INDIAN AND NON-INDIAN WATER DEVELOPMENT by Daniel Craig McCool

INDIAN AND NON-INDIAN WATER DEVELOPMENT by Daniel Craig McCool
INDIAN AND NON-INDIAN WATER DEVELOPMENT
by
Daniel Craig McCool
A Dissertation Submitted to the Faculty of the
DEPARTMENT OF POLITICAL SCIENCE
In Partial Fulfillment of the Rquirements
For the Degree of
DOCTOR OF PHILOSOPHY
In The Graduate College
The University of Arizona
1983
THE UNIVERSITY OF ARIZONA
GRADUATE COLLEGE
As members of the Final Examination Committee, we certify that we have read
the dissertation prepared by
entitled Daniel Craig McCool
Indian and Non-Indian Water Development
and recommend that it be accepted as fulfilling the dissertation requirement
for the Degree of
Doctor of Philosophy
?-/45.-/1".7
Date
Date
-9'404
e//; s7,4 :3
Date
Date
Date
Final approval and acceptance of this dissertation is contingent upon the
candidate's submission of the final copy of the dissertation to the Graduate
College.
I hereby certify that I have read this dissertation prepared under my
direction and recommend that it be accepted as fulfilling the dissertation
requirement.
Date
STATEMENT BY AUTHOR
This dissertation has been submitted in partial fulfillment of
requirements for an advanced degree at The University of Arizona and
is deposited in the University Library to be made available to borrowers
under rules of the Library.
Brief quotations from this dissertation are allowable without
special permission, provided that accurate acknowledgment of source
is made. Requests for permission for extended quotation from or reproduction of this manuscript in whole or in part may be granted by
the head of the major department or the Dean of the Graduate College
when in his judgment the proposed use of the material is in the interests of scholarship. In all other instances, however, permission
must be obtained from the author.
r:229/1
SIGNED:
0,11'Weir
ACKNOWLEDGMENTS
I would like to thank Vine Deloria, Jr., Ken Godwin, and Jeanne
Nienaber-Clarke for their input, guidance, and support.
TABLE OF CONTENTS
Page
LIST OF TABLES
vii
LIST OF ILLUSTRATIONS
viii
ix
ABSTRACT
1
1. INTRODUCTION
2. A DECISION-MAKING MODEL APPLIED TO INDIAN AND NONINDIAN WATER DEVELOPMENT
Introduction
A Model of Decision-making
Process Decisions
Substantive Decisions
The Model Applied to Indian and Non-Indian Water
Development
Conclusion
11
11
11
13
14
19
29
3. THE HISTORICAL ORIGINS OF THE CONFLICT OVER WESTERN WATER
RIGHTS
31
31
Introduction
Seven Legal Principles: Precedent for "Winters v.
U.S
A Reservation of Water
The Riparian Doctrine: The Principle of Non-Use.
Expansion for Future Use
Preferential Treatment of Indians
Federal Guardianship of Indians
Communal Ownership of Water
The Supremacy of Federal Law
The Historical Context of Winters v. U.S.: Western
Water Policy
Legislation: To Settle the West
Family Farms for All
Federal Funding, State Control, and Private
Agriculture
The 1902 Reclamation Act
Reclamation Projects and the Indian Tribes
Conclusion
34
36
39
40
41
43
45
48
51
51
52
55
58
60
63
4. INDIAN AND NON-INDIAN WATER DEVELOPMENT: 1902-1975 . . . 66
Introduction
iv
66
TABLE OF CONTENTS--Continued
Indian Water Development
Water for Allocated Lands
Reimbursability: Indians Pay for Projects
Water Gained, Land Lost
Non-Indian Recipients of Indian Water
The Role of Water Rights in the BIA Water Development
Program
Budgetary Growth of the BIA Water Development
Program
Non-Indian Water Development
The Bureau of Reclamation
Corps of Engineers
Problems with the Federal Water Development Program .
