Indian Water Rights and Water Law

Even though federal laws and policies assure Indian tribes significant water rights, the outcomes of tribal water claims are far from certain. Tribes must compete with powerful political and economic forces for their share of this precious — and often scarce — natural resource.

This class will cover the history of U.S. water policy, from the European settlement of the West to the Winters Doctrine to current “water wars.” More importantly, it provides practical strategies for protecting tribal rights, implementing on-reservation regulation of water use and identifying off-reservation factors that affect your tribe’s water supply and future growth.

Our experienced instructor will guide you through the maze of legal requirements, case law and tribal, state and federal regulations that impact your water resources. You’ll have the opportunity to discuss unique challenges that your tribe faces in guaranteeing its water rights.

T O P I C S   I N C L U D E
Overview of Water Law
  • History of federal policy and deference to state law
  • Federal reserved water rights (Winters Doctrine)
  • Relationship between federal and state water rights law
Indian Water Rights
  • Tribal rights under the Winters Doctrine
  • Allottee water rights
  • Non-Indian Walton rights derived from allottee
  • Quantification of water rights:
    • Appropriative rights (practicable irrigable acreage)
    • Rights and ground water
    • In-stream flow rights
    • Fish flows, water quality and trust responsibility
  • Transfer or leasing of water rights
  • Off-reservation water rights
  • Indian water rights under state riparian law
  • State adjudication under the McCarran Amendment
  • Role of the federal courts
Off-Reservation Activities Affecting Tribal Water Rights
  • Federal and other water projects
  • FERC proceedings
Federal Trust Responsibility
  • Role of the Department of the Interior
  • Role of Congress
  • Other federal agencies
Tribal, Federal and State Regulation of On-Reservation Water Use
  • Tribal authority under the Walton decision
  • Non-Indians and fee lands
  • Regulating water and environmental quality
Boundary and Navigable Waters
  • The Equal Footing Doctrine
  • States’ and private rights
Developing a Strategy to Protect Tribal Water Rights
  • Finding the right combination of litigation and other approaches
  • Fact development and alliance-building funding
  • Addressing current issues
Developing Tribal Regulatory and Administrative Systems — Practical Issues
  • Pending legislation
  • Court decisions
  • Administrative action
  • Tribal water codes and related laws
  • Leasing settlement water
  • Field investigation and enforcement
  • Administrative hearings and appeals
  • Role of the tribal court and tribal council

*Topics subject to change.

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