important. The forum
is half of the battle, that is, getting the case in a Federal forum for
us rather than a State forum. There will be appeals up to the circuit
court.

Senator Kennedy. In relation to this undisputed record of how im-
portant it is to go into Federal court, I know there is no doubt in your
mind, but I just think someone who has spent a good part of their life
in protection of both Indian rights and water rights, should feel that
the history of State versus the Federal courts really compels the point
that real protection can come within the Federal jurisdiction rather
than the State jurisdiction.

Mr. Chambers. Let me regress for a minute and become a law pro-
fessor rather than the Associate Solicitor for Indian Affairs. Anyone
who studies the history of Indian relations has to conclude that the
whole basis for the constitutiorial provisions dealing with Indian tribes
was to protect and assert a Federal protection over Indian tribes
vis-a-vis the States.

78-186—77 2

lAHien the Republic was foiindod — fortunateh' not your State of
Massachusetts — States and particularly the Southern States were as-
serting broad powers to deal with the Indian tribes. The State of New
York also was asserting such power. The Articles of Confederation
basically permitted those States to manage Lidian affairs. The reason
for the constitutional provision to put that power in Congress was to
make sure that the Indians were not discriminated against by the State
governments and were given the protections of the Federal treaties
with them. It is interesting that this has continued over the years.

Turning to the case of United States v. Kagaina^ about 100 years ago
the Supreme Court said :

These ludian tribes are the wards of the Nation. They are communities de-
pendent on the United States, dependent largely for their daily food, depend-
ent for their political rights. They owe no allegiance to the States and receive
from them no protection. Because of the local ill feeling, the people of the
States where they are found are often their deadliest enemies.

That was the. Suprem.e Court in 1896. What is not recognized is that
the Supreme Court in 1976 is constantly bombarded with cases of ap-
peal from State supreme courts which are not worth the paper they are
written on for protection of Indian rights.

I went over the last 4 terms of the Supreme Court and found that
there have been no less than 10 cases that have had to be reviewed, and
9 of those 10 have been reversed, most of them 9 : 0. one of them just
last week, because the State supi-eme courts have ignored the Federal
principles and protections of Federal Indian law.

Mr. Taft referred to the situation in the State of Washington — one
of virtual lawlessness of what the State courts are doing in that
State. The State supreme court within the last 2 weeks has come down
with a decision that is grossly violative of the U.S. Supreme Court
decisions. Local State courts have issued injunctions against the en-
forcement of Federal court decrees in the State of Washington.

Senator Kennedy. Are there many instances where the court does not
give certiorari to adjudicate some of these cases? Are there a nimiber
of cases falling into the cracks ?

Mr. Chambers. There certainly are, I believe Mel Tonasket is going
to testify later today. There was an important decision of the Wash-
ington supreme court a year ago which involved important questions
the Supreme Court of the United States decided not to review. The
Supreme Court can't review all of these cases. It can set general guide-
lines. The State courts are not even enforcing those guidelines. We
had a decision this year by the ISIontana supreme court in a case called
Fisher V. District Court where the Montana supreme court simply
ignored three decisions by the U.S. Supreme Court within the last 5
years and came to a completely contrary result. In that case the Solici-
tor General was able to persuade the Supreme Court to give a sum-
mary reversal. But we can't do that in every case.

I think there is an analog>'^ to the civil rights movemeiit \\\ the
sixties. To me it seems you could not leave the rights of Black Amer-
icans to be protected by the southern State court systems. It was very
important that the acts that Congress passed conferred Federal juris-
diction in a broad variety of matters to the Federal courts. But those
were Federal court I'ights. State judges, even well-intentioned State
judges, often have to face elections in some districts which are very

hostile to Indifin rights. I don't think we are going to be able to do
anywhere near as good a job protecting Indian rights if Ave are in
State courts.

The other aspect is these are very protracted kinds of proceedings.
The Akin decision is going to make them more protracted because of
appeals, because of the vague standards. For example, it is not clear
whether the Akin decision applies where the State v/ater procedures
ai-e different from Colorado. It is not clear from Akin whether the
decision applies to an interstate stream system like the Missouri River
system or the Colorado Iviver system. We don't know, for example,
whether the case just applies where the State system has an ongoing
suit on file, even when the United States has not been sued. We don't
Ivuow what happens in a situation where we sue in Federal court and
the State initiates a general adjudication in the State court. We don't
know what happens when the State court is not close to the stream of
water being adjudicated since in the Akin case the court was 300 miles
away. There will be fights in every case. I think they will require 3 to 5
years of additional time for each suit. ISIyles Flint and Peter Taft
have eight lawyers to handle all of our Indian cases.

We have over 200 Indian cases where we are suing to protect Indian
rights, in land rights cases, jurisdiction, immunity from State taxa-
tion, and we have eight lawyers to handle those cases. If those lawyers
are going to be tied up in endless appeals on this Akin decision, either
the executive branch or Congress is going to have to provide us with
more lawyers to do this job properly, or we will need some other kind
of relief.

Senator, in closing, let me conclude my statement this way. There
are a variety of reasons why the United States has in the past pre-
ferred to have Indian water rights and other Indian property disputes
in Federal court. A primary reason is the legal issues to be resolved
in such disputes are almost invariably questions of Federal law with
which Federal judges have greater experience and expertise than do
State court judges. This also involves questions that have never been
settled by the State courts. For a State court adjudication of some-
body's water right, you merely need to show an appropriation and a
diversion for beneficial use. That is the kind of factual data you must
show. In a Fedei'al proceeding you have to show the purpose of the
reservation, and how much land is in the reservation. You have to show
the practical acreage in the reservation, when the irrigation is involved,
and the history and culture of the tribe. Preparation of such cases
also requires complex water inventories, stream flow studies, detailed
soil classification studies of reservation lands with attention to such
characteristics as texture, slope, alkalinity, salinity, topsoil depth,
ct cetera.

At the present time, for example, the Bureau of Indian Affairs is
spending over $2 million to support studies to establish the reserved
water riirhts of the Pyramid Lake tribe in a Federal district court
case in Nevada.

In summary. Mr. Chairman, the implications of the Ak?n case for
the just and prompt adjudication of Indian-reserved water rights are
serious. The decision, because its standards are uncertain, will lenofthen
the alreadv protracted water rights cases and will subject some Indian
ti-ii)es to J^tate courts which are unfamiliar with the reserved-rights

'fr

doctrine, or with the kinds of factual determinations which must be
made to determine the extent of Indian water rights.

Mr. Chairman, this concludes my prepared testimony. I would be
pleased to answer any questions which you or members of the sub-
committee may have.

Senator Kennedy, Would it be possible to provide exclusive Indian
water rights in the Federal courts, and leave otlier kinds of water
rights in the Bureau of Reclamation, and forestry issues in the State
courts ?

Can we reach the heart of this issue if we give the Indian water
rights issue to the Federal courts ?

Mr. Chambers. I agree with Assistant Attorney General Taft that
you can. That deals with the problem that these hearings are con-
cerned with and that I am speaking about today. Usually, the Bureau
of Reclamation does not have federally reserved water rights. Those
arise under State law. But in the National Park Service system, the
national forests have reserved rights, but they are much less tlian
an Indian reservation rights because you are trying on an Indian
reservation to provide a life, a culture, and an economic system for
people.

In the National Park Service, you are not tr^-ing to irrigate massive
amounts of land. Most of the Federal reserved water rights now in
the Western States are Indian water rights. Those are the ones that
are going to be most hotly contested because they are the ones that
can cut oif existing uses. Those are going to be the rights that ought
most clearly to be heard in the Federal forum.

Senator Kennedy. I want to thank you for your very helpful testi-
mony. We will be in touch with you as we fashion some legislative
efforts in this area. It was very helpful testimony.

Just before we recess for a few minutes, I noticed Bill Veeder in
the back of the room when we came in. I want to state in the record
how important his efforts have been in the whole area of water rights.
Also, there is Hank Adams who has been in the forefront of hunting
and fishing efforts in the Northwest, and also Forest Gerard from the
Senate Interior Committee. We have always enjoyed working with
him. We will recess for 7 or 8 minutes.

[Voting recess.]

[At this point Senator Abourezk is presiding.]

Senator Abourezk. The hearing will come to order. As I under-
stand it, Mr. Chambers, you have completed your prepared testimony ?

Mv. Chambers. That is correct.

Senator Kennedy asked me a few questions while I was giving my
testimony, and I would be happy to answer any you might have.

Senator Abourezk. I am going to ask Mr. Susman, who has been
here throughout the hearings, to open with a couple of questions.

Mr. SusMAN. Mr. Chambers, you described throughout your testi-
mony the problems which Indians predict, and you join in their pre-
diction that Indian water rights adjudication will face in State courts.
Is there anything that the Interior Department or the Justice Depart-
ment can do without legislation to try to remedy these prospective
problems or is this something that will need congressional action, in
your view ?

Mr. Chambers. Well, we can and we will try, ]Mr. Siisman. I men-
tioned in my testimony the ^Montana cases where motions to dismiss
have been filed and will be filed. We will certainly resist those motions
to dismiss with ever}' nerve and sinew at our command. The Justice
Department will, too, but I think that the Aki7i case puts us on our
own 5-yard line without much time to play. Certainly, it is the kind of
matter that if the Congress felt its intention had not been effectively
interpreted by the Supreme Court, Congress could change the matter
by statute. There are a lot of alternatives available to Congress.

Mr. SusMAN. In your review of the legislative history of the Mc-
Carran amendment, do you believe the Akin decision accurately re-
flects a conscious congressional intent to throw Indian water rights
adjudication into State courts?

]\Ir. Chambers. I was one of the attorneys in the case and I argued
vigorously that Congress did not have that intent. I don't see it. I
disagree with the Supreme Court. Wlien a lawyer disagrees with the
Supreme Court, that is one lawyer's opinion against nine justices, but
I can't see that there is a conscious intent. The basic legislative history
was that there was some testimony by the opponents of the McCarran
amendment saying it might have this or that dire effect. The predic-
tion of dire effects by opponents of legislation, under general rules of
statutory construction, isn't entitled to much weight, if any weight at
all. Of course, I must say after you write briefs like this and argue
them, you become convinced that you are right. I think the Supreme
Court is wrong. But the question is really what the intention of Con-
gress is now. The Akin decision has created problems for Indian tribes
and for the Federal Government as trustee and I suppose the real
question is not what Congress intended in 1953 but what Congress
intends at the present time.

Mr. SusMAN. If Congress decides that it should redress the problem
caused to Indian tribes by the Akhi case, what should it do ? What kind
of legislative approach should it take: One specifically tailored to
Indian rights as distinct from other Federal reserved rights?

Mr. Chambers. You understand in answering this question, the
administration has not taken an official position on the legislation. I
would be suggesting some alternatives to you that are representing just
my own views.

But I think it is important to have in mind that the rights of Indian
tribes to the use of water under the Winters doctrine are different
from other federally reserved rights. These are rights which are owned
by the Indian tribes and the only role of the United States is as a trustee
for the Indian tribes.

That is not true of National Park Service rights, or Forest Service
rights, or any other kind of reserved rights. So it is proper, given that
fact of the Indians being the full, equitable owner of the reserve water
rights, to treat them differently from other Federal rights.

I think my own opinion is that the major kind of alternative avail-
able to Congress would be to bifurcate water rights adjudications and
water rights administration of water decrees and to treat the Indian
rights differently, have those adjudicated in Federal court. The United
States, for example, could stay a party to the State court proceedings
for the purpose of filing the other Federal rights in State courts. You
could have coordinated administration. The State and its water users

could either be defendants in both the Federal and State court pro-
ceedings or alternatively the States could represent its water users
in the Federal court proceedings much as it appears in the Supreme
Court in cases like Arisona v. Calif omm.

You would not need to have a particularly complicated bifurcation.
The United States could participate, and in the tribes if they wanted,
could participate in the State court to argue against any non-Indian
water rights that were being adjudicated there that they felt were
excessive.

The States and the non-Indian water users could be interveners and
participate in the Federal court proceeding and the decree filed in the
State court so everybody would have notice of what the Federal rights
were. But the critical matter is the factfinding and the legal inter-
pretations of all the complex body of doctrine in Federal law. It ought,
in my view, to take place in the Federal courts. There is one other
aspect of this, Mr. Susman. The United States simply has a trust re-
sponsibility and that is its only responsibility with respect to the
Indian rights since the ownership is with the Indian tribes. This some-
times creates a conflict of interest.

That also is a special problem with Federal law. Right now, for
example, the United States has been sued in New Mexico with respect
to its water rights on the San Juan River. The United States has some
non-Indian water rights there and there are some Indian water rights
for which the United States is a Federal trustee. There is probably
a conflict of interest there. That is one of the 5 or 10 percent of the
cases that Mr. Taft is talking about where there is a conflict of interest.
It is hard to see that the United States can be said to represent tliose
tribes in a binding sense in that adjudication on the San Juan River
without the tribes being present.

The McCarran amendment does not waive sovereign immunity of
tribes and no court has ever held that the tribes can be dragged into
court for these proceedings. This is another area that needs
clarification.

The Ahin decision had a footnote in it that said Indian tribes
were not necessarily parties to the State court proceedings under the
McCarran amendment. The National Water Commission, a respected
blue ribbon panel of Presidentially-appointed experts, recommended
that exclusive jurisdiction for Indian water rights be in Federal court.
Tliat is the kind of approach that I would personally endorse. I would
hope, eventually, after proper clearances, that the administration
would endorse it.

Senator Abourezk. From the perspective of the U.S. Government,
what would be the most desirable outcome, for the water rights cases
to be tried in Federal courts or State courts ?

Mr. Chambers. I think the impact of the decision basically creates
a strong likelihood that most of these Indian water rights cases will
be tried in State courts, is dramatically undesirable from the stand-
point of the Federal trust responsibility to Indian tribes. It is a serious
and toxic decision.

Senator Abourezk. ^Yliat you are saying is that the Federal Govern-
ment, its trust responsibilities will be greatly diminished if the cases
were to remain in State courts ?

Mr. Chambers. I agree with you, Senator, on that. Mr. Taft, who
testified earlier, and my own testimony is that the impact of this deci-
sion— and this has administration clearance — is very damaging.

Senator Aboup.ezk. It would abridge the responsibility to allow it
to remain that way ?

]Mr. Chambers. Specific statutes were not cleared for me to comment
on, but in terms of decision impact, it is an abridgement of the Federal
responsibility to allow it to remain.

Senator Abourezk. Thank you, Mr. Chambers.

[The prepared statement of Reid Chambers follows :]

Prepaked Stateme:xt of Reid P. Chambers

I am Reid Peytou Chambers, Associate Solicitor for Indian Affairs of the
Department of the Interior. It is a welcome privilege to be here this morning
to discuss the implications of the Supreme Court's recent decision in the com-
panion cases of Colorado River Water Conservation District v. United States and
Akin V. Untied States. These cases involve an issue of vital concern to the United
States and to all Indian tribes : the jurisdiction of state courts over Indian water
ri,<rhts, particularly those reserved under the Winters doctrine. It has been the
consistent and longstanding position of the United States that determination
of the extent and priority of water rights reserved for Indian tribes should only
take place in the Federal courts.

In my opinion, there is no issue of greater concern to Indian tribes today than
the preservation of their water rights. As this subcommittee knows from its own
careful studies of this question, most tribes in the West are located in arid
regions where life is only possible if water supplies are adequate. The Supreme
Court recognized the importance of water rights to the continued existence of
Indian tribes in the landmark case of Winters v. United States.^ It held in
Winters that the right to use water for the benefit of the Fort Belknap Indian
Reservation was implicitly reserved in the treaties and agreements by which
that reservation was created. The Supreme Court reaffirmed the Winters decision
in the more recent case of Arizona v. California,^ where it held that suflScient
water had been reserved to the Indian tribes of the lower Colorado River to
enable them to irrigate all their practicably irrigable land.

Until the Court's recent decision in the Akin case, the water rights of Indian
tribes had been determined almost exclusively in the Federal courts. Among
the representative Federal court cases involving Indian water rights have been
the Conrad Investment Co. case in Montana,'' the Walker River case in Nevada.*
United States v. Ahtanum Irrigation District, in the State of "Washington,^ and,
of course, the Winters case. At the present time there are nearly two dozen cases
involving Indian water rights pending in Federal courts in the States of New
Mexico, Arizona, Nevada, Montana, and Washington.

As you know, the Akin decision held (among other things) that the McCarran
amendment to the Department of Justice Appropriations Act of 1953 grants to
the courts of the various states jurisdiction to adjudicate the reserved water
rights of Indian tribes. Let me emphasize that in Akin, the Supreme Court was
construing a Federal statute — ^the McCarran amendment. Congress, which shares
the Federal trust responsibility to Indians with the executive branch, is free
under the decision to alter its result by statute should it so desire. State court
jurisdiction under Akin is theoretically concurrent to that of the Federal district
courts. But the decision permits, indeed it may require, the Federal court to
dismiss Indian water rights cases in certain circumstances. These circumstances
are but vaguely articulated in the Court's opinion, and will thus surely lead to
further litigation. However, the Court's holding appears to establish a presump-
tion in favor of state court adjudication of these critical Indian water rights.
The upshot of Akin is a curious kind of race to the courthouse that goes not
necessarily to the swift. If the state or a non-Indian claimant wins that race to

1207 U.S. 564 (190S).
a.STS U.S. 546 (1963).

^Conrad Investment Co. v. United States, 161 Fed. 829 (C.A. 9, 1908).
* United States v. Walker River Irrigation District, 104 F.2d 334 (C.A. 9, 1939).
='236 F.2d 321 (C.A. 9, 1956), cert, denied, 352 U.S. 988; Ahtanum II, 330 F.2d 891,
reh. den. (with opinion), 338 F.2d 307 (1964).

the state courthouse, he is assured of the forum of his choosing. If the United
States, on behalf of an Indian tribe, wins the race to tlie Federal courthouse,
we may. as happened in Akin, nevertheless, be sent back to the state courts.

In Akin, the United States brought an action in the Federal district court for
the DLstrict of Colorado seeking a determination of its water rights and those
of the Ute Mountain Ute and the Southern Ute Indian tribes. After the case was
filed in the Federal district court, several defendants filed an application to join
the United States in the already ongoing state court adjudication in Colorado
Water Division 7. Subsequently, these defendants filed a motion to dismiss the
action of the United States in Federal court on the grounds that the McCarran
amendment, 43 U.S.C. section 666, which consents to the joinder of the United
States in general stream adjudications in state courts, deprived the Federal
court of jurisdiction. The district court dismissed, and the United States ap-
pealed, with the case ultimately reaching the Supreme Court. While stating that
Federal courts have a "virtually unflagging obligation to exercise the juris-
diction given them" (slip opinion 16, citations omitted), and that "only the
clearest of justifications will warrant dismissal" (id.), the Supreme Court held
that "principles of wise judicial administration" supported dismissal of the case
by the district court, even though that court clearly had jurisdiction to hear the
case.

The Supreme Court discussed a number of factors which influenced its decision
that dismissal was warranted. Most importantly, the Court interpreted the
IMcCarran amendment as evincing a strong Federal policy to avoid piecemeal
adjudications of water rights in a single stream system. In conjunction with
that policy, the Covirt found that Colorado had a comprehensive state system
for the adjudication of water rights. The proceedings in Water Division 7. which
antedated the Federal suit, were characterized by the Court as a single, con-
tinuous procedure, inclusive of all claims in that Water Division, even though
the United States had not been sued in those proceedings prior to its filing of
the Federal court case.

The Court also stated that it was influenced by: (1) the apparent absence of
any proceedings in the Federal district court after the filing of the complaint
prior to the motion to dismiss; (2) the extensive involvement of the Federal
court in state water rights occasioned by a Federal suit naming 1000 defendants ;
(3) the fact that defendants would be required to travel 300 miles to appear
before the Federal district court; and (4) the already existing participation by
the Federal Government in other proceedings in other Colorado Water Divisions.

Although the Court held in Akin that the Federal court should dismi&s the
suit, the decision raised a variety of questions with regard to the applicability
of its holding to future suits. It does not appear that future eases will fall
neatly within the standards utilized in Akin for deciding when dismis.sal is
proper. What happens, for example, where the state does not have an ongoing
suit on file at the time the United States files its complaint, or when the Federal
court is relatively close to the stream of water to be adjudicated? Does Akin
apply to water adjudications on interstate stream systems?

Given the desire of the states to litigate in state court and the United States
to litigate in Federal courts, and the uncertainties created by the vague Akin
standards, in initial battle will have to be fought in virtually every future water
rights case to determine in which forum the real battle will take place. These
fights will be long and costly, requiring an additional 3 to 5 years for each suit
and a concomitant expenditure of scarce attorney time and money.

There are a variety of reasons why the United States has in the past preferred
to have Indian water rights, and other Indian property disputes, decided in
Federal courts. A primary reason is that the legal issues to be resolved in such
disputes are almost invariably questions of Federal law with which Federal
judges have greater experience and expertise than do state court judges. In
addition, Federal appellate review of these cases is more easily obtained when
they are heard in a Federal forum in the first instance. Although it is true that
state court decisions involving questions of Federal law are ultimately subject
to review by the Supreme Court, it is unrealistic to assume that the Supreme
Court of the United States will be able to closely scrutinise all Indian water
i-ights cases that may be presented for review by Indian tribes. Even in those
insta'.ices where such review is obtained, the final determination of any water
rights case is heavily influenced by the facts ascertained at trial, and those
facts are only subject to limited appellate review. .

It might be supposed that these same objections could be raised by any non-
Indian water rights litigant in State court proceedings, but that is not the case.
Generally speaking, a non-Indian water user in the Western states need only
show a diversion, a beneficial use, and the date of diversion in order to be vested
by law with an appropriative water right as of that date. These matters are
exclusively state law issues. Indian reserved water rights claims rise under
Federal law and must be supported by expensive and lengthy scientific studies
as to the purpose for which the reservation was created, the amount of "prac-
ticably irrigable" acreage upon it, when irrigation is involved, and the history
and culture of the tribe.

Preparation of such cases also requires complex water inventories, stream flow
studies, detailed soil classification studies of reservation lands with attention
to such characteristics as texture, slope, alkalinity, salinity, topsoil depth, etc.
At the present time, for example, the Bureau of Indian Affairs is spending over
§2 million to support studies to establish the reserved water rights of the
Pyramid Lake tribe in a Federal district court case in Nevada.

In summary. ]\Ir. Chairman, the implications of Akin for the just and prompt
adjudication of Indian reserved water rights are serious. The decision, because
its standards are uncertain will lengthen the already protracted water rights
cases and will subject some Indian tribes to state courts which are unfamiliar
with the reserved rights doctrine or with the kinds of factual determinations
which must be made to determine the extent of Indian water rights.

Mr. Chairman, this concludes my prepared testimony.

I would be pleased to answer any questions which you or members of the
subcommittee might have.

STATEMENT OE PAUL L. BLOOM, GENERAL COUNSEL, NEW MEXICO
STATE ENGINEER AND INTERSTATE STREAM COMMISSION

yir. Bloom. Thank you, Senator. I appreciate the opportunity to be
here this mornino;. I am glad to talk to you and put into the record
my views and those of the State of INIexico. I am afraid I will have to
sound a couple of discordant notes in light of the testimony tliat has
gone before.

I am counsel of record for the State of New Mexico and a Special
Assistant Attorney General for New Mexico. New jMexico now has
pending, on two streams in the State water rights adjudication suits
in State court, the kind of suit you were just talking to Mr. Chambers
about. I necessarily take a radically different view of the significance
and posture of those cases than Mr. Chambers and Mr. Taft have done.
I would summarize, if I may, a statement which I have already sub-
mitted to the record on adjudication of Federal Indian water rights
for the hearings today.

The Akin case, the name we put on the consolidated cases of Colorado
River Water Conservation District v. United States, and Mary Akin v.
the United States, in the simplest terms, has made possible by a
Supreme Court interpretation of the McCarran amendment, made
it possible for those State courts which act under stream system
adjudication statutes to entertain and adjudicate Federal claims for
reserved Indian water rights in State courts.

Senator, you and Senator Kennedy have heard statements from
Justice and Interior expressing grave regrets over that decision and
its implications. I differ strongly with those views. The summary of
New Mexico's position is that the State courts of New Mexico and
other Western States with other similar practices and powers are a
fair, reasonable, effective, and expeditious forum for the determina-
tion of Federal and State rights.

It is imiqiiely a characteristic of the adjudication of water rights
in the West, that water rights are all interrelated on a common stream.
They must as a practical and legal matter be adjudicated in the same
court for reasons of convenience, fairness, cost to all parties and to
the integrity of State decrees resulting from decades of tedious and
expensive work in State courts.

I stress that last point, the protection of those State decrees, and it
is important that the Congress not attempt to set aside the Akin deci-
sion. Let me note first, if I may, what the Akin case did not say. It
did not say that Indian water rights are or will become subject to
State law. This is a misunderstanding that has been spread about the
West by some shallow newspaper coverage of the Akin decision.

The Supreme Court has not set aside the Wintei's doctrine and has
not expanded State jurisdiction. It has said that the State courts in
appropriate situations under well established principles of the com-
mon law based on concurrent jurisdiction, priority of filing, the inten-
tion of Congress in the McCarran amendment, that is, that under this
principle. State courts in certain situations, in omnibus adjudications,
where these arc other ongoing or where the United States sued in the
State court before the United States files, then in those situations that
is the appropriate fonim.

It has made, in my opinion, crystal clear, the Supreme Court has,
that the substantive law can be applied by the State courts and is
exactly the same law as is to be applied if the suit is brought in Fed-
eral court.

The issue of Federal court jurisdiction and the claims or suggestions
made on the basis of personal opinion today by Federal representatives
to the effect that the Congress would be well advised to modify or
set aside the Supreme Court decision by amendment to the McCarran
amendment are unwise and in a sense reflect a false issue.

They tend to suggest that the State courts in the Western States,
out of hostility or bias or ignorance or inexperience, are not a suitable
or equitable foiiim for applying the same rules of law wliich the
Supreme Court has said Federal and State courts must apply in the
important area of reserved water rights for Indians.

The State of New Mexico does not dispute the existence of reserved
Indian water rights but we say in certain cases and only where those
important criteria are met, economy, convenience of all parties, equi-
ties, in those situations it is important to allow the State courts to
apply those same rules by reading the same Supreme Court decisions a,
Federal court would read, subject, of course, to review in the same
U.S. Supreme Court which would ultimately review a Federal court
decision.

Let me point out that the rule of the Akin case is not a very novel
one in New ISIexico. The State of New Mexico, to some extent, antici-
pated this result, acting in the belief that the Eagle County decision
of March 1971 had strongly implied that the McCarran amendment
was an all-inclusive statute and intended, in appropriate cases to sub-
ject all claims to State courts.

Therefore, in reliance on the Eagle County case, the State of New
Mexico, prior to Akin., had caused two suits to be brought or enlarged
in which Indian water rights are implicated. Those are the Leiois case
in New Mexico involving the Hondo River, and the San Juan River,

a case in New Mexico State Court for San Juan county. It involves
water rights of the Navajo Indian tribe and the Ute Mountain Indian
tribe, and the Jicarilla Apache tribe. Neither of these has come to a
decision on the merits or is anywhere close to a decision on the merits
of the nature, extent, and the priority of Indian water rights.

It would not be appropriate for me as counsel on those cases to talk
about the positions of the parties on the merits. I won't do that. I am
here to say and I do say that it is a red herring and a false issue
to constantly belabor the point that the State courts are somehow
constitutionally unable to accommodate the application of Federal
law in this area.

It has been stated earlier that there is something uniquely Federal,
that requires Federal adjudication of Indian water rights. I don't
see that there is anything more uniquely Federal about Indian water
riglits than about National Forest reserved rights and National Park
rights. The United States has been in this State forum for 19 years
in the Lewis case. That is the same doctrine arising out of the same
Winters case. We have never had a complaint in 19 years of litigation
in New Mexico in the Leiois case that the State courts were biased,
or prejudiced, or incom.petent, or too ignorant to handle these. It is
only when it comes to Indian claims. I suggest with all respect that
there is almost an irrational element in the criticism of State courts
in this area. There is a psychology I feel among the Indian people
and I don't dispute the sincerity of it for a moment, that the States
and many of their institutions are hostile to the Indian people. To some
extent this fear is kept alive by persistent jurisdictional disputes and
the increasing desire of the Indian tribes to govern themselves and
to rule their own reservations, a very understandable ambition but one
which must necessarily, in some cases, conflict with the States' own
views of their needs to protect the welfare and health of their own
peoples — all their peoples generally.

The State courts of New ]\Iexico, in dealing with Indian water
rights, must apply the same standards, the same substantive law sub-
ject to the same review in the U.S. Supreme Court that would come
from a Federal district court.

For these reasons, it seems to me quite unfair and really amounts
to a gross generalization and almost a slanderous generalization to
state that the Western States courts are in the same position as would
be, say, the way we would characterize the State courts of Southern
States in the agony the United States went through in enforcing
civil rights laws in the former Confederate States.

Senator Abourezk. Do you have a comment on Mr. Chambers' testi-
mony regarding cases of hunting and fishing rights in the North-
west? Did you hear his testimony ?

]SIr. Bloom. Yes.

Senator Abourezk. Does that have any impact on what you are say-
ing now?

Mr. Bloom. No: because I have read the Ninth Circuit cases and
the U.S. Supreme Court cases on the treaty fishing rights of the Indians
in the State of Washington. It is inconceivable to me that any State
court, district, or State supreme court could seriously attempt to
abridge rights definitively establislied for Indian people by Supreme
Court interpretation. States cannot do that.

Senator Abourezk. But tliey did.

Mr. Bloom. That is the accusation of Mr. Taft. You have not heard
from the other parties and it might be premature to have any fixed
judgment based on the characterization of an attorney speaking from
the point of view of an advocate.

Senator Abourezk. Does it mean anything at all that 9 out of 10
of those cases have been reversed by the Supreme Court and most of
them by 9 to 0 ?

INIr. Bloom. Indian law is court-made law and it is a matter of
interpreting some vague guidelines given. The Ninth circuit has been
overruled in Indian cases but so have the Tenth circuit and State
courts. You have a single statistic taken out of context and it has been
argued from that that the State supreme courts are uniformly hostile.

I don't thinlc that is true. You would have to say that because the
Ninth and Tenth circuits are sometimes overruled, that they are hostile
to Indian rights. The Supreme Court gives us very difficult guidelines
to follow. Mr. Chambers has just finished telling us how difficult the
Akin case is to interpret and to apply from Colorado to New Mexico,
Washington, and "Wyoming. If that is true in Akin, how much more
is it true in other areas ?

Senator Abourezk. You have made a statement that will serve as
a prelude to the questions I want to ask. You said that these laws ai'e
all subject to interpretation which is a question I was going to ask
you and you answered it ahead of time. Obviously each judge will
interpret the precedent and the statutes and the constitution as he sees
fit. They may in many cases be different.

]Mr. Bloom. That is true of Federal judges as well as State judges.

Senator Aboi rezk. Any kind of judges. All right now. The former
Governor of New Mexico wrote to Commissioner Rhodes. It must be
evident to anyone acquainted with political conditions in New Mexico
that it would be very difficult, indeed, for anyone in high public posi-
tions to supj)ort the proposition that the Indians have prior rights over
non-Indians to any water at all. Do you agree or disagree witli that
concept ?

Mr. Bi-OOM. Not only do I disagree with it but I have acknowledged
the contrary in our cases, in our pleadings, and in the San Juan River
case I just talked about filed in State court. I have acknowledged in
the complaint that the United States claims rights under the Winters
doctrine, that those rights arise under the Constitution of the laws of
the United Sta.tes and those must be interpreted by a State as well as
a Federal court. The Governor was Governor of Ncav IMexico 60 years
ago. New Mexico has evolved a good deal. Congress has changed the
rules of the game as far as the relations of Indians to non-Indian
peoples, obviously. The trusteeship of the United States over its Indian
people is more aggressive, far reaching, certainly more aggressive
today than it was in 1912 wlien New Mexico became a State.

Senator Abourezk. I wonder if you are familiar with the Puehlo
case, the 1926 law that was passed which denied the Pueblo any right
to negotiate ; you are familiar with that ?

Mr, Bloom. I am generally familiar with the statute.

Senator Abourezk. You are aware at the present time we are trying
to get that statute repealed. We are having one of the fights of our

lives with the Ne^y Mexico delegation on the House side. You are aware
of that, are you not ?

Mr. Bloom. I have not been involved. I know opinion is mixed in
New Mexico.

Senator Abourezk. I have been involved in the fight and I can tell
you that as far as the congressional delegation is concerned, times
have not really changed so far as that is concerned. It is difficult for
someone in high office in Xew ^Mexico, as well as it is in South Dakota,
to try to provide this kind of treatment for the Indians.

IMr. Bloom. Is it not true that the bill was introduced by New
Mexico's delegation ?

Senator Aboukezk. It was introduced by Senators Domenici and
INIontoya.

INIr. Bloom. Without getting involved in specifics of that which is
not the subject of hearings today, there are two factors to be con-
sidered. One is that several Pueblos are adjacent to the major cities
of Mexico. If it is not possible to condemn rights-of-way over their
land, some believe it will be impossible for REA's or the highway de-
partment to do their job or they will have to pay outrageous com-
pensation awards. Li the absence of that condemnation power, they
have to negotiate with the Indian tribes.

Senator Abourezk. That is presuming a mantle of irresponsibility
on the Pueblos though you don't presume on anybody else.

Mr. Bloom. No, sir. If I were a Pueblo and laiew that I owned a
strategic block of land and somebodj' asked for a right-of-way and
they could not condemn it, I would hold out for a very good price.

Senator Abourezk. How are State court judges in New Mexico
selected ?

ISIr. Bloom. They are either initially named by the Governor and
then elected or subject to election.

Senator Abourezk. They are all at one time or another subject to
election ?

]Mr. Bloom. Yes. sir. In New Mexico, the American Indian popula-
tion is more than 7 percent of the State population, 7I/2 to 8 percent
now.

Senator Abourezk. It is about 7 percent.

Mr. Bloom. In any case, in the areas where these suits are brought
as it happens, take San Juan County — the Navajo reservation occupies
a large part of San Juan County. A substantial percentage of the
population of that county, with the full opportunity to cast their bal-
lots for State judges, are Indian voters.

Senator Abourezk. Are there any Indian judges there ?

]\Ir. Bloom. There are none and I think there have never been.

Senator Abourezk. Would you agree with this statement that the
water rights are extremely important to the non-Indian citizens of
New Mexico?

Mr. Bloom. I assume they are important to all our citizens.

Senator Abourezk. But they are important to all the non-Indians?

ISIr. Bloom. As well as the Indians.

Senator Abourezk. It would be helpful if you would respond di-
rectly. If non-Indian water rights are determined by a judge to be
inferior to Indian water rights, and city populations had to cut back
on water use or forego expansion, do you think that a State court

jiitlge who made the decision to give the Indians superior water rights
woukl be reelected?

Mr. Bloom. I think he could be because our judges do that sort of
thing every day. Your question has a premise which departs a little
from reality in New Mexico. We are accustomed to seniors calling
water right priority on juniors. We are a prior appropriate State. It
is not extraordinary in New ^Mexico for a judge to have to make that
verj^ difficult choice of preferring one area over another.

Sometimes they involve larger population groups than our Indian
population. We have a priority fight going on now. The State engineer
has announced he will enforce that. There is a probability of drying up
a very substantial acreage. The judge will have to do his duty regard-
less of the political consequences.

The same would apply to a decision in favor of the Indians. Our
State judges have made decisions in favor of the Indians. I point out
that it was in a State court of New IMexico, Senator, that our State
judge ruled that he lacked jurisdiction under the McCarran amend-
ment before the AMn case came down, and it was our Federal courts
that ruled the contrary before the AMn case. You had a clear, split
decision. It was a State court that ruled the Indian way the first time.

Senator Abotjuezk. That ruling does not deprive anybody of water
rights.

Mr. Bloom. No ; but it was a matter of great concern to the parties
in that case. The State judge made that ruling.

Senator Abourezk. Have you had any experience to indicate that
the Federal courts are not capable of fairly adjudicating Indian water
rights?

Mr. Bloom. Only to the extent that the Congress has starved the
Federal courts of manpower and resources to do their job. We have,
perhaps uniquely in the West, a large number of water rights adjudica-
tions involving Indian rights in both State and Federal court. We are
perhaps with all modesty uniquely in a position to comment on the
treatment that we receive and that all the people of New^ Mexico re-
ceive in both forums. Now we have seven cases in Federal court involv-
ing tributaries of the Rio Grande. We have now four Indian reserva-
tions involved in State court adj adication. ,

I speak with absolute sincerity in saying my experience is that both
courts are equally anxious and willing to provide fair hearings for all
classes of claims whether they arise under Federal or State law.

I am confident they will continue to do that. The problem is that
the Congress or tliis subcommittee is talking about law:s which would
make these exclusively Federal. Now if you do that, at the same time
that you are starving the Federal courts of adequate manpower and
resources, we have over 45 State judges in New ^lexico and we have
only three Federal judges. They are complaining about the backlog
in their dockets. Mr. Chambers also said the Fedeial judges liave
unique knowledge. They don't hear these cases in the first place. They
are so busy, they select private attorneys to serve at $150 a day whose
fees are paid by the parties, to entertain these questions because the
Federal couits don't have resources and have month-long docket
backlogs.

I am responsible for part of that because we have 8,000 parties in
Federal court actions involving Indian water rights among others.

Those include the Pueblo cases. In all these situations, the Federal
courts have been fair and as expeditious as they can be given the
resources they have. So have our State courts when Indian water
rights have been brought before them.

Senator Abotjrezk. Do you view the Winters doctrine as establishing
a clear Indian right ?

Mr. Bloom. I recognize that in appropriate situations such as reser-
vations made by treaty, congressional act or executive order, that fit
the criteria of the Winters doctrine and its line of cases, that there
are reserved Indian water rights implicitly made in amounts such as
to satisfy the purposes for which the reservation was made.