The Pork-Barrel: Congressional Courtesy and Water
Projects
Conclusion
73
77
84
85
90
93
100
102
106
106
108
111
111
116
118
120
121
125
127
128
134
134
136
140
144
144
146
147
149
155
158
6. THE POLITICS OF CONTEMPORARY INDIAN WATER RIGHTS
Introduction
Indian Water Rights and the Carter Administration . . Indian Water Rights as an Integral Part of
Carter's Water Policy
The National Indian Water Policy Review
The Carter Water Policy Statement of June 1978. .
Negotiated Settlements
5. CONTEMPORARY FEDERAL WATER POLICY: THE BATTLE OVER WATER
PROJECTS DURING THE CARTER AND REAGAN ADMINISTRATIONS
Introduction
Federal Water Project Expenditures: Declining? .
Attempted Reforms in the Water Policy DecisionMaking Process
Changes in Authorization and Appropriation
Criteria
Bureaucratic Reorganization
Budgeting Reform
Appropriations: The White House vs. The Congress . .
The Carter "Hit Lists"
FY 1979: The Carter Veto
Carter Moderates His Opposition to Project Funding
The Reagan Budget Cuts: Selective Reductions . .
Measures of Budgeting Success
Three Measures of Budgeting Success
The Data and Discussion
Conclusion
Page
67
68
69
71
72
vi
TABLE OF CONTENTS--Continued
Limits to Litigation
The States Resist the Carter Reforms
Page
161
164
171
171
174
Indian Water Rights and the Reagan Administration. . . .
All-Inclusive Settlement Bills
Settlement Bills for Individual Tribes
The Reagan Policy Clarified, The Tribes Search
for a Strategy
Conflicting Perceptions of Negotiations
Funding for Indian Water: The Bureau of Indian Affairs
Budget
Limited Budgetary Growth Under Carter
Reagan
Cuts
Under
Budget
Bureaucratic Requisites of Funding Success
Conclusion
178
181
186
188
193
196
199
202
202
204
208
7. CONCLUSION
A Brief Review
Five Principal Arguments
The Future
REFERENCES
216
LIST OF TABLES
Table
1.
2.
Page
Irrigated Acreage on Indian Reservations Farmed by
Indians and Non-Indians 74
BIA Appropriations for Indian Water Development
1905-1975 79
3.
Appropriations 137
4.
Mean Scores 141
vii
LIST OF ILLUSTRATIONS
Page
Figure
1.
Graph--Outlays for Natural Resources and Environment. .
vii i
133
ABSTRACT
This dissertation contrasts the development of Indian and
non-Indian water development. Indian water rights, although based
upon long-standing legal principles, have had a minimal impact on
the actual development of Indian water resources. As a result, Indian
water resources remain largely undeveloped. In contrast, non-Indian
water development has proceeded at a rapid pace. A tripartite alliance
of congressional subcommittees, federal agencies, and water user
interest groups have provided the political support for continued
high-level funding for non-Indian water projects.
In the American west, where water must be diverted to be
used, Indians and non-Indians are competitors for both water and
water projects. Until recently Indians could not compete effectively
in the political milieu of water policy. However, changes in approach,
methods, and political conditions have made Indian tribes more competitive in the struggle for water rights and water projects.
ix
CHAPTER 1
INTRODUCTION
In the western United States water is a scarce resource in
most areas. To a great extent, the course of western development
followed the course of western waters. The possession of water,
and the ability to use it, determines who thrives and who perishes.
Thus, conflict over western water is not just a fight for economic
advantage; it is a fight for survival. This is especially true for
American Indians, whose culture and way of life are closely tied
to their land. Most of that land is without substantial rainfall
and therefore dependent upon streams, rivers and groundwater for
life-giving moisture.
But inadequate rainfall recognizes no racial or cultural
distinctions; non-Indians also suffer from the lack of rain, and
they too must depend on these same sources of water if they are to
survive in the arid West. This places Indians and non-Indians in
direct competition for a scarce resource--a resource that wanders
in and out of Indian reservations, that disappears one year and inundates the next, that respects neither tribal autonomy nor abstract
legal doctrines. But it is a resource that can be stored, diverted,
directed, or divided by means of physical structures. The conflict
over water, then, involves more than just the water itself. It involves the structures necessary to put the water to use.