We know from Arizona v. California^ for five Colorado tribes, that
this right was subject to quantification based on practicably irrigable
acreage. We do not laiow whether that standard will be applied to all
other reservations. The U.S. Justice Department has claimed a better
priority in our State cases. It has claimed a prehistoric priority. I
would have to qualify it that way. There are certainly many other
points in the Winters doctrine, around the edges, which are not settled,
whether the doctrine applies to underground as well as surface waters,
questions of that kind. The doctrine exists and the State courts
acknowledge that.

Senator Abotjrezk. Do you believe that Indian tribes have Winters
doctrine rights whether or not they are adjudicated then?

Mr. Bloom. A person can have a right before it is adjudicated.

Senator Aboxjrezk. It does not really establish the Indian rights
which are inherent?

Mr. Bloom. A suit doesn't create rights. It just defines them.

Senator Aboueezk. In the State court of New Mexico would they be
hampered if the date of priority and the rights of Indians were to be
set by Federal court ?

]Mr. Bloom. That assumption raises serious constitutional problems,
Senator. I note Mr. Chambers and Mr. Taft both speculated on the
possibility that the Congress could carve out by legislation the sub-
ject matter of Indian water rights and then have them sort of melded
into State court decree. I don't believe that that is constitutionally
possible for the reason that every other claimant on those streams is
entitled to notice and opportunity to dispute. The State is merely a
stakeholder.

It does not claim to own the water rights involved. The owners are
those hundreds or thousands of the non-Indians — upstream or down-
stream— who may feel an economic threat from the assertion of Indian
rights.

It would be a taking of property without due process. I believe the
U.S. Supreme Court has recognized this in Eagle and in AMn and has
said again and again quoting Senator McCarran's remarks that all
water rights on the stream are interrelated.

All claimants are necessary and indispensable parties and if this
Congress is being asked to deny the private parties that opportunity,
I believe that such legislation would be arguably unconstitutional.

Senator Abotjrezk. I don't know that you are speaking to the ques-
tion. What we are talking about is the establishment of rights that
already exist on the part of the Indians.

Mr. Bloom. In an adversary proceeding, Senator.

Senator Abourezk. TJiglit. If it is an adversary proceeding, the non-
Indian would be in the Federal court.

Mr. Bloom. I understand from what Mr. Taft and Mr. Chambers
were saying that somehow the State would be dragooned into the
Federal court, as in what was called the Kiechel bill, and the theory
would be that the State could be compelled to speak for all of its non-
Indian citizens as a kind of parens patriae.

An attempt has been made along this line in two Federal district
courts and it has been repudiated in both. In the Santa Cruz case
and the Pyramid Lake case, the Justice Department has attempted to
accomplish this end, to eliminate the need to give notice to, to serve
and join a thousand or ten thousand parties and simply say we will
serve the attorney general and Governor of the State and that will be
the end of it.

The other parties, even though they can be adversely affected, would
not be entitled to come into Federal court. There will be a private Fed-
eral-State adjudication and then we will take this as an accomplished
fact and sew it onto the State decree at the top or the bottom. In
my opinion it does not make sense and it is a complete reversal of the
rationale of the McCarran amendment which was precisely designed
for the purpose of subjecting all Federal claims to adjudication in a
common single omnibus suit so that all parties could have a due process
opportunity to litigate their right in the same forum.

Senator Abourezk. Do you believe that the Federal court is the
proper forum for the adjudication of Federal Indian treaty rights
or should it be in State courts ?

Mr. Bloom. In certain circumstances. Federal Indian treaty rights
may be adjudicated in either court and have been.

Senator Abottrezk. The treaty was made between the United States
Government and the Indians. How could it be done in a State court,
that is. the adjudication of treaty rights ?

Mr. Bloom. Sometimes the Indians win.

[Laughter.]

Senator Abourezk. Please !

Mr. Bloom. Every time a jurisdiction case arises over the power of
the State court or application of State law to persons on the Navajo
reservation, the Navajo people have a treaty with the United States
Government. The State court must look at that, article 21 of the State
Constitution, a portion of our enabling act, subsequent Federal cases,
and decide which side of the line this case falls on.

Senator Abourezk. That is not treaty rights, it is a determination
of jurisdiction. It is not an adjudication of treaty rights.

INIr. Bloom. I don't see any reason why State courts are not as clearly
enabled as anyone else to apply Federal law. They apply Federal law
every day in appropriate cases. Treaties with Indian tribes are simply
a particular species of Federal law.

Senator Abourezk. Isn't that against our entire tradition?

I believe it is probably in the jurisdictional statutes themselves in
treaty rights, that dealings with Indian tribes are exclusively in the
province of the Congress. That is in the Constitution. The jurisdic-
tional matters relate directly to that. I believe that you don't really

mean that wlien you say that treat}^ rights are adjudicated in State
courts because they are nolle and you know they are not.

Mr. Bloom. They will be in the area of Indian water rights under
the AJdn case.

Senator Abourezk. Yes, if it stands, that is right. I don't have any
more questions. I want to tliank you very much for your testimony.

[The prepared statement of Mr. Bloom follows:]

I'EEPARED Statement of Paul L. Bloom

The March 24, 1976 decision of the U.S. Supreme Court in the consolidated
cases of Colorado River Water Conservation District vs. United States, and Mary
Akin vs. United States (referred to hereafter as Akin) has definitively estab-
lished that the courts of those states whose laws provide for general stream
adjudication suits are empowered to adjudicate "Indian water rights" owned
by the United States. It is the purpose of tliis statement to place the Akin
decision in its proper factual and legal context and to suggest that the rule
of Akin will allow expeditious and effective water rights adjudication without
prejudice to the legitimate interests of the Indian or non-Indian jieoples of the
Western States.

It is appropriate, in the first place, to note carefully what Akin does not say.
It does not establish that "Indian water rights" (by which I mean tribal water
rights arising out of the "Winters doctrine" ^ are or will become subject to
"state law" in the sense that the nature, extent, priority, purpose, etc., of tribal
v.-ater rights are to be adjudicated, or thereafter administered, under the prin-
ciples and procediires of state water law. As the Supreme Court said in Akin:
"The [McCarran] amendment in no way abridges any substantive claim on behalf
of Indii'.ns under the doctrine of reserved rights." On the contrary, the Supreme
Court affirmed in Akin, as it had previously noted in Eagle County {U.S. vs. Dis-
trict Court for Eagle County, 401 U.S. 520, 1971), that Federal reserved rights
subjected to adjudication in appropriate state court proceedings must be de-
termined pursuant to "Federal law." that i.s, to the Federal decisional and/or
statutory law Ivnown as the "Winters doctrine." Likewise, the Court did not
hold that the exercise or enjoyment of "Indian rights" after adjudication is
subject to the requirements of state administrative law, for example, the pro-
cedure by which one initiates an appropriation or seeks a partial or complete
transfer in the place, purpose or point of diversion of a water right by applica-
tion to the state engineer or to a board of water commissioners or similar state
administrative body. Of course, the McCarran amendment provides in substance
that, once duly joined as a defendant, the United States is barred from claiming
that it is not bound by the decrees of an adjudication court (except as to money
judgments), but it is at least far from clear that this language would allow a
state adjudication court to subject adjudicated "Indian water riglits" to general
state administrative law. It is my view that, once adjudicated. Indian water
rights will be subject to state administrative law only to the extent that the
courts decide that the respective states may otherwise exercise governmental
power over Indian property, within or without the boundaries of Public Law
280 and other relevant statute and case law.

There are now pending in New Mexico State courts two cases in which the
rights of one or more Indian tribes are pending judicial determination : tlie first
of these is the case of State ex rel Reynolds vs. L.T. Lewis, et al., Rio Hondo sec-
tion, (Mescalero Apache tribe), and the second is State ex rel Reynolds vs. United
States, ct al. (the Navajo, the Jicarilla Apache and the Ute Mountain Ute Indian
tribes). The former involves adjudication of the Rio Hondo, a Pecos River tribu-
tary, and the latter is a suit to adjudicate all water right.s claims in the San Juan

1 In the simplest terms, the "Winters" (U.S. v. Winters, 207 U.S. .564 (1908)). or reserved
rights doctrine (ef. Arizona v. Cal., 373 U.S. 540, 1963) holds th.it when the U.S.. hy treaty,
statute or Executive order reserved land from the public domain for a specific Federal
purpose, e.g., an Indian reservation, or a national park or forest, the courts will construe
the reservation of land as containing an implicit reservation, from unappropriated waters
of streams traversing or bounding that land, of sufHclent water to give effect to the purposes
for which the land was reserved. Many important questions remain to be settled b.v the
courts in respect to the nature, extent, priority and administration of such Federal rights.

78-186 — 77-

River system in New Mexico." These cases provide useful illustrations of the
promise and the problems of the Akin decision.

It should be noted tlrst that state and Federal courts in New Mexico had
already ruled, before Akin, that "Indian water rights" could be adjudicated by
State courts, in appropriate stream system adjudication suits, where the United
States had been properly joined, as a McCarian defendant, in its capacity as
trustee for Indian resources. In the Lewis case, the Xew' Mexico Supreme Court
ruled on February 9, 1J)7G, that the Mescalero Apache Indian water rights in the
Rio Hondo sysff^ni were properly before a state district court, ajid in the New
Mexico vs. United States case, a Federal district judge in Albuquerque had ruled
on October 23, 1975, that the United States was properly before another state dis-
trict court in its capacity as fiduciary of Indian property. Thus, the Akin decision
merely confirmed a legal status quo previously established in New Mexico.

In both of these cases. Indian water rights owned by the United States were
brought within the purview of state court adjudication for the paramount reason
that either ongoing or previous water right adjudication in State court had
implicated the rights of hundreds or thousands of New Mexico water users, and
adjudication of "Indian water rights" in separate and new Federal court pro-
ceedings would have jeopardized the finality of previous State court decrees and
caused other significant injuries to many water users. For example, in the Leroifi
case. 20 years of State court v>'ater rights adjudication had transpired before the
"Indian water rights," involving an iipstream trilnitary, were brought into the
ease. More than 2,000 individual orders defining the nature, extent and priority
of non-Inciian rights had been duly entered in in that case before tlie Indian
claims were brought before the court, and a partial final decree confirming those
orders and making them effective between and among the parties had been
entered. If the McCarran amendment had been held not to permit the adjudica-
tion of the United States' claims for the Mescalero Apache tribe in the Leivis
case, the private water users in the case, and the State Engineer, would have
been faced with the 'Hobson's choice' of either (1) proceeding to adjudicate only
non-Indian rights and, thus, leaving a very siibstantial landowner, the Indian
tribe, free to divert and use whatever waters it desired to take in the head-
waters of the stream, and, thus, render the final adjudication decree nugatory ;
or (2) initiating a new and distinct action in Federal court seeking a "read-
judication" of everything laboriously accomplished over 20 years in State court,
with all the risks that course entails and all the additional costs to the parties,
in order to obtain a comprehensive decree. The situation was perhaps even more
clear and demanding in the San Juan River systeiu {New Mexico vs. United
States) : here, a State court had, between 1937 and 1948, adjudicated all the
then-existing non-Federal water rights <the U.S. could not be joined because the
suit was closed before the enactment of the McCarran amendment). If the State
Engineer had not been free to cause the joinder of the United States as a de-
fendant in its own right and as owner of Indian water lights, in State court, it
would have remained impossible for the engineer to administer effectively the
waters of the San Juan River until and unless he secured the readjudication
of all those same private rights, and all Federal rights, (including those claimed
under the 'Winters Doctrine") in a new Federal court action.

The latter course would again have imposed serious liurdens on many hundreds
of water users, and brought into question the finality of the 1948 state court
decree. If no further legal action were taken, the continuing lack of power in
the State engineer- to administer the entire stream would very possibly have
resulted in injuries to interests of the Navajo Indian tribe, whose existing water

2 The Tenth Circuit Court of Appeals has held, and the Supreme Court has not disagreed,
that where both State and Federal courts have concurrent .iurisdiction to determine water
rights on a stream system, priority in time of filing will he a critical factor in determining
which court will finall.v adjudicate the rights. The resulting "race to the courthouse" is not
an ideal method of settling which court system should exercise .iurisdiction : however, it
does provide a means by which a tribe, or the Department of Justice, whenever it feels that
circumstances require it, can probably secure a Federal forum for litigation of Indian or
other Federal rights. Of course. Akin illustrates that priority is not the only factor; the
Supreme Court ruled there that it was more convenient to add one party (the U.S.) to an
existing State court ad.iudication than to add 1.200 private parties to a Federal court action
brought by the United States, although the United States filed in Federal court before it
was joined as a defendant in State court. The Justice Department has recently brought
Federal court adjudication suits on behalf of. inter alia, Indian claims, in Montana. Arizona,
and Oregon. In the .S'aw Juan River case in New Mexico, the United States has twice sought
to remove the case to Federal court, and has been twice rebuffed by the Federal court.

uses include irrigation projects downstream from all adjudicated private users of
San Juan system waters.^ In tlie San Juan River case, concern for the interests
of botli the Indian and non-Indian water users produces the same conclusion :
that the entire stream system in New Mexico should be roadjudicated in the
same State court that entered the first decree, so that, with a minimum of risk,
expense and inconvenience to all parties, all Federal and private rights could be
adjudicated and then administered under a single decree.*

it is perhaps appropriate here to discuss briefly the well-known objections of
many Indian representatives to the adjudication of water rights in State court.
These objections arise out of a deep and sincere conviction that state courts,
quite apart from the legal niceties of the McCarran amendment, Public Law
280 etc., are hostile, or at least unsympathetic, forums for the determination of
Indian water rights. It is certainly not my intention to argue that the inconsisent,
neglectful and sometimes shameful treatment of Indian people and property after
the arrival of European settlers in what is now the United States has not pro-
vided ample cause for the surviving Indian people of the United States to exercise
the most scrupulous and sensitive care over their valuable property rights. How-
ever, I do contend that it would be anachronistic to ignore the very extensive
legal and social evolution of the relationship of Indian to non-Indian people
that has occurred In recent decades in the United States. Perhaps most im-
portantly for the problem at hand, the U.S. Supreme Court has firmly established
a doctrine of Federal law governing the water rights of Indian reservations, and
has, as noted above, explicity enjoined State tribunals to follow this doctrine in
appropriate ca.ses. Indeed, it has also gone farther, and explicitly stated that the
decisions of State tribunals on Indian water rights will present Fedei-al questions
reviewable by that court. It is certainly unjustified, in this age of aggressive
assertion of minority rights. Federal civil rights legislation, and increasing
Indian political strength in many western States, to anticipate that State courts,
in the face of this Supreme Court admonition, will deny "equal justice" to Indian
citizens. The Supreme Court answered a similar argument in Akin in these
words :

Moreover, the Government's argument rests on the incorrect assumption
that consent to state jurisdiction for the purpose of determining water rights
imperils those rights or in some way breaches the special obligation of the
Federal Government to protect Indians. Mere subjection of Indian rights to
legal challenge in state court, however, would no more imperil those rights
than would a suit broiight by the Government in district court for their
declaration, a suit whicli, absent the consent of the amendment, would
eventually be necessitated to resolve conflicting claims to a scarce resource.
The Government has not abdicated any responsibility fully to defend Indian
rights in state court, and Indian interests may be satisfactorily protected
under regimes of state law.
In conclusion, this situation now exists : the Congress, in the McCarran amend-
ment, recognized the unique and overriding nee<l in water adjudication suits to
have all Federal and private claims litigated and then administered under a
common decree ; the Supreme Court has said that the amendment includes the
riglit and power of state courts to adjudicate Federal reserved rights, including

"There i.s. of course, no Fecler.Tl ''watermaster'" or other administrator cenerally era-
powered to .administer private and U.S. and Indian risrhts : if the States water officials cannot
do this job under a single State or Federal decree it will not be done, and all water users
will suffer the results of a lack of lawful and technicall.y competent administration of water
rijrhts. It is clear beyond dispute that all claimants must be adjudicated in a single decree ;
the court in Akin quoted with approval the U.S. Senate committee report (on the McCarran
amendment) that i-ecog-nized tlie '•interlocking" of rights to water on a single stream, and
that all claimants are necessary parties in a suit of this kind. Recent efforts by the United
States to invent a "short-form" of adjudication of Federal and Indian rights by suing a
State as "representative" of "its" water users, or omitting joinder of some of the private
claimants, hove not met with favor in the courts. There is probably no constitutionally
permissible method of avoiding the cost and delay of joinder of large numbers of claimants
in such a suit : of course, the Indian tribes enjoy the advantage of Federal funds and
lawyers to help meet this burden whei-e the tribe or the United States brings the action.
In MrCarrnn actions, the State or other plaintiff must henr it.

■• Where no previous or ongoing State court adjudication existed, and the affected Indian
tribe felt strongly that Federal court jurisdiction was preferable, and this would not cause
undue hardship on other parties, the State of New Mexico has brought stream adjudications
in Federal court. New Mexico believes both court systems provide fair and learned
treatment of water law problems in such cases ; of course, the failure of the Congress to
provide adequate manpower and salaries for the Federal judiciary in recent years has
tended to make these very large and demanding water right cases especially burdensome
to the Federal courts.

those held for Iiidiiiu tribes, applying Federal law where appropriate. No cogent
claim of injury to Indian or otiier Federal rights has been shown to result ; the
State courts properly exercising jurisdiction over such rights should now be
alio»ved to demonstrate that they can and will provide etpial justice under law
to all parties concerned.

Senator Abourezk [contmuiiig]. Our final panel of witnesses will be
Mel Tonasket, Wendell Cliino, Veronic Murdock, and Dan Old Oak.

There is a representative of the Yakima Nation here. Would you be
interested in comins: up and joining this panel ? Mr, To'nasket, are you
decided among yourselves who is going to start? I would appreciate
it if you ^vould abbreviate your prepared statement. We will print your
entire statement in the record, and tlien we can get at the heart of the
issue itself.

Mr. ToxASKET. That will be really hard to do, Senator, because the
statement all kind of fits in line. It does address some of the issues
that have been raised and some of the issues that have not been raised
to the attention of the subcommittee. Really it would be difficult for
me to abbreviate my statement.

Senator Abourezk. Does eveiybody have a statement they are going
to read ?

Mr. Tonasket. I believe, so, yes. Some are not too long, though.

Senator Abourezk. The problem is that I have got a meeting right
now and I am actually only filling in for Senator Kennedy. What we
might have to do is come back after lunch and hope Senator Kennedy
will be done witli his amendment an the floor by then.

Mr. Toxasket. I would respectfully request that that be done because
the issue before this committee is probably one of the most crucial
before the Indian community.

I believe that all Indian panelists should be given the opportimity
to give a full statement.

Senator Abourezk. Then why don't we do that? We will take 5
minutes recess now and find out what the schedule is on the floor. Then
we will know better what to do.

[Brief recess.]

Senator Abourezk. I will recess the hearings until 2 o'clock. It is
possible there might be an announced change. I will aippreciate it if
the witnesses will remain here for just a few minutes.

[Whereupon, at 12 noon the hearing recessed, to reconvene at 9 : 15
a.m., Wednesday, June 23, 1976.]

OVERSIGHT HEARINGS ON INDIAN WATER RIGHTS

WEDNESDAY, JUNE 23, 1976

U.S. Senate,
Subcommittee on Administrative

Practice and Procedure of the

Committee on the Judiciary,

Washington^ B.C.

The subcommittee met, pursuant to notice, at 9 : 20 a.m.. in room
2228, Dirksen Senate Office Building, Senator Edward M. Kemiedy,
cliairman of tlie subcommittee, presiding.

Present : Senator Kemiedy.

Also prepent : Theresa A. Burt, etau member.

Senator Kennedy. We will come to order. I regret w^e were unable
to complete our hearings yesterday. We have been very active on the
floor trying to propose amendments to make sure that the tax bill is
no loFiger the biggest welfare bill of all, which is the welf ai"e of the rich
in this country. We liave suffered a few setbacks but we had a not so in-
significant victory as well. I am looking forward very much to the
panel which will testify this morning. Again, I want to offer my
apology and the apology of the committee for being unable to com-
plete the hearings yesterday. I express my appreciation for your
willingness to remain with us.

I know you have traveled many miles but yea did so because you
know the importance of this particular issue, as I do. No record would
be even partially complete unless we had the testimony we are going
to hear from this panel this morning. We look forward to hearing
from Roger Jim, a member of the Yakima tribe, Veronica Murdock
of the Colorado River Indian tribes, Mr. "Wendell Chino of the
Mescalero Apache tribe, and Mel Tonasket of the National Congress
of American Indians. We will also hear from Dan Old Elk of the
Na^tive Am.erican Natural Resource Development Association. Let
us proceed with Roger Jim. Mr. Jim.

STATEXIE5IT OF A PANEL COMPOSED 0? MK. MEL TOjlv^ASEET, PKESI-
BENT, NATIONAL CONGIIESS OF AMERICAS' INDIANS; ME. WEN-
BELL CnmO, PEESIBENT, MESCALEEO APACHE TEIEE; MS.
YEEONICA MUEBOCK, VICE CHAIEMAK, COLOEADO SIVEE IN-
DIAN TEIBES; ME. DAN OLD ELK, CHAIEMAN OF THE NATIVE
AMERICAN NATUSAL EESOL'ECE DEVELOPMENT FEDEEATION;
AND EOGEE JIM, THE YAKIMA INDIAN NATION

Mr. Jim. Thank you, Mr. Chairman. My name is Roger Jim. I am
a member of the Yakima Tribal Council of the Yakima Indian

(33)

Nation. I have here a statement: "The Akin decision, a threat to
survival of the Western Indian reservations and Indian people".
Threats to the treaty rights to the use of water of the Yakima Indian
Nation by the Secretary of the Interior first occurred in 1905 when its
rights in the Yakima River were taken for the Yakima Federal
Heclamation project. The Yakima recovered those rights. In 1908 the
Secretary of the Interior attempted to give away 75 percent of the
Yakima rights in Ahtanum Creek. Almost a lialf centuiy later a
Federal Court abrogated the attempted giveaway by the Secretars^
of the Interior. Simply stated, the Yakima Indian Nation has been
alert to and has defended against invasions by Federal agencies of its
invaluable Winters doctrine rights to the use of water. Today the
Yakirnas, indeed all Indian nations, tribes and people are confronted
by an even more serious threat than that presented by secretarial
seizure of its rights for non-Indian projects and purposes.

That threat is the consistent and persistent attempts by both tlie
Interior and Justice Departments to lump together the treaty,
Winters rights to the use of water, and the Federal rights which are
exercised by and for non-Indians. By persistently attempting, with-
out right, to present Indian treaty rights and Federal rights as being
one and the same, has resulted in the rationale of the recent Akiii
decision of the Supreme Couit.

It is declared in tliat decision that the Indian rights are subject,
by the ^IcCarran amendment, to State court jurisdiction. State court
control and State adm.inistration. That ruling meaais the end of
Western Indian reservations, for State law and jurisdiction are now
and have always been hostile to Indian people. At no time have the
Western Indiaiis and their reservations been confronted with a more
serious threat.

Senator Kp:xxedy. Let me interrupt you if I could. I missed INIr.
Bloom's testimony yesterday, altliough I had a cliance to familiarize
myself vrith it since he testified. Do you think that he portrays ac-
curately the objectivity and even handedness with which the State
courts deal with Indians ?

Mr. Jim. I have a rebuttal to his statement. There are State judges
that will not be anti-Indian regarding adjudication of water rights.
However, often all that happens is a loss of a qualified judge. In our
State, the State of Yrashington, and in our county, Yakima County,
moderate rulings in Indian fishing cases coaitributod to the defeat of
a State judge. It is not necessarily true that this is the only cause of
his defeat. However, it w^as one of the main causes attributed to liis
defeat and tlmt has not beeii lost on otlier State judges who are now
constantly ruling differently from recent Federal District Courts and
Court of A])peals decisions in fisliirig cases. They are continuously
enjoining fish regulatory agencies from following Federal court direc-
tives. In the West, one's wife, family, and water rights are very im-
poi'tant, but not necessarily in that order.

Then we sug.q-est that the State judge's response will be at least as
good as in the fishing cases. The judge that was defeated was defeated
just 6 months before his pension vested, a double impact not only on
that judge but on o]-)serving judges as well. Second, it has been sug-
gested that to allow State users to be joined by service on the State
is not due process.

How can this same speaker believe that the adjudication of Indian
rights slioukl be determined by the joinin<j: of the United States when
in some inctaiices the interests of the United States and the Indian
people may not be equal ?

That was a rebuttal to Mr. Bloom's statement of yesterda3\
Senator Kennedy. I would like the others either to comment now or
p?rha]3S in the course of their testimon}^ about that particular issue.
AYhat is your experience and the tribe's experience on the ol)jcctivity
of State couT-ts? I think this is a very important issue. I think all of
you obviously hare very, very dii'ect experience and knowledge in deal-
in.o- with that. I want to make sure the record includes that item.
Mr. Jim. IMay I continue?

Senator Kennedy. Fine. We have just about 50 minutes and I want
to be sure that everybody gets a fair chance. These are the points that
we want to make for the record : the fairness and objectivity of the
courts; how you feel about leaving the administration, and trust re-
sponsibility in the h.ands of the State courts ?

This is the heart of the testimony we want to hear this morning. "We
have a panel here that represents different interests and we want
to see if there is a consistency in viewpoint on that.

Mr. Jim. First, it is essential to ascertain how the Indian treaty
rights of the T"te Indians could be confus?d with Forest Service rights
administered by the Department of Agricultui'e. That circumstance is
D.ot diiiicidt to understand when it is realized that the Justice Depart-
ment, which is supposed to represent the IndiaTi people, has consist-
ently used Indian decisions to support non-Indian claims.

Repeatedly in the earlier Eagle River decision, the Justice Depart-
ment represented first to the Colorado Supreme Coui't and then to the
Supreme Court of the United States that the Indian rights and the
Federal rights are one and the same. For the Justice Department or
for anyone else to misrepresent Indian rights by declaring them as
being Federal rights is both legally and historically untrue. In the
struggles of the Yakima Xation to preserve its invaluable Winters
rights, it obtained an unequivocal and clearly stated differentiation
between Indian treaty rights and Federal rights. In the first Ahtanum
decision, the Court of Appeals said this :

That the Treaty of 1855 reserved rights in and to ih^^ waters
of tiris sti-eam for the Indians, is plain from the decision in

Winters vs. United States (207 I^.S. 564) In the Winters case,

as here, the reservation was created by treaty ; the reserved lands
were a part of a much larger tract which the Indians had the
rigjit to occupy ; and the lands were arid and without irrigation
practically valueless. . . . As was said in the Winters case, the
reservation was a ])ai't of a veiy much larger tract which the
Indiaiis had the right to occupy and use and which was adequate
for the habits and wants of a nomodic and uncivilized people.

When the Indians agreed to change their nomadic habits and
to become a pastoral and civilized people, it must be borne in
mind, as the Supreme Court said of this veiy Yakima treaty,
that the treaty was 'not a grant of rights to the Indians, but a
grant of rights from them — a reservation of those not granted.
Before the treaty, the Indians had the right to the use not only

of Alitaniim creek but of all other streams in a vast area. The

Indians did not surrender any part of their right to the use of

Ahtanum creek regardless of whether the creek became the

boundary or -whether it flowed entirely within the reservation.

In no way is it possible to confuse Indian rights with Federal

I'ights in the light of that ruling. It is shocking to observe in the brief

filed by the Justice Department that it does not distinguish between

treaty lights and Federal rights. In that brief it is noted :

In contrast to the Western states law of prior appropriation
is the Federal reserved rights doctrine originally applied to
Indian reservations in Winters vs. United States, 207 U.S. 564,
and held to be equall}' applicable to non-Indian Federal estab-
lishments in Arizona vs. California, swpra (373 U.S. at 601). The
reserved rights doctrine traces its origin to the right of the
United States, as owner of the public lands to the Ijeneficial use
of the waters therein.

Manifestly the Justice Department has deliberately attempted to
mislead the court and to represent the Winters decision as sustaining
and pertaining to Federal rights. Had it correctly presented the law
and facts and had it distinguished the Indian rights, the catastrophe
of the Ahin decision would probably have been avoided.

Congress alo'ne can protect the Yakima Indian Nation and all other
Western Indians by amending the McCarran amendment to exempt
Indian Winters rights to the use of water from the Ahin decision.

Thank you very much.

Senator Kennedt. Thank you very much. Mrs. Murdock.

]Mrs. Murdock. I think I covei-ed in my testimony the questions
that you asked earlier. I know that you also realize the importance
of water in the Southwest, so I am not going to go into that. I will hit
the higlilights of my testimony that I thinlv you are the most in-
terested in.

Throughout American history, Indians have experienced great
difficulty in dealing with the various individual states. The experience
of the Colorado River Indian tribes is consistent with this statement
as the State of Arizona has always been our rival and as we have
sought to establish rights to a fair share of \hQ waters of the Colorado
River.

The words of Justice Miller written almost a century ago are un-
fortunately still valid. He stated :

Because of the local ill feeling, the people of the States where
they are found, are often their deadliest enemies. From their
very weaknesses and helplessness, so largely due to the course of
dealing of the Federal Government with them, and the treaties
in which it has been promised, there arises the duty of protec-
tion, and with it the power. Tliis lias always been recognized by
the Executive, and by Congress, and by this court, whenever the
question has arisen.

The dissenting opinion in Ahin and the Colorado River Wafer
Conservation District cases also clearly recognize the life and death
imporance of water rights questions for Indians. Justice Stewart
stated :

This coui-t has long recognized that the policy of leaving
Indians free from state jurisdiction and control is deeply rooted
in the Nation's history.

There is no doubt that there is a very firm basis for enacting into
law that the Federal Courts have exclusive jurisdiction for adjudicat-
ing Indian Avater rights. Tribal and individual Indian water rights
are recognized and protected by Federal treaties, statutes and agree-
ments. In Winters vs. United States, it was held that the right to use
of water for the benefit of the Fort Belknap Iiidian reservation was
impliedly reserved in the treaties and agreements creating that reser-
vation. This landmark case still is a significant precedent and guide
for the protection of the Indian water rights. Indian water rights
have always been adjudicated in the Federal courts and the effect of
the recent U.S. Supreme Court decision will be to alter the historical
relationship which has developed between the Federal Government
and Indian tribes.

The Federal courts are the proper and preferred forum for the
resolution of all Indian property rights including water rights. Addi-
tionally the complexity of the various Federal questions further re-
quire that only the Federal courts should hear Indian water rights
questions. The impact of the Akin and Colorado River Water Con-
servation District cases is particularly important to the Colorado
River Indian tribes. AVe have decreed water rights in the Colorado
Eiver arising out of Arizona vs. California. This case had not yet
been finally settled and negotiations regarding a proposed stipula-
tion will result in a final decree. Our major opponents in these ne^-otia-
tions are the States of California and Arizona. These two States
throughout the course of this litigation have been constant and fierce
enemies of the Colorado River Indian tribes and other tribes along
the Colorado River. The result of the case no doubt would have been
greatly different if it were litigated in the courts of either State. In
fact if questions arise in the future they very well may be argued in
a State court.

I am liero to request that this subcommittee duly consider this
proposed amendment. Indian water rights are precious for many
tribes and the last hope and opportunity for reestablishing the
dignity and stature Indians once had. If our water right problems
are to be resolved in the State courts, then we foresee long and ex-
pensive legal battles in the future. I therefore urge that this subcom-
mittee act favorably on this proposal as soon as possible. Thank you.

Senator Kexnedy. Mr. Chino ?

]Mr. Chino. Senator Kennedy, I would like to present two state-
ments: one reflects the position of the National Tribal Chairmen's
xVssociation ; and the other reflects tlie position of the Mescalero Apache
ti'ibe. In essence I think my testimony for the Mescalero Apache
tribe will clearly rebut the position of Mr. Bloom.

Senator Kemiedy, may I think you for the opportunity to appear
before you and the other distinguished members of your subcommit-
tee on this subject which is so vital to all of the Indian people who
continue to reside on Indian reservations. It must always be remem-
bered that the various Indian tribes were once independent and sov-
ereign Nations and that their claim to sovereignty long predates that
of the Government of the United States. But it is nonetheless still

true, as it was in the last century, that the rehition of an Indian tribe
living within the borders of the United States is an anomalous one
and of a complex character.

Indian tribes were and always have been regarded as having a semi-
independent position when the tribe has preserved their tribal rela-
tions, not as states, not as nations, not as full attributes of sovereignty,
but as a separate people wdth the power of regulating their internal
and social relations and thus far not brought under the laws of the
Union or of the State within whose limits they reside. That is the
essential language of the United States vs. Kagama as restated by the
U.S. Supreme Court in McClanahan vs. the State Tax Commission of
Arizona.

As a semi-independent Nation the Mescalero Apache tribe is vitally
interested in the best interests of its people, and the reasonable
development of its reservation.

The correction of the McCarran amendment to require adjudica-
tion of Indian water rights in Federal court is an absolute necessity
if Indian tribes are to be treated fairly in the courts within the United
States. Indian water rights must be adjudicated in Federal court!

It may be too late for the Mescalero Apache tribe to have its water
rights determined in Federal court,, since it is already involved in
litigation, and is at the mercy of the State District Court in New
jNIexico. Unfortunately the Mary Akin case, and the Leivis case have
been decided respectively by the U.S. Supreme Court, and the Su-
preme Court of the State of New Mexico, in recent months. Both
cases indicated that the water rights of the Mescalero Apache tribe
will be decided by an elected State judge.

The problems we face on the Mescalero reservation are:

1. Under article 5 of the New Mexico constitution the Governor of
the State of New Mexico is an elected official. The Governor of the
State appoints the State engineer, under the provisions of section
75-2-1, and the State engineer has general super\dsion of all waters
of the State and of the measurement, appropriation, distribution!
thereof, and assumes responsibility for litigating any questions in
regard to water.

2. Under article 0 of the New IMexico constitution the judicial power
of the State is vested in the Supreme Court, the Court of Appeals,
and tlie District Courts of the State. In each case the constitution re-
quires the election of the judires. In the event of a vacancy, the vacancy
is filled by appointmeiit of the Governor.

Senator Kexxedy. IVliat is the matter with the election of tlie
jud.ores?

Mr. CiiiNO. The obvious impact is tremendous. In New ]Mexico
only 7.2 percent of the people are Indians, The Indinn people of New
IMexico are o-enerally located on reservations and withiji a]>y voting
district are heavily orit weighed by the non-Iiidian voters, with one
or two minor exceptions. So it cannot i^easonably be anticipated that
a District Coui-t "iudge pould decide such a case vrithout weighing the
impact upon his fii^-ure possibilities for reelection. It is nuite apparent
that no State District Court judge could erase totally from his mind
the impact of his decision upon his j-eelection. "What political fate
would befall any judgo whose rulinq; legally took significant Tiulian
water back from the residents of Chaves and Eddv counties? "With

this kind of political situation it is a lost cause for Indians to expect
State courts to protect Indian water rights. I think that simply is the
fact.

We may talk about all the niceties of legal theoiy which may dictate
fairness. There is not a doubt among Indian people in Xew ]^tIexico
that the State courts have favored and will faA-or non-Indians in its
proceedings. The case in which our tribe is now involved has been
pending for 20 years. During that time at least five district judges
have held different hearings in connection with the case. In addition
at least two special mastei's have held hearings and made recommenda-
tions to one or more of the district judges involved. The Lewis case
lias been appealed on at least tAvo different points and then returned
to the district court level.

Xow, only 4 months after the U.S. Supreme Court unfairlj^ decided
the State courts have jurisdiction over Indian water rights, and 20
years after the case was originally filed; the plnintiffs are asking the
court for a speedy determination of the liinits of tlie vrater rights
of the Mescalero Apache tribe.

In closing I would like to remind the subcommittee that water is to
the land what blood is to the body. If Indians are to stand by and
watch their water flow like blood from the reservjition because of the
opinion of an elected State official, disgust, despair and total decadence
can be the only residt.

The National Water Commission Act signed by the President on
September 26, 1968, created the Connnission which continued its work
until September 26, 1973. That commission in its exhaustive study
and investigations dealt with this specific problem in chapter 14 of
the final published report of the Commission. The report states:

In the history of the Ignited States Govei'nment's treatment of
Indian tribe's, its failure to protect In_dian w^ater rights for use
on the reserA'ations it set aside for them is one of the sorrier
chapters.
The Commission i-ecommended on page 478 that :

Jurisdiction of all actions affectinjj Indian water rights should
be in the Ignited States District Court for the district or districts
in which lie the Indian resei'vation and the water body to be
adjudicated. Indian tribes may initiate such actions and tlie TTiiited
States and affected Indian tribes may be joined as parties in any
such action. The jurisdiction of the Federal District Couit in
such actions should be exclusive, except where article -j of the
Constitution grants jurisdiction to the United States Supreme
Court.

In effect, the Federal adjudication would be a supplementary
adjudication for determining the amount of water available to
the. Indian reservation and its place on the list of piiorities.

And then concluded that :

The forum for adjudicating Indian water rights has received
the Commission's attention. At one time the Commission pro-
posed to adjudicate Indian water rights in State tribunals ac-
cording to the State procedures with an appeal to the Federal
Circuit Court of Appeals, The Indian tribes objected to the pro-

posal because of controversies stretclimg back over the years
'between State officials and Indians over water rig:hts. It seemed
preferable, therefore, to place the litigation rn the Federal courts,
the traditional forum for determining Indian water rights.

Even if the law were changed at this time there is little hope that
the Mescalero Apache tribe will have its water rights determined in
Federal court. However, the tribe does ask as a matter of fairness that
all other Indian tribes be permitted to litigate their water rights in
Federal court.

Thank you.

Senator Kennedy. Mr. Tonasket.

Mr. Tonasket. Thank you. Senator Kennedy. It is my pleasure to
be here to represent the National Congress of American Indians. I
thank the committee for giving us the opportunity to testify. Con-
gress is being requested to preserve the American Indians of Western
United States by amending the so-called McCarran amendment, and
to restore to Indian Nations, tribes, and people their immunity from
proceedings in state courts to adjudicate their invaluable Winters
doctrine rights to the use of water. Congress alone can preserve the
Western Indians from the single greatest disaster they have experi-
enced since before 1900.

I wish to make a part of this record a copy of my letter dated
March 26, 1976, addressed to Senator Abourezk, a member of this sub-
committee and Chairman of the Senate Subcommittee on Indian
Affairs. Attached to my letter to Senator Abourezk is a simple amend-
ment to the McCarran amendment. I know of no legislation more
vital to the American Indians. In Western United States the im-
munity of Indian Winters doctrine rights to the use of water from
state law, state courts, state tribunals, state agencies, and state ad-
ministrators and agents is a matter of survival — a matter of life or
deatli for western Indian reservations, particularly in the arid and
semiarid regions.

I do not purport to be able to understand what goes on in the minds
of the bureaucracies in the Interior and Justice Department wliich
control the lives and properties of the Indian people. But I can tell
you this: Those bureaucracies knew or most assuredly should have
known that the course of conduct they followed in the Akin case
would result in subjugating the invaluable Indian Winters doctrine
rights to the use of water to state control, state seizure, and ultimately
state destiTiction of Indian reservations in Western United Sates.

It is elemental that the Solicitor of the DopartmeRt of the Interior
is assigned by Congress "to perform the legal work for the Depart-
ment of the interior * * *." His primary task is to be the lawyer for
the Secretary of the Interior. Equally clear is the fact that the Attor-
ney General of the United States is tlie lawyer for the Secretary' of
the Interior before the Supreme Court and the lesser courts. As the
lawyer foT- the Secretary of the Interior both the Solicitor and the
Attorney General have disparate and contradictory obligations and
responsibilities between the non-Indian agencies of the Interior De-
partment and the American Indian people who are subjected to the
control of the Secretary of the Interior.

As previously stated the Justice Department is primarily the
lawyer for the Secretary of the Interior and. the lawyer for the
American Indians only as a subsidiary interest among the many
interests of the Secretary. Thus the disparate and contradictory obli-
gations of the Secretary of the Interior with those of the Indians is
frequently manifested. The conflicts between the Secretary and the
Indians is all-pervasive in many areas. That conflict is manifested
most often in regard to the Indians Winters right to the use of water
and tlie claims of the Interior on behalf of the Bureau of Reclama-
tion and other non-Indian agencies.

The conflicts between the Secretary of the Interior and the Indians
over the use and control of the Indian Winters rights is not limited
to conflicts among Indians and non-Indians agencies within the In-
terior Department. Rather it extends to the authority of the Indians
to manage and to control their own rights to the use of water on their
reservations. The attorneys for the Interior and the Justice Depart-
ments are saying that Indian Winters rights to tlie use of water are
identical with and cannot be separated from the Federal rights to the
use of water.

Thus in the Eagle River case, the Ahin case, and now in the Walton
case, on my owii reservation, tlie Justice Department is refusing to
distinguish betvreen Indian rights held in tiiist for the Indians and
non-Federal rights administered for non-Indian purposes and projects.

The Colville confederated tribes declares in the Walton case that
thch- Indian Winters rights to the use of water are their own property
rights, Tiie Colvilles deny that the Secretary of the Interior has the
power to seize their Indian Winters rights, to the use of water, to con-
trol these rights, to administer those rights, to allocate the waters to
wliich the Colvilles are entitled to in the exercise of those rights.
What is happening on the Colville Indian reservation is happening
throughout Indian country.

May I respectfully emphasize : Severe losses are now and have ])een
experienced due to the refusal of the Department of Justice and the
Department of the Interior to distinguish admiiiistratively and before
tlie courts the non-Federal rights and the Indian Winters doctrine
riglits to the use of water.

Senator Kexxedt. Would you say that one more time?

]Mr. ToNASKET. Severe losses are now and have been experienced
due to the refusal of the Department of Justice and tlie Department
of the Interior to distinguish administratively <ind before the courts
tlie non-Federal riglits and the Indian Winters rights to the use of
water.

On March 24, 1971, 5 years to the day prior to the Ahin decision, the
Supreme Court rendered the Eagle River decision. What some call
tlie infamous history of the Eagle River decision w^arrants comment.
Briefly here is what happened in that case. The United States owns
tlie White River Xational Forest in the State of Colorado. A portion
of that national forest is within the drainage s^'Stem of the Eagle
River, a tributary of the Colorado River. There Avas an ongoing water
adiudication in water district No. 37.

Pursuant to the State law of Colorado, a supplemental water pro-
ceeding was being held in the District Court of Eagle County. As re-

quired l\y State law, service of notice of that supplemental State court
proceeding was made upon the Justice Department in accordance Avith
the SIcCarran amendment. I am advised — and in legal circles it is
well known — that the laws and the decisions of tlie State of Colorado
are strictly predicated upon State's rights, anti-Federal and anti-
Indian, From the moment the State of Colorado was admitted into the
union up to the present time, that State, under its constitution, has
asserted ownership of all the waters within its jurisdiction, has denied
the Federal claims.

May I emphasize in the court in which it was most likely to fail,
the Justice Department asked to have the ^IcCarran amendment con-
strued against the State. I do not know if a bureaucracy can have
a death wish, but the Justice Department seems pointed in that direc-
tion, particularly where Indians are involved.

It must be remembered that on repeated occasions the test of the
application of the McCarran amendments has been successfidly
avoided in both the Supreme Court and in the lower courts.

It necessarily follows, therefore, when the Justice Department will-
ingly invoked the jurisdiction of Colorado's Supreme Court to con-
strue tliat act, the conduct of the Justice Department now and forever
must be viewed with suspicion. Having placed itself before the Su-
preme Court of Colorado, the Justice Department adopted the course
of commingling, without difiPerentiation, the Indian and non-Indian
decisions. Justice pursued that dangerous course to support what it
called the "reserved rights" of the United States. Indian rights,
Justice insisted, are Federal rights. It is not surprising that the
Colorado Court discussed the Federal and Indian rights as identical
in character.

Moreover, before the Supreme Court the Justice Department relied
heavily on the predominantly Indian decision of Arizona vs. Gali-
fo'niia to support the non-Inclian Federal claims for the Forest Serv-
ice. It was not unreasonable, therefore, that the Supreme Court of
the State of Colorado, in light of the presentation to it by the Justice
Department, did not distinguish between Indian Rights to the use
of water and Federal non-Indian rights to the use of the water.

Under the circumstances, the Supreme Court of Colorado did
exactly wdiat the Justice Department knew, or should have known,
that it would do — it said the United States, by the McCarran amend-
ment, waived its immunity from suit in water litigation declaring,

We are holding here that whatever rights the United States
has to water can be recognized and adjudicated by our district
courts just as adequately as in any other forum — and perhaps
more adequately.

"\^nien the Indian community was infonnecl of the Eagle decision
and the assured impact it would have upon the Indian Winters rights,
it began immediate action to force the Justice Department to refrain
from mingling Indian Winters decisions with non-Indian decisions.

The Fort Mojave Indian tribe and the Agua Caliente tribe, acting
through their lawyer, Raymond Simpson, wrote to the then Solicitor
General. Mr. Simpson, in his letter dated November 20, 1970, detailed
the threat of the Colorado decision to Indians in general and to the
Fort Mojave tribe in particular. Emphasis was plaeed upon the fact

that the Fort ]Moiav6 resen^ation is downstream from the Eagle
River and claims riglits in it.

The National Congress of American Indians, through Wilkinson,
Cragmi and Barker, in a letter dated December 22, 1970, joined Ray
Simpson emphasizing to the Justice Department the threat to the
Western Indians by reason of the Eagle River decision.

Louis A. Bruce, then Commissioner of the Bureau of Indian
Affairs, and Leon F. Cook, then Acting Director, Economic Develop-
ment of the Bureau of Indian Affairs, and fonner president of the
National Congress of American Indians, joined the Indian tribes in
advising the Department of Justice of the threat of the Eagle River
decision.

Pursuant to the direction of the Commissioner Bruce and Leon
Cook, there was prepared the above-mentioned analysis of the Colorado
Court's Eagl-e River decision and the threat to the American Indians.
That analysis is entitled, "Conflicts of Interest in Proceedings Before
the Supreme Court — A Preface to Disaster for the American Indian
People."

It is now history that the Justice Department filed briefs with the
Supreme Court which repeated and emphasized the misconception of
the Justice Department that Indian. Winters rights are identical with
Federal reserved rights. That was in clear violation of promises made
to the tribes that

The Government intends to make the Supreme Court fully
aware of its obligation as trustee of the Indian rights in this
matter, and of any bearing that the decision may have on those
rights.

In contrast to its commitments to distingiiish the Indian Winters
ria"hts from the non-Indian Federal rights, the Justice Department
adhered to precisely the same approach to this nation's highest court.
It relied on Indian decisions to support what it referred to as the
reserved rights of the United States. Reserved rights have been de-
fined by this court as the entitlement of the United States, not the
Indians, to use as much water from sources on lands withdrawn from
tlie public domain as is necessary to fulfill the purposes for which
the lands were withdrawn. In its summary of argument set forth in
its brief to the Supreme Court in Eagle River, the Department of
Justice said this : "That the United States has reserved water rights
based on withdrawals from the public domain is well established.
(Arizona vs. Calif oiYtia, 373 U.S. 546, Winters vs. United States, 207
U.S. 564.)"

Tlioso Indian cases were relied upon to support a claim for strictly
Federal Forest Service rights. ^Moreover, it was not the United States
which reserved the rights in Winters — it was the Indians who, by
their treaty and arguments, reserved the rights — ^not from the public
domain lint from their own aboriginal water sources.

Commitments made to the Indian people and violated are nothing
new. Seldom hov/ever, has such bad faith in the Justice Department
respecting Indian people been more carefully documented and proved.
The consequences of that bad faith by the Justice Department are
clearly apparent in the words of the Supreme Court of the United

States reflecting the failure of the Justice Department to separate the
Indian and non-Indian rights in the Eagle Rive!' case.

It is clear from our cases that the United States often has reserved
water rights based on withdrawals from the public domain.

As we said in Arizona vs. California., 373 U.S. 548, the Federal
Government liad the authority both before and after a State is ad-
mitted into the Union to reserve waters for the use and benefit of
federally reserved lands. The federally reserved lands include any
Federal enclave. In Arizon/i vs. Calif oimia., we were primarily con-
cerned with Indian reservations.

Immediately upon the release of the Eagle River decision the Fort
Mojave tribe in a final struggle to protect Indian people against the
consequences of that decision ref[uested ain opportunity to be heard.
That petition was denied by the Supreme Court.

"iiMiether the Justice Department in.vited the catastrophe of Eagle
River which foreshadowed Akin, does not matter. "W^iat does matter
is that we are confronted with easily predictable consequences of the
conduct of the Justice Department and the grave necessity for Con-
gress to restore to the Indians their innnunity from suit in vrater
litigation.

By their Treaty of 1868, the Ute Indians reserved their Winters
rights to the use of water — they are not Federal rights. Of great im-
poi-tance is the fact that the Supreme Court and the Couit of Ap-
peals of the Ninth Circuit have held that it is the Indians, having
treaties, who reserved to themselves their Indian Winters Doctrine
rights to the use of Avater. Those courts have declared that the Indian
treaties retained those rights for the Indians and that the rights were
not derived from the Federal Government. Thus it is that the Ute
Indians whose rights were involved in the Akin decision, retained
for themselves those rights by the treaty of INIarch 2, 1888. Through-
out the Akin brief, the Department of Justice failed to make that
distinction. Eather than making the all-important differentiation,
the Justice Department reiterated its errors in Eagle River and
on page 56 of its Akin brief, said this: "As recognized in Arizona vs.
California, supra, 373 U.S. at 601, the principles of reserved rights
doctrine are the same whether Indian or non-Indian Federal claims
are involved."

It was an imperative necessity then for all Western Indians that
the Justice Depai'tment specifically declare that the Indians, by their
treaties, retained their water rights, tliat those rights were not granted
by the United States to the Indians.

Yet as stated the Justice Department commingled the treaty rights
of the Indians with the Forest Service rights and the consequences
resulted in the Akin decision.

In these terms the Akin decision — the Supreme Court in the Akin
case adopted tlie Justice Department rationale.

Having referred to the Eagle River decision the Court declared
tha,t the TvTcCarran amendment subjected Federal reserved rights to
State courts and added more specifically the Court held that reserA'ed
rights were included in those rights where the United States was
ot]\erwise the owner.

Though Eagle County and water division No. 5 did not involve
reserved rights on Indian reservations, viewing the Government's

trnstceship of India]i rights as ownership, the logic of those cases
ciearl}' extends to such rig-hts. Indeed Eagle County spoke of non-
Indian rights without any suggestion that tliere was a distinction be-
tween them for purposes of the amendment, xis construed in Akin,
the. IvIcCarran amendment subjects Western Indian reservations to
state control. It must be amended.

Congress is fully cognizant of the historic and presently ongoing
conflicts among the American Indians and the states. It is equally
cognizant that to place the Indian Winters rights to the use of water
under the control and the administration of state laws, jurisdiction,
and administration is to place the Indian lives and property under
state control. Yet that is precisely the results of the Akin decision. It
totally subjugates Indian rights to the use of water to the will of the
state agencies.

One of the strangest episodes ever seen in the law arises imder the
Akin decision. The states do not and connct control Indian lands. Yet
the Akin decision places under state control the Indian Whiters
rights without which the lands are, in the terms of the Winters and
Arizona vs. California decisions without value, and are uninhabitable.

The states, by controlling Indian water, will control the Indian
reservations and the very lives of the Indians.

An analysis of the Akin decision and the brief of the Justice De-
partment in that case, simply fail to recognize the power exercised by
the state agencies which control the waters within their jurisdiction.

Ignored completely is the fact that to administer the use of water
on an Indian reservation entails an outright state invasion of every
Indian reservation in Western United States b}^ state agencies which
are now and have always been hostile to Indians, and have sought to
denegrate the Indian Winters rights.

Again I must refer to the Department of Interior's conflicts of
interest. Alliances have always existed between the Bureau of Recla-
mation and the states. Section 8 of the Reclamation Act provides, in
effect, for close cooperation between the reclamation and the States.
In the conflicts between the Indians in the San Juan River Basin, the
Bureau of Reclamation is solidly alined with the states against the
San Juan River Indians.

On the Rio Grande, the Colorado, the Columbia and the Missouri
Rivers, the states and the Bureau of Reclamation work most closely.
So once again tliere is repeated the conflict of interest which brought
about the Eagle and the Akin decisions.

THE m'cARI^AX act AS COXSTRUEl) IN AKIN IS VlOL.'vTIVE OF THIS
nation's trust RESPONSIBILITY

I am advised that the Congress cannot under the Constitution dele-
gate its trust responsibility owing to the American Indians in regard
to their Winters rights or otherwise. Yet that is precisely how the
Supreme Court has constinied the Akin case.

If the Akin decision is permitted to stand, full power and control
over the administration and distribution of the waters to which the
Indians are legall}^ entitled would be vested in the office of the state
engineer.

78-186—77-

It would be tliat officer — not tlie Federal officials — who will con-
trol the Indian water rights. Under those circumstances, it is respect-
fully submitted that Congress cannot fulfill its trust obligations. Only
by amending the ]McCarran amendment as it is construed by the
Supreme Court can it protect the Indians rights. Only by restoring
to the Indians their immunity from state jurisdiction respecting their
invaluable Winters rights to the use of water can true protection of
the Indian resei'T^ations be achieved.

On behalf of the National Congress of American Indians and all
American Indians, I petition the Congress to act now before it is too
late and to stop the threat of Indian destruction by the state invasion
of our reservations. The simple amendment to the McCarran amend-
ment which is attached will if it is enacted preserve the Western
Indian people from the threat of the Akin decision. Thank you.

Senator Kennedy. Thank you veiy much.

Mr. Dan Old Elk is our next witness. :\Ir. Old Elk.

Mr. Elk. Thank j^ou. Senator. My name is Daniel Old Elk. I am
the president of the Native American Natural Resource DcA^'elop-
ment Federation (NANRDF) on whose behalf this testimony is sub-
mitted. NANRDF is a federation of 24 Indian tribes in the Upper
Missouri River Basin who have banded together for the protection of
Indian natural resources through prudent planning and develop-
meiit. Tn carrying out its purposes, NANRDF has undertaken to
fornnilate progi'ams that will describe and quantify the natural re-
sources of the Indian tril^es of the northern Great Plains; to develop
programs that will produce sufficient scientific data to enable Indian
tribes to make informed decisions in the development of their resources
and to understand the impact of such development.

Apart from these functions NANRDF provides assistance to In-
dian tribes in developing management alternatives for their resources
a'nd serves as the representative for the Indian interest before Fed-
eral and State land, water and natural resource planning organiza-
tions in matters that will have direct or indirect effects on Indians
and their resources.

In the course of its operations, NANRDF, in connection with its
legal aiid technical consultants, has prepared an initial report (at-
tachment A) which delineates the position of the federation of tribes
regarding Indian water rights in the Upper Missouri River Basin.

The 24 tribes have giveii notice tliat they claim ownership of, and
will vigorously and jealously protect, the priceless natural resources
that are geographically and legally related to their reservations. They
have declared, and the courts have sustained, that the northern Great
Plains Indian tribes have the prior and ]:)aramount rights to the
waters of all rivers, streams, or other bodies of water, including
tributaries, which flow through, arise upon, underlie or border their
reservations.

The northern Great Plains tribes further assert that their prior and
paramount rights extend to all waters that may now or in the future
be artificially augmented or created by weather modification, by de-
salinization of presently unusable water supplies, by production of
water supplies as a byproduct of geothermal power development or
by any other scientific or other type of means within the respective
reservations in the northern Great Plains area.

Tlic northern Great Plains tribes, like all otVier tribes, need their
water resources in order to establish and maintain viable and pro-
ductive economies on reservation lands. Thus, gone are the days in
which Indian tribes will stand idly by and acquiesce in the dissipa-
tion of valuable •natural resources. The trilxjs now stand ready and
are prepared to figlit, both legislatively and judicially, against meas-
ures that will result in the further erosion of their invaluable water
rights.

The Upi^er Missouri Eiver Basin, in which the 24 federation tribes
are located, serves as a useful focal point in drawing out the need for
affirmative efforts to protect Indian water rights.

It is predicted that coal production in the Upper JMissouri Eiver
Basin will increase frorii less than 20 million tons in 1972 to nearly 90
million tons by 1980. Although coal mined in this region is being
shipped to eastern and midwest markets, future plans call for large
increases in mine-mouth generation of power as well as coal liquifica-
tion and gasification.

Oil shale development, iron ore extraction, steel production, ura-
nium mining and nuclear powerplants are also part of the picture.
These projects represent a major industrial reorganization of the
United States based on western resources.

The large increases in new material production will depend upon
their rate of conversion into electricity, fuel and fabricated metal. In
turn, their conversion rate will ultimately depend upon the avail-
ability of water. Water is basic to every natural and manmade raw
material energy conversion process.

Tens upon thousands of acre-feet of water will be required to ac-
connnodate the facilities constructed to mine and process the mineral
resources alone. The water for such massive projects will have to come
from existing sources of water supply and will ultimately come into
conflict with existing water rights, including those of the northern
Great Plains Indian tribes. [See, "Water for Industry in the Upper
Missouri River Basin," attachment 2.]

Although there are extensive plans for the utilization of the water
resources in the Upper Missouri River Basin, there is still time to
i:)rotect the prior and paramount Indian water rights. At the present
time, there exists sufficient water to meet all current water require-
ments.

However, as the extensive plans for energy development are imple-
mented, a water shortage will result similar to the one present in the
Colorado River Basin. Accordingly, protection of Indian water rights
can only be accomplished by a program to inventory, and quantify
the present and future uses that the tribes have for the utilization of
their water.

Such protection necessarily includes a proper and experienced
forum in which the Indian water rights may be asserted and deter-
mined. To this end the Federation has worked hand-in-hand with the
Crow and Norther^i Cheyenne tribes, the Bureau of Indian Affairs,

the Solicitor's Office of the Department of the Interior and the Justice
Department in developino; a })lan to protect and preserve the Ir.dian
water rights in the upper tributaries of the Missouri River in the
State of Montana.

The United States ton:ether witli the Crow and the Xortliern Chey-
enne tribes have filed suit to have their rights determined in the
waters of the Bio- Horn and Tongue Rivers and Rosebud Creek in
Federal District Court in Montana. However, it is now asserted that
the Su]5reme Court decision in United States v. AMn, Colorado Riner

Conservation District^ et al v. United States^ U.S. , 44

U.S.L.W. 437 (decided :?*Iarch 24, 1976), makes the prosecution of
these actions in Federal court improper.

It is the position of the Northern Great Plains tribes that Akin
does not preclude the adjudication of Indian water rights in Federal
court. In fact, the Montana State courts are precluded from adjudi-
cating these controversies because of limitations placed in its enabling
legislation and constitution.

The McCarran amendment does not waive, repeal or consent to the
amendment of the provisions in the state enabling acts and constitu-
tions of the Northern Great Plains states disclaiming jurisdiction over
Indian lands. These acts and/or constitutions contain provisions dis-
claiming jurisdiction over Indian lands within their boundaries. A
typical example is Montana's Enabling Act which states:

That the people inhabiting said proposed states do agree and
declare that thev forever (lisclaim all right and title to . . , All
lands lying within said limits owned or held by any Indian or
Indian tribes; and that until the title thereto shall hare heen
extinguished hy the United States, the same shall he and remain
subject to the disposition of the United States, and said Indian
lands shall remain under the ahsolute jurisdietion and control of
the Congress of the United States. [Montana Enabling Act, 25
Stat. 676. 677 (emphasis added) .]

This same language appears in ^Montana's Constitution (art. 12,
sec. 2) and in the enabling acts and Constitution of North Dakota (25
Stat. 676, 677 and art. 26, sec. 203) and South Dakota (25 Stat. 676,
677 and art. 22, sec. 2).

The Nebraska Organic Act, the Wyoming Enabling Act and the
Wyoming State Constitution contain similar provisions.

[See, Orgf^nic Act of Nebraska (10 Stat. 277), and Orj;-anic Act of
Wyoming, (15 Stat. 178) ; and art. 21, sec. 26, of the Wyoming Con-
stitution.]

Tlie disclaimer clause in the Colorado Enabling Act (18 Stat. 474),
is diiferent. It provides: "The Constitution shall be re):)nblican in
form and make no distinction in political rights on account of race
or color, except Indians not taxed . . ."

Public Law 280, in addition to conferring certain limited civil and
criminal jurisdiction over Indians and Indian country on several
enumerated states, provided a vehicle for other states to obtain
jurisdiction.

Section 6 of Public Law 83-280, 67 Stat. 588, 590 waives or repeals
the disclaimer provisions in state enabling acts and gives the consciut
of the United States for the people of the states to amend their con-

stitutions or statutes containing "legal impediments" to the assump-
tion of jurisdiction.

Senator Kennedy. We are going to put the full statement in the
record.

I am going to have to excuse myself in just a few minutes. I would
like to ask you a couple of questions, if I could. One is what the Crow
tribe is doing about the quantification and the use of water near the
reservation.

Mr. Elk. The Crow tribe is making studies to have a complete com-
prehensive plan for the use of water so we can plan a reservoir inven-
tory, uses for industrial waters, additional irrigation projects, and
largely domestic uses.

Senator Kennedy. You have indicated I think that the State of
Montana actually enacted legislation which may interfere with Fed-
eral protection of the Indian natural resources. Is that so, the Mon-
tana Development Xatural Resources Law?

]Mr. Elk. Yes. This is the disclaimer of these states which is differ-
ent from the State of Colorado.

Senator Kennedy. But does that help provide further protections
or do you think it is a threat to the development of resources?

Mr. Elk. Well

Senator Kennedy. The ^Montana Development Natural Resources
law. Do you think that is going to help protect your resources or do
you think it may very well threaten your rights or does it really make
very much difference?

jMr. Elk. It threatens our rights.

Senator Kennedy. As I undei'stand it even though the Yellowtail
is located on the Crow reservation, that you don't get any of the water
there for development programs on the reservation. Is that right ?

j\Ir. Elk. That is true.

Senator Kennedy. Is there anything that can be done to change this ?

Mv. Elk. We have talked with the Bureau of Reclamation and we
have addressed correspondence to the Secretary of the Interior.

Senator Kennedy. But you are working on that ?

Mv. Elk. Yes. We are working on it now.

Senator Kennedy. You are hopeful to be able to work out some kind
of agreement where you can get some of that water?

IMr. Elk. Yes.

Senator Kennedy. That should be very helpful. Can you tell us
something about your reaction to the BIA's efforts to protect the
Crow water rights? Have you been satisfied with that to date?

]Mr. Elk. Yes. They have been able to help us with the invontoriiig
and planning of our proposed water develo]3ment projects.

Senator Kennedy. You are getting cooperation?

Mr. Elk. Yes, we are.

Senator Kennedy. That is helpful, too. What about these new offices
in the Justice and Interior Departments? Are they beginning to re-
spond more positively to some of your interests, Indian water rights
for the BIA's Indian Water Rights Office ?

Mr. Elk. Yes. We have worked with them and they have been very
helpful.

Senator Kennedy. What about in the Department of Justice ?

Mr. Elk. That is what I mean.

Senator Kenxedy. Hoav about the rest of the panel?

Mr. ToNASKET. I am aware of a number of instances where the De-
partment of Justice attorneys in that special section. In one case, the
BlacM>ird Bend case, where the Omahas fronn Nebraska begged for
the Justice Department not to file a suit since they were not prepared
at that time. The Justice Department went ahead anywaj' in opposi-
tion to the Omaha tribe. I know that the major problem when Ave get
into Indian water rights is that the Justice Department always takes
the position that the United States owns the Avater and the Secretary
of Interior has the right to control.

That is completely the opposite of the position of the tribes, par-
ticularly in the Northwest. I will speak for my tribe, the Colville tribe,
in the ^Yalton case. They are going one way and we are taking the
other. That is the real conflict.

I could go on about that but I would rather give the others a chance.

Senator Kexnedy. Mr. Chino?

Mr. Chino. I concur with IMr. Tonasket. I think that most Indian
tribes are ill-prepared to litigate their water rights. Our adversaries,
who desire to move against the Indian tribes are generally fully pre-
pared and ready to proceed, and in most cases, supported by the
states. Perhaps that is an essential part of the strategy, to move in on
tribes at a time when the tribes are not yet properly prepared.

I think Avhat the Indian people need is wliat Dan was talking about,
a great deal of research and preparation to properly defend the water
riglits of Indian people.

Ms. MuKDOCK. Yes. This is true. We are working with the Arizona
V. California decision. We had a great deal of trouble even getting
information. I would hope that these matters would change,

I know that a representative did come out and meet with the tiibes
and did talk with us about changes. It seemed good Init we are waiting
to see what the outcome is. There was a lot of information that the
tribes don't receive that goes on within both of these departments.

]\rr. Jtini. I feel that once an attorney is avssigned to protect tlie
Tndinn rights such as a water specialist that we have here, it seems
like they always find some way to try to circumvent him, prevent him
from fully protecting the rights of the Indians. I would like to see
once he is given the oppoii^unity to woi'k with the Indian tribes and
protect them, and their rights that there will be no curtailment of him.

Senator Kenxeot. You think if Mr. Veder were makiug those deci-
sions, there would not be a problem ?

Mr. Jtm. Right.

Mr. Ct-ttxo. Some verv serious constitutional quostions have been
raised hv the Ahin case. I think that these constitutional questions are
worth beinsT explored and researched in AaeAv of the historical Federal
and Indian relationshin.

Se^intor Kexxedy. OK. I v/ant to th^^^k all of von A^ery much for
you.r helpful comments and statements. We thank a^ou A^erA^ much for
presenting your case this mornincr. and for vour comments in response
to these ouestions. We are strongh^ committed to ensuring that there
is the protection of both water and mineral rights. We Avnnt to as-
sure that the appropriate foT'ums are available to the Indian ti'ibes
so thev can get a fair and iu«<" resolution* of these questions, and aa'c
are extremely mindful of the important Federal guaranties for these

protect ioiih'. "We want to insist that those Federal guaranties are not
lost throngli decisions that may provide some degree of ambiguity as
to the appropriate forum for the protection of these rights.

The Federal responsibilities I think are clear. It is unequiA^ocal and
it is a commitment that I want to see fulfilled.

Thank you very much. The subcommittee stands adjourned.

["Wliereupon, at 10 :30 a.m., the subcommittee adjourned subject to
call of the Chair.]

[The prepared statements of ]Mel Tonasket. Wendell Ohino, and
Dan Old Elk follow :]

Prepared Statement of Wendell Chino, President, National Tribal
Chairman's Association (NTCA), and President, Mescalero Apache Tribe

Mr. Chairman and members of the subcommittee, I am Wendell Chino, Presi-
dent of the National Tribal Chairman's Association. I appreciate this opportunity
to state NTCA's position regarding the effect of the McCaj-ran amendment on
Indian water rights in light of recent Supreme Court treatment of the issue.

The basic policy behind the McCarran amendment is reasonable— the United
States waives sovereign immunit}^ to suits in which coherent adjudication of the
rights of all water users is necessary. Indian tribes need not concern themselves
with the Fedei'al Government's choice of where it wishes to litigate its own water
rights. Perhaps even the aim of the Supreme Court in its decision in Colorado
River Conservatio?i District v. United States, 96 S. Ct. 1230 (1976), — moi'e commonly
called the AkiJi case — is rational from the judicial point of view in that it pre-
serves judicial economj^ by permitting the exercise of exclusive jurisdiction over
water adjudication in state courts. Neither purpose intends the saci-ifice of long-
established and absolutely vital Indian water rights. Together the McCarran
amendment and the Akifi decision forecast that destruction.

NTCA believes we should never have reached the point where Indian rights
can be adjudicated fully in state courts, but having come this far, remedial legis-
lation is necessar}^ Indian water rights are private in nature, distinct from Federal
reserved and other water rights. Jvlore importantlj'', the trust responsibility of
the United States toward Indian tribes and their propertj", we submit, reciuires
that Indian-owned water rights, to the extent they must be adjudicated, be
defended in Federal courts which have traditionally been regarded as the fairest
arbiters of Indian rights, especially where there exists conflict with state and
non-Indian private rights.

The distinction between Federal reserved water rights and Indian water
rights — all but destroyed in the AHn decision — must be revived. Federal reserved
waters are public in nature, derived from the control and ownership of the United
States. Indian rights, however, are private, dating from cession by cuiasi-sovereign
Indian nations to the United States of resources under Indian possession and
ownership, and are now held in trust by the United States for the tribe. Our
rights to adequate water resources derive directly from the Constitution and
have been recognized in their present form since Winters v. United States in 1903.

Indian rights to water are distinct from state rights because they are reserved,-
that is, the tribes have retained title to all water they have not in fact ceded to
other authorities, and the Supi'eme Court has held as a matter of law that the
tribes have reserved water sufficient to fulfill the purposes for which the reserva-
tions were created. This includes the development and maintenance of the reserva-
tion as a tribal homeland for the indefinite future. It means the availabilitA^ of
water to meet future needs.

State legal systems have little or no experience with the concept of resei'ved
rights. In fact m.ost state law is hostile to the principle, relying instead on doctrines
of prior appropriation to actual beneficial uses. We have stated before, as amicus
curiae in appellate proceedings, that state courts are not the appropriate forums
for determining the purposes of Indian reservations and assuring their fulfillment
and, thus, the destiny of the ti'ibe itself, through the judicial allocation of sufficient
water resources.

As recently as 1966 the Senate, in reporting legislation providing for original
jurisdiction in the district coui'ts of all civil actions raising Federal questions and
brought by Indian tribes (28 U.S.C. section 1302 (1970)), found that:

There is great hesitancy on the part of tribes to use state courts. This
reluctance is founded partially on traditional fear that tribes have had of the

states in which their reservations are situated. Additionally, Federal courts
have more expertise in deciding questions involving treaties with the Federal
Government, as well as interpreting the relevant body of federal law that has
developed over the vears. . . .
S. Rep. No. 1507, 89th Cong., 2d Sess. (19C6).

Unfortunately, the "traditionl fears" of state courts recognized by Congress in
statute have not been unjustified, nor have the bases for such fears disappeared
in )-ecent years. The will and propensity of the States to assert their otherv.ise
legitimate authority over all persons and pro]:)ert3" ^Aithin their borders continues
as anathema to the Federal constitutional status of Indians as a quasi-sovereign
people, separate and politically distinct from other citizens in their tribal right of
self-governance. The states generallj^ seek where they can the erosion of tribal
rights and authority, and we have no reason to believe their quest will cease in
this most crucial area of water i-ights.

If Congress did not intend that substantive Indian water rights be merged with
all other Federal rights and left to potential deterioration in state courts, and
there is much to suggest that it did not, then Congress must act to rectify the
situation. If Congress did so intend, then we submit that the United States also
intends an abdication of the fiduciary responsiV>ilities it has assumed under the
Constitution and through its ti'eaties and statutes.

There is no mention of Indian water rights in the McCarran amendment. From
this, the Supreme Court has found itself free to interpret the amendment to
surrender Indian rights to exclusive Federal determination. But the states have
no jurisdiction over any Indian right without express grant by Congress, a
principle well-established by precedent of the Court. The McCarran amendment
should not be utilized to provide such an unintentional grant of power.

The failure of the amendment to deal expressly with the issue of Indian water
rights in the past has led to the Akin holding and a serious threat of destruction
of those rights. Congress must remedy this situation by providing for exclusive
adjudication of Indian water rights in Federal courts. This subcommittee must
propose legislation clarifying the McCarran amendment to foreclose the prevailing
jiu'isdictional situation.

p]xclusive Federal jurisdiction over Indian water issues will not deprive the
states of authority to adjudicate state water issues, but will preserve the oppor-
tunity for full and fair adjudication of Indian and Federal issues. Such juris-
diction is supportable by reason of the prevalence of Federal law in any such
litigation, and the exclusive concern of Federal law for Indians as tribal people.
Such exclusive jurisdiction in Federal courts has been supported by a number of
legislative proposals presented to Congress and has been advocated by the Na-
tional Water Commission.

While a majority of the Supreme Court perceived in its Akin decision no diminu-
tion of substanti\e Indian water rights and no abdication of Federal resjjonsi-
bility, Justices Stewart, Blackmun, and Stevens stated forthrightly in dissent
that "a Federal court is a more appropriate forum than a state court for deter-
mination of questions of life-and-death importance to Indians. . . . This Court
has long recognized that '[t]he policy of leaving Indians free from state jurisdiction
and control is deeply rooted in the Nation's history.' " We can view the matter
in no other way. Access to a proper forum is a substantive right for which we now
must fight before Congress and in the courts.

We trust that the issue will be clear to this committee and that Congress will
act swiftly to restore the jurisdictional balance which has been so severely dis-
rupted in recent months.

Prepared Statement of Mel Toxasket, President of the National, Congress

OP American Indians

the akin decision: l a foreseen disaster for AMERICAN INDIANS

I am Mel Tonasket and I am president of the National Congress of American
Indians. I wish to thank this subcommittee for holding this very important hear-
ing and for permitting me to appear before it.

Congress is being requested to preserve the American Indians of Western
United States by amending the so-called McCarran act and to restore to Indian

1 Dpcided by the Suprome Court of the United States March 24, 1976, Colorado River
Wafer Conservation District et al vs. United States; Mary Akin, et al vs. United States,
74-940 and 74-949, October term 1975.

Nations, tribes, and people their immunity from proceedings in state courts to
adjudicate their invaluable Winters doctrine rights to the use of water.^ Congress
alone can preserve the Western Indians from the single greatest disaster they have
experienced since before 1909.

I wish to make a part of this record a copy of my letter dated March 26, 1976,
addressed to Senator Abourezk, a member of this subcommittee and Chairman
of the Senate Subcommittee on Indian Affairs. Attached to my letter to Senator
Abourezk is a simple amendment to the McCarran act (43 U.S.C. 666). I know of
no legislation more vital to the American Indians. In Western United States,
the immunitj' of Indian Wintcis doctrine rights to the use of water from state
law, state courts, state tribunals, state agencies, and state administrators and
agents is a matter of survival — a matter of life or death for Western Indian
Reservations, particularly in the arid and semiarid regions.

I do not purport to be able to understand what goes on in the minds of the
bureaucracies in the Interior and Justice Departments which control the lives
and properties of Indian people. But I can tell you this: those bureaucracies
knew or m.ost assuredly should have known that the course of conduct they
followed in the Akin cases would result in subjugating the invaluable Indian
W infers doctrine rights to the use of water to state control, state seizure, and
ultimately state destruction of Indian reservations in Western United States,

THE AKIN disaster: A PRODUCT OF CONFLICTS OF INTEREST IN THE JUSTICE AND

INTERIOR DEPARTMENTS

It is elemental that the Solicitor of the Department of the Interior is assigned
by Congress to perform "the legal work for the Department of the Interior. ..."
His primar}^ task is to be the lawyer for the Secretary of the Interior. Equally
clear is the fact that the Attorne}' General of the United States is the lawyer
for the Secretary of the Interior before the Supreme Court and the lesser courts.
As the lawyer for the Secretary of the Interior, both the Solicitor and the Attorney
General have disparate and contradictory obligations and responsibilities between
the non-Indian agencies of tiie Interior Department and the American Indian
people who are subjected to the control of the Secretary of the Interior.

As previousl}^ stated, the Justice Department is primarily the lawj^er for the
Secretary of the Interior and the lawyer for the American Indians only as a sub-
sidiary interest among the many interests of the Secretar3^ Thus, the "disparate
and contradictory" obligations of the Secretary of the Interior with those of the
Indians is frequently manifested. The conflicts between the Secretary and the
Indians is all-pervasive in many areas. That conflict is manifested most often in
regard to the Indians' Winiers rights to the use of water and the claims go the
Interior on behalf of the Bureau of Reclamation and other non-Indian agencies.