1
2
Although there are many parties in conflict over western
water, one of the most troublesome facets of this conflict involves
Indians and non-Indians because it pits one legal doctrine against
another; the Winters Doctrine, developed to protect the interest
of Indians and other federal reservations, and the Prior Appropriation
Doctrine, which is the basis of state granted water rights.
The Winters Doctrine (also known as the Reserved Rights Doctrine)
was enunciated in the land-mark case of Winters v. U.S. in 1908.
Prior to Winters the federal government was silent as to whether
water was reserved for Indians when their reservations were created.
When land was reserved for Indians, was water also reserved? In
Winters the Supreme Court grappled with that question:
The Indians had command of the lands and the water-command of all their beneficial use, whether kept for
hunting 'and grazing roving herds of stock,' or turned to
agriculture and the arts of civilization. Did they give
up all this? Did they reduce the area of their occupation
and give up the waters which made it valuable or adequate
(1908:576)?
The court held that the government had impliedly reserved water for
Indians when the reservation was created. Hence Indians held a right
to water that was created when their reservation was established.
This right was exempt from state law and was not limited by existing
levels of beneficial use of reserved water. In subsequent years
a large body of case law evolved from the original Winters decision.
The courts repeatedly reaffirmed the doctrine of reserved water rights,
applied it to all federal reservations--not just Indian lands, and
have attempted to clarify its precepts (Conrad Investment Company
3
v. U.S., 1908; U.S. V. Walker River Irrigation District, 1939; U.S.
v. Powers, 1939; Federal Power Commission v. Oregon, 1955; U.S. V.
Ahtanum Irrigation District, 1956; Arizona v. California, 1963; Cappaert
v. U.S., 1976; U.S. v. New Mexico, 1978).
Winters Doctrine rights are federal rights established independent of state law. The states have adopted their own water right
laws which are radically different from the reserved rights doctrine.
Beginning in the mid-1800s western states began formulating water
codes which were tailored specifically to the arid conditions of
the West. Called the Prior Appropriation Doctrine, this code of
water law allocated water rights on the basis of priority of beneficial
use; whoever put the water to beneficial use first retained the rights
to that water for as long as it was being used. In times of shortage
senior appropriators were allowed to consume their entire appropriation
before junior appropriators received any water. Also, the right
to water could be lost through non-use.
The conflict between these two water rights doctrines is
multi-dimensional. Winters rights exist irrelevant of usage while
prior appropriation rights are determined through usage. The former
is established by the federal government while the latter is granted
by state governments. The amount of water reserved under the Winters
Doctrine is indeterminate, but state granted rights under the Prior
Appropriation Doctrine are strictly quantified. And perhaps most
importantly, the Winters Doctrine is the principal source of water
rights for Indians while the Prior Appropriation Doctrine is the
4
principal source of water rights for non-Indians. Thus the two doctrines are inherently contradictory, competitive, and incompatible
in a number of ways.
Despite the existence of these two conflicting doctrines,
water policy makers and water-users have tended to view water policy
in terms of one doctrine or the other without full consideration
of the interactive relationship between the two doctrines. The architects of non-Indian water policy, principally the Congress and state
governments, have tended to ignore the existence of the Winters Doctrine and continue to make significant water allocation and development
decisions without regard to their impact on Winters Doctrine rights.
Similarly, the architects of Indian water policy, principally the
federal courts, have developed the water doctrine of reserved rights
without clarifying, explaining, or attempting to compensate for its
impact on non-Indian water rights and water development.
As a result of this tendency to develop two conflicting doctrines in near-total isolation from one another, neither doctrine
was designed to meet the needs or requirements of the other. They
are on a collision course. It would be difficult to overstate the
severity of the impact of this collision. Both Indians and non-Indians
fear the consequences. Non