The conflicts between the Secretary of the Interior and the Indians over the
use and control of the Indian Winters rights is not limited to conflicts among
Indians and non-Indian agencies within the Interior Department. Rather, it
extends to the authority of the Indians to manage and to control their own rights
to the use of v.^ater on their reservations. The attorneys for the Interior and Justice
Departments are saying that Indian Winters rights to the use of water are identical
with and cannot be separated from the Federal right to the use of water. Thus, in
the Eagle River case, the Akin case, and now in the Walton case, on my own reserva-
tion, the Justice Department is refusing to distinguish between Indian rights held
in trust for the Indians and non-Federal rights administered for non-Indian
purposes and projects.

The Colville Confederated Tribes declare in the TValton cases that their Indian
Winiers rights to the use of water are their own property rights. The Colvilles
deny that the Secretary of the Interior has the power to seize their Indian Wi)Uers
rights to the use of v^ater, to control those rights, to administer those rights, or to
allocate the waters to which the Colvilles are entitled to in the exercise of those
rights. What is happening on the Colville Indian reservation is happening througli-
out Indian countr3^

May I respectfully emphasize : severe losses are now and have been experienced
due to the refusal of the Dej^artment of Justice and the Department of the Interior
to distinguish administratively and before the courts the non-Federal rights and
the Indian Winters doctrine rights to the use of water.

~ Thp Indian Winters doctrine rights to the use of water entitles the Indians to sufficient
water Irom water resources on their reservations to meet their present and future water
requirements. {Winters vs. United States, 207 U.S. 564 (190S).)

THE EAGLE RIVEK DECISION: A PREFACE TO DISASTER FOR THE AMERICAN INDIAN

PEOPLE 3

On March 24, 1971, 5 years to the day prior to the Akin decision, the Supreme
Court rendered the Eagle River decision. What some call the infamous history of
the Eagle Rioer decision warrants comment. Briefly, here is what happend in that
case. The United States owns the White River National Forest in the State of
Colorado. A portion of that national forest is within the drainage system of the
Eagle River, a tributary of the Colorado River. Tliere was an ongoing State wager
adjudication in Water District No. 37. Pursuant to the state law of Colorado, a
"supplemental" water proceeding was being held in the District Coiu't of Eagle
County. As required by state law, service of notice of that supplemental state
court proceeding was made upon the Justice Department in accordance with the
McCarran Act.

I am advised — and in legal circles it is well known — that the laws and the
decisions of the State of Colorado are strictly predicated upon state's rights —
anti-Federal and anti-Indian. From the moment the State of Colorado was
admitted into the Union up to the present time, that State, under its Constitution,
has asserted ownership of all the waters within its jurisidction; has denied the
Federal claims. May I emphasize: In the court in which it was most likely to fail,
the Justice Department asked to have the McCarran act construed against the
State. I do not know if a bureaucracy can have a death wish, but the Justice
Department seems pointed in that direction, particularly when Indians are
involved. It must be remembered that on repeated occasions the test of the
application of the McCarran act had been successfully avoided in both the
Supreme Court and in the lower courts. It necessarily follows, therefore, when
the Justice Department willingly' invoked the jurisdiction of Colorado's Supreme
Court to construe that act, the conduct of the Justice Department now and
forever must be viev/ed with suspicion.

Having placed itself before the Supreme Court of Colorado, the Justice Depart-
ment adopted the course of commingling, v/ithout differentiation, the Indian and
non-Indian decisions. Justice pursued that dangerous course to support what it
called "the reserved rights" of the United States. Indian rights. Justice insisted,
are "Federal rights." It is not surprising that the Colorado Court discussed the
Federal and Indian rights as identical in character.

Moreover, before the Supreme Court, the Justice Department relied heavily
on the predominantly Indian decision of Arizona vs. California to support the
non-Indian Federal claims for the Forest Service. It was not unreasonable, there-
fore, that the Supreme Coui't of the State of Colorado, in light of the presentation
to it by the Justice Department, did ncjt distinguish between Indian Winters
rights to the use of water and Federal non-Indian rights to the use of water.

Under the circumstances, the Supreme Court of Colorado did exactly what
the Justice Department knew, or should have known, that it would rlo — it said
the United States, by the McCarran act, waived its immunity from suit in water
litigation, declaring: "We are holding here that whatever rights the United States
has to water can be recognized and adjudicated by our district courts just as
adequately as in any other forum, and perhaps more adequately".^

When the Indian community was informed of the Eagle decision and the
assured impact it would have upon the Indian Winlrrs rights, it began immediate
action to force the Justice Department to refrain from mingling Indian Winters
decisions with non-Indian decisions. The Fort Mojave Indian tribe and the
Agua Caliente tribe, acting through their lawyer Raymond Simpson, wrote to
the then Solicitor General. Mr. Simpson, in his letter dated November 20, 1970,
detailed the threat of the Colorado decision to Indians in general and to the
Fort IVIojave tribe in particular. Emphasis was placed upon the fact that the
Fort Mojave reservation is downstream from the Eagle River and claims rights
in it.

The National Congress of American Indians, through Wilkinson, Cragun and
Barker, by a letter dated December 22, 1970, joined Ray Simpson in emphasizing
to the Justice Depai-tment the threat to the Western Indians by reason of the
Eagle Rivei decision. Louis A. Bruce, then Commissioner of the Bureau of Indian
Affairs, and Leon F. Cook, then Acting Director, Economic Development of the
Bureau of Indian Affairs and former president of the National Congress of Ameri-

" 'Tonflicts of interest in proceeflings before the Supreme Court of the United States :
a preface to fiisnster for the American Indian people," by William H. Veeder.

* United Fitatcs of Amcricri, Pefifionrr vs. tlie District Court in and for the Counti/ of
FakjIc, 1G4 Colo. 555 ; 45S P. (2), 760, 773 (1969).

can Indians, joined the Indian Tribes in advising the Department of Justice of the
threat of the Eagle River decision. Pursuant to the direction of Commissioner Burce
and Leon Cook, there %vas prepared the above-mentioned analysis of the Colorado
Court's Eagle River decision and the threat to the American Indians. That analysis
is entitled: "Conflicts of interest in proceedings before the Supreme Com't: A
preface to disaster for the American Indian people."

It is now history that the Justice Department filed briefs with the Supreme
Court which repeated and emphasized the misconception of the Justice Dei:)art-
ment that Indian WiiitC: s rights ai'e identical with Federal reserved I'ights. That
was in clear violation of promises made to the Tribes that "* * * the Government
intends to make the Supreme Court fully aware of its ol:)ligation as. trustee of
Indian rights in this matter, and of any bearing that the decision may have on
those rights." ^

In contrast to its commitments to distinguish the Indian Winters rights from
the non-Indian Federal rights; the Justice Dej^artment adhered to pi-ecisely the
sanie api^roach to this Nation's highest Court — it relied on Indian decisions to
supjjort what it referred to as the "reserved" rights of the United States: "Re-
served rights have been defined by this Court as the entitlement of the United
States [not the Indians] to use as much water from sources on lands v.ithdrawn
from the jsublic domain as is necessary to fulfill the pur]:)Oses for which the lands
were withdrawn * * * Arizona vs. California '* * *." ^ In its summary of argu-
ment set forth in its brief to the Supreme Court in Eagle River, the Department of
Justice said this: "That the United States had reserved water rights based on
withdrawals from the public domain is well estal)lished. Arizona vs. California, 373
U.S. ,'146, V/inters vs. United States 207 U.S. .564." Those Indian cases were relied
upon to support a claim for strictly Federal Forest Service rights. Moreover, it
was not the United States which reserved the rights in Winters — it was the Indians
who, by their treaty and agreements, reserved the rights — not from the public
domain but from their own aboriginal water sources.

Commitments made to the Indian people and violated are nothing new.
Seldom, however, has such bad faith in the Justice Department respecting Indian
people been more carefully documented and proved. The consequences of that
bad faith by the Justice JJepartment are clearly apparent in the words of the
Supreme Court of the United States reflecting the failure of the Justice Depart-
ment to separate the Indian and non-Indian rights in the Eagle River case: "It is
clear from our cases that the United States often has reserved water rights based
on withdrawals from the public domain. As we said in Arizona v. California,
373 U.S. o4G, the Federal Government had the authority both l)efore and after
a state is admitted into the Union 'to reserve waters for the use and benefit of
federaUy reserved lands.' (Id., at p. 597.) The federally reserved lands include any
Federal enclave. In Aiizona v. California we were primarilv concerned with Indian
reservations. (Id., at 59S-601.)" "'

Immediately upon the release of the Eagle River decision, the Fort Mojave
tribe, in a final struggle to protect Indian people against the consequences of that
decision, requested an opportunity to be heard. That petition was denied by the
Su])reme Court.**

Whether the Justice Department invited the catastrophe of Eagle River which
foreshadowed Akin, does not matter. What does matter is that we are confronted
^\ith easily predictable consequences of the conduct of the Justice Department
and the grave necessity for Congress to restore to the Indians their immunity
from suit in water litigation.

Of great importance is the fact that the Supreme Court and the Court of
Appeals of the Ninth Circuit have held that: It is the Indians, having Treaties,
who reserved to themselves their Indian Winters doctrine rights to the use of
water. Those courts have declared that the Indian treaties retained those rights
for the Indians and that the rights were not derived from the Federal Govern-
ment. Thus, it is that the Ute Indians, whose rights were involved in the Akin
decision, retained for themselves those rights by the treat 3^ of March 2, 1868.^

■■ Letter dated November G, 1970 to tlie chairman of the Fort Jlojave tribe from the
Solicitor General.

'■ Petition of the United States for a writ of certiorari to the Supreme Court of Colorado,
Eagle River decision.

- fhiited mates vs. District Court for Eagle County, 401 U.S. 520. 522. .523 (1971).

8 United States vs. District Court for Eagle Countti, 402 U.S. 940, (1971).

" See Winters vs. United States. 207 U.S. 504 (190S) : United States vs. Ahtanam Irriga-
tion District, 236 Fed. (2) 321, 326 ; CA 9 (1956).

Throughout the Akin brief, the Department of Juptice failed to make that
distinction. Ilather than making that all-important differentiation, the Justice
Department reiterated its errors in Eagle River and, on page 5G of its Akin brief,
said this: "As recognized in Arizona v. California, supra, 373 U.S. at 001, the
principles of reserved rights doctrine are the same whether Indian or non-Indian
Federal claims are involved."

It was an imperative necessity for all Western Indians that the Justice Depart-
ment specifically declare that the Indians, by their treaties, retained their water
rights — that those I'ights were not granted by the United States to the Indians.
Yet, as stated, the Justice Department couiingled the treaty rights of the Indians
with the Forest Service rights and the consequences resulted in the Akiii decision.

In these terms, the Supreme Court in the Akin case adopted the Justice Depart-
ment rationale. Having referred to the Eagle River decision, the Court declared
that the McCarran act subjected "Federal reserved rights" to state courts and
added: "More specifically, the Court held that reserved rights were included in
those rights where the United States was 'otherwise' the owner. United States vs.
District Court for Eagle Coiuity, supra, at p. r)24. Though Eagle County and Water
Division No. 5 did not involve reserved rights on Indian reservations, viewing the
Government's trusteeshiij of Indian rights as ownership, the logic of those cases
clearly extends to such rights. Indeed, Eagle County spoke of non-Indian rights
and Indian rights without any suggestion that there was a distinction between
them for purposes of the amendment. Id. at p. 523." '°

AS CONSTRUED IN AKIN, THE MCCARRAN ACT SUBJECTS WESTERN INDIAN RESERVA-
TIONS TO STATE CONTROL

Congress is fully cognizant of the historic and })i-esently ongoing conflicts among
the American Indians and the states. It is equally cognizant that to place the
Indian Winters rights to the use of w ater under the control and the administration
of state laws, jurisdiction, and administration is to ]3lace the Indian lives and
property under state control. Yet, that is precisely the result of the AJcin decision.
It totally subjugates Indian rights to the use of water to the will of the state
agencies. One of the strangest episodes ever seen in the law^ arises under the Akin,
decision. The states do not and cannot control Indian lands. Yet tVie Akin de-
cision places under state control the Indian Winters rights v>ithout which the
lands are, in the terms of the Winters and Arizona vs. California decisions, w ithout
value; are uninhabitable. The states, by controlling Indian water, will control the
Indian reservations and the very lives of the Indians.

An analysis of the Akin^ decision and the brief of the Justice Department in
that case, simply fail to recognize the power exercised by the state agencies which
control the waters within their jurisdiction. Ignoi-ed completely is the fact that
to administer the use of water on an Indian reservation entails an outright state
invasion of every Indian reservation in Western United States by state agencies
which are now and have always been hostile to Indians and have sought to
denegrate the Indian Winters rights.

Again, I must refer to the Department of Interior's conflicts of interest. Alli-
ances have always existed between the Bureau of Reclamation and the states.
Section 8 of the Reclamation Act ]3rovides, in elTect, for close cooperation between
the Reclamation and the states. In the conflicts Ijetween the Indians in the San
Juan River basin, the Bureau of Reclamation is solidlj^ aligned with the state
against the San Juan River Indians.

On the Rio Grande, the Colorado, the Columbia, and the Rlissouri Rivers, the
states and the Bureau of Reclamation work most closely. So, once again, there
is repeated the conflict of interest which brought about the Eagle and Akin
decisions.

THE MC CARRAN ACT AS CONSTRUED IN AKIN IS VIOLATIVE OF THIS NATION'S TRUST

RESPONSIBILITY

I am advised that the Congress cannot, under the Constitution, delegate its
trust responsibility owing to the American Indians in i-egard to their Winters
rights or otherwise. Yet, that is precisely how the Supreme Court has construed
the Akin case.

M Colorado River Water Conservation District, et al vs. United States, slip opinion pages
8 and 9.

If the Akin, decision is permitted to stand, full power and control over the
ndniinistrution and distribution of the waters to which the Indians are legally
entitled would be vested in the office of the state engineer. It would be that offi-
cer— not the Federal ol'icials — who will conti'ol the Indian water rights. Under
those circumstances, it is respectfully submitted that Congress cannot fulfill its
trust obligation. Only by amending the McCarran Act (as it is construed by the
Supreme Court) can it protect the Indians' rights. Only by restoi-ing to the Indians
their immunity from st;,te jurisdiction respecting their invaluable Winters rights
to the use of water can true protection of the Indian Reservations be achieved.

On behalf of the National Congress of American Indians and all American
Indians, I petition the (Congress to act now before it is too late and to stop the
threat of Indian destruction by the state invasion of our reservations. The simple
amendm-ent to the McCarran Act which is attached will, if it is enacted, preserve
the Western Indian Peojjle from the threat of the Akin decision.

Prepared Statement of Daniel Old Elk

My name is Daniel Old I'^lk, and I am the president of the Native American
National Resource Development Federation (NANRDF) on whose behalf this
testimony is submitted. NANRDF is a federation of 24 Indian tribes in the
Upper Missouri River basin wlio liave banded together for the protection of
Indian natural resources through prudent planning and development.

In carrying out its purposes, NANRDF has undertaken to formulate programs
fliat will describe and quantify the natural resources of the Indian tribes of the
northern Great Plains ; to develop programs that will produce sufficient scientific
data to enable Indian tribes to make informed decisions in the development of
tlieir resources and to understand the impact of such development. Apart from
these functions, NANRDF provides assistance to Indian tril)es in developing
management alternatives for their resources and serves as the representative
far tiie Indian interest before Federal and State land, water and natural resource
planning organizations in matters that will have direct or indirect effects on
Indians and their resources.

In the course of its operations, NANRDF, in comiection with its legal and
technical consultants, has prepared an initial report [attachment 1] wliich de-
lineates the position of the federation of tribes regarding Indian water rights
in the Upper MLssouri River basin. The 24 tribes have given notice that they
claim ownership of, and will vigorou.sly and jealously protect, the priceless nat-
ural resources that are geographically and legally related to their reservations.
They have declared, and the courts have sustained, that the northern Great
Plains Indian tribes have the prior and paramount rights to the waters of all
rivers, streams, or other bodies of water, including tributaries, which flow
through, arise upon, luaderlie or border their reservations. The northern Great
Plains tribes further assert that their prior and paramount rights extend to
all waters that may now or in the future be artificially augmented or created
by weather modification, by desalinization of presently unusable water sup-
plies, by production of water supplies as a by-product of geothermal power
development or by any other scientific or other type of means within the
respective reservations in the northern Great Plains area.

In view of the Indians' prior and paramount right to the use of all waters
to which they are geographically related, it is indisputable that any major
diversion of such waters, be it a Federal, State or private use, would constitute
an encroachment upon Indian water rights. The northern Great Plains tril)e.s,
like all other tribes, need their water resources in order to establish and
maintain viable and productive economies on reservation lands. Thus, gone are
the days in which Indian tribes will stand idly by and acquiesce in the dis-
sipation of valuable natural re.sources. The tribes now stand ready and are
prepared to fight, both legLslatively and judicially, against measures that will
result in the future erosion of their invaluable water rights.

The Upper Missouri River basin, in which the 24 federation tribes are located,
serves as a useful focal point in drawing out the need for affirmative efforts
to protect Indian water rights. It is predicted that coal production in the Upper
Missouri River basin will increase from less than 20 million tons in 1972 to
nearly 90 million tons by 1980. Although coal mined in this region is being
shipped to eastern and Midwest markets, future plans call for large increases in
mine-mouth generation of power a.s well as coal liquification and gasification.
Oil shale development, iron ore extraction, steel production, uranium mining and

nuclear power plants are also part of the picture. These projects represent a
major industrial reorganization of the United States based on western resources.
The Upper Missouri River basin will play a vital role in this indastrial reorga-
nization due to the existence of vast, untapped natural resources.

The larjre increases in new material production will depend upon their rate
of conversion into electricity, fuel and fabricated metal. In turn, their conversion
rate will ultimately depend upon the availability of water. Water is basic to
every natural and manmade raw material energy conversion process. Tens upon
thousands of acre-feet of water will be required to accommodate the facilities
constructed to mine and process the mineral resources alone. The water for such
massive projects will have to come from existing sources of water supply and
will ultimately come into conflict with existing water rights, including those
of the northern Great Plains Indian tribes. [See, '"Water for Industry in the
Upper Missouri River Basin." attachment 2.]

Although there are extensive plans for tlie utilization of the water resource.s
in the Upper Missouri River basin, there is slill time to protect the prior and
paramount Indian water rights. At the present time, there exists sufficient water
to meet all current water requirements. However, as the extensive plan.s for
energy development are implemented, a water .shortage will result similar to
the one present in the Colorado River basin. Accordingly, protection of Indian
water riglits can only be accomplished by a program to inventory, and quantify
the present and future uses that the tribes have for the utilization of their
water.

Such protection necessarily includes a proper and experienced forum in which
the Indian water rights may ]>e asserted and determined. To this end the federa-
tion has worlved haud-in-hand with the Crow and Northern Cl:eyenne tribes,
the Bureau of Indian Affairs, the Solicitor's Oflice of the Department of the
Interior and the Justice Department in developing a plan to protect and preserve
the Indian water rights in the upper tributaries of the Missouri River in the
State of Montana. The United States together with the Crow and Northern
Cheyenne tribes have filed suit to have their rights determined in the waters of
the Big Horn and Tongue Rivers and Rosebud Creek in Federal district court
in Montana. However, it is now asserted that the Supreme Court decision in
United States v. Akin, Colorado River Conservation Distriet, et al. v. United

States, U.S. , 44 U.S.L.W. 437 (decided :March 24, 1976), makes the

prosecution of these actions in Federal court improper.

It is the position of the northern Great Plains tribes that Akin does nf>t pre-
clude the adjudication of Indian water rights in Federal court. In fact, the
Montana state courts are precluded from adjudicating tliese controversies because
of limitations placed in its enabling legislation and constitution.

Tlie McCarran amendment does not waive, repeal or consent to the amendment
of the provisions in the state enabling acts and constitutions of the northern
Great Plains states disclaiming jurisdiction over Indian lands. These acts and/or
constitutions contain provisions disclaiming jurisdiction over Indian lands within
their boundaries. A typical example is Montana's Enabling Act which states :

That tlie people inliabiting said proposed states do agree and declare that
they forever disclaim all right and title to . . . all lands lying within said
limits owned or held by any Indian or Indian tribes; and that until the title
thereto shall have been extinguished hy the United States, the same shall
be and remain subject to the disposition of the United States, and said
Indian lands shall remain tinder the absolute jurisdiction and control of the
Congress of the United States. (Montana Enabling Act, 25 Stat. 67tj, 677
[emphasis added].)
This same language appears in Montana's Constitution (art. 12, see. 2) and in
the Enabling Acts and Constitution of North Dakota (25 Stat. 076, 677 and art.
26, sec. 203) and South Dakota (25 Stat. 676, 677 and art. 22. see. 2). Tlie Ne-
braska Organic Act. the Wyoming Enaliling Act and the Wyoming State Constitu-
tion contain similar provisions. (See Organic Act of Nebraska (10 Stat. 277) ;
and Organic Act of Wyoming (15 Stat. 178) ; and art. 21. sec. 26 of the Wyoming
Constitution.)

The disclaimer clause in tlie Colorado Enabling Act (18 Stat. 474) is different.
It provides : "The constitution shall be republican in form and make no distinc-
tion in political rights on account of race or color, except Indians not taxed. . . ."
Public Law 280. in addition to conferring certain limited civil and criminal
jurisdiction over Indians and Indian country on several enumerated states, pro-
vided a vehicle for otlier states to obtain jurisdiction. Section 6 of Pub. L.
88-280, 67 Stat. 588, 590 waives or repeals the disclaimer provisions in state

enabling acts and gives tlie consent of tlie United States for tlie people of the
States to amend their constitutions or statutes containing "legal impediments"
to the assumption of jurisdiction. It further provides "[t]hat the provisions of
this Act shall not become effective with respect to such assumption of jurisdic-
tion by any such State until the people thereof have appropriately amended their
state constitutions or statutes as the case may be."

The McCarren amendment, by contrast, is silent as to the Indian jurisdictional
disclaimer provisions in state enabling acts, state constitutions and state statutes.
Congress has properly acknowledged that extension of state jurisdiction to Iiidiaus
and to lufliiin country requires: 1) the waiver or repeal by the United States of
such provisions in the enabling acts; 2) the consent of the United States for the
people or legislation of the states to remove any similar legal impediments within
constitutions or statutes, and 3) the actual removal of the impediments by the
people of the state. Nothing is more indicative of congressional intent not to
confer subject matter jurisdiction or state courts to adjudicate Indian water
riglits than the absence of any method for removing the legal impediments in the
McCarran amendment. Without a repeal or waiver of the disclaimer provision
in the state enabling acts, the consent of the United States to the amendment of
the similar provisions in state constitutions or statutes, and the actual amend-
ment by the people of the state, the extension of state court jurisdiction to
adjudicate Indian water rights cannot be effective.

The Indian tribes of the northern Great Plains recognize that the Supreme
Court in Akin found the policy of the McCarran amendment to be one of avoid-
ing duplicative and incomplete stream adjudication^:. It is submitted, however,
tliat the majority opinion confuses this policy with a general preference to ad-
judicate all rights on a stream iu a single forum. It is the view of the Indian
tribes that the policy of the McCarran amendment cannot be carried out in
the northern Great Plains states for the aforementioned reasons.

Apart from the que'<tions relating to the proper tribunal in which to adjudi-
cate Indian water rights, the tribe.s of the nothi^rn Great Plains are con-
fronted by other issues that are equally as significant insofar as their water
rights are concerned. Indian tribes are acutely awai'e that the pressures in the
western states for non-Indian uses of the region's water could in the foresee-
able future, cause a judicial or legislative change in the law that would be
adverse to the tribes* future water rights. A foundation must therefore be laid
upon which tribal development programs can be guaranteed a firm water right
from a secure source.

More fundamentally, however, Indian tribes should be made aware of the
development alternatives that exist, based upon comprehensive studies and
analysis of the resources, before being asked to assert their rights in a court
of law. To put reservation lands to their highest and best use — rather than
l)lindly asserting a water right based upon an agricultural use because quanti-
fication is being pressed upon the tribes — comprehensive natural resoiirce de-
velopment plans with alternatives must be formulated. Also, water quality
studies, the ground water inventories, feasibility studies for irrigation projects
and the inventory of multiuse dams must be made. These statistics together with
the quantification of the physical resource base will allow the scope of present
and future use to be determined. It is imperative that the tribes have accurately
documented water requirement statistics compiled for utilization of each of
the reservations natural resources.

In conclusion the problems inherent in adjudicating the water rights of Indian
tribes are already onerous. There is inadequate scientific and other technical
data upon which the tribes can make informed decisions and choices regarding
the development of their lands and natural resources iu order to assert the
full extent of their water entitlement. Given the inherent problems that Indian
tribes have in adjudicating their water rights, they can ill afford the added
liurden and expense of attempting to preserve and maintain the federal forum
as the appropriate forum for adjudicating their invaluable water rights. As I
pointed out earlier, tlie State of Montana has already moved to dismiss the
claims that the United States and the two tribes are asserting iu the waters
of the Big Horn and Tongue Rivers in Montana. This controversy as to the
proper forum does little to further the adjudication and corresponding quanti-
fication of Indian water rights in the State of Montana. Consequently, the fed-
eration and its member tribes strongly urge that this committee eliminate the
"forum shopping" that is presently taking place in the various courts of tliis
country by taking action which will guarantee to the Indian tribes a federal
forum in which to adjudicate their water claims.

Prepared Statement of Native American Rights Fund

Mj^ name is Thomas W. Fredericks. I am the executive director of the Native
American Rights Fund ou whose behalf this testimony is submitted. The Fund
is a nonprofit corporation established for the purpose of representing Indian
tribes, organizations and individuals in matters having wide-ranging significance
to, and impact upon, Indians throughout the United States. The subject matter
to which the instant testimony is directed — the proper forum for adjudicating
Indian water rights — is one such issue. Indeed, it involves questions crucial to the
very lifeblood of Indian property rights and existence.

In this era of ever-increasing water litigation, particularly in the arid and semi-
arid Western states, the need for the vocalization of the Indian interest and con-
committant protection of Indian water rights against usuipation has never been
more pronounced. In response to this need, the Native American Rights Fund
submits the following testimonj^ regarding the proper forum for the adjudication
of Indian water rights.

The adjudication of Indian water rights claims has recentlj^ become a major
point of interest in this country. The insurgence of interest for the most part is
directly related to the diminution, if not scarcity, of soui'ces of v/ater supply in
num'>rous regions of the United States making all water rights claims a matter of
immediate concern. However, over and above the general interest, there is very
clearly a special and particular concern directed tovvards the area of Indian
water rights. This concern is the result of one fact and one fact alone, specifically:
that Indian water rights are typically the fiist on the system, and as a conse-
quence, take priority over most, if not all, of the claims asserted by non-Indian
water users under state law.

Diminution of Indian v/ater rights is obviously the espoused goal of states and
conflicting water rights claimants who utilize already over-appropriated water
systems in common with Indian tribes. The States and such claimants will not
be satisfied until the destruction or subserviance of Indian water rights is ac-
complished, or at the very least, until Indian water rights claims are shaved of
their unique nature and protections. The adjudication of Indian water rights in
state courts is one means by which the destruction of Federally-protected Indian
water rights is sought to be accomplished.

The Li.S. Supreme Court, it is hoped unwittingly, has recently been an instru-
ment in tne furtherance of the ruinous goals of those who oppose the preservation
of Indian water rights. With apparent imperviousness to fundamental distinctions,
the Court held in Akin vs. United States, (hereinafter Akin), decided together with
Colorado Water Conservation District vs. United Stales, 44 U.S.L.W. 4372 (decided
March 24, 1976) that Indian water rights claims could under certain circumstances
be litigated in state courts. In instances involving initial state court general stream
adjudication proceedings, in which the United States is joined pursuant to the
McCarren amendment as a party defendant to represent the water rights owned
by the Federal Government, the Court held that Indian claims to the right to the
use of water could be determined in state court. With little or no regard for the
fact that Indian lands and appurtenant water rights — unlike the lands and water
rights comprising other types of federal resources — are privately owned by the
respective Indian tribes, the Court swept Indian water rights into the broad
panoply of federal, pubiicly-owned water rights.

The decision in Akin by no means purported to relegate the adjudication of
Indian water rights claims exclusively to state courts. However, the limited con-
text in which such adjudication is now permitted has so strong a destructive
potential, that careful review and analysis is warranted of the factors underlying
the need for the designation of Federal court as the appropriate forum for the
adjudication of Indian water rights and the express restriction of the litigation
of Indian water claims to that forum.

Among the numerous reasons that could be advanced as grounds for restricting
the adjudication of Indian water rights claims to Federal court, three stand
out. They are: (1) the fundamental animosity directed towards Indians and their
property rights by the states in which Indians reside ; (2) the total lack of experi-
eiice by state courts in matters of Indian law and particularlj^ the law concerning
Indian land and water rights, and (3) the infringement that state court water
adjudications would inflict upon tribal rights of sovereignty.

None of the areas represent novel concepts insofar as Indian land and water
rights disputes are concerned. To the contrary each of the following matters has
been exhaustively treated and documented by both the courts and Congress.
To the extent that questions of jurisdiction have been raised, such questions have

without exception been resolved in favor of a Federal forum for the adjudication
of Indian property rights controversies.

/. Animosity between States and Indians. — The most obvious factor underlying
the necessity of adjudicating Indian water rights claims in Federal courts stems
from the traditional and marked hostility that exists between the various states
and the Indians residing therein. Our entire judicial system is founded upon the
premise that all parties submitting or defending their claims shall receive a full
hearing by an impartial trier of fact and law. Should Indian water claims be
relegated to the state forum, in light of past experiences it is highly questionable
whether such impartiality would exist.

Congress, itself, has explicitly recognized animosity between the states and
Indians as being a factor in support of a Federal forum for disputes involving
Indian property rights. The most recent example of this recognition is found in
the 1966 report of the Senate Committee in support of the bill which ultimately
became 28 U.S.C. 1362, a statute providing for Federal question jurisdiction
in the Federal district court over civil actions brought by Indian tribes, irrespec-
tive of the amount in controversy. The legislative history indicates that the bill
was prompted by Yoder v. Assiniboine and Sioux Tribes of the Fort Peck Indian
Reservation, 339 F.2d (9th Cir. 1964), which held that the Federal court had no
jurisdiction over Indian property claims unless the amount in controversy in-
volves over $10,000. As noted by the Senate Committee:

[Tl here is great hesitancy on the part of the tribes to use state courts.

This reluctance is founded partially on the traditional fear that tribes have

had of the states in which their reservations are situated. (S. Rep. No. 1507,

89th Cong. 2d Sess. 2 (1966).)

The Supreme Court has early acknowledged the significance of this animosity.

In Ujiited States v. Kagama, 118 U.S. 375 (1885), a decision which upheld a statute

making it a Federal crime for one Indian to murder another, the Court noted:

These Indian tribes are the wards of the Nation. They are communities
dependent for their daily food; dependent for their political rights. They
owe no allegiance to the States and receive from them no protection. Because
of the local ill feeling, the people of the States where they are found are
often their deadliest enemies. 118 U.S. supra at 383-84.
The Supreme Court's most recent reference to Indian tribes' widespread fear
of being subjected to state jurisdiction is found in Bryan vs. Itasca County, Minne-
sota, (docket 75-5027, decided June 14, 1976). The question presented in Bryan
was whether section 4 of Pub. L. 280, 67 Stat. 589, 28 U.S.C. 1360 constituted a
congressional grant of power to the states to tax reservation Indians. That sec-
tion of Pub. L. 280 made applicable to Indian lands within designated states,
except expressly named reservations, state civil laws of general application.

Over strenuous arguments to the contrary, the Court held that section 4 was
intended only to "grant jurisdiction over private civil litigation involving reserva-
tion Indians in state court" (slip opinion at 11) and not to confer authority upon
the subject states to tax Indian lands. In reaching its decision, the Supreme Court
had occasion to review the facts surrounding the exemption of certain tribal
groups from the operation of Pub. L. 280. While each of the exempted tribal
groups had some type of law and order system, most had objected to the assump-
tion of jurisdiction by the states out of fear of inequitable treatment or loss of
rights :

Tribal groups in the affected states which were exempted from the coverage
of Pub. L. 280 because they had 'reasonably satisfactory law and order'
organization, had objected to the extension of state criminal and civil juris-
diction on various grounds. Three of the tribes exempted objected due to
their fear of inequitable treatment of reservation Indians in state courts.
H.R. Rep. No. 848, at 7-8. Two of the objecting tribes expressed the fear
that 'the extension of State law to their reservations would result in the loss
of various rights.' (Id., at 8; slip opinion at 12.)
The reversal of the Minnesota Supreme Court decision upholding state taxation
of reservation Indians in Bryan clearly indicates, that the Indian fear of being
subjected to state and state court jurisdiction is not an unwarranted apprehen-
sion. The fear is the result of experience which has time and again shown that
the states and their courts do not adequately protect Indian interests.

A glaring and detailed example of the extent and effect of the state hostility to
Indian property rights claims is contained in the findings of the district court in
United States v. Washington, 384 F. Supp. 312 (W.d. Wash 1974), affirmed, 520
F.2d 676 (1975), an adjudication of treaty-protected, off-reservation Indian fishing
rights in the State of Washington. The following three findings are exemplary of

78-186 O - 77 - 5

the bias present on the part of states and their officials against the Indians and
their property rights. The findings also exemplify the harsh treatment to which
Indians have been subjected at the hands of the states:

194. In dealing with fishing by members of the Plaintiff tribes in a manner
different from that expressly provided in their respective regulations, both
the Game Department and the Department of Fisheries have seized nets
and other property of those members and have released, confiscated and
attempted to prevent the sale and transportation of anadromous fish which
are under their respective jurisdictions and which have been caught by those
members. (384 F. Supp. supra at 388).

195. Both the Fisheries and Game Departments have, on several occasions,
disposed of or retained for unusually long periods of time (often extending
over longer periods than one year) boats, nets, whether attended or unat-
tended, or other property of members of the Plaintiff tribes and fish taken
from the nets of such members. The tribal members have not been notified
of the institution of any proceedings for, or acquisition of, judicial confiscation
or forfeitures of said items by the State. (Id.)

218. The State and the Director of Fisheries have, by statute and regula-
tion, totally closed a substantial number of the usual and accustomed fishing
areas of Plaintiff tribes to all forms of net fishing while permitting commercial
net fishing for salmon elsewhere on the same runs of fish. (384 F. Supp. supra
at 393.)
An equally significant aspect of United States vs. Washington is the documentation
it provides of the state court's inability to afford a fair and impartial tribunal for
the determination of the Indian rights before it. The district court was required
twice to stay injunctions issued by the state court and ultimately to enjoin further
state court proceedings. See United States vs. Washington, (W.D. Wash., Civ. No.
9213, memorandum decision, September 12, 1974; memorandum decision, Au-
gust 6, 1975). The district court was affirmed in all but one minor respect by the
Ninth Circuit (520 F.2d 676 (1975)). As District Judge Burns, sitting by designa-
tion, noted in his concurring opinion:

The record in this case, and the history set forth in the Puyallup and
Antoine cases, among others, make it crystal clear that it has been recalci-
trance of Washington State officials (and their vocal non-Indian commercial
and sports fishing allies) which produced the denial of Indian rights requiring
intervention by the district court. This responsibility should neither escape
notice nor be forgotten. (520 F. d supra at 693.)
As these few examples demonstrate, ill-feeling betv/een the states and Indians
has been recognized and all too clearly documented by both the Congress and the
courts. The requirement that Indian claims, particularly such crucial claims as
are at stake in Indian water rights disputes, must be pleaded and/or defended
before the traditionally hostile state courts ignores that documentation and
thereby denies Indians their fundamental right to a fair adjudication.

2. Inexperience of State courts in matters dealing with Indian claims. — A second
reason for adjudication of Indian water rights claims in Federal court is that
Federal courts, traditionally the forum for Indian claims, have much more
expertise in this highly complex and unique area of the law. Conversely, state
courts have had little or no experience adjudicating Indian rights, and as suc-
cinctly phrased by Mr. Justice Stewart in his dissent in Akin:

. . . the issues involved are issues of federal law. A Federal court is more

likely than a state court to be familiar with Federal water law and to have

had experience in interpreting the relevant federal statutes, regulations, and

Indian treaties. (44 U.S.L.W. at 4379.)

Justice Stewart's dissent echoes the words of the previously noted 1966 Senate

Committee Report in support of 25 U.S.C. 1362:

Federal courts have more expertise in deciding questions involving treaties

with the Federal Government, as well as interpreting the relevant body of

Federal law that has developed over the years. (S. Rep. No. 1507, 89th

Cong., 2d sess. 2 (1966).)

While state court decisions may be appealed to the Supreme Court, such review

is inadequate protection for Indian rights for two reasons. First, as Mr. Justice

Stewart observed in his dissent in Akin, Federal review is only possible if the

Supreme Court chooses to exercise its certiorari jurisdiction (44 U.S.L.W. at

4379). Second, Indian water rights, in large part, turn on questions of fact which

are not readily subject to review. Such questions include for example, boundary

and land ownership issues, the number of acres which are "practically irrigable,"

and the amount of water required for irrigation. (Arizona vs. California, 373 U.S.
546, 600-601 (1963).)

Any doubt as to whether this ill-feeling and inexpertise would inhibit a fair
adjudication of Indian claims in state court is dispelled bj' reference to the number
of recent cases in which various Indian claims have been decided adversely by
state courts, but which have been reversed or vacated by the Supreme Court.
The courts most recent reversal of a state court decision involving Indian rights is,
Bryan vs. Itasca County, Minnesota, supra. There the State Supreme Court
affirmed the lower court holding that the grant of civil jurisdiction to the state in
section 4(a) of Pub. L. 280 included the power to tax.

In its past four terms, the Court has reversed or vacated six such decisions and
in five instances the decision was unanimous. These six cases are: McClanahan vs.
Arizona Tax Commission, 411 U.S. 164 (1973), reversed (9:0); Tonasket vs.
Washington, 411 U.S. 451 (1973), vacated (9:0); Maltz vs. Arnett, 412 U.S. 412
(1973), reversed (9:0); Washington Game Dept. vs. PuyaUup Tribe, 414 U.S. 44
(1973), reversed (9:0) ; and Anloine vs. Washington, 240 U.S. 194 (1975), reversed
(7:2).

An additional state decision, Mescalero Apache Tribe vs. Jones, 411 U.S. 145
(1973), was reversed in part (9:0) and affirmed in part (6:3). In two cases arising
in the Federal courts, the states' positions were unanimously rejected. Oneida
Indian Nation vs. County of Oneida, 414 U.S. 661 (1974) ; United States vs. Mazurie,
419 U.S. 544 (1975). In a third case originating in Federal court, Moe vs. Salish
and Kootenai Tribes, 44 U.S.L.W. 4535 (decided April 27, 1976), the state's posi-
tion, with one exception was unanimously rejected.

In contrast, onlv one state decision, DeCouteau vs. District County Court, 420
U.S. 425, reh. denied, 421 U.S. 939 (1975), has been upheld, and that by a divided
6 :3 vote. In only one case, A kin, initiated in Federal court, did a sharply divided
Court go against the Indian position.

The state fared little better in earlier terms between 1959 and 1971. Positions
taken by the states and/or their courts were repudiated in nine cases, six of which
were rejected by unanimous vote: Williams vs. Lee, 358 U.S. 217 (1959) (9:0);
Seymour vs. Superintendent, 368 U.S. 351 "(1962) (9:0); Metlakatla Indian Comm.
vs. Egan, 369 U.S. 45 (1962) (9:0) ; Arizona vs. California, 373 U.S. 546 (1963) (8:0) ;
Warren Trading Post vs. Arizona Tax Commission, 380 U.S. 685 (1965) (9:0);
Poafpybitty vs. Skelly Oil Co., 390 U.S. 365 (1968) (8:0); Menominee Tribe vs.
linked States, 391 U.S. 404 (1968) (6:2); Choctaw Nation vs. Oklahoma, 397 U.S.
620 (1970) (5:3); and Kennerly vs. District Court, 400 U.S. 423 (1971) (7:2).

During that same period, state positions were upheld onlv three times: Federal
Power Comm. vs. Tuscarora Indian Nation, 362 U.S. 99 (1960) (6:3); Organized
Village of Kake vs. Egan, 369 U.S. 60 (1962) (9:0); and PuyaUup Tribe vs. Dept.
of Game, 391 U.S. 392 (1968) (9:0). The most recent case in which a state decision
favorable to Indians was reversed was the Courts' 1949 decision in Oklahoma Tax
Commission vs. Texas Co., 336 U.S. 342 (1949). In that case, the Court overruled
its own prior decision upon which the state court had relied.

As this survey of recent Supreme Court decisions involving Indian disputes
indicates, denialof a Federal forum is both illogical and unfair. Relegating Indian
claims to state courts is illogical since the state courts have heretofore rarely
been exposed to the complex Federal treaties, statutes, regulations and common
law which are the framework within which such claims must be examined. Denial
of a Federal forum is also unfair since Federal review is discretionary and does
not easily reach crucial facts already determined by the state court.

3. Indian tribal sovereignty and Federal preference. — The third reason militating
in favor of the adjudication of Indian water rights claims in Federal courts is the
sovereign status of Indian tribes and the related, well-established, judicial and
congressional policy favoring the adjudication of Indian property rights contro-
versies in Federal courts. Indian sovereignty is recognized in the Indian commerce
clause of the United States Constitution, article I, section 8 , clause 3, which em-
powers Congress to "regulate commerce with foreign nations, and among the
several states, and with the Indian tribes." The Indian tribe is thus acknowledged
as the entitv authorized to act on behalf of the Indians as a unit.

In Worcester vs. Georgia, 31 U.S. (6 Pet.) 515 (1832) and in the recent decision
of McClanahan vs. Arizona Tax Commission, supra, the Supreme Court validated
the theory that the Constitution recognizes that Indian tribes have a status equal
to rather than subject to the several states. As noted in McClanahan, the Supreme
Court has long recognized that " '[t]he policy of leaving Indians free from state
jurisdiction and control is deeply rooted in the Nation's history.' " (411 U.S. 164,
168 quoting Rice vs. Olson, 324 U.S. 786, 789 (1945).) The sovereignty of the
Indian tribe is reflected in the tribes' separate judicial system, its power to tax,
its power of eminent domain, and in its "police power." (See, Iron Crow vs.

Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956) ; Cohen, Federal Indian Law, 122
(1942); 55 I.D. 14, and Cohen, Indiaii Rights and Federal Courts, 24 Minn. Law
Rev. 145 (1940).) Requiring state adjudication of Indian water claims denies
this tribal sovereignty.

Indian tribes have therefore historically opposed any state jurisdiction. See,
e.g., the legislative history of 25 U.S.C. 1321 and 1322, amending Pub. L. 83-280,
67 Stat. 589, to require Indian consent to the exercise of state jurisdiction, and
of 25 U.S.C. 1323, providing for the retrocession of state jursidiction acquired
without Indian consent. See also, Kennerly vs. District Court, 400 U.S. 423 (1971) ;

Fisher vs. The Sixteenth Judicial District of Montana, U.S.L.W. (docket

75-5366, decided March 1, 1976).

Congress, by in large, has recognized the inconsistency between tribal sovereignty
and subjugation of Indian claims to state jurisdiction. Numerous statutes reflect a
clear policy favoring federal jurisdiction over property disputes involving Indians.
One such congressional enactment is 25 U.S.C. 345 which grants exclusive Federal
jurisdiction for controversies over the Indian right to allotment, irrespective of
the amount in controversy or of the existence of a Federal question. Even 25
U.S.C. 357 which is silent as to forum, but which makes state substantive con-
demnation law applicable to some Indian lands, does not confer jurisdiction on
state courts. (Minnesota vs. United States, 305 U.S.C. 382 (1939)). This holding
was explicitly approved and followed in the later enactment of 28 U.S.C. 1362.
Pursuant to Pub. L. 83-280, 67 Stat. 588, codified as 18 U.S.C. 1162, 28 U.S.C.
1360 and, as amended in 1968, 25 U.S.C. 1321 and 1322, states were granted
limited civil jurisdiction over Indian country. Congress, however, explicitly
denied state court jurisdiction in situations involving "the ownership or rights to
possession" of "any real or personal property including water rights, belonging to
any Indian or Indian tribe ... or any interest therein." (28 U.S.C. 1360(b) and
25 U.S.C. 1322(b).)

The same policy favoring a Federal forum is conclusively shown in the previously
discussed committee reports on 28 U.S.C. 1362:

[T]raditionally, the matters concerning Indian lands under trust allot-
ments fall within the exclusive control of the Federal Government. The
judicial determination of controversies concerning such lands commonly
is committed to the Federal courts. (Minnesota vs. United States, 305 U.S. 382
(1939). H.R. Rep. 2040, 89th Cong., 2d sess. 2 (1966), reprinted in U.S.
Code Cong, and Adm. News (1966) 3145, 3146-3147.)

[T]he issues involved in cases involving tribal lands . . . are Federal issues

and particularly as to this class of cases it is appropriate that the actions be

brought in a United States district court. (H.R. Rep. 2040, 89th Cong. 2d

sess. 2 (1966), reprinted in U.S. Code Cong, and Adm. News 3145, 3146-

3147 (1966).)

Indian water rights are appurtenant to reservation lands and are also distinct

property rights. The issues involved are clearly Federal issues and, in light of the

firmly established concepts of tribal sovereignty and of Federal preference, are

most properly raised in a Federal forum.

4. Conclusion. — It must be acknowledged that underlying any consideration
of the proper forum for adjudication of Indian water rights claims is the fact
and recognition of the supreme importance of water rights to Indian tribes. In
the arid and semiarid Western states, water is a scarce and contested resource.
There is insufficient water to meet present demands. However, Indian reserva-
tions, unlike the short-termed economic enterprises who make demands upon
the water supply, will not simply move on. They will remain and continue to
occupy and work the lands, but in order to do so they must have a water supply
of sufficient quantity to meet their needs. Thus, water rights are the Indian's
most valuable rights. In the final analysis, as Mr. Justice Stewart noted in Akin,
what is involved is a "determination of questions of life-and-death importance
to Indians." (44 U.S.L.W. at 4379.)

Thus, it is imperative that a federal forum be provided for the resolution of
controversies regarding Indian water rights claims. Without a Federal forum,
Indians must assert or defend one of their most precious rights before a tradi-
tionally hostile state court, which is inexperienced, and from which there may
be no adequate appeal. Further, only a Federal forum is consistent with the
recognized sovereignty of Indian tribes and with the general and longstanding
congressional and judicial policy favoring adjudication of Indian claims in Federal
courts. We as a nation have come too far in recognizing what is due the Native
American, we cannot belittle the importance of water rights — nor can we ignore
the logic and sense of fairness which compells recognition that a Federal forum
is exclusively the proper forum for adjudication of Indian water rights claims.

Resolution No.

R- 18-76

RESOLUTrON

COLORADO RIVER TRIBAL COUNCIL

. „ ... . Support amendment of the McCarran Act, 43 U.S.C. 665

n Resolution to .'..'.

.<:pecial
Be it resolved by the Tribal Council of the Colorado River Indian Tribes, in regotar meeting

ossembled on _ .J.unfi.Al,...J.97.6.

WHEREAS, water and water rights are of critical importance to the Colorado River
Indian Tribes, and to the life and welfare of their members, and

WHEREAS, other Indians and Indian tribes are similarly situated, and protection

of ancestral and adjudicated Indian water rights is a matter of national
concern, and

WHEREAS, non- Indian interests are aggressively contesting and seeking to appropriate
water and water rights belonging to Indians, including the Colorado River
Indian Tribes, and

li/HEREAS, in resisting such efforts Indians, including the Colorado River Indian

Tribes, do not believe that their interests will be adequately protected
if they are subject and restricted to proceedings under state jurisdiction,
and

WHEREAS, the United States Suprene Court in its recent decision in the cases

The foregoing resolution wos on .^...^....r.^J}.f...}}.'...}°7.... duly approved by a vote of

.5.._ for ond ?.;. dga'ihst, b^ the Tribal Council of the Colorado River Indian

Tribes, pursuont to authority vested in it by Section l.(j-) , Article ....YX of the

Constitution (or By-Laws) of the Tribes, rotified by the Tribes on July 17, 1937, and approved
by the Secretary of the Interior on August 13, 1937, pursuant to Section 16 of the Act of June
18, 1934, (40 Stat. 984). This resolution is effective as of the date of its adoption.

COLORADO RIVER TRiBAL COUNCIL
By

Cliairman /

^cjj.u^.:ie:L-.r..^r^)h/.x:.ciJ<^

Secretary'

Approved:

Superintendent

WHEREAS,

of Akin, ct al v. United States and Colorado Hivcr Water Conservation
District, et al v. United Slates ruled tliat state courts tiad jurisdiction
over the adjudication of Indian x/ater rights, and that Indian water rights
properly should be adjudicated in state courts, and

the Colorado River Indian Tribes consider the effect of that decision to
seriously jeopardize their irater rights.

NOW, THEREFORE BE IT RESOLVED by the Tribal Council of the Colora
Tribes that the Colorado River Indian Tribes enthusiast
the efforts being r.ade by the National Congress of Amer
and others, to obtain the introQuction in the Congress
States, and the enactment into law, of an amendment to
Act, 43 U.S.C. 6t6, to the effect that consent given by
Act to the joinder of the United States as a defendant
proceedings for the adjudication or administration of r
use of water does not extend to, or in any way include
affect, rights to or interest in the use of v;ater of or
nations, tribes, or people, and further providing that
to the use of v;ater are specifically innune from state
or control, or fron administration or adjudication by a
state court, state agency, state tribunal or administra
or other state entity or proceeding.

do River Indian
ically endorse
ican Indians,
of the United
the McCarran

the McCarran
in suits or
ights to the
or otherwise

by Indian
Indian rights
jurisdiction
ny state,
tive officer.

(INITIAL REPORT)

DECLARATION OF INDIAN RIGHTS TO THE NATURAL RESOURCES
IN THE NORTHERN GREAT PLAINS STATES ■

Submitted by Dan Old Elk, President -

Native American National Resource Development Federation (NANRDF)

The Indian tribes and people of the Northern Great Plains
being confronted with an all pervasive crisis threatening the
present and future uses of their natural resources, including
but not limited to their land, right to use of water and their
coal, do hereby declare as follows:

The Northern Great Plains area of the United States
is presently attracting international attention due to the
energy crisis which makes the vast coal resources of this area
very appealing for immediate development. The development
of this coal and the concomitant use of water, air, and other
natural resources threatens the viability of "our environment
and the continued existence of the twenty-six tribes which
occupy the Northern Great Plains within the states of Montana,
Wyoming, North Dakota, and Nebraska.

These tribes would be severely burdened with immense
consequences resulting from any natural resource development.
It is for this reason that these tribes desire to submit the
following declaration for inclusion in the report of the Northern
Great Plains Resource Program. The tribes have been asked
to participate in numerous work group statements on this matter,
but it is readily apparent that the major impact upon the survival
of these Indian tribes will be foisted upon the erosion of
their water rights and the depletion of water resources due
to the need for massive quantities of water to develop the
coal. The Indian water rights here involved, then, are like

the Indian fishing rights considered by the United States Supreme
Court in United States v. Winans, 198 U.S. 371, 381 (1905);
they are "not much less necessary to the existence of the Indians
than the atmosphere they breath."

The Indian tribes of the five states do hereby give
notice to the world that they will maintain their ownership
to the priceless natural resources which are geographically"
and legally related to their reservations. Indian tribes and
people, both jointly and severally, have declared and the courts
have sustained that the American Indian tribes of the Northern
Great Plains have the prior and paramount rights to the waters
of all rivers, streams, or other bodies of water, including
all tributaries thereto, which flow through, arise upon, underlie
or border upon their reservations. These prior and paramount
rights would extend to all waters that may now or in the future
be artificially augmented or created by weather modification,
by desalination of presently unusable water supplies, by production
of water supplies as a byproduct of geothermal power development,
or by any other scientific or other type of means within the
respective reservations in the Northern Great Plains area.

In view of the tribes' prior and paramount rights to
all the waters to which they are geographically related, it
is self-evident that any major diversion of said waters for
any purpose would constitute an encroachment upon Indian water
rights. All federal agents or agencies, including but not
limited to the Bureau of Reclamation, Corps of Engineers, states,
persons, parties or organizations are, therefore, put on notice

that any diversion or use of such tribal waters shall be at
their own risk.

LEGAL BASIS FOR INDIAN WATER RIGHTS

The Indians' prior and paramount rights were sustained
in the United States Supreme Court case familiarly known as "
the "Winters Doctrine", Winters v. United States, 207 U.S.
564 (1908). The Court held in that case that the right .to
use of water from the Milk River, in the State of Montana,
which bordered upon the Fort Belknap Indian Reservation was"
reserved by the government in the treaty for the benefit of
the Indians of that reservation.

The Winters Doctrine embraces reservation rights whether
created by treaty, statute or executive order, before or after
statehood.

- U.S. V. Walker River Irrig. Dist., 104 F.2d 334 (1939)

- Ariz. V. Cal., 273 U.S. CCC

The waters reserved are exempt from appropriation by
non-Indians pursuant to state law.

- Winters v. U.S. , supra

- U.S. V. Ahtanum Irrig. Dist., 235 F.2d 321

(9th Cir. 1956)

The courts have consistently held that the nature of
the right was such that sufficient water was reserved for the
present and future needs of the Indians, whatever the use and
without limit.

- Ariz, v. Cal. , 373 U.S. 546 (1963)

It is the definition of the purpose of each reservation
that requires careful consideration. The language of the various

-5-

treaties speaks in terms of providing a permanent home or place
to live, free from encroachment by the non-Indian.

- See Treaty of Fort Bridger, July 3, 1858 (15 Stat. 643)
Although the fundamental rules of Indian treaty construction

have been variously stated, there are essentially three -well
defined and well established rules.

The first fundamental rule is that "treaties with Indians
must be interpreted as they would have understood them."

- Choctaw Nation v. Oklahoma,
397 U.S. 620, 630 (1970)

- Jones V. Meehan,

175 U.S. 1, 10-11 (1899)

- United States v. Shoshone Tribe,
304 U.S. Ill, 116 (1938)

- United States v. Winans, supra

A second rule of Indian treaty construction is that
doubtful expressions are to be resolved in favor of the Indian
parties to the treaty.

- McClanahan v. State Tax Comm'n of Arizona,
U.S. , 36 L.Ed. 2d 129, 137 (1973)

- Carpenter v. Shaw,

380 U.S. 363, 367 (1930)

- Standing Rock Sioux Tribe v. United States,
Ct. CI. 813 (1963)

A third important canon of Indian treaty construction

is that Indian treaties are to be constructed in favor of the

Indians.

- Choctaw Nation of Indians v. United States,
TTQ U.S. 418, 431-432 (rSTT)

- Tuloe V. Washington, 315 U.S. 681, 684-85

-fi-

- United States v. Shoshone Tribe, supra
Executive order reservations are no different than treaty

reservations when dealing with the question of Indian water
rights.

- Ariz . V. Cal. , supra

- U.S. V. Walker Irrig. Dist., supra

Language in a federal statute affecting the rights of
Indians is to be construed in the same manner as is language
in treaties with Indians.

- Squire v. Capoeman, 351 U.S. 1, 6 (1956)

HISTORICAL AND CONSTITUTIONAL BASIS OF INDIAN WATER RIGHTS

It is essential that any consideration of the nature
of the Indians' rights to the use of water be based upon their
inherent sovereign power of self-government.

Indian tribes from time immemorial had the right to
use the water in the streams in the area wherever they made__
their homes; they had the right to use the lands to hunt and
fish. Indian lives generally were oriented to the rivers which
made habitation and survival possible in contrast to the arid
lands which extended for miles on each side of their ancient
homes. Title to these valuable property rights has always
been to the Indians and we hold that these rights to the use
of water are still those of the Indian peoples. The Indian
tribes hold that (See Attachment No. 1) they retained title
to all that they did not cede or give up, including the invaluable
rights to the use of water in the streams and rivers which
arise, border, traverse, or underlie their lands and which were
retained by them when their reservations were established.
These rights are to be treated as private in character and
not as federally reserved rights to the use of water owned
by the public as a whole.

These IMI-IEMORIAL RIGHTS are protected by the United
States Constitution. The Supremacy Clause proclaims, "The
Constitution and the laws of the United States which shall
be made in pursuance thereof; and all TREATIES made, or which
shall be made, under authority of the United States, shall
be the supreme law of the land." The C0M14ERCE CLAUSE provides

that the Congress has the authority "to regulate Commerce with'
Foreign Nations, and among the several states, and with the
Indian Tribes. "

Water rights of the Indians were not given up or ceded
in any treaties and the United States Supreme Court enunciated
this fact in the case of Winters v. United States in 1908,
as above stated. Today, more than ever, the Indian finds himself
in a life and death competition for a water supply rapidly
becoming inadequate to meet all demands. The biggest problem
facing them as Indian people today is the need to determine
the extent of the rights or in practical words, the amount
of water they have a right to use.

The tribes understand that they will be able to promulgate
water codes and under authority from the Secretary of Interior,
they will be able to regulate and distribute waters among the
people on the various reservations. This will give them a
counterpart to the state procedures for filing of water rights
and uses and will keep the states from trying to regulate their
waters.

Historically, non-Indian users of water have made investments
utilizing water in complete disregard to the prior and paramount
rights of the Indian tribes. Many examples prove that local
and state interests have encouraged the development of water
resources even though the supply was subject to Indian rights,
choosing to ignore those superior rights in hopes that Congress,
at some future date, would "buy out" the Indians as has been
somewhat of an unofficial policy in the constant erosion of
Indian property, land, minerals, and water. The Indian tribes

cannot afford to be "put off", "bought off" or "turned off"
any longer in dealings pertaining to their valuable resources.

PRINCIPLES FOR PLANNING THE DEVELOPMENT OF INDIAN VJATER,-
LAND AND MINERAL RESOURCES

There is no question regarding the need for thorough
evaluation of the extent in value (including social and cultural
values) of Indian natural resources on the Northern Great* Plains
and areas draining the lands and reservations of each of the
twenty-six Indian tribes concerned. At stake is the future
economic development and well-being of Native Americans residing
on Indian reservations in Montana, Wyoming, North Dakota, South
Dakota, and Nebraska. Adequate methods for evaluating the feasibility,
economics, or desirability of the development of Indian water,
land, and mineral resources have been sorely lacking for several
decades .

On October 30, 1973, new "Principles and Standards .^or

Planning Water and Related Land Resources" were promulgated

1/
as federal law by the U.S. Water Resources Council which clearly

require of the trustee a rigorous analysis of natural development

programs including equal detail for all resource development

alternatives. The principles were established for planning

the use of water and land resources of the United States, including

Indian reservations, to achieve objectives determined cooperatively

through the coordinated actions of federal, state, and local

governments, (including Indian tribes and individuals) private

enterprise, organizations, and individuals.

Published in the Federal Register, September 10, 1973,

Volume 38, No. 174, Part lIlT Enacted October 30, 1973

-12-

They provide the basis for federal participation; including
federal cooperation with Indian tribes, with river basin commissions,
states, and others in the preparation, formulation, evaluatien,
review, revision, and transmittal to the Congress for natural
resource development plans and programs. The plans and programs
include those affecting states, regions, Indian tribes, and
river basins for planning of federal and federally assisted-
water and related land resource programs and projects and certain
federal licensing activities.

The overall purpose of water and land resource planning
is to promote the quality of life by reflecting societies'
preference (including Indian country) for attainment of the
objectives defined below:

a. To enhance national economic development by
. . increasing the value of the nation's output

of goods and services and improving national
economic efficiency.

b. To enhance the quality of the environment

by the management, conservation, preservation,
creation, restoration or improvement of the
quality of certain natural and cultural re-
sources and ecological systems.

The principles and standards establish a system of accounts

which will display both beneficial and adverse effects of each

natural resource plan and each alternative to that plan and

will compare the benefits between regional development, social

well-being, and environmental effects. The display of beneficial

and adverse effects will be prepared and presented in such

a manner that different levels of achievement and/or development

in each account can be readily discerned and compared by the

-13-

78-186 O - 77 - 6

public and all interested parties clearly indicating the trade-
offs among alternative plans.

For purposes of accounting a clear conveyance of information
to the public, the distribution of beneficial and adverse effects
will be shown to whomever they accrue (specifically to the
recipient of the project benefits) . This will include display
of the distribution of both beneficial and adverse effects to
regions, income classes, and interest groups relevant to the
particular plans and will reflect not only economic costs but
social, cultural and environmental effects as well. The system
of accounts will also display the beneficial and adverse effects
of a particular project in relation to the rest of the nation.

The Water Resources Council will establish procedures
for relating regional accounts to the rest of the nation.
These procedures, however, have not yet been developed, but
are presently being drafted. The use of such reporting regions
will not, however, rule out the use of other regions whose
delineations are important (especially Indian reservations)
in measuring beneficial or adverse effects on regional developments.

This is an extremely important aspect of the principles
and standards as they affect Indian natural resource development
projects. That is, the principles and standards can be used
on a regional basis with the Indian reservation being a designated
region, rather than an entire river basin, state or other large
geographic entity that would dilute the actual benefits or
the adverse effects on Indian people on a given reservation.

The evaluation, systematic display, and comparison of

alternative plans for a project affecting a state, Indian tribe,
region, or river basin will provide the basis for selecting
a plan best suited for those parties most heavily impacted.
It is important to recognize that the selection of a plan is
ultimately made by policy-makers and not by administrators
or technicians. These new methods, however, provide better
decision-making tools and information for the policy-makers„
in rendering their decision.

The Water Resources Council implemented the principles
by establishing standards for planning water and land resources
in accordance with the Water Resources Planning Act (P.L. 89-
80) . The standards were implemented and published at the same
time as were the principles.

The effect of the principles and standards for planning
for Indian water and land resources is that they must be used
by river basin commissions, federal-state organizations, and
each of the federal departments and agencies. In addition,
the Office of Management and Budget, the Council on Environmental
Quality, and other organizations in the executive office of
the President must use these principles and standards in their
review of proposed project, basin, or regional plans, including
those affecting Indian natural resources whether on or off
tne reservation. It is interesting to note that the Chairman
of the United States Water Resources Council is the Secretary
of the Interior — the trustee of Indian people.

The foregoing principles, standards, and procedures
must bo used with diligence and caution by Indian leadership.

-15-

There is little question that they provide a powerful tool
or weapon with which Indian tribes can demand of the trustee
rigorous forthright analysis of any project. However, as with
any tool or weapon, it can be rustled from the user and used
against him. In other words, the principles have the potential
of being a two-edged sword: for requiring methods for detailed
analysis of projects which are beyond financial ability of „
the tribes to accomplish. Therefore, we require that the cost
of project analysis be paid in full by the trustee.

An additional caution is that the principles and standards
are only as good as the information used to address them; as
with the computer or any accounting technique — if you put
garbage in you can only get garbage out. We, therefore, demand
of the trustee, other federal agencies, states, local governments,
and other parties, that the principles be addressed not only
rigorously, but with candor and factual information.

The need for the foregoing principles and standards
especially for evaluation of natural resource development programs
in Indian country was clearly stated in the recently released
National Academy of Sciences/National Academy of Engineering
"Report to the Energy Policy Committee of the Ford Foundation",
regarding land use, surface ownership, and mineral ownership:

Land Use, Surface Ownership, and Mineral Ownership

"The questions of land, surface and mineral
ownership in the coal areas are complex
and in many cases still unresolved. The
federal government controls much of the
surface and even larger fraction of the minerals.
Indian nations also claim ownership of large
areas, sometimes in conflict with other
private clai.aants and the federal government.

In addition, the individual states hold
significant tracts, as do the railroad companies.
The ownership pattern varies, but the checkerboard'
is common over much of the area. No reliable
statistics have been compiled for either
surface or mineral ovmership .... Although
leasing of federally owned coal deposits
has been suspended since 1970, leasing of
coal lands and other ownerships has continued.
In Montana alone, more than 600,000 acres
are currently held in coal leases, although
only a fraction of those are suitable for
strippable deposits."

Filling the foregoing lack of information identified^
by the NAS and HAE Report is the focal point and objective
of the Northern Great Plains Resources Program. The NGPRP
study covers the five states of Montana, Wyoming, North and
South Dakota, and Nebraska, and is being coordinated by the
United States Department of Interior.

These new methods apply not only to water resource develop-
ments, but to related land resources, including mineral developments
in which the federal government has a stake in monetary terms
or as trustee.

The Northern Great Plains Resources Program, in cooperation
with the Indian tribes, must identify not only short-term opportunities
for natural resource management in Indian country, but must
address the problems of natural resource management for future
generations of Indian tribes and Indian people.

-17-

ISSUES TO BE ADDRESSED BY TliE TRIBES OF THE NORTHERN
GREAT PLAINS PRIOR TO DETERMINING THE EXTENT OF
DEVELOPMENT OF THEIR MATERIAL RESOURCES

The vast natural resources located on or near Indian
reservations in the Northern Great Plains offer a potential
for significant economic development. Development will also
present some major problems for the Indian people in the a3;ea.
In order to make intelligent choices as to the nature and extent
to which the development of their natural resources, including
coal, water and air should take place, the tribes must have
before them complete information on the nature and value of
their coal, water and land resources, together with the political,
cultural, economic and environmental effects development will
bring. This data must be made available before development
takes place, so that effective planning is possible. In the
following sections, it is demonstrated, using the little data
which is available, the enormous size of the resources and
the potential problems which accompany the use of these resources.
It is emphasized that huge information gaps remain; it is the
duty of the federal government in carrying out its trust responsi-
bility to the Indian people residing on the reservations to
gather this data and supply it to the Indian people who will
be affected.

The National Water Commission, in its final report to

the President, recommended:

At the request of any Indian Tribe, the Secretary
of the Interior or such other Federal officer
as the Congress may designate should conduct

-19-

the mid-April 1973 edition of Coal Age (page 117) reports that
there are eight billion tons of strippable coal on the Crow
and Northern Cheyenne Reservations. (The fact that this informa-
tion must be obtained from a trade publication graphically
illustrates the government's failure to provide meaningful
information and guidance to the Indians of the Northern Great
Plains.) - „

A second factor in determining the value of coal resources,
aside from the quantity of coal available, is its quality.
In particular, the sulfur content and heat rating of the coal
are important. This information is usually made available
to the tribes only after a coal prospecting permittee has _ completed
its exploration and is ready to invoke its preference right
to lease selected po->-tionR of the permit area. By then, of
course, the tribes are unable to seek an adjustment of the
royalty to reflect favorable data, since the royalty and bonus
payments have been irrevocably fixed under the terms of the
contract. Needed immediately are new procedures for exploration,
production, and development leases on Indian lands.

A third variable in the value of the coal resource is
the cost associated with production. One of the most important
variables in production cost is the stripping ratio; the thickness
of the overburden covering the coal compared to the thickness
of the coal seam. The lower the stripping ratio; the less
it costs to mine. Stripping ratios of 16:1 and higher are
commonly encountered at eastern and mid-western strip mines,
while stripping ratios of up to 12 to 1 are comT\cn in many

-20-

studies in cooperation with the Indian Tribes
of the water resources, the other natural
resources, and the human resources available
to its reservation. An object of the studies
should be to define and quantify Indian water
rights in order to develop a general plan
for the use of these rights in conjunction
with other tribal resources .... Congress
should appropriate funds to support the
studies .... (Recommendation 14-1.)

This recomiaendation should be carried out immediately with

respect to the twenty-six Indian tribes in the Northern Great

Plains.

In considering the development issue, the following

questions need to be answered:

A. How much Indian land will be affected by coal development

operations? Figure 1.1 is a map showing the location of strippable

coal reserves in the Northern Great Plains compared to the

areas of strippable coal reserves on Indian reservations in

the five states comprising the Northern Great Plains. Table

1.1 shows that a large proportion of the five Northern Great

Plains states is underlain by coal deposits. It can be seen

2/
that substantial portions of nine Indian reservations within

those states have significant coal resources. Indeed, three

of the reservations are entirely underlain by coal-bearing

rock. Thus, if coal reserves on these reservations were developed

to the fullest extent possible, the land base of those tribes

Cheyenne River, Standing Rock, Blackfeet, Rocky Boys,

Fort Peck, Fort Berthold, Wind River, Northern Cheyenne,
and Crow.

■21-

could be seriously eroded, or even destroyed. As we note in
Table 1.1 the data on coal under Indian lands is very incomplete
and the estimates offered are highly speculative. - •

B. How much Indian coal can be recovered economically?
The Bureau of Mines has estimated that the nine reservations
contain 36 billion tons of coal. However, this figure is misleading.
Much of the total coal reserve cannot be recovered by any of
the mining techniques known today. Another type of figure
frequently ci't'ed to show coal reserves, the recoverable reserve,
is also irrelevant in the Northern Great Plains. This figure
includes all coal that can be recovered by present technology
through underground or surface mining. However, in the Northern
Great Plains, where there are huge reserves of strippable coal
in competition with coal on InCiian i-ai'*»-*i> , j.t a.b <^Uc:3i-iOiiaj3a.e
that coal recoverable only by underground mining will be exploited
in the near future.

Furthermore, the great extent of coal reserves now classified
as mineable by underground methods may, in the future, become
strippable through technological, economic, and/or legislation
pending in Congress.

The key figure, then, is the strippable reserve. Although
approximate figures are available on a state-wide basis , the
strippable reserves for the nine coal-rich Northern Great Plains
reservations are unknown.

Once again, crucial data necessary for intelligent decision
making is unavailable to the Indians. We do know that we are
talking about huge amounts of strippable coal. For example,

-22-

of the western states (see Table 3.3 of the N.A.S. Report)

It appears that the stripping ratio for Indian coal in the
Northern Great Plains is more favorable than average. For
example, the stripping ratio for one tract of coal land owned
by the Crow Tribe in the ceded portion of their reservation
averages between 3 . 5 and 4:1.

Another important factor in determining the value of
the Indian coal resources includes the present and future market
for comparable quality coal, freight rates, and a survey of
royalties paid to other coal owners.

C. How much water will be needed to mine and convert
these coal resources? Table 4.1, attached, of the N.A.S.' Report,
shows the gross amount of water available in several key streams
in the Northern Great Plains. (This total is subject to .depletion
for irrigation, industrial and municipal uses, as well as evapora-
tion.) These depletions may substantially reduce the am.ount
of water actually available — estimates are that only 241,000
acre-feet are available from the Tongue River and 287,300 acre-
feet from the Powder River. (See N.A.S. Report 59.)

Although it appears that there is a huge quantity of
water available for coal development, in fact, the large energy
companies have already applied for most of this available water.
According to the newsletter of the Northern Great Plains Resources
Council (February, 1974) , energy companies have already filed

National Academy of Sciences, "Rehabilitation Potential of

Western Coal Lands," a report to the Energy Policy Project of
the Ford Foundation (V'Jashington, D.C. , 1973).

-23-

state appropriation, appropriation applications and applications

and requests with the Bureau of Reclamation in the following

amounts : ,

Total Appropriations,
River Options, and Requests

Powder 336,37 5

Tongue 225,17 5

Bighorn 2,193,000

Yellowstone . 824,250 m

TOTAL 3,588,800

The above total is three times the highest quantity of water
required in the NGPRP forecast for the entire region.

In the following paragraphs, we discuss water usage
associated with various facets of the coal mining, processing,
and conversion that may well take place in the Northern Great
Plains.

1. Mining.

: According to the N.A.S. Report (page 63), actual
mining operations require very little water, most
of which can be obtained readily from shallow wells.
Nonetheless, the drilling of such wells could lower
the water table in local areas.

2. Surface Mine Rehabilitation. , -
The N.A.S. Report (pp. 6465) indicates that supplemental
irrigation is essential in most areas, if revegetation
is to succeed. The report states that from .50

to .75 acre-feet per acre will be required for this
purpose annually. However, every rehabilitation

study to date concludes that rehabilitation plans
on the Northern Great Plains, which are dependent
on supplemental irrigation, are both ecologicall-y
and economically unsound. In other words, there
is a real question of whether these areas should
be disturbed at all, since there is no guarantee
that these lands can ever be rehabilitated. '
3. Coal Conversion.

The N.A.S. Report (page 160) indicates that one 1,000
megawatt electric generating station, using an evaporative
tower for cooling and operating at full capacity
requires 20,000 acre-feet of cooling water annually.
For a similar plant using a cooling pond, instead,
the requirement drops to 12,000 acre feet per year;
and to only 2,000 acre-feet per year if a dry cooling
tower is used. None of the utilities in the Northern
Great Plains is planning to use this more expensive
cooling method, despite the huge water saving that
could be achieved. Since the North Central Power
Study indicates that up to 50,000 megawatts of electric
generating capacity could ultimately be constructed
in the Northern Great Plains, cooling water requirements"
could conceivably rise as high as one million acre-
feet. (The North Central Power Study (Vol. 1, p.
16) contains a somewhat smaller estimate — 855,000
acre-feet per year.)

A plant producing 250 million cubic feet a

day of synthetic natural gas from coal would require
approximately 30,000 acre-feet of water per year.
(In 1972, Consolidation Coal Company proposed a
complex of four such plants on the Northern Cheyenne
Reservation.) A coal liquefaction process, whereby
synthetic crude oil is extracted from coal, is now
being developed. A plant producing 100,000 barrels
per day would consume approximately 65,250 acre^feet
of water per y^ar. N.A.S. Report, p. 160. .

D. How will land resources be affected? The coal mining
and conversion process uses up another valuable Indian resource --
land. In many areas, where rainfall is very sparse, or reclamation
efforts are minimal, strip-mined lands may be irretrievably

lost, for other uses, such a.z grazing, houcir.g, etc. Even if
reclamation is successful, much of the land to be strip-mined
and all land needed for conversion facilities, transmission
lines, roadways, and other rights-of-way, will be lost for
the life of the mining/conversion operation -- often more than
a quarter of a century. The areas subject to potential damage
from strip mining are significant. According to the N.A.S.
Report (Table 3.5) between 1965 and 1972, Montana coal mining
operations disturbed 46 acres per million tons of coal mined.
At that rate, mining the 8 billion tons of strippable coal
on the Crow and Northern Cheyenne Reservations would consume
368,000 acres, 18% of the total area of the two reservations.

E. What will be the major environmental effects?

1. The major environmental impacts of strip mining

-26-

and coal conversion include:

a.) Pollution of ground and surface waters.
b.) Deposition of salts and toxic minerals, which
render large areas permanently infertile.
c.) Disruption of aquifers and aquifer recharge
areas, this may result in dry wells, lowered
water tables, increased erosion, and flood damage.
d.) Air pollution associated with the dust ,^rom
mining. If a conversion process, such as gasification
or electric power production is involved, there
will be air pollution from particulate matter,
sulfur oxides, nitrogen oxides, radioactivity,
and trace metals. In addition, there will be
large amounts of sulfate sludge and flyash produced
by air pollution abatement devices that must
be disposed of.

e.) Associated with strip mines and coal conversions
are a network of roads, power transmissions lines,
slurry pipelines, and railroads, which cause
pollution from dust and erosion, as well as
visual pollution.
If there is to be any hope of adequate reclamation
of strip mined areas, the planning process must
begin well before actual mining. Data that must
be gathered includes:

a.) Climatological and meteorological data.
b.) Indigenous plants and animals.

-27-

c.) Thorough analysis of the physical and chemical
components of soil overburden.

d,) Description of groundwater supplies, flows
and uses. *"

e.) The location and nature of unusual scenic,
historical, archeological, and cultural, values
in the area to be mined.
2. Competent experts will be needed to interpret
this data, to help formulate a mining and reclamation
plan, and to make sure the plan is enforced. These
experts must be capable of explaining the data and
resulting options in non-technical terms so that
tribal members can understand all alternatives before
making decisions.

P. What will be the social and cultural effects?
Mining operations will bring a large influx of outside
workers, technicians, and managers onto the reservations. If
coal conversion facilities are located near the mine sites,
the number of outsiders will be far larger. (It should be remembered
that Consolidation Coal Company indicated to the Northern Cheyennes
that their proposed gasification complex would require 30,000
workers.) Presumably, these people will have to live on or , .
near the reservations; the cultural and social changes associated
with their arrival will be severe. These new people will need:

1. Housing, as well as recreational, shopping, religious,
and other facilities. Tribal councils will have
to make difficult decisions in the field of urban
planning.

. -28"

2. Water supply and sewage treatment. Where will
the funds for these facilities come from?

3. Police, fire, and hospital protection.

4. Roads and other public facilities.

5. Educational facilities.

Local Indian ways and customs may well be trampled by
the numerical superiority of outsiders and significant stresses
on the tribal government structure can be expected.

G. What should be the timing, extent and institutional
methods used to develop Indian coal resources? Coal development
on Indian reservations may be carried on in varying degrees
of intensity. Some of these options include:

1. Small-scale coal mining, to be spread out over
a large number of years.

2. Very intensive, large-scale mining, leading to
the quickest possible depletion of resources.

3. Large-scale mining with the coal to be converted
to electricity on or near the reservation.

4. Large-scale mining with gasification complex
on or near the reservation.

As the intensity of development increases, so do all
the problems mentioned previously. The decision about the
degree and timing of industrialization rests with the tribes,
who must have access to the aforementioned data.

Various institutional arrangements, such as partnerships,
joint ventures and wholly owned Indian operations are available
as alternatives to the standard leasing policy. These other

-29-

business forms offer closer tribal control over mining operations,
a chance to participate in the profits and thus avoid the effects •
of inflation, and some tax advantages. The tribes should be
given competent advice by experts in financial and tax planning.

78-186 O - 77 - 7

CONCLUSIONS AND RECOf'MENDATIONS

The Indian tribes in the Northern Great Plains are the
owners of a substantial number of natural resources. In addition,
these resources exist in such large quantities so as to require
their orderly and planned development to assure that the tribes
and their members will continue to live in an environment which
they determine to be most desirable.

Many of the tribes in the Northern Great Plains region
are being asked to make major development decisions with respect
to their resources without the aid of sufficient scientific
data which is so necessary within the decision making process
in order that all of the viable alternatives to the proposed
development can be considered.

Moreover, the prior and paramount tribal rights to the
use of water which arise upon, traverse or border upon their
reservations are being encroached upon by the states, the federal
government, and their users; that these prior and paramount
rights to the use of water must be protected with skill and
diligence by an aggressive effort to protect, preserve, conserve,
and develop these rights to their fullest extent.

In light of the aforementioned conclusions, the Indian
tribes in the Northern Great Plains make the following recommendations;

Recommendation No. 1

That the twenty-six tribes in the Northern Great Plains establish

a Federation for the purpose of:

Formulating programs that will describe and quantify
the Northern Great Plains Indians' natural resources

-32-

and cultural resources.

Develop programs that will obtain sufficient
scientific data necessary to make informed decisions
relative to the development of Indian resources,
and an understanding of the impact of such development
on other resource and cultural values.

Act as the Indian representative on federal and
state/federal land and water planning organizations
and other cooperative federal and federal/state
programs that will have direct or indirect _ -
effects on Indians and their resources .

Provide, at the request of individual tribes,
assistance in developing management alternatives "
for their resources.

Recommendation' No. 2

That the Congress of the United States recognize,
authorize and appropriate monies for the Federation.
And that said authorized monies be appropriated
in the amount of $750,000 for the first year's
operating budget with authorization for the
Federation to return to request monies for operation
in subsequent years. These monies would be
«■«*-■•--*• j- ^ c ^ i^y tiic r ciaorat J-On to j.Uj.j-j.jlx the goaxs
in Recommendation No. 1 to obtain the necessary
resource people to study and evaluate- the tribes'
natural resources and to develop a plan for
the development of said resources.

Recommendation No. 3

That the President of the United States as the
principal agent of Indian Rights, authorize and/or
cause a moratorium on the allocation of waters
by all federal agents and agencies including
the Burea of Reclamation and Corps of Engineers
from the various federal projects within the
Northern Great Plains until such time as Indian
Rights are fully recognized and protected.

Recommendation No. 4

That Indian water, air, coal and land resources
should be fully recognized, protected, and that
Indian resource development projects should be
initiated, authorized, and funds appropriated
at the request of the Indian tribes, by the
Congress so that the Indian resources may be
put to beneficial use for the tribes who may
then receive the full economic benefit of their
valuable rights.

■33-

In closing, then, the Indian tribes of the Northern

Great Plains are faced with the sarae problems today that the

Indians were facing one hundred years ago. Sitting Bull, in

a speech he gave in 1875 (one year before the Battle of LitCle

Bighorn) , spoke to these very problems when he stated:

We will yeild to our neighbors — even our animal . •
neighbors — the same right as we claim to inhabit
the land. But we now have to deal with another
breed of people. They were few and weak when
our forefathers first met them and now they are
many and greedy. They choose to till the soil.
Love of possessions is a disease with them. -' .
They would make rules to suit themselves. They
have a religion which they follow when it suits
them. They claim this Mother Earth of ours for
their own and fence their neighbors away from
■^hem. They degrade the landscape with their buildings
and their waste. They compel the natural earth
to produce excessively and when it fails, they
force it to take medicine to produce more. This
is an evil.

This new population is like a river overflowing
its banks and destroying all in its path. We
cannot live the way these people live and we
cannot live beside them. They have little respect
for Nature and they offend our ideals. Just
seven years ago we signed a treaty by which the
buffalo country was to be ours and unspoiled
forever. Nov; they want it. They want the gold
in it. Will we yield? They will kill me before
I will give up the land that is my land.

-34-

Tribes

Treaties & Exec.
Orders (Establishing
Present Reserv.)

Major Treaties Effecting
Northern Great Plains Tribes

L. Blackfeet

Treaty 10/17/1855
11 Stat. 657

Crow

J. Assiniboine
n Gros Ventre

Flathead
Chippewa-Cree

LoT

lt;

fJ!

lt;

rr;
rr;
rr.
[¥;

19
20"

2T
2j

5T
.25
56

No. Cheyenne

Omaha

Treaty 18 51
11 Stat. 749

Ft. Peck

1873 Exec. Order

Ft. Belknap
1888 Exec. Order

reaty July 16, 1855
12 Stat. 975

Cong. Act 1916
39 Stat. 739

Ft.
Laramie

1851
11 Stat.

749

Exec. Order
11/26/1884

Treaty 1854
10 Stat. 1043

Winnebago

Cong. Act 1865
14 Stat. 671

Santee Sioux

Mandan

Exec. Order
6/20/1866

Hidatsa

Arikara

Devils Lake
Sioux

Ft. Berthold

Exec. Order

4/12/1870

Treaty 1867
15 Stat. 505

Ft.
Laramie

868
15 Stat.

649

See
1) Below

See
(2) Below

Ft.
Bridgen
1868
15 Stat.
673

Division of

Great Sioux

Reservation

1889

25 Stat. 88E

Turtle Mountair
Chippewa

Exec. Order
12/21/1882

Cheyenne River
Sioux

Cong. Act 1889
25- Stat. 888

Crow Creek
Sioux

Treaty 1868
15 Stat. 649

See

;3) Below

Flandreau
Santee Sioux

Cong. Act
1935

Oglala Sioux

Cong. Act 18 89
25 Stat. 888

Rosebud
Sioux

Cong. Act 1889
25 Stat. 888

Sisseton &
Wahpeton Sioux

Treaty 1867
15 Stat. 505

(4) See
Below

(5) See
Below

Standing Rock
Sioux

Cong. Act 1889
25 Stat. 888

Yankton
Sioux

Treaty 1858
1 Stat. 743

Lower Brule
Sioux

Treaty 1965
14 Stat. 699

Shoshone

Treaty 1868
15 Stat. 673

Arapahoe

Temporarily Placed
Upon Shoshone
Reserv. 1878
(7) See Below

(6) See
Below

TABLE 1.1

SIZE AND PERCENTAGE OF COAL BEARING AREAS IN
NORTHERN GREAT PLAINS STATES AND INDIAN RESERVATIONS

State

Total Area of Area Underlain by Coal-bearing
States in Sq. Mi. Rocks Square Mi les Percent

Montana

1^7,138

51.300

North Dakota

70.665

32.000

South Dakota

n,oki

7,700

10 "

Wyoming

31,S\k

^0,055

Total

392.764

131,055

Total Area of

Indian

Reservation

Area Underlain by

Coal-beaJ=-ing Rock

Reservat ion

in Sq. Mi.

Square Mi les-

Percent"

Cheyenne River

2,210

l.f.'V

Standing Rock

1,321

it03 ■

Blackfeet

1,^72

1,030

Rocky Boy

170

153

Fort Peck

1,506

100

Fort Berthold

706

100

Wind River

2,932

1,173

Northern Cheyeni

ne 679

679

100

Crow

2,^31 .

1,^58

•• • 60

*Areas and percentages are estimated based on best available data
including N.A.S. Report and Westwide Study.

I. '«.- ( ». f_

O 13 V.

l> O .'V '■•

a -« ov fc

;> <J7 u^ I— " •cj, O

o Lu uj (/J o _i ; /
o d: cc Lu z: dl. o

100

TABLE 3.3

Sulfur Content of
Estimated Strippable Reserves'
(Millions of short tons)"

Stripping '
ratio

Stri

ppable Reserves

State

387

1-2^,S
0

>2!>oS
0

Total

Arizona

8:1

387

Colorado

h:\

to 10:1

kl(>

2k •

500

Montana

2:1

to 18:1

3,176

Ilk

3,A00

New Mexico

8:1

to 12:1

2.^7^

2Mk

N. Dakota

3:1

to 12:1

1.678

397

2.075

S. Dakota

12:1

160

Utah

3:1

to 8:1

136

150

Washington

10:1

135

V'yominn

1.5:1

to 10:1

13,377

529

13,971

TOTALS

21,869

8^6

, 537

23,252

Source: a. U.S. Bureau of Mines Information Circular 8531-

b. 1 short ton = 0.91 metric tons

c. Stripping ratio = thickness of overburden/thickness of
coal seam.

d. Stripping ratio is also defined by some mining engineers
as cubic yards of overburden per ton of coal. Sec, e.g..
Surface Mining by E. P. Pfleider, American Institute of
Mining, Metallurgical, and Petroleum Engineers, New York,
1968.

101

TABLE ^.0

STREAMFLOW FOR KEY GAGING STATIONS, MISSOURI BASIN

Years

Gaging Station

of Record

Powder R. at Arvada, Wyo-

* *

Powder R. at Moorhead, Mt.

Tongue R. near Decker, Mt.

Tongue R. at Miles City, Mt.

Bighorn R. at Bighorn, Mt.

Yellowstone R. at Miles

City, Mt.

J.;

Average Annual

Dischnrge

faFlT) ■■[

196,000

327,000

358,000

302,000

2,760,000

8 ' ''0 CC^

* 1 ac ft = 0.125 hectare-m

103

ATTACHMENT 1

DECLARATION OF IIIDIAN RIGHTS TO THE NATURAL
RESOURCES IN THE NORTHERN GREAT PLAINS STATES

Prepared by:

Member Tribes in the
Native American Natural
Resources Developnent Federation
of the Northern Great Plains

In conjunction wicn:

Native American Rights Fund
Bureau of Indian Affairs

Private Consultants

June, 1974

104

TABLE OF CONTENTS

Page

Declaration of Indian Rights to the 2

Natural Resources in the Northern Great
Plains States.

Legal Basis for Indian Water Rights 5

Historic and Constitutional Basis of

Indian Water Rights 8

II. Principles for Planning the Development

of Indian Water, Land and Mineral Resources 12

III. Issues to be Addressed by the Tribes of the 19

Northern Great Plains Prior to Determining
the Extent of Development of Their Material
Resources

A. How much Indian land will be affected by 20
coal development?

B. How much Indian coal can be recovered 21
economically?

C. How much water will be needed. to mine 23
and convert these coal resources?

D. How will land resources be affected? 26

E. What will be the major environmental 26
effects?

F. What will be the social and cultural effects? 28

G. What should be the timing, extent and insti- 29
tutional methods used to develop Indian coal
resources?

IV. Conclusions and Recommendations 32

105

I. DECLARATION OF INDIAN RIGHTS TO THE NATURAL RESOURCES IN
THE NORTHERN GREAT PLAINS STATES.

The Northern Great Plains area of the United States
is presently attracting international attention due to the
energy crisis which makes the vast coal resources of this area
very appealing for immediate development. The development
of this coal and the concomitant use of water, air, and other
natural resources threatens the viabilitv of our environment
and the continued existence of the twenty-six tribes which
occupy the Northern Great Plains within the states of Montana,
Wyoming, North Dakota, and Nebraska.

These tribes would be severely burdened with immense
consequences resulting from any natural resource development.
It is for this reason that these tribes desire to submit the
following declaration for inclusion in the report of the Northern
Great Plains Resource Program. The tribes have been asked
to participate in numerous work group statements on this matter,
but it is readily apparent that the major impact upon the survival
of these Indian tribes will be foisted upon the erosion of
their water rights and the depletion of water resources due
to the need for massive quantities of water to develop tho
coal. The Indian water rights here involved, then, arc like

106

The Indian tribes of the five states do hereby give
notice to the world that they will maintain their ownership
to the priceless natural resources which are geographically
and legally related to their reservations. Indian tribes and
people, both jointly and severally, have declared and the courts
have sustained that the American Indian tribes of the Northern
Great Plains have the prior and paramount rights to the waters
of all rivers, streams, or other bodies of water, including
all tributaries thereto, which flov/ through, arise upon, underlie
or border upon their reservations. These prior and paramount
rights would extend to all waters that may now or in the future
be artificially augmented or created by weather modification,
by desalination of presently unusable water supplies, by production
of water supplies as a byproduct of geotheritial power development,
or by any other scientific or other type of means within the
respective reservations in the Northern Great Plains area.

-3-

107

that any diversion or use of such tribal waters shall be at
their own risk.

-4-

108

LEGAL BASIS FOR INDIAN WATER RIGHTS

The Indians' prior and paramount rights were sustained
in the United States Supreme Court case familiarly known as
the "Winters Doctrine", Winters v. United States, 207 U.S.
564 (1908) . The Court held in that case that the right to
use of water from the Milk River, in the State of Montana,
which bordered upon the Fort Belknap Indian Reservation was
reserved by the government in the treaty for the benefit of
the Indians of that reservation.

The Winters Doctrine embraces reservation rights whether
created by treaty, statute or executive order, before or after
statehood.

- U.S. v. Walker River Irrig. Dist. , 104 F.2d 33-'. (l'J39)

- Ax'lz. . V . Cial . , 373 U.S. 5iu \xiu-i/

The waters reserved are exempt from appropriation by
non-Indians pursuant to state law.

- Winters v. U.S. , supra

- U.S. V. Ahtanum Irrig. Dist., 236 F.2d 321

(9th Cir. 1956)

The courts have consistently held that the nature- ol
the right was such that sufficient water was reserved for '-.'vc
present and future needs of the Indians, whatever the ui<.- ar.j
without limit.

- Ariz, v. Cal. , supra

It is the definition of the purpose of each rcsc.-v.i'.i-jr.
that requires careful consideration. The language ci t:.< VAfi. ^s

109

treaties speaks in terms of providing a permanent home or place
to live, free from encroachment by the non-Indian.

- See Treaty of Fort Bridger, July 3, 1858 (15 Stat. 643)
Although the fundamental rules of Indian treaty construction

have been variously stated, there are essentially three well
defined and well established rules.

The first fundamental rule is that "treaties with Indians
must be interpreted as they would have understood them."

- Choctaw Nation v. Oklahoma,
397 U.S. 620, 630 (1970)

- Jones V. Meehan,

175 U.S. 1, 10-11 (1899)

- United States v. Shoshone Tribe,
304 U.S. Ill, 116 (1938)

- United States v. Winans, supra

A second rule of Indian treaty construction is that
doubtful expressions are to be resolved in favor ot tJ-.c InJi.in
parties to the treaty.

- McClanahan v. State Tax Comm'n of /'.r:"--n-t.
U.S. , 36 L.Kd.2u i2i>, ui tiJ^i)

- Carpenter v. Shaw,

280 U.S. 363, 367 (1930)

- Standing Rock Sioux Tribe v. United .-I'.Hjij..
182 Ct. CI. 813 (1963)

A third important canon of Indian treaty co:.. '. r ■--■•. i ;-.".
is that Indian treaties are to be constructed m fav.-r oi v;.c
Indians.

- Choctaw Nation of Indians v. Unit'--^ il:— '--'.'
318 U.S. 423, 431-432 (i9'13]

- Tulee V. Washington, 315 U.S. 661, t '- « " " '.'i:;

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78-186 O - 77 -

- United States v. Shoshone Tribe, supra
Executive order reservations are no different than treaty

reservations when dealing with the question of Indian water
rights.

- Ariz . V. Cal. , supra

- U.S. v. Walker Irrig. Dist., supra

Language in a federal statute affecting the rights of
Indians is to be construed in the same manner as is language
in treaties with Indians.

- Squire v. Capoeman, 351 U.S. 1, 6 (1956)

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Ill

HISTORICAL AND CONSTITUTIONAL BASIS OF INDIAN V-JATER RIGHTS

It is essential that any consideration of the nature
of the Indians' rights to the use of water be based upon their
inherent sovereign power of self-government.

Indian tribes from time immemorial had the right to
use the water in the streams in the area wherever they made
their homes; they had the right to use the lands to hunt and
fish. Indian lives generally were oriented to the rivers which
made habitation and survival possible in contrast to the arid
lands which extended for miles on each side of their ancient
homes. Title to these valuable property rights has always
been to the Indians and we hold that these rights to the use
of water are still those of the Indian peoples. The Indian
tribes hold that (See Attachment No. 1) they retained title
to all that they did not cede or give up, including the invaluable
rights to the use of water in the streams and rivers which
arise, border, traverse, or underlie their lands and which were
retained by them when their reservations were established.
These rights are to be treated as private in character and
not as federally reserved rights to the use of water owned
by the public as a whole.

These IMiMEMORIAL RIGHTS are protected by the United
States Constitution. The Supremacy Clause proclaims, "The
Cotistitution and the laws of the United States which shall
''G made in pursuance thereof; and all TREATIES made, or which
^hall be made, under authority of the United States, shall
-° the supreme law of tlie land." The COMi'iERCE CLAUSE provides

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112

that the Congress has the authority "to regulate Commerce with
Foreign Nations, and among the several states, and with the
Indian Tribes."

Historically, non-Indian users of water have made investments
utilizing water in complete disregard to the prior and paramount
rights of the Indian tribes. Many examples prove that local
and state interests have encouraged the development of water
resources even though the supply was subject to Indian rights,
chcJosing to ignore those superior rights in hopes that Congress,
at some future date, would "buy out" the Indians as has been
somewhat of an unofficial policy in the constant erosion of
Indian property, land, minerals, and water. The Indian tribes

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113

cannot afford to be "put off", "bought off" or "turned off"
any longer in dealings pertaining to their valuable resources.

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114

II. PRINCIPLES FOR PLANNING THE DEVELOPMENT OF INDIAN WATER,
LAND AND MINERAL RESOURCES

There is no question regarding the need for thorough
evaluation of the extent in value (including social and cultural
values) of Indian natural resources on the Northern Great Plains
and areas draining the lands and reservations of each of the
twenty-six Indian tribes concerned. At stake is the future
economic development and well-being of Native Americans residing
on Indian reservations in Montana, Wyoming, North Dakota, South
Dakota, and Nebraska. Adequate methods for evaluating the feasibility,
economics, or desirability of the development of Indian water,
land, and mineral resources have been sorely lacking for several
decades.

on uctoDer ju, iy/j, new "Principies and Standards tor

Planning Water and Related Land Resources" were promulgated

1/
as federal law by the U.S. Water Resources Council which clearly

require of the trustee a rigorous analysis of natural development

programs including equal detail for all resource development

alternatives. The principles were established for planning

the use of water and land resources of the United States, including

Indian reservations, to achieve objectives determined cooperatively

through the coordinated actions of federal, state, and local

governments, (including Indian tribes and individuals) private

Enterprise, organizations, and individuals.

1/
Published in the Federal Register, September 10, 1973,
Volume 38, No. 174, Part III; Enacted October 30, 1973

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115

They provide the basis for federal participation; including
federal cooperation with Indian tribes, with river basin commissions,
states, and others in the preparation, formulation, evaluation,
review, revision, and transmittal to the Congress for natural
resource development plans and programs. The plans and programs
include those affecting states, regions, Indian tribes, and
river basins for planning of federal and federally assisted
water and related land resource programs and projects and certain
federal licensing activities.

a. To enhance national economic development bv
increasing the value of the nation's output
of goods and services and improving national
economic efficiency.

b. To enhance the quality of the environment

by the management, conservation, preservation,
creation, restoration or improvement of the
quality of certain natural and cultural re-
sourpes and ecological systems.

The principles and standards establish a system of accounts

v;hich will display both beneficial and adverse effects of each

natural resource plan and each alternative to that plan and

will compare the benefits between regional development, social

well-being, and environmental effects. The display of beneficial

fand adverse effects will be prepared and presented in such

a manner that different levels of achievement and/or development

in each account can be readily discerned and compared by the

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public and all interested parties clearly indicating the trade-
offs among alternative plans.

For purposes of accounting a clear conveyance of information
to the public, the distribution of beneficial and adverse effects
will be shown to whomever they accrue (specifically to the
recipient of the project benefits) . This will include display
of the distribution of both beneficial and adverse effects to
regions, income classes, and interest groups relevant to the
particular plans and will reflect not only economic costs but
social, cultural and environmental effects as well. The system,
of accounts will also display the beneficial and adverse effects
of a particular project in relation to the rest of the nation.

The VJater Resources Council will establish procedures
for relating regional accounts to the rest of the nation.
These procedures, however, have not yet been developed, but
are presently being drafted. The use of such reporting regions
will not, hov;ever, rule out the use of other regions whose
delineations are important (especially Indian reservations)
in measuring beneficial or adverse effects on regional developments.

This is an extremely important aspect of the principles
and standards as they affect Indian natural resource development
projects. That is, the principles and standards can be used
on a regional basis with the Indian reservation being a designated
region, rather than an entire river basin, state or other large
geographic entity that vrould dilute the actual benefits or
the adverse effects on Indian people on a given reservation.

The evaluation, systematic display, and comparison of

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The effect of the principles and standards for planning
for Indian water and land resources is that they must be used
by river basin commissions, federal-state organizations, and
each of the federal departments and agencies. In addition,
the Office of Management and Budget, the Council on Environmental
Quality, and other organizations in the executive office of
the President must use these principles and standards in their
review of proposed project, basin, or regional plans, including
those affecting Indian natural resources whether on or off
the reservation. It is interesting to note tiiat the Chairman
of the United States Water Resources Council is the Secretary
of the Interior — the trustee of Indian people.

The foregoing principles, standards, and procedures
must be used with diligence and caution by IHiJian leadership.

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There is little question that they provide a powerful tool
or weapon with which Indian tribes can demand of the trustee
rigorous forthright analysis of any project. However, as with
any tool or weapon, it can be rustled from the user and used
against him. In other words, the principles have the potential
of being a two-edged sword: for requiring methods for detailed
analysis of projects which are beyond financial ability of
the tribes to accomplish. Therefore, we require that the cost
of project analysis be paid in full by the trustee.

The need for the foregoing principles and standards
especially for evaluation of natural resource development programs
in Indian country was clearly stated in the recently released
National Academy of Sciences/National Academy of Engineering
"Report to the Energy Policy Comraittee of the Ford Foundation",
regarding land use, surface ownership, and mineral ownership:

Land Use, Surface Ownership, and Mineral Ovmership

"The questions of land, surface and mineral
ownership in the coal areas are complex
e and in many cases still unresolved. The

federal government controls much of the
surface and even larger fraction of the minerals.
Indian nations also claim ov;nership of large
areas, sometimes in conflict with other
private clajmr-^nts anil the federal qovornment..

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119

In addition, the individual states hold
significant tracts, as do the railroad companies.
The ownership pattern varies, but the checkerboard
is common over much of the area. No reliable
statistics have been compiled for either
surface or mineral ownership .... Although
leasing of federally owned coal deposits
has been suspended since 1970, leasing of
coal lands and other ownerships has continued.
In Montana alone, more than 600,000 acres
are currently held in coal leases, although
only a fraction of those are suitable for
strippable deposits."

Filling the foregoing lack of information identified
by the NAS and HAE Report is the focal point and objective
of the Northern Great Plains Resources Program. The NGPRP
study covers the five states of Montana, Wyoming, North and
South Dakota, and Nebraska, and is being coordinated by the
United States Department of Interior.

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120

III. ISSUES TO BE ADDRESSED BY THE TRIBES OF THE NORTUER:i
GREAT PLAINS PRIOR TO DETER14INIIMG THE EXTENT OF
DEVELOPMENT OF THEIR KiATERIAL RESOURCES

The vast natural resources located on or near Indian
reservations in the Northern Great Plains offer a potential
for significant economic development. Development v/ill also
present some major problems for the Indian people in the area.
In order to make intelligent choices as to the nature and extent
to which the development of their natural resources, including
coal, water and air should take place, the tribes must have
before them complete information on the nature and value of
their coal, water and land resources, together v;ith the political,
cultural, economic and environmental effects development will
jjiiiiy. xiiia data must ue made available before ucvciopiiiem:
takes place, so that effective planning is possible. In the
following sections, it is demonstrated, using the little data
which is available, the enormous size of the resources and
the potential problems which accompany the use of these resources.
It is emphasized that huge information gaps remain; it is the
duty of the federal government in carrying out its trust responsi-
bility to the Indian people residing on the reservations to
gather this data and supply it to the Indian people who will
be affected.

The National Water Commission, in its final report to

the President, recommended:

At the request of any Indian Tribe, the Secretary
of the Interior or such other Federal officer
as the Congress may designate siioule ceneuct

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studies in cooperation with the Indian Tribes
of the water resources, the other natural
resources, and tlie human resources available
to its reservation. An object of the studies
should be to define and quantify Indian water
rights in order to develop a general plan
for the use of these rights in conjunction
with other tribal resources .... Congress
should appropriate funds to support the
studies .... (Recommendation 14-1.)

This recommendation should be carried out immediately with

respect to the twenty-six Indian tribes in the Northern Great

Plains.

In considering the development issue, the following

questions need to be answered:

A. How much Indian land will be affected by coal development

operations? Figure 1.1 is a map showing the location of strippable

rjOt"^ T t-pc^ 1-Trc^ c T r> -t-iio ^'^'~'"t^" err. Cir^zt I*Z-Z.ii".z — — -—..—— tu tliw

areas of strippable coal reserves on Indian reservations in

the five states comprising the Northern Great Plains. Table

1.1 shows that a large proportion of the five Northern Great

Plains states is underlain by coal deposits. It can be seen

2/
that substantial portions of nine Indian reservatior.s witliin

those states have significant coal resources. Indeed, three

of the reservations are entirely underlain by coal-beariny

rock. Thus, if coal reserves on these reservatior.s v;erc developed

to the fullest extent possible, the land base of thoje tribos

Cheyenne River, Standing Rock, Blackfeet, V.-^'^V b-.ys,
Fort Peck, Fort Berthold, Wind River, Northern C;;v j i;;-.;...-,
c^TT^ Cr'~*w .

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122

could be seriously eroded, or even destroyed. As we note in
Table 1.1 the data on coal under Indian lands is very incomplete
and the estimates offered are highly speculative.

B. Hov; much Indian coal can be recovered economically?
The Bureau of Mines has estimated that the nine reservations
contain 36 billion tons of coal. However, this figure is nialcading.
Much of the total coal reserve cannot be recovered by any of
the mining techniques known today. Another type of figure
frequently cited to show coal reserves, the recoverable recurve,
is also irrelevant in the Northern Great Plains. This figure
includes all coal that can be recovered by present tcch:'.ology
through underground or surface mining. However, in tt-.c Wor'.hcrn
Great Plains, where there are huge reserves of strippaole coal

that coal recoverable only by underground mining will be exploited
in the near future.

Furthermore, the great extent of coal reserves now classified
as mineable by underground methods may, in the future, bcco.T^c
strippable through technological, economic, and/or legislation
pending in Congress.

The key figure, then, is the strippable reserve. Although
approximate figures are available on a state-v;idc basis, the
strippable reserves for the nine coal-rich Northern Great Plains
' reservations are unknown.

Once again, crucial data necessary for intelligent decision
making is unavailable to the Indians. We do know that v;c are
•-'•ikiiuj ajjout huge amouuLs of sl.x ippaul e i^oal. roi i-xoihule,

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123

the mid-April 1973 edition of Coal Age {page 117) reports that
there are eight billion tons of strippable coal on the Crow
and Northern Cheyenne Reservations. (The fact that this inforna-
tion must be obtained from a trade publication graphically
illustrates the government's failure to provide meaningful
information and guidance to the Indians of the Northern Great
Plains. )

course, the tribes are unable to seek an adjustment of the
royalty to reflect favorable data, since the royalty and bonus
payments have been irrevocably fixed under the terms of the
contract. Needed immediately are new procedures for exploration,
production, and development leases on Indian lands.

A third variable in the value of the coal resource is
the cost associated with production. One of the most important
variables in production cost is the stripping ratio; the thickness
of the overburden covering the coal compared to the thickness
fof the coal seam. The lower the stripping ratio; the less
it costs to mine. Stripping ratios of 16:1 and higher are
commonly encountered at eastern and mid-western strip mines,
\'«iilc stripping rcitioo of up Lo 12 to 1 a^t; cormiiou in iufiny

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V
of the western states (see Table 3.3 of the H.A.S. Report)

It appears that the stripping ratio for Indian coal in the
Northern Great Plains is more favorable than average. For
example, the stripping ratio for one tract of coal land owned
by the Crov; Tribe in the ceded portion of their reservation
averages between 3.5 and 4:1.

C. How much water will be needed to mine and convert
these coal resources? Table 4.1, attached, of the N.A.S. Report,
shows the gross amount of water available in several key streams
in +-Vi<^ ''■'cr -her:. Ci"::,_'_ ri^i;-.^. (Thio L^Lnl its oubjtiuL Lu deple-cion
for irrigation, industrial and municipal uses, as well as evapora-
tion.) These depletions may substantially reduce the amount
of water actually available — estimates are that only 241,000
acre-feet are available from the Tongue River and 287,300 acre-
feet from the Powder River. (See N.A.S. Report 59.)

National Academy of Sciences, "Rehabilitation Potential of
Western Coal Lands," a report to the Energy Policy Project of
the Ford Foun^ialion (Nn<-hi -igtoi , D.C., 1573).

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125

state appropriation, appropriation applications and applications
and requests with the Bureau of Reclamation in the following
amounts :

Total- Appropriations,
River Options, and Requests

Powder 336,375

Tongue 225,175

Bighorn 2,193,000

Yellowstone 824,250

TOTAL 3,588,800

The above total is three times the highest quantity of water
required in the NGPRP forecast for the entire region.

In the follov;ing paragraphs, we discuss water usage
associated with various facets of the coal mining, processing,
and conversion that may well take place in the Northern Great
Plains.

1. Mining.

According to the N.A.S. Report (page 63), actual
mining operations require very little water, most
of which can be obtained readily from shallow wells.
Nonetheless, the drilling of such wells could lower
the water table in local areas .

2. Surface Mine Rehabilitation.

The N.A.S. Report (pp. 6465) indicates that supplemental
irrigation is essential in most areas, if revegetation
is to succeed. The report states that from .50
to .75 acre-feet per acre will be required for this
purpose annually. However, every rehabilitation

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78-186 O - 77 - 9

126

study to date concludes that rehabilitation plans
on the Northern Great Plains, which are dependent
on supplemental irrigation, are both ecologically
and economically unsound. In other words, there
is a real question of whether these areas should
be disturbed at all, since there is no guarantee
that these lands can ever be reliabilitated,
3. Coal Conversion.

The N.A.S. Report (page 160) indicates that one 1,000
megav/att electric generating station, using an evaporative
tower for cooling and operating at full capacity
requires 20,000 acre-feet of cooling water annually.
For a similar plant using a cooling pond, instead,
the requirement drops to 12,000 acre feet per year;
and to only 2,000 acre-feet per year if a dry cooling
tov/er is used. None of the utilities in the i;orthern
Great Plains are planning to use this more expensive
cooling method, despite the huge v/ater saviny that
could be achieved. Since the North Central Power
Study indicates that up to 50,000 r.vjgawatt:: of electric
generating capacity could ultimately bo co;.:;-ructi.;u
in the Northern Great Plains, cooling water rc'iuirenents
could conceivably rise as high as one .•".i 1 1 ion acre-
feet. (The North Central Power Stuuy (Vol . 1, p.
16) contains a somewhat smaller csti; .«t<-: -- -^.^.OOO
acre-feet per year.)

A plant producing 250 million C'Ji^ic f.--t o

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127

D. How will land resources be affected? The coal mining
and conversion process uses up another valuable Indian resource --
land. In many areas, v;here rainfall is very sparse, or reclamation
efforts are minimal, strip-mined lands may be irretrievably
Ic'ci— for other u^cc^ cuCii ac* C|"i.'a/ij.i*g/ /.i-'woj-u^ , tio*^. ^jw^i* j.^
reclamation is successful, much of the land to be strip-mined
and all land needed for conversion facilities, transmission
lines, roadways, and other rights-of-way, will be lost for
the life of the mining/conversion operation — often more than
a quarter of a century. The areas subject to potential damage
from strip mining are significant. According to the N.A.S.
Report (Table 3.5) between 1965 and 1972, Montana coal mining
operations disturbed 46 acres per million tons of coal mined.
At that rate, mining the 8 billion tons of strippable coal

on the Crow and Northern Cheyenne Reservations would consume

368,000 acres, 18% of the total area of the two reservations.

E. What v/ill be the major environmental effects?

1. The major c.;-viroi..acr. t^^l i.apacLt. of strip lidniiK^

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128

and coal conversion include:

a.) Pollution of ground and surface waters.
b.) Deposition of salts and toxic minerals, which
render large areas permanently infertile.
c.) Disruption of aquifers and aquifer recharge
areas, this may result in dry wells, lowered
water tables, increased erosion, and flood damage.
d.) Air pollution associated with the dust from
mining. If a conversion process, such as gasification
or electric power production is involved, there
will be air pollution from particulate matter,
sulfur oxides, nitrogen oxides, radioactivity,
and trace metals. In addition, there v/ill be
large amounts of sulfate sludge and flyash produced
by air pollution abatement devices that must
be disposed of.

e.) Associated with strip mines and coal conversions
are a network of roads, pov;er transmissions lines,
slurry pipelines, and railroaus, which cause
pollution from dust and erosion, as v;ell as
visual pollution.
If there is to be any hope of adequate reclamation
of strip mined areas, the planning process must
begin v/ell before actual mining. Data that must
be gathered includes:

a.) Climatological and meteorological data,
b.) Indigenous plants and animals.

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129

c.) Thorough analysis of the physical and chemical

components of soil overburden.

d.) Description of groundwater supplies, flows

and uses.

e.) The location and nature of unusual scenic,

historical, archeological , and cultural values

in the area to be mined.
2. Competent experts v/ill be needed to interpret
this data, to help formulate a mining and reclamation
plan, and to make sure the plan is enforced. These
experts must be capable of explaining the data and
resulting options in non-technical terms so that
tribal menibers can understand all alternatives before
making decisions.

P. What V'jill be the social and cultural effects?
Mining operations will bring a large influx of outside
workers, technicians, and managers onto the reservations. If
coal conversion facilities are located near the mine sites,
the number of outsiders will be far larger. (It should be remembered
that Consolidation Coal Company indicated to the Northern Cheyennes
that their proposed gasification complex would require 30,000
workers.) Presumably, these people will have to live on or
near the reservations; the cultural and social changes associated
t with their arrival will be severe. These new people will need:

1. Housing, as well as recreational, shopping, religious,
and other facilities. Tribal councils will have
l,(j iikiKe uiiLicui-L uecisioiis iu Ln^^ lielci oj. mi-Uui
planning.

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130

2. Water supply and sewage treatment. Where will
the funds for these facilities come from?

3. Police, fire, and hospital protection.

4. Roads and other public facilities.

5. Educational facilities.

Local Indian ways and customs may well be trampled by
the numerical superiority of outsiders and significant stresses
on the tribal government structure can be expected.

G. t'fhat should be the timing, extent and institutional
methods used to develop Indian coal resources? Coal development
on Indian reservations may be carried on in varying degrees
of intensity. Some of these options include:

1. Small-scale coal mining, to be spread out over
a large number of years.

2. Very intensive, large-scale mining, leading to
the quickest possible depletion of resources.

3. Large-scale mining with the coal to be converted
to electricity on or near the reservation.

4. Large-scale mining with gasification complex
on or near the reservation.

As the intensity of development increases, so do all
the problems mentioned previously. The decision about the
degree and timing of industrialization rests with the tribes,
f who must have access to the aforementioned data.

Various institutional arrangements, such as partnerships,
joint ventures and wholly owned Indian operations arc available
as alternatives to the standard leasing policy. Tliosc otlicr

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131

business forms offer closer tribal control over mining operations,
a chance to participate in the profits and thus avoid the effects
of inflation, and some tax advantages. The tribes should be
given competent advice by experts in financial and tax planning.

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132

IV. CONCLUSIONS AND RECOrMENDATIONS

The Indian tribes in tlie Northern Great Plains are the
owners of a substantial number of natural resources. In addition,
these resources exist in such large quantities so as to require
their orderly and planned development to assure that the tribes
and their members will continue to live in an environment which
they determine to be most desirable.

Many of the tribes in the Northern Great Plains region
are being asked to make major development decisions with respect
to their resources without the aid of sufficient scientific
data v/hich is so necessary within the decision making process
in order that all of the viable alternatives to the proposed
development can be considered.

Moreover, the prior and paramount tribal rights to the
use of v/ater which arise upon, traverse or border upon their
reservations are being encroached upon by the states, the federal
government, and their users; that these prior and paramount
rights to the use of water must be protected v;ith skill and
diligence by an aggressive effort to protect, preserve, conserve,
and develop these rights to their fullest extent.

In light of the aforementioned conclusions, the Indian
tribes in the Northern Great Plains make tlie following reconunandations :

Recommendation No. 1

That the twenty-six tribes in the Northern Great Plains establish

a Federation for the purpose of:

Formulating programs that will describe and quantify
the Northern Great Plains Indians' natural resources

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133

and cultural resources.

Develop prograins that will obtain sufficient
scientific data necessary to make informed decisions
relative to the development of Indian resources,
and an understanding of the impact of such development
on other resource and cultural valMes.

Provide, at the request of individual tribes,
assistance in developing management alternatives
for their resources.

Recomjiiendation No.

That the Congress of the United States recognize,
authorize and appropriate monies for the Federation.
And that said authorized monies be appropriated
in the araount of $750,000 for the first year's
operating budget v/ith authorization for the
Federation to return to request monies for operation
in subsequent vears. These monies v;ould be
utilizeo. by the Federation to fulfill the goals
in Recommendation No. 1 to obtain the necessary
resource people to study and evaluate the tribes'
natural resources and to develop a plan for
the development of said resources.

Recommendation No.

That Indian v;ater, air, coal and land resources
should be fully recognized, protected, and that
Indian resource development projects should be
initiated, authorized, ana funds appropriated
at the request of the Indian tribes, by the
Congress so that the Indian resources may be
put to beneficial use for tlie tribes who may
tlicn receive the full ccoriomic benefit of tlveir
valuable riglits.

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134

In closing, then, the Indian tribes of the Northern

Great Plains are faced with the sar.ie problems today that the

Indians were facing one hundred years ago. Sitting Bull, in

a speech he gave in 1875 (one year before the Battle of Little

Bighorn), spoke to these very problems when he stated:

VJe will yield to our neighbors — even our animal
neighbors--the same right as we claim to inhabit
the land. But we now have to deal with another
breed of people. They were few and weak when
our forefathers first met them and nov; they are
many and greedy. They clioose to till the soil.
Love of possessions is a disease with them.
They v;ould make rules to suit themselves. They
have a religion which they follov; when it suits
them. They claim this Mother Earth of ours for
their ov.m and fence their neighbors away from
them. They degrade the landscape with their buildings
and their waste. They compel the natural earth
to produce excessively and v/hen it fails, they
force it to take medicine to produce more. This
is an evil.

This new population is like a river overflowing
its banks and destroying all in its path. We
cannot live the way these people live and we
cannot live beside them. They have little respect
for Nature and they offend our ideals. Just
seven years ago we signed a treaty by v;hich the
buffalo country was to be ours and unspoiled
forever. Now they vjant it. They v/ant the gold
in it. Will we yield? They will kill me before
I will give up the land that is my land.

The Indian tribes of the Northern Great Plains and their

leaders of today will not yield. They will fight to protect,

preserve and conserve the resources which their forefathers

gave their lives to retain.

■34-

135

1 Tribes

orders (Ks t.ibi j sh in
Present Rcserv.)

J Major Ttcvities Ei.iocl..ing

Northern Great Plaint, Tribes

Treaty 10/17/1855
11 Stat. 657

Ft.
Laramie

1851
11 Stat.

749

Ft.
Laramie

868
15 Stat.

649

Ft.
Bridgen
1868
15 Stat.
673

Divisjon oJ.

Great Sioux

Reservation

1889

25 Stat. 888

Blackf cct

[Crow

Treaty 1851
11 Stat. 749

See
1) Below

jAssiniboine

Ft. Peck

1873 Exec. Order

Gros Ventre

Ft. Belknap
1888 Exec. Order

JFlathcad 1

reaty July 16, 1855
12 Stat. 975

Chippewa-Cree
1

Cong. Act 1916
39 Stat. 739

INo. Cheyenne

Exec. Order
11/26/1884

See
(2) Below

.Omaha

Treaty 1854
10 Stat. 1043

Winnebago

Cong. Act 1865
14 Stat. G71

i Santee Sioux

Exec. Order
6/20/1866

- . Mandan

1 '

Ft. Berthold

4 Ilidatsa (

Exec. Order

rm Arikara (

4/12/1870

. Devils La);e
Sioux

Treaty 1867
15 Stat. 505

J Turtle Hountair
"^ Chippewa

Exec. Order
12/21/1882

■ Cheyenne River
j Sioux

Cong. Act 1889
25 Stat. 888

I Crow Creek
Sioux

Treaty 1868
15 Stat. 649

Sei
3) Beiov;

;| Flandreau
i| Santee Sioux

Cong. Act
1935

Oglala Sioux
'1 —

Cong. Act 18 89
25 Stat. 888

..\ Rosebud
^^ioux

Cong. Act 1889
25 Stat. 888

rijicihpoton Sioux

Treaty 1867
15 Stat. 505

(4) See
Below

(5) See
BeJov.'

■standing Rock
-^ Sioux

Cong. Act 1889
25 Stat. 888

'1 'ankton
^ -Jj oux ,

Treaty 1858
11 Stat. 74 3

-ower brule
■•1 . Sioux

Treaty 1965
14 Stat. 699

■'-t --lO.'Jlione

Treaty 1868
15 Stat. 673

,ja '-'Jpuhoe

■4

i'emporariJ.y Placed
Upon Sl'iOSiiorio
Keserv. 1878
(7) See P.clov;

(6) See

BcJov/

"a — "

- I

136

TABLE 1.1

SIZE AND PEf<CEN'TAGE OF COAL .BEAR 1 iNG AREAS IN
NORTHERN GREAT PLAINS STATES AND INDIAN RESERVATIONS

Total Ai-ea of Area Underlain by Coal-bearing
State States in Sg. Mi. Rockr- Square Mi les Percent

Montana 1^7,138

North Dal'.ota 70,665

South Dakota 77,0'i7

Wyoming 97,91'i

Total

392, 76^1

51,300

32,000

7,700

AO,055

131,055

■"™"

Tot

a1 Area

Indian Reservation

Area

Underlain by

Coa 1-bcar ing Rock

r> . . ■ : ? .

I\CD t- 1 V (4 ). t ^Vl 1 III

n .. nr

n ^

.--' "' '--■'■

P o r r r» r» ♦" ■'•

Cheyenne River

2,210

iikZ

20 -

Standing Rock

1,321

403

Blackfect

1,^72

1.030

Rocky Boy

170

153

Fort Peck

1,506

1.506

100

Fort Berthold

706

100

Wind River

2,932

1,173

Northern Cheyenne

679

100

Crow

2, '(31

1,458

•• 60

"Areas and percentages are estimated based on best available data
including N.A.S. Report and Wcstv/ide Study.

137

(0 H UJ J-

-i IM III- 'b £:

;;^ OMO I- f T- < C"'

C)ti)iiiajC)_j ,'
O d: p- ijj 'Z. o_ c./ •

S :;i !'

CJ „.i CO ^-

78-186 O - 77 - 10

138

TABLE 3.3

Sulfur Content of
Estimated Strippablc Reserves'

(Mi 1 1 ions of sho

tons)^'

Stripping '
ratio

Stri

pp.-

ble Re''

erves

State

<1«
387

1-2-iS
0

>2<;s
0

Total

Arizona

8:1

387

Colorado

A:I

to 10:1

kl(>

2k ■

500

Montana

2:1

to 18:1

3,176

Ilk

3,A00

New Mexico

8:1

to 12:1

2MU

2,^.7'^

N. Dakota

3:1

to 12:1

1,678

397

2.075

S. Dakota

12:1

160

Utah

3:1

to 8:1

136

150

Washington

10:1

135

Wyoming

1.5:1

to 10:1

13,377

52s

13,971

TOTALS

21,863

8'i6

537

23,252

Source: a. U.S. Bureau of Mines information Circular 8531.

b. 1 short ton = O.9I metric tons

c. Stripping ratio = thickness of overburden/thickness of
coal seam.

d. Stripping ratio is also defined by some mining engineers
as cubic yards of overburden per ton of coal. Sec, e.g.,
Surface Mining by E. P. Pflcider, American Institute of
Mining, Metallurgical, and Petroleum Engineers, New York,
1968.

139

TABLE h.O

STRCAMfLOW FOR KLY GAGING STATIONS, MISSOURI BASIN
Gaqinn Station

Years
of Record

Powder R. at Arvada, V/yo. '(0

Powder R. at Moorhead, Mt. 'il

Tongue R. near Decker, Ht. 11

Tongue R. at Miles City, Mt. 28

Bighorn R. at Bighorn, Mt. 26

Yel lows tone R. at MI les

City, Mt. A'l

Average Annual

Disci !_;'J_'!_2

(^c'lt)"-

196,000
327,000
358,000
302,000
2,760,000

8,150,000

" 1 ac ft = 0.125 hectare-m

141

Environmental Policy Institute

200 Tliiid Street, S.E. Wdsliiiij;lon, D.C. 20003

202/544-8200

ATTACHMENT 2 '

WATER FOR INDUSTRY IN THE
UPPER MISSOURI RIVER BASIN

A REPORT PREPARED FOR THE ENVIR0N^5ENTAL
POLICY INSTITUTE ENERGY INFQRI-IATION PROJECT
BY BOB ALVAREZ 3 April 1976

142

TABLE OF CONTENTS

INTRODUCTION ONE

WATER SITUATION TWO

DEVELOPMENT IN MONTANA THREE

DEVELOPMENT IN WYOMING FOUR

DEVELOPMENT IN SOUTH DAKOTA SEVEN

DEVELOPMENT IN NORTH DAKOTA EIGHT

DEVELOPMENT IN NEBRASKA TEN

INDIAN WATER RIGHTS ELEVEN

LEGAL ISSUES THIRTEEN

FEDERAL LAW SEVENTEEN

RECENT FEDERAL ACTIONS EIGHTEEN

WATER DIVERSION SCHEMES TWENTY

UPPER MISSOURI BASIN MAP TWENTY- THREE

END NOTES TWENTY-FOUR.

SUPPLEMENTARY REFERENCES TWENTY-EIGHT

143

INTRODUCTION

This paper presents a general picture of the industrial
development plans being advanced by the Federal government, and
private industry; and their relation to the use of Upper Mis-
souri water. The mineral resources work group of the Northern
Great Plains Resource Program (Department of Interior and State
Planning Agencies) predicts that coal production in the Upper
Missouri Basin will increase rapidly from less than 20 million
tons in 1972 to nearly 90 million tons by 1980. i/ Although coal
presently being mined in this region is being shipped to eastern
and mid-western markets, future plans call for large increases
in mine-mouth generation of power as well as coal liquif ication
and gasification. What is not mentioned is that oil shale de-
velopment, iron ore extraction, steel production, uranium mining
and milling, not to mention nuclear power plants, and industrial
"parks" producing nitrogen fertilizer, methanol and synthetic
diesel fuel are also part of the picture. In part, these pro-
jects represent a major industrial reorganization of the United
States based on western resources. The Upper Missouri Basin
region sits atop the largest chunk.

These dramatic increases in raw material production
will depend on their rate of conversion into electricity, fuel,
and fabricated metal. In turn, their conversion rate will ul-
timately depend on water availability. For example, the type
of gasification plant being proposed by Panhandle Eastern near
Douglas, Wyoming will require about 7.5 million tons of coal per
year and will gulp 2.8 million gallons of non-recoverable water,
and 21 million gallons of reusable water for its cooling system
yearly.-^ In the Black Hills of South Dakota, Pittsburgh Pa-
cific, a subsidiary of Inland Steel, proposes to stripmine one
million tons of taconite iron ore and convert it to iron ore or
steel in Rapid City. This project is expected to gulp around
20,000 acrefeet of water from the Madison ground water formation
if mainstem Missouri water isn' t diverted to augment the scarce
water supply in that area. Water is basic to every natural and
man-made raw material conversion process into energy. The impact
of industrial water use in the Upper Missouri River Basin, upon
the established agriculture economy of this region is jist begin-
ning to be discussed by the Federal government. This paper is
a start towards such an analysis.

144

Page Two

WATER SITUATION

Water is a scarce commodity in the Northern Great Plains
despite the massive dams all along the Upper Missouri and its tribu-
taries. The average rainfall in the NGP is between 10-14 inches
yearly. Cyclical droughts lower river flows on the average of
once every ten years and possibly as often as one year in four in
the Yellowstone sub-basin of the Upper Missouri. In order to
meet energy requirements in the next 30 years, the Bureau of Rec-
lamation states in their Montana/Wyoming Aqueduct study that 2.6
million acrefeet will be needed annually.—' This amount will lower
the Yellowstone River, a major tributary of the Upper Missouri,
by one third. Energy companies have already applied for 3.3
million acrefeet.— If past practices are followed, this water
will be totally consumed in order to protect the watershed from
pollution.

The Bureau of Reclamation divides water up in the follow-
ing manner. The average yearly flow of the Yellowstone is 9.4
million acrefeet; irrigation requires 2.4 million acrefeet; en-
ergy development 2.6 million acrefeet. This leaves a healthy
surplus on paper. But the Yellowstone, like so many western
rivers, does not flow according to statistical averages. During
the drought in the sixties, it averaged 4.4 million acrefeet.
During a low flow period the Yellowstone River can carry as little
as 3.7 million acrefeet. £./ For a good share of at least one
year out of ten (possibly as often as one year in four) , the river
flow is so low that even a careful timing of projected withdrawals
will exceed its volume. "Diversions of this scale," the Northern
Plains Resource Council argues, "would critically threaten the
efficiencies of present pumping and diversion facilities and would
eliminate any further development of irrigatable lands."

Since the Yellowstone may not be able to slake -the thirst
of coal development, the waters from the mainstem Missouri are
to augment the water supply in the Yellowstone. The Department
of Interior and the Corps of Engineers say that 3 to 5 million
acrefeet of water can be withdrawn from the mainstem without any
problem.—' The present average annual flow of the Missouri River
at the Oahe Reservoir six miles above Pierre, S.D. is 18,525,000
acrefeet. Z' Since Oahe is the last suggested diversion point,
that figure can be considered the total amount of water for all
present and potential uses.

145

Page Three

WATER SITUATION (Continued)

Every major industrial project will require massive
quantities of water. Commitments to energy-related industry
in the North Central Plains could seriously over-allocate the
Yellowstone River and its tributaries. If water is marketed
■on purely competitive terms, as appears to be the case, energy
companies will outbid existing and potential irrigators and pre-
clude agricultural expansion in the Yellowstone Basin and the
mainstem Missouri. This would mean a complete change in the
social, cultural, and economic bases in Montana, South Dakota,
Wyoming, and Nebraska.

Principal environmental and economic problems include
dewatering of stream courses, increasing the cost of water be-
yond an irrigator's financial capabilities, disruption of aqui-
fers, thermal pollution, destruction of fish and wildlife, dis-
ruption of productive farm and range land and air quality de-
gradation. This large scale transfer of water use will serious-
ly alter the established agricultural economy of a region which
supplies the U.S. and the world with small grains and livestock.

DEVELOPMENT IN MONTANA

Four new electric generating facilities, two under
construction and two under review, are expected to provide 2,100
megawatts of electricity from the Colstrip area of northeastern
Montana^/ All four plants are to be coal fired with evaporative
coolinq units which will consume about 38,400 acrefeet of water
annually. Burlington Northern Railroad (BN) is proposing to
construct and operate a diversion of 67,000 acrefeet of water for

use in a synthetic fertilizer, methanol, and synthetic ^iesel fa-
cility near Circle, Montana, using coal from a BN mine.-^ Mon-
tana was issued 46,000 acrefeet in state permits forj^jj-ndustry and
1,250,000 acrefeet have been applied for as of 1974. — An acrefoot
is the amount of water which would cover an acre of land of water
one foot deep. State officials estimate there are 42 billion
tons of coal available for strip mining.ii/ Montana is extremely
concerned with the potential levels of development for energy and
the impacts associated with energy conversion and mining opera-
tions. Therefore, the state has put a tight clamp on the expor-
tation of its water by challenging federal water marketing in the
courts. The state wants to void 658,000 acrefeet of contracts
from the federal government to the energy companies. The Mon-
tana Moratorium Act of 1974 has eased the time of decision for
developments within that state. It allows the Department of Nat-
ural Resources and conservation to delay action on any water rights
■applications over 14,000 acrefeet within the Yellowstone Basin for
three years, unless the water is for an energy conversion facility
approved under the state Utility Siting Act.

78-186 O - 77 - 11

146

Page Four

DEVELOPMENT IN MONTANA (Continued)

Montana has also passed The Renewable Resource Develop-
ment Act which is designed to increase agricultural water use
through low interest loans to farmers and ranchers for irrigation.
In the 1975 session the Montana State legislature passed a bill
placing the burden of proof on any applicant who seeks a permit
over 15 cubic feet per second to show that prior rights will not
be adversely impacted. Montana's official position is that coal
be exported to other parts of the country for conversion purposes.

The Montana Department of Natural Resources finds that
an additional 1.6 million acrefeet will be consumed by 2000 to ir-
rigate an additional 600,000 acres J^^' Currently, the Yellowstone
Basin has a total of 630,000 acres under irrigation, 20,000 acres
have gone into irrigation in the past two years and 40,000 acres
are expected to go into irrigation in the next two Ai./ The Mon-
tana Fish and Wildlife Department has requested 7 million acrefeet
be reserved in the river for these purposes iz.' The state would
like to receive an option to market a block of water from the
Fort Peck Reservoir rather than negotiate every single application
with an arrangement allowing Montana up to five years to exercise
an option to sell any water from the block set aside, with no
payments required until the water is sold A-^'

DEVELOPMENT IN WYOMING

Wyoming state officials currently estimate that some-
thing on the order of five new major coal fired electrical gener-
ating plants, five coal gasification plants, three coal liqui-
faction plants, an oil shale conversion complex, and at least
three coal slurry pipelines will be in operation by the year 2000 .16/
So far six companies, Peabody, Amax, Arco, Carter, Sun Oil and
Kerr-McGee have executed contracts for water and are proposing
coal conversion f acilities.iZ'

Basin Electric is proposing and seeking permission from
Wyoming to construct a 1,500 megawatt coal powered plant at Lara-
mie Station. Water for this project will probably come from
the run off from the North Platte River of which Nebraska offi-
cials estimate runs about "three inches deep" on the average. !.§./ ^
compact between Nebraska and Wyoming exists over the North Platte
and if the water requirements for the Basin Electric project
threaten Nebraska water availability, there may be a substantial
fight over this. Related dev^elopments also include proposed
expansion of uranium mining and milling in Fremont county and
bauxite development in Albany and Carbon county.

147

Page Five

DEVELOPMENT IN WYOMING (Continued)

Since the most extensive development of coal will oc-
cur in Wyoming, water will have to be exported from other areas
to meet this projected development. As it stands, the entire
state coal reserves (1.8 million acres) have been leased out
to the energy companies .-•'■■3-/ These companies have also been
purchasing water from the Federal government, the state of Wyoming
and individual holders of water rights, as well as irrigatable
lands, not bearing coal. Texaco has acquired about 38,000
acres of land, 8,000 of which is irriaated: Carter Oil holds
9,000 acres of which 5,000 are irrigatable; and Mobil has 3,000
acres half of which are irrigatable. ?-'i./ In the Spring of j974
the State Legislature decided to put a lid on the water teing
sold to any enterprise in the state by enacting a Moratorium
Act similar to Montana's. However, as an amendment to the Act,
Energy Transportation Systems, Inc. was sold 20,000 acrefeet
of watet from the Madison ground formation, after a substantial
lobbying effort which convinced the legislature that they would
be using brackish water and that the withdrawal would not affect
the water table. However, it was later sho\im that ETSI is
indeed planning to take drinking water in Wyoming and South Da-
kota. It was also shown that a serious question of the with-
drawal at that point of the formation dropping the
water table exists. Mobil Oil has applications for 58 deep
water wells to tap the Madison Formation on the west side of
the Bighorn Mountains. Their annual withdrav;al of this water
would be over 390,000 acrefeet exceeding the recharge along the
Bighorn estimated at about 100,000 acrefeet. ^i/

The willingness of the past Wyoming administrations,
particularly under Stanley Hathaway, to give these companies
whatever they needed can best be described by three situations:

(a) A study of the Powder River, a tributary of the
Yellowstone, made by the Harza Engineering Co. for
the state estimated that about 102,900 acrefeet of
water would be available from that stream. As of
June of 1975, 853,365 acrefeet of industrial permits
had been issued amounting to about 750 percent over
appropriation of the Powder River.

The Tongue, also a tributary of the Yellowstone, ac-
cording to state records has 96,400 acrefeet available.
• As of June of 1974, 369,000 acrefeet had been issued
in industrial permits mainly to Pacific Power and
Light who holds 363,000 acrefeet ._. .This represents
a 400 percent over appropriation. — '

148

Page Six

DEVELOPMENT IN WYOMING (Continued)

(b) The Hathaway administration secured a low interest
loan from the State Farm Loap Board to construct

a 49,000 capacity reservoir. This project was
touted to be an example of industry/agriculture coop-
eration. Carter Oil (Exxon) would buy 25,000 acrefeet
a year, paying an amount equal to the principal and
interest due on the loan plus one half of the main-
tenance costs. However, based on the figures develop-
ed by Carter's own engineers, the amount of water
available to the ranchers would be only 9,500 acre-
feet and perhaps as little as 1,500 acrefeet annually
during low stream periods. Based on Powder River
Stream flow records for 1948-69 there would rarely
have been more than 32,000 acrefeet for storage. So
Carter Oil got a low interest loan from the State
Farm Board and a guaranteed 25,000 acrefeet, leaving
ranchers with what little is left over .z2y

(c) In 1962, Carter Oil, a perennial favorite of the
Hathaway administration, filed a water right applica
tion for 208,000 acrefeet from the Powder River. The
State Engineers office is required to issue a permit
unless there is sufficient un-appropriated water avail-
able. As the law stood until two years ago, con-
struction of a project had to begin within a year of
the granting of a permit and must be completed within
five years of that date. The intent of the statute

' was to discourage water rights speculation. Despite
the statute, the State Engineer, Floyd Bishop, allowed
Carter to hold this filing for more than 13 years
without making a start of construction. Although not
much importance is given to over allocation in western
water law until competing uses face each other in court,
if Carter were to exercise this right for 208,000
acrefeet, they could easily overcome the farmer and
rancher in court .Ji7

The present attitude of the State Government is to en-
courage additional reservoir construction by passing
in 1975 an authorized $22 million dollars in loans for
"multi-purpose" reservoirs. Although this is similar
to Montana's legislation offering loans for farmers
and ranchers, the multipurpose label attached to the
funding may be to assure adequate storage capacity for
the obvious over appropriation of the Powder River Ba-
sin by industrial users.

149

Page Seven

DEVELOPMENT IN t-JYOMING (Continued)

Overall water supplies in Wyomi
industrial development. Except for the
of Wyoming where the Green River (a trib
could be used for oil shale, areas with
relatively small water supplies. If wa
cannot be exported to the coal fields of
ment level of coal production in the Nor
be far below that expected bythe propone
dence."

ng are inadequate for
southwestern protion
utary of the Colorado)
large coal reserves have
ter from other basins

Wyoming, the develop-
th Central Plains may
nts of "Project Indepen-

DEVELOPMENT IN SOUTH DAKOTA

Although South Dakota does not contain large deposits
of coal, the Mainstem Missouri with its massive reservoirs, runs
through the state. The augmentation of the streams flowing
over the coal fields of Wyoming, will have to rely on diversion
from the Missouri in South Dakota. Also, taconite mining in
the Black Hills will require water either from the Madison ground
Formation or the Mainstem Missouri. And the water proposed
to be mined from the Madison formation for coal slurry in neigh-
boring Wyoming may affect the water supply of western South
Dakota.

Major energy developments being considered in South
Dakota include the following plants along the Missouri River:

(1) A Missouri River Power Plant for Hartland Elec-
tric Power District (200 megawatts) is expected to
be on line by 1979. It will use flow through water
from the Missouri River and coal probably from east-
ern Wyoming and southwestern North Dakota. £i/

(2) A low BTU coal gasification combined cycle power
plant proposed by Northern State Power is also being
considered. _/

(3) Missouri River Hydroelectric plants include Oahe
-595 megawatts. Big Bend-468 megawatts. Ft. Randall-
320 megawatts, and Gavins Point-100 megawatts. Also
the Corps of Engineers are studying proposals for 14
hydroelectric units at 4 dams in South Dakota.—'

150

Page Eight

DEVELOPMENT IN SOUTH DAKOTA (Continued)

According to the Project Independence Water for Energy
Blueprint, 1,400,000 acrefeet of Mainstem Missouri water will be
needed to augment the water supplies in the coal fields of south-
western North Dakota, northeastern Wyoming, and southeastern Mon-
tana. Gulf Minerals has an application in for 50,000 acrefeet,
and Energy Systems Transportation Inc. has an application in for
100,000 acrefeet from Qahe and 19,000 acrefeet from Shade Hill
Dam in South Dakota.—'^

Construction of coal conversion plants in Wyoming will
have a significant impact on the water rights in South Dakota.
Now that Mainstem Missouri water is earmarked by the Federal Gov-
ernment, transportation of water out of South Dakota will create
many problems since the state has no policy established for al-
lowing out-of-state transfers. Removal of significant quanti-
ties of water from the agricultural base could play havoc with
the state economy. It is expected that South Dakota will have
to float bonds to pay for some of the construction of pipeline
diversion facilities. If the return from the revenues expected
from the sale and transfer of the water from Oahe to Gillette do
not match the investment over the expected lifetime of the project
(30 years) then South Dakota will be introduced to very serious
economic risks. Although South Dakota has to develop a state
water plan as required by state law, the Missouri River is number
15 on the list and it is not expected to be completed for another
1 to 5 years. ri/The State Legislature in response to the ETSI
proposal in 1975 passed a law prohibiting any withdrawal firom any
river beyond 10,000 AF in South Dakota without approval of the
State Legislature.

Finally, the South Dakota School of Mines has indicated that
particulates from coal conversion could significantly reduce rain-
fall in the North Central plains because they would draw precipi-
tation and take them down wind to be deposited elsewhere in the
form of polluted rainfall . .i£/

DEVELOPMENT IN NORTH DAKOTA

The development scenarios in North Dakota vary from 42
gasification plants and 31,000 megawatts of electrical generation
to 14 gasification plants and 4,920 megawatts .■^■*- / So far, Michi-
gan/Wisconsin Pipeline, a subsidiary of American Natural Gas Co.,
proposes to construct a coal gasification plant in Mercer County
and has received permission from the Federal government for a per-
mit for 17,000 acrefeet; .13^ however, the state has not agreed with
this. North Dakota has asserted that the Bureau of Reclamation
is a holder of a state water permit but has no authority to divert

151

Page Nine

DEVELOPMENT IN NORTH DAKOTA (Continued)

water already committed primarily for irrigation for industrial
use.-xl/

The North DaKOta Water Conservation Commission has not
yet come forth with an overall plan for developTient of the state's
water resources. Farming and ranching groups are now seeking an
injunction against the additional issuance of water permits until
a comprehensive plan for water developme^nt is made by the State
I'Jater Commission. However, the Water Commission has stepped
back as being the lead agency for receiving industrial applications
and has now requested that industrial applicants first obtain a
certificate of site compatability from the North Dakota Public
Service Commission. -£5^

Basin Electric Power Cooperatives is requesting water
for an 800-megawatt generating plant at the ANG plant site in
Mercer County . 3^/ People ' s Gas Company has applied for water to
supply four coal gasification plants in Dunn County. The amount
is estimated at being 30,000 acrefeet.

North Dakota has undergone a shift from promoting coal
development to rejecting it in some cases such as the West River
Diversion Project. In 1975, the North Dakota State Legislature
voted not to support this project over the objections of the
North Dakota State Water Commission. This project was to divert
hundreds of thousands of acrefeet of water from Garrison Dam
down to the coal fields of southwestern North Dakota.

The general attitude of the State of North Dakota con-
cerning water rights is that the state should be able to sell or

^f^r l°^^''^l ^^ "'"''^ '^^^^'^ ^^ ^^ pleases beyond the jurisdiction
of the Federal government.

152

Page Ten

DEVELOPMENT IN NEBRASKA

Expected major energy development in Nebraska is as

a coal fired plant in Sutherland (2000 mega-
watts 38,000 AF of water),

a pumped storage hydroplant near Lynch

(1,000 to 1,600 megawatts),
a coal fired plant at Nebraska City (575
megawatts) ,

a hydropower unit Kingsley Dam (43 megawatts),
a nuclear plant at Fort Calhoun (1,150 mega-
watts 20,000 AF of water),

a nuclear plant at site of present Cooper

Plant (1,000 megawatts),

a coal gasification plant, site unknown,

(250 million cubic feet per day) .^^

Nebraska has no statutory authority over the Mainstem
Missouri River to market water. The State could gain such author-
ity by altering its Constitution, currently, however, if the Feder-
al government chooses to market water from the Mainsteiri-Missouri ,
Nebraska has no legal say so in the matter whatsoever. — ' The
state water rights on other rivers in the state do show a definite
preference for agricultural use, Nebraska is perhaps the only
North Central plain state which has utilized its irrigation po-
tential to its fullest. In order for industry to gain a foothold
in state water rights, it will have to also purchase large tracts
of irrigatible lands with accompanying water rights. This would
take a great deal of arable land out of food production, since the
water use would be transferred to industry.

Nebraska insists that decisions to market water for in-
dustrial purposes be done in Congress not administratively. The
state also feels that no assurance is given that the amount charged
for water for industrial purposes will be sufficient to reimburse
the Basin Account for all revenue lost. Nebraska's final con-
cern is the adequacy of safeguards to inside long range use of
water for agriculture and hydroelectric. —

Hows:

(1)

(2)

(3)

(4)
(5)

(6)

(7)

153

Pago Eleven

INDIAN WATER RIGHTS

Indian water rights are based on the Winters Doctrine
construed by the Supreme Court in 1908. The Doctrine holds that
the Indian tribes have the right to as much water as is necessary
to irrigate the total sum of their irrigable lands and that even
though the right may have gone unexercised it carries a priority
in the time from the date the reservation was established. The
Landmark water case, Arizona v. California, re-affirmed the
prior and paramount rights of Indian t::ibes as well as extending
the water use rights of Indians beyond agricultural uses.

Indian water rights are not Federal or public rights.
They are private property rights for the beneficial use of Indian
tribes. Indian water rights as construed by the Winters Doctrine,
and California v. Arizona cases, are not grants to the Indians
but are rights held by treaty and aboriginal priority.

In terms of the Federal government's responsibility, it
is supposed to act as the trustee of these rights on behalf of
the tribes. In other words, because of treaty and moral obliga-
tions the Federal government is responsible for helping to deter-
mine, adjudicate, protect and develop Indian water rights. However,
the Bureau of Reclamation has done everything possible to sub-
ordinate Indian Water Rights to narrow large scale industrial and
agricultural users.

In June of 1974, the BIA recommended to all tribes that
they develop their own water codes. Then the BIA turned around
and said that although water codes had been developed, the tribes
couldn't submit them and that the situation needed further study.
This reversal on the part of the BIA came as a result of the
pressure brought on them by the Interior Solicitor's Office, and
the Bureau of Reclamation.

The States containing Indian reservations are even more
strident in systematically denying Indian water rights in pre-
ference to non-Indian uses. Over the past ten years, Indian
tribes have rapidly developed sophisticated legal strength and
now pose a real threat to water related expansion. The National
Water Commission has stated that unless Indian water rights are
settled, many energy and agriculture projects will be precluded.
Much of this rhetoric from the Commission is to push for a final
Settlement where Indians will have no real say over the amount of
water they are entitled to and how they should use it.

The three affiliated tribes at Fort Berthold in North
Dakota are contemplating action to determine and adjudicate their
water rights. According to their attorney they will argue that
the Missouri is over committed and that honoring present Indian
water rights will leave North Dakota short for its own uses.— _^

154

Page Twelve

INDIAN WATER RIGHTS (Continued)

In Montana, the Northern Cheyenne and Crow Tribes are
entering into separate suits to determine and adjudicate their
rights. Both tribes are claiming rights from the common bound-
ary of the State of Montana to the headwaters of the Tongue and
Bighorn Rivers .-15/The State of Montana is struggling to get the
cases argued in a friendlier state court and the Federal govern-
ment is trying their best to discourage the tribes from venturing
on their own by forcing the Northern Cheyenne, for example, to
use their economic development funds for litigation.

The Fort Peck Tribe is presently conducting a water
resource inventory with the assistance of the Bureau of Indian
Affairs. The inventory includes: Indian Water Rights including
natural flow and storage; the rights of Indian tribes to market
waters they have paramount claim to which are in the Reservoirs
along the Missouri River; the current Federal and state laws;
international compacts; public land and state land water require-
ments. 4,1'

The Crow Creek Sioux Tribe, who reside along the east-
ern shoreline of the Big Bend Reservoir in South Dakota maintain
that the Department of Interior has been diminishing their water
rights and the authority of the tribal council to comprehensively
regulate water within the exterior boundaries of their reservation.
The tribe is seeking the Department of Interior to honor the rights
of the tribe to issue all water claims within the exterior bound-
aries of their reservation; to establish and collect water user's
fees; to submit all water applications for state perusal; but to
have final authority rest with the tribe. Finally, the tribe
requests that it be given full membership to the Missouri River
Basin Commission. The Crow Creek Tribe also wants to utilize
Missouri River water to irrigate 30,000 acres of their land .'*_?_/

The tribes in South Dakota have also indicated that they
too are planning litigation to exercise their rights on the Mis-
souri .

Arapahoe and Shoshone Tribes of the Wind River reserva-
tion in Wyoming are asserting that they cannot obtain a fair and
impartial determination of their water rights as long as the Sec-
retary of Interior simultaneously sells large quantities of water
to large industrial users. The tribe claims to have 198,542
abres available for irrigation.

The Shoshones and Arapahoes are also maintaining that
pending further settlement of the tribes' rights, the Department
should neither sell or coiranit any further v;ater unless they are
to be made a party of such contracts, placing the contracts sub-
ordinate to their Winters rights entitlements. 'i^y

155

Page Thirteen

LEGAL ISSUES

The critical question, "Who controls the water?" has
not yet been completely answered. The following court cases per-
tain to some of the legal ramifications of the water for energy
questions.

New Mexico v. U.S. This case was filed in New Mexico
state court in the spring of 1975 by the State of New Mexico to
force determination and adjudication of Indian water rights in
State Court. New Mexico is arguing that the Navajo tribe which
has the oldest treaty date be given prior rights over other tribes
using common water. This in effect sets up the Navajo's as a
water broker and pits one tribe against another. —^

Mary Aikin v. U.S. This case is parallel to New Mexi-
co V. U.S. in that it arises out of the San Juan River Basin in
northwestern New Mexico and southwestern Colorado. The issue
again is primarily jurisdictional. Should Federal or State courts
adjudicate water disputes? The case involves 1,200 water users
and the U.S. government, which claims jurisdiction over the river
by virtue of its passage over Federal and Indian lands including
a national park, several national monuments and an Indian reser-
vation.

The Supreme Court has ruled on March 24, 1976 that States
do have the right to adjudicate waters within the boundaries of
their state lines under the McCarran amendment. * The consideration '
of the court did not take into account the private property rights
held in trust for Indian tribes. This is a crucial point in that
the federal government argued that Indian rights are federal rights,
which negates the sovereignty of treaty rights of Indian tribes
under the Winters Doctrine. This case is important because it

may serve as a precedent for other cases in the future and

could become the basis of a state's right battle for water in the
west .2^'

United States v. California. This case deals with
Federal preemption of State water rights. The Federal District
court in California has entered a judgment declaring that the U.S.
can without applying to the state of California, appropriate all
unappropriated waters necessary for use in any Federal Reclamation
project. This case will certainly set a precedent for the rights
of states to place Federal water uses under state laws, and will
have significant impact on the Upper Missouri Basin states. This
decision is certainly being appealed in Federal court. !§_/

* 43 U.S.C. S 666, 66 Stat. 560.

156

Page Fourteen

LEGAL ISSUES (Continued)

Arizona v. California. Three cases represent the bulk
of a 45 year struggle over allocation, use, and jurisdiction over
the Colorado River System between Arizona, Nevada, California and
the Federal government. The first case, 283 U.S. 423 (1931)
arose out of the attempt by Arizona to enjoin the Boulder Canyon
Project Act of 1928 which authorized water from the lower Colorado
Basin for irrigation and urban expansion in Southern California.
The Supreme Court ruled that the Colorado is a navigatible stream
and the U.S. government can develop the Colorado system as it
sees fit under the commerce clause of the Constitu*- xon . ^7y

The second case ,298 U. S. 588 (1936) , stemmed from the
attempt of Arizona to assert control over the Boulder Canyon Act
of 1928 with state laws and state held prior appropriations.
Again, the supreme Court ruled that the U.S. government under the
comm erce clause of the Constitution is not subject to the control
of the state in building projects . 48_/

The third case, 373 U.S. 546(1963), stemmed from the ques-
tion of whether the states had control over the allocation of the
Colorado River.

In this case California was seeking a larger allocation
despite the uses earmarked for the v;ater by Arizona. Again the
Supreme Court ruled that the Federal government has the final power
to allocate water in the Colorado River. Also, that compacts,
and all other elements governing state law which interposed Federal
law could be moved aside by Congress; that the tributaries of the
Colorado in Arizona are not to be considered in the allocation of
Colorado river system; and that the administrative power of the
Federal government over the Colorado River lies in the hands of the
Secretary of Interior. Finally the Winters Do-trine asserting
Indian water rights would be applicable to all present and future
uses as well as expanding Indian water rights to include uses other
than agriculture. The final outcome was an allocation of the
lower Basin account of 7.5 million acrefeet per year divided with
California receiving 4.4 million acrefeet per year, Arizona 2.8
million, and Nevada receiving 300,000 AF.-£^

The backdrop of these cases was set by the struggle be-
tween the economic forces in California and Arizona. Because Cali-
fornia was rapidly utilizing their water through the Boulder Canyon
Act of 1928 for irrigation of the imperial valley, Arizona, fearing
an over allocation by California, attempted to enjoin the Federal
Project unsuccessfully. The spectacular growth of the Imperial
Valley's agricultural economy would prove to be the dominant inter-
est behind the decisions rendered by the courts. The agricultural
methods of farming the Imperial Valley required massive capital in-
vestment to grow food along the vast expanse of what was a semi-
arid desert. And so, by centralizing control over the Colorado
through the Department of Interior and Congress, the capital invest-
ments promoting rapid growth in Southern California were protected.

157

Page Fifteen

LEGAL ISSUES (Continued)

Out of the sheer force of massive agricultural and
urban expansion came two basic precedents which have served to
protect capital investment in water projects and their related
growth:

(a) Once a "present beneficial use" precedent is
established, no state can interfere with it. In the case of
California, it lias been using Colorado River water for years to
expand municipal and agricultural growth. Any effort to take
away this water would cause serious impacts on the state.

(b) Once an interstate commerce project is established
no state can interfere with it-. For example, if water being used
in Imperial Valley from the Colorado were shut off then the food
products now supplying the nation would be cut back to the detri-
ment of the nation.

These two precedents will have an enormous implication
to energy development in the Upper Missouri Basin. For example,
if an energy conversion project were established in a state and
was supplying energy to another part of the country it can fall
very easily into the two categories of "present beneficial maxi-
mum user and interstate commerce project." So if it were proven
that this project was seriously affecting the water supply for
agriculture no state or entity could interfere with it.

First Iowa Hydroelectric Coop, v. FPC. (328 U.S. 152
(1946)). This case arose out of the attempt by the state of
Iowa to force Federal hydroelectric projects on navigatable streams
to comply with state laws setting up a situation of duplicate com-
pliance. The Supreme Court ruled that the states do not have veto
power through state laws when the commerce clause of the Constitu-
tion is involved. 50/

EDF V. Morton. Successful litigation of this suit
will significantly slow development pressure because the Federal
government would have to evaluate all of its existing water com-
mitments. The case centers around three basic issues: (1) the
authority of the Federal government to market water for industrial
purposes under existing statutes in the Upper Missouri Basin with-
out Congressional changes; (2) the violation of Article X of the
Yellowstone Compact which prohibits interstate diversion of water
from Montana to the coal fields of Wyoming; (3) the requirement
of Environmental Impact Statements on all .contracts for industrial
water options in the Yellowstone Basin. — '

158

Page Sixteen

LEGAL ISSUES (Continued)

Intake Pipeline Co. v. Montana and North Dakota. This
case deals with Article X of the Yellowstone Compact. Intake pipe-
line, a subsidiary of Tenneco is challenging the constitution-
ality of the Yellowstone Compact in the Federal District court in
Billings, as it relates to the prohibition of interstate transfers.
Intake wants to move water from Glendive, Montana to Beach, North
Dakota. If the Yellowstone Compact is broken, diversions of
water from one state to another could greatly expand industrial
development.

If the court does uphold the prohibition of interbasin
transfers, Tenneco could circumvent Article X by building its
plant further west and inside the Yellowstone Basin. The coal
then would have to be moved from the company's coal fields in North
Dakota across the state lines into Montana.—'

Intake v. Montana. Intake Water Company has recently
won this case to have permits for 80,000 acrefeet from the Yellow-
stone River for construction of as many as 8 gasification plants.
Tenneco had claimed this water under provisions of Montana law
which was repealed in 1973 by the state legislature. The District
court has ruled that the old law applies. iJ./

159

Page Seventeen

FEDERAL LAW

"There has been a slow evolution of the Bureau of Re-
clamation program toward including municipal and industrial
(M&I) water supply as project purposes. But each organic re-
clamation statute has placed specific limitations on supplying
M&I water from reclamation projects " 5_{/ ;

Act plac
tary of
hands of
to be cl
existed,
and that
rigation
has poin
this law
sequent

1. The Miscellaneous Supply Act of 1920.

ed veto power over al

Interior for purposes
state approved water

ear showing that no p
that rights of prior
the industrial suppl
needs. The Library

ted out that the Depa
by implication with

reclamation acts repe

1 contracts set out by
other than agriculture
users associations,
ractical alternative wa
appropriators would be
y would not be detrimen
of Congress American L
rtment of Interior has
no authorizing language
aling the 1920 Act. 55/

This early
the Secre-

in the
There had
ter source

protected
tal to ir-
aw Division
repealed

in sub-

2. "The 1939 Reclamation Project Act. This Act pro-
vides for multipurpose sale of water hor municipal and miscel-
laneous uses where authorized, but the Secretary of Interior
must make a finding that the value of the project for irriga-
tion is not to be precluded for municipal and industrial uses."5_6/

3. The Flood Control Act of 1944,

Although Congress

envisioned multiple and changing uses on the reservoirs author-
ized in the 1944 Flood Control Act, its designation of dominant
interest had the effect of giving preference to uses viewed as
contributing to the greatest good of the people of various re-
gions served by the projects, and that authoi i za tion to alter
the expressed dominant interest intended by Congress had not
been delegated , Charges in that preference require now Congres-
sional approvaTT

The Congress and the Bureau of Reclamation envisioned
the continued dominance of agriculture as the economic base of
the Missouri River Basin and recommended that reservoirs on the
Yellowstone River and the Upper Mainstem Missouri should be pri-
marily for irrigation; and that agricultural dominance in the
Upper Missouri Basin was accepted in the reconciliation between
the Corps and the Bureau of Reclamation and adopted by Congress
through incorporation of the Pick/Sloan Plan as the document in
the Act, Congress thereby endorsed and adopted irrigation as the
primary use intended of water from Projects in the Upper Missouri
Basin. Ly

160

Page Eighteen

FEDERAL LAW (Continued)

4. The 1958 Water Supply Act. This Act states that
storage for municipal and industrial uses may be included in ex-
isting or future Reclamation or Corps projects but must be spe-
cifically authorized by Congress if the original purposes of the

project such as irrigation would be seriously affected.

This is outlined particularly in Title III of the Act.

"This progression of Congressional Acts shows that
Congress has approached the whole question of "M&I" water very
cautiously. It is clear that the notion of devoting enormous
quantities of water, let alone the preponderance of a certain
project's, river's, or region's water to energy/industrial uses
has never been raised or approved by Congress.

"It is clear that the demand for industrial water is
exceeding all prior expectations. But the use of the term
"miscellaneous" or "industrial" in the existing reclamation laws
obviously did not contemplate massive energy/industrial demands,
and we must be sure that these limited authorizations for "M&I"
water are not interpreted by the agencies as broad authority for
massive industrial v;ater allocations from Federal projects."—'

RECENT FEDERAL ACTIONS

Industrial Water Marketing Program - — 1967-1972. This
program was instituted by Secretary of Interior Stuart Udall and
Assistant Secretary for Water and Power Ken Hollum. The Nixon
administration subsequently carried it on until the farmers,
ranchers. States and Indian tribes affected by this program dis-
covered the magnitude of the sales in 1972. Since then the
Department has imposed a moratorium over sales in the Yellowstone
Basin until the lawsuit brought against them by the Environmental
Defense Fund, irrigationists , and the State of Montana is resolved.
This program had no procedures whereby the States, water users'
association, and Indian tribes could approve the contracts. The
only approval was a special procedure within the Department.
The states were never informed through formal procedure as to
Vhat the water being sold was going to be used. As a result,
658,000 acrefeet of water was optioned out quietly at a price
ranging from 9 to 11 dollars an acrefoot with a SOit: option to
renew. The amount of water optioned from the Ycllowtail reser-
voir may well have exceeded its active storage capacity. Although
the Yellowtail reservoir, where most of the sales went on, is
clearly authorized for agriculture, no v/ater has been allocated
for irrigation from this reservoir since its construction. 23'

161

Page Nineteen

RECENT FEDERAL ACTIONS (Continued)

The Ad Hoc Committee on water marketing in the Upper
Missouri Basin was formed upon the request of Die Corps of
Engineers and the Bureau of Reclamation to the Missouri River
Basin Commission. The Committee was comprised of representa-
tives from the states of Montana, Wyoming, South Dakota, North
Dakota, and Nebraska; the Corps of Engineers, the Bureau of
Reclamation and the Missouri River Basin Commission. The pur-
pose of the Committee was to settle upon convincing approaches
to market water from the main stem Missouri River for industrial
purposes. They also agreed upon setting the price of this water
in the range of $3 to $20 an acrefoot. The states were given
the first right to market. However, the key problems of how
much water does each state have right to, what are the Indian
rights to this water, and who has final veto power over indus-
trial water contracts was never resolved. Following this im-
passe, the Federal government imposed the "Memorandum of Under-
standing," which effectively repealed the efforts of the ad hoc
committee to settle upon a regional approach to industrial water
marketing.^/

In February of 1975, the Corps of Engineers and the
Department of Interior signed a "memorandum of understanding"
which would expedite the sale of main stem Missouri water Tor
industrial use. Hearings were held by Senators Abourczk and
Metcalf on this action and it was discovered that the states
were never informed of this agreement, that agricultural water
is to be "loaned" to industry, and that industrial water use
will have preference over hydroelectric generation. The first
customer for this water is ETSI who wants it for a coal slurry
pipeline from Wyoming to Arkansas. 61/

The House Interior Committee of the U.S. Congress is current-
ly considering a bill to institutionalize coal slurry pipelines
( H.R. 1863) . The first major project and prime lobbyist for this
bill is being pushed by ETSI* who is proposing the V-Jyoming/Arkansas
slurry line using western coal and water either from the Madison
Formation or the Main stem Missouri in South Dakota. This bill
also represents the institutionalization of industrial water use
in the Upper Missouri by Congress, since ETSI is the first large
scale user and costomer for Upper Missouri water.

* ETSI or Energy Transportation Systems Inc. is a wholly owned

joint venture between Lehman Brothers Investment fiirm and Bochtol
Engineering and Construction.

-186 O - 77 - 12

162

Page Twenty

WATER DIVERSION SCHEMES 62./

A total of 13 diversion plans has been advanced, 2
for agriculture and 11 for industrial development.

(1) The Agricultural Diversions are Garrison irriga-
tion project in North Dakota and Oahe Irrigation Project in
South Dakota. Garrison is under con.struction. Oahe is in
the planning stages but faces formidable legal obstacles and
local opposition.

(2) The West River Diversion Project in North Dakota
would carry water from Lake Sakakawea behind Garrison Dam on
the Missouri across the headwaters of the five tributaries of
the Little Missouri, the Knife, the Heart, the Cannonball and
the Grand River. Water would be released into these streams
which would be damned to provide storage. The total diversion,
four million acrefeet according to the North Dakota Water Com-
mission, would support 42 gasification projects and 8,800
megawatts of electrical power generation. In exchange, the
farmers and ranchers of this area are promised some water for
agricultural use. However, the North Dakota state legislature
has voted not to support this project over the objections of
the North Dakota State Water Commission.

(3) Water for Taconite in the Black Hills The Bu-
reau of Reclamation (which will cooperate with the North Dakota
State Water Commission in designing the West River Diversion
facilities) has studied moving water to the Sturgis, S.D. area
for industrial use. Pittsburgh Pacific Mining of Hibbing,
Minnesota has claimed 96 million tons of taconite # iron ore
under about 250 acres of National Forest Land in the Black Hills,
Pitt-Pac plans to market 1,000,000 tons per year in Rapid City,
probably to meet the steel requirements of coal gasification

and thermal electrical generation.

(4) Water from North Dakota to Wyoming. The United
Plainsmen, an environmental group in North Dakota, has pointed
out that the Sturgis area is only a short distance from the coal
rich but water poor Powder River Basin in V-Jyoming, The Bureau
of Reclamation has said publically that they have scrapped
plans to divert water from North Dakota to Wyoming; however,
tJie Bureau has not been very credible in their dealings with
the states so far.

163

Page Twenty-One

WATER DIVERSION SCHEMES (Continued)

(5) Water from South Dakota to Wyoming. The Black
Hills Conservancy Subdistrict, along with the Bureau of Reclama-
tion, has developed a feasibility study to transport about 100,000
acrefeet from the Oahe Reservoir across western South Dakota
(between the Cheyenne and Bad Rivers) into the Gillette Wyoming

area. 20,000 acrefeet is to be mixed with coal and sent down
to Arkansas in slurry form. The first pipeline of this sort is
expected to ship 25 million tons of coal a year. Since water
is scarce in the Gillette Area, it seems likely that the water
not being used by Energy Transportation Systems Inc. (ETSI) could
be sold to other energy interests for coal conversion at the
mine site.

(6) Water from the Madison Underground Formation. ETSI
has secured 20,000 acrefeet of water from the Madison Formation
from the state of Wyoming. They plan to drill a high pressure
well field in one of the shallower sections of the formation, which
is being used for drinking water and stock water for the communi-
ties in eastern Wyoming and western South Dakota. There is a
serious question as to whether this 20,000 acrefoot withdrawal
will exceed the recharge of the formation, thus dropping the en-
tire water table of the Powder and Cheyenne River Basins. Since
the Madison Formation is under individual state jurisdiction, it
will be up to the courts or Congress via an interstate compact

to determine whether or not industrial use of the Madison Forma-
tion is beneficial.

(7) Water from Montana to Wyoming. The Yellowstone
River Diversion is discussed in great detail in the Bureau of
Reclamation's Montana/Wyoming Aqueduct Study. The study pro-
jects the construction of a large number of additional reservoirs
on the Tongue and Powder, other tributaries of the Yellowstone and
the Yellowstone itself; as well as construction of a large number
of aqueducts for transporting water from the Boysen and Yellowtail
reservoirs, to points of industrial use, mainly around the Gillette
Wyoming Area. Three projects are being actively considered:

the first one would take water from the Yellowstone River near
Miles City, Montana, to Gillette, Wyoming; the second project
would divert water from the Big Horn River in Hardin, Montana, to
Gillette, Wyoming; and the third project would divert water from
the Boysen Reservoir along the Wind River Reservation in Wyoming
td the Gillette area.*

* The diversion from Montana to Wyoming v;ould violate Article X of
the Yellowstone Compact, which prohibits the transfer of water from
Montana to Wyoming. Montana, Wyoming, and North Dakota are signato-
ry states. However, the transfers of water proposed by the Bureau
of Reclamation in the Wyoming/Montana Aqueduct Study do not comply
with the formula for water use outlined in the Compact which was
signed in 1950. That formula allocates a 60-40 share between Montana

164

Page Twenty-Two

WATER DIVERSION SCHEMES (Continued)

( 8 ) North Platte River in Wyoming to the Powder River*
in Wyoming. This project was promoted by the former Secretary
of Interior, Stanley Hathaway, while he was Governor of Wyoming.
Hathaway attempted to get state funds to build a diversion from
the North Platte River near Casper to Gillette. The North Platte
is not a large river and the flows might not sustain an indus-
trial diversion without augmentation from another river system,
the Green River.

(9) Green River to the North Platte in Wyoming. The
augmentation diversm was also. promoted by Stanley Hathaway while
Governor of Wyoming. The Green River is a tributary of the Colo-
rado and is located in southern Wyoming. This diversion could
aggravate salinity problems in the lower Colorado Basin.

(10) Fort Peck to Circle, Montana. This diversion
would take water from the Missouri River behind Fort Peck Dam
to the Circle, Montana area where Burlington Northern Railroad
is planning an industrial complex which would produce nitrogen
fertilizer, methanol, and synthetic diesel fuel from low quality
lignite coal.

and Wyoming, with Montana getting the larger percentage. North
Dakota, although not directly involved, does have a say over the
issue of interbasin transfer. In addition, Montana state law for-
bids any transfer from the state without consent from the state
legislature, which so far has not agreed.

* There exists a compact on this stream which gives Wyoming 25%
and Nebraska 75% of the share of the North Platte. If over allo-
cations went beyond Wyoming's 25%, then irrigation in western Neb-
raska could be affected. Thus leading to an interstate legal fight,

165

aajyri -

166

Page Twenty-four

END NOTES

1. Project Independence Blueprint, Water for Energy, Final Draft
report submitted to the Federal Enerqy Agency Water Resources
Taskforce, Sept. 5, 1974, hereafter referred as "FEA Report"
pg. IV-50.

2. Bowden, Charles, The Impact of Energy Development on Water Re-
sources in Arid Lands, Office of Arid Land Studies, University
of Arizona, Tucson Arizona, hereafter referred to as " Bowden
Report") pg, 29.

3. U.S. Bureau of Reclamation, Montana/ Wyoming Aqueduct Study,

4. Bowden Report pg.95

5. U.S. Senate Interior Committee, Hearings Before the Subcommittee
on Energy Research and Water Resources 94th Cong. 1st session,
On the Sale of Water from the Upper Missouri River Basin by the
Federal Government for the Development of Energy, Billings Mon-
tana, Aug ?.6, 1975, Rapid City South Dakota, August 28, 1975,
part two, hereafter referred to as "Upper Missouri Basin HearinaoA
pg. 24 8.

6. Upper Missouri Basin Hearings, part one, Statements of the Corps
of Engineers, and the Bureau of Reclamation.

7. Ibid

8. FEA Report pg. IV-50

9. Upper Missouri Basin Hearings pg. 224, 426

10. " " " " " 232

11. FEA Report pg . IV-51

12. Upper Missouri Basin Hearings pg. 227

13. " " " " " 226-7

14. " " " " " 248

15. " " " " " 207

16. FEA Report pg . IV-51

17. Upper Missouri Basin Hearings pg. 2 34

18. " " " " Pq. 297

19. U.S. Senate Interior Conroittee, 94th Cong., 1st Session, On the
Nomination of Stanley K. Hathaway, To be Secretary of the Interio.
April 21,22,30, May 5&6, 1975 hereafter referred to aa "Hathawnv
Hearings") pg . 4 74

167

Page Twenty-five

END NOTES (Continued)

20.
21.
22.

23.
24.
25.
26.

27.
28.
29.

30.

31.
32.
34.

33.

35.
36.
37.

. 38.

39.
40.

Upper Missouri Basin Hearings pg. 238

Ibid

Upper Missouri Basin Hearings pg. 234

Hathaway Hearings pg. 181

18 2
FEA Report pg. IV-52

U.S. Department of Interior, Proposed Coal Gasification Combined
Cycle Pilot Plant, prepared by the Office of Coal Research.

FEA Report pg. IV-53

Ibid

Progress Report, South Dakota State Water Plan, Handout &r
May 30, 1975 of the State Board of Natural Resources.

Davis, Bryant L. , Schleusner , Richard S., Institute of Atmospheric
Sciences, South Dakota School of Mines- (abstract)

Upper Missouri Basin Hearings pg. 356

pg. 261

Jacobs, Mike, Opposition to Big Coal Escalates, The Onlooker,
Jan. 26, 1976 pg. 12

pg. 2 82

Ibid

FEA Report pg. IV 53

Memorandum, To: Regional Director, Upper Missouri Region, BR,
Billings, Field Solicitor, From: Missouri River Basin Planning
Officer, Subject: Nebraska Position regarding Missouri River
Mainstem Marketing, U.S. Dept. of Interior, April 17, 1974.

Upper Missouri Basin Hearings pg. 295

•I 1. II pg. 393

U.S. V. Big Horn River Water Users Association, U.S. v.
Tongue River Water Users Association, both filed in Fed-
eral District Court, Billings, Montana

168

Page Twenty-six
END NOTES (Continued)

41. Upper Missouri Basin Hearings pg . 267

42. " " " " " 386

43. " " " " " 464

44. New Mexico v U.S., filed in Federal Distric Court Albuquerque,
"remanded to State court pending Aiken Decision.

4 5 . Superior Court of the U.S., Colorado River Conservancy District
et al, V. The United States, argued on Jan. 14, 1976, decided
on March 24, 1976.

46. United States v. The State of California, U.S. Federal District
~C"our t , State ot Calirornia.

47. Witmer, Richard T. , Documents on the Use and Control of the
Waters of Interstate and International Streams, U.S Govern-
ment Printing Office, Second Edition, pg . 539^ hereafter ref<^rr°d
as "Witmer" ■)

48. Witmer pg . 554-555

49. Brown, Howard H., Central Arizona Project, Feb. 25, 19 76,
Congressional Research Service, Environmental Policy Division,
VJitmer, pg. 604-614.

50. Veeder, William H., Unpublished discussion concerning precedents
of Federal jurisdiction over State Water laws.

51. EDF v. Morton, Fe-eral District Court, Billings Montana

52. Intake v. Montana, Federal District Court, Billings Montana

53. Intake v. Montana

53. Jacobs, Mike, Intake v. Montana, Onlooker, Jan 26, 1976

54. Excrpted from a sratement by Kathrine Fletcher, EDF, before
Senate Interior Committee, August 26, 1975.

55. Costello, George M., Analysis of Federal Water Marketing Program
in the Upper Missouri Basin, Feb. 1975, Congressional Research
Service, American Law Division.

56. Statement by Kathrine Fletcher, August 26, 1975

57. Mauk, William, Flood Control Act of 194 4, Urban Law Institute,
Antioch School of Law, May 19 75.

169

Page Twenty-seven

END NOTES (Continued)

59. U.S. Department of Interior, Memorandum, To: Commissioner,
from: Regional Director Billings Montana, Subject, Sale of
Water for Industrial Purposes from Big Horn River, Feb. 2, 196!

60. Report of the Ad Hoc Committee on Water Marketing; Reconsider-
ations on Issues Involving M& I Water Marketing from the Six
Main Stem Federal Reserviors on the Missouri^ July 1, 19 74.

61. Upper Missouri Basin Hearings pg. 436-442

62. This section has been excerpted from a piece by Mike Jacobs,
entitled, "Ring Around the Rosey:The Great Diversion", the
Onlooker, June 19 75 , with the addition of #6 by the author
of this paper.

170

Page twenty-eight

SUPPLEMENTARY LIST OF REFERENCES

Amiran, D.H.K.

1965 Arid zone development: A reappraisal under modern
technolgoical conditions. Economic Geography 41(3)
:189-210.

Bell, T.

1973 The energy crisis: Water comes up short. High
Country News (5): 23.

Cootner, P.H. and G.O.G. Lof

1966 Water demand for steam electric generation: An
economic projection model. Resources for the
Future, Washington, D.C. Distributed by Johns
Hopkins Press, Baltimore, Maryland. 144 p.

Corbridge, Jr., J.N. and R.J. Moses

1968 Weather modification: Law and administration.
Natural Resources Journal 8 (22) : 207-235 .

Delancy, R.

1966 Water for oil shale development. Denver Law
Journal 43(1): 72-82.

Do Voto, B.A.

1947 Across the wide Missouri Houghton Mifflin Com-
pany, Boston. 483 p.

Dewsnup, R.L. and D.W. Jensen, eds.

1973 A Summary-digest of state water laws. U.S. Nati-
onal Water Commission, Arlington, Va . 826 p.

Dupree, Jr. W. G. and L.A. West

1972 United States energy through the year 2000. U.S.

Environmental Defense Fund

n.d. Unpublished report by Tom Frizzell on the over-ap-
propriation of the Yellowstone River. Denver, Colo.

Ford, Bacon and Company

' 1952 The synthetic liquid fuel potential of Colorado,

Utah, and Wyoming. U.S. Dept. of Int, Wash., D.C.

Gillette, R.

1973 NAS: Water scarcity may limit western coal. Science
181:525.

171

Page Twenty-nine

SUPPLEMENTARY LIST OF REFERENCES (Con't.)

Hamilton, B.
1974

Coal conflict on Tongue River. High Country
News, August 30, 1974

High Country News

1974 Decision on slurry line. High Country News,
July 19, 1974, p. 6.

Hynes, H.B.N.
1971

The biology of polluted waters. University of
Toronto Press, Toronto. 202 p.

1972 The ecology of running waters. University of
Toronto Press, Toronto. 555 p.

Johnson, R.W.
1971

Lewis, Jr., O.
1969

Major interbasin transfers,
merce. Legal Study 7.

U.S. Dept. of Coin-

Arid lands and their future. In G.L. Bender, ed.
Future Environments of arid regions of the south-
west. American Association for the Advancement of
Science, Committee on Desert and Arid zone Research,
Contribution 12:33-38.

Lowdermilk, W.C.

1935 Man made deserts. Pacific Affairs 8 (4) : 409-419 .

Madsen, H.C. et al

1973 Future allocation of land and water: Implications
for Agricultural and Water Policies. Journal of
Soil and Water conservation 28(2):52-60.

Missouri Basin Inter-Agency Committee

1969 Missouri River Basin Comprehensive Framework Study.
Govt. Printing Office, Washington, D. C.

Montana, Eavironmental Quality Council

n.d. Water and Eastern Montana coal devleopment, pre-
pared by Dob Anderson. Helena, Montana.

National Water Commission

1973a A summary-digest of the Federal water laws and
programs. Edited by John L. De Weerdt and P.M.
Click. GPO, Washington, D. C.

North Central Power Study, Coordinating Committee

1971 North Central Power Study: Report of Phase I. U.S.

Bureau of Reclamation, Billings, MT. 2 vols, variou;
pages.

172

Page Thirty

SUPPLEMENTARY LIST OF REFERENCES (Con't.)

Northern Great Plains Resources Program Staff

1974 Northern Great Plains resources program (draft
report). Denver, Colorado.

Otto, N.

1974 Wyoming coal processing affects agricultural water.
Union Farmer, Jan. -Feb. 1974.

Parker, F. L. AND R. A. Krenel

1969 Thermal pollution: Status of the art. National
Center for Researhc and Training in the Hydro-
logic and Hydraulic Aspects of Water Pollution
Congrol, Report 3. Vanderbilt University,
Nashville, Tenn.

Sherbrooke, W.
1973

and P. Paylore

World desertification: cause and effect. Univ.
of Arizona, Office of Arid Lands Studies, Arid
Lands Resource Information Paper 3. 168 p.

U.S. Department of Interior

1975 Westwide study. Critical water problems facing
the eleven western states. Report and Executive
Summary. 2 pts. Final Denver, Colorado.

Webb, W.P.
1936

The Great Plains, Houghton Mifflin, Boston. 525 p.

Zwick, D. and M. Benstock

1971 Water Wasteland. Grossman Publishers, N.Y. 494 p.

173

CORRESPONDENCE

Congress op American Indians,

Washington, D.C., March 26, 1976.
Senator James Abourezk,
Chairman, Senate Indian Affairs Subcommittee,
Washington, D.C.

Dear Senator Abourezk : On Maich 24, 1976, the Supreme Court rendered its
opinion in the Akins case, which is entitled Colorado River Water Conservation
District, et al. v. United States; Mary Akin, et al. v. United States. A copy of
that opinion is attached.

Consequences of the Akin decision can be catastrophic to Indian nations, tribes
and people. It construes the so-called McCarran Amendment (43 U.S.C. 666) as
being applicable to Indian rights to the use of water and subjects those rights
to state court jurisdiction for the adjudication of them. Tenuous nature of the
decision and the extent to which the Court had to strain to arrive at its con-
clusion is attested to by sharp and cogent dissents of three Justices. Yet, the
cruel fact remains, the Indians for the first time in history are confronted with
losing their Winters doctrine rights in state courts. Practical experience in those
courts has repeatedly demonstrated that the Indians invariably lose in those
courts.

Adding to the dilemma created by Akin, which the Indian people are facing, is
the adamant refusal of the Justice Department to distinguish between Indian
rights to the use of water and the rights for reclamation projects, national
forests and similar non-Indian federal rights. That refusal by the Justice Depart-
ment manifestly contributed to the Akin decision.

Another factor of great importance and equal seriousness to the Indian people
is the ongoing internal struggle within the Department of the Interior between
the Bureau of Reclamation and the Bureau of Indian Affairs over the method
of determining water requirements for Indians, particularly in the Upper Basin
of the Missouri River. Due to that internal and unresolved struggle, the Interior
Department and the Justice Department employees are not in a position to
present effectively the Indian claims in a friendly tribunal, much less in hostile
state courts.

Pending cases in the State of Montana involving the Crow Tribe and the
Northern Cheyenne Tribe, United States, vs. Big Horn Canal Company and
United States vs. Tongue River Water Users Association; in the San Juan River
Basin, Neiv Mexico vs. United Stote-t; in the Rio Grande, United States vs.
Aamodt. and other cases all point to irreparable and continuing damage for
Indians throughout Western United States.

On that background, I cannot urge too strongly that you introduce an amend-
ment to the McCarran amendment exempting Indian rights from its applica-
tion. A copy of suggested amendatory language is attached.

The National Congress of American Indians and all Indian nations, tribes
and people will be forever grateful for your assistance in this matter.
Sincerely,

Mel Tonasket, President.
Attachment

(Suggested Amendatory Language, McCarran Act (43 U.S.C. 666), Act of July 10,
1952, C. 651, Title II, Sec. 208 (a)-(c), 66 Stat. 560)

Provided, however, that this consent to the joinder of the United States as a
defendant in suits or proceedings for the adjudication of rights to the use of water
does not extend to or in any way include rights to or interest in the use of water
of Indian nations, tribes or people, and those Indian rights to the use of water be
and the same are specifically declared to be immune from state jurisdiction,
control, administration or adjudication by states, state courts, state agencies,
tribunals or administrative officers or state proceedings, any judicial decisions
or opinions to the contrary notwithstanding.

(Authorized, National Congress of American Indians Executive Committee
Resolution, March 26, 1976. )

174

Wilkinson, Cragun & Barker,

Washington, D.C., June 23, 1976.
Re Adjudication of Indian Water Rights.

Hon. Edward M. Kennedy, Chairman, Subcommittee on Administrative Practice
and Procedure, Washington, D.C.

Dear Senator Kennedy: We are general counsel for the Arapahoe tribe of
the Wind River reservation, Wyoming, the Confederated Salish and Kototenai
tribes of the Flathead reservation Montana, the Three Affiliated tribes of the
Fort Berthold reservation. North Dakota, the Hoopa Valley tribe of the Hoopa
Valley reservation, California, the National Congress of American Indians, and
we are water rights counsel to the Crow Tribe of the Crow Indian Reservation,
Montana.

We are pleased to have this opportunity to express views on behalf of our clients
concerning the futiire of adjudications and administration of Indian water rights
following the decision of the Supreme Court of the United States in the consoli-
dated cases Colorado River Water Conservation District v. United States, 74-940,

and Akin v. United States, 74-949, U.S. ■ , 44 U.S.L.W. 4372 (decided

March 24, 1976) (hereinafter referred to as Akin).

As you know. Akin holds that Federal courts have jurisdiction over suits
brought by the United States to adjudicate in its own behalf and in behalf of
Indian tribes for whom it is trustee. Federal and Indian reserved water rights.
The decision also holds that the McCarran amendment, now codified at 43 U.S.C.
666, was intended by Congress to subject Indian reserved water rights to adjudi-
cation under state law, even in state courts, when the United States is named a
defendant in suits to adjudicate water rights "owned by" the United States. The
Supreme Court, by a vote of 6 to 3, also ruled that, although the obligation of a
Federal court to exercise the jurisdiction it has been given by Congress is not
lightly avoided, certain factors present in the Aki7i case led to the conclusion
that these Federal actions should be dismissed in favor of a subsequently initiated
state proceeding in which the United States had been named a defendant pursuant
to Colorado law. The United States had brought the Federal suit to determine
the reserved rights to the waters of the Colorado River and its tributaries for
purposes of various Federal proprietary reservations and the reservations of the
Southern Ute and Ute Mountain Ute Indian tribes.

The Supreme Court listed four factors which it felt compelled the avoidance
of the exercise of Federal court jurisdiction in favor of the state proceeding. The
Court noted that nothing had occurred in the Federal proceeding except the filing
of the complaint and of the motion of the defendants to dismiss, even though,
as the dissenting justices pointed out, little could have occurred because the
motion to dismiss was granted so promptly. The Court found also that the naming
of 1,000 defendants in the Federal proceeding showed a heavy involvement of
state law, but the dissenters were convinced that fact only evidenced the ability
of the Federal court to complete an adjudication of Federal and Indian reserved
rights in a unitary suit. The Court further pointed to the fact that the United
States had already been named a defendant in three other Colorado water divi-
sions, even though the dissent countered that these were separate proceedings
which could consititute no waiver of the United States' rights to bring an unrelated
Federal action involving a fourth state water division. The Court finally was
persuaded that the Federal action should be dismissed because the state water
court was located in the heart of the division involved, whereas the Federal forum
was some 300 miles away, to which the three dissenters retorted that modern
transportation made slight significance of this fact and that the Federal court
was authorized to sit in Durango, the headquarters of the division involved.

It is obvious from a reading of this case that the factors leading to dismissal
were intimately involved with the peculiarities of Colorado water law. The wide
variety of state water statutory schemes will almost surely produce different fac-
tors that will lead to different results in different cases. Different results will
likely flow not only from distinctions in state statutory law, but also from facts
surrounding each case, such as how far any other Federal suit has progressed be-
fore the United States is named a defendant in a related state proceeding, how
distanct the locality under adjudication is from the state and Federal courts, how
many named defendants have been sued in Federal court, and a variety of other
possible factors. Because of these variable considerations. Akin is in our opinion
sui generis. It will not automatically control any other adjudication.

BOSTON PUBLIC LIBRARY

3 9999 05994 738 0

Nevertheless, it is equaiiy ciear xnat. /iKin nas deprived Indian tribes of any
assurance that their water rights can always be adjudicated in Federal courts,
where treatment accorded tribal rights has traditionally been more favorable
than that given by state tribunals.

This assurance is a clear necessity if the Indians' rights generally are to be pre-
served. The likelihood is remote that state judges will appljr Indian law and
federal treaty and statutory interpretation to Indian rights questions as favorably
to Indians as will Federal judges. Normally the state judge is subject to periodic
reappointment by state governors and legislatures or to periodic reelection by
largely non-Indian voters. Such selection realities do not engender in these juges
the kind of independence from ^ocal, political pressures that is more characteristic
of the Federal judge appointed for life by the President of the United States. In
nearly any locale, the state judge is likely to find intense local feeling on any issue,
particularly in a water rights case, where Indian rights come into conflict with
non-Indian claims. These same political realities contribute to the less favorable
treatment accorded Indian rights cases in state appellate courts, as compared to
the Federal appellate tribunals. In those instances where Indian water rights may
be adjudicated in state courts, the only federal review possible will be through the
uncertain route of seeking the discretionary writ of certioriari from the Supreme
Court. But in a water rights case, the factflnding obligations of the trial court are
so enormous that certiorari may offer only a fragile possibility for significant
Supreme Court review of the myriad of complex issues of fact and law involved. A
Federal trial court decree, however, carries the right of appeal to a Federal court
of appeal, as well as the opportunity to petition for a writ of certiorari.

The Indian reluctance to submit their rights to adjudication in state courts is
well-founded in the history of such litigation. Cases during the past 4 years in
which the Supreme Court has agreed to review state court judgments adverse to
Indians have resulted in the reversal of eight of those none judgments, usually
unanimously, as pointed out initially in a brief amici curiae, filed in Akin by the
tribes whose water rights were involved. The eight reversals were Bryan v. Itasca

County, U.S. , 44 U.S.L.W. 4832 (decided June 14, 1976) "(9:0); Fisher

v. District Court, U.S. , 44 U.S.L.W. 3490 (decided March 1, 1976) {per

curiam); Antoine vs. Washington, 420 U.S. 194 (1975) (7:2); Satiacum vs. Wash-
higton, 414 U.S. 1 (1973) (9:0); Washington Game Dept. vs. Puyallup Tribe, 414
U.S. 44 (1973) (9:0) ; Mattz vs. Arnett, 412 U.S. 481 (1973) (9:0) ; Mescalero Apache
Tribe vs. Jones, 411 U.S. 145 (1973) (reversed in part (9:0), affirmed in part
(6:3)) ; McClanahan vs. Arizona State Tax Comm'n, 411 U.S. 164 (1973). The single
affirmance, not unanimous, occurred in DeCoteau vs. District Coxuity Court, 420
U.S. 425 (1975) (6:3).

Akin may leave open the possibility that an Indian tribe can initiate its own
suit in Federal court and obtain adjudication of rights there without fear of
dismissal in favor of a state suit. Even this result is not assured. Nor does that
possibility practically pertain to every, or perhaps any, Indian tribe in view of the
enormous cost involved with conducting such litigation. It is certainly beyond the
financial capacity of many tribes to independently pay for such a suit and it could
well bankrupt even the most prosperous of the Nation's tribes.

The assurance of Federal adjudication can be restored to Indian tribes now
only through enactment of an amendment to the McCarran amendment. That
restoration is essential to the full protection of Indian rights. Indian water rights
must be specifically exempted by Congress from provisions of the McCarran
amendment. Our clients urge an enactment providing that exemption.
Respectfully submitted,

Wilkinson, Cragun & Barker.
By R. Anthony Rogers

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Full text of "Indian water rights : hearings before the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary, United States Senate, Ninety-fourth Congress, second session ... June 22 and 23, 1976"

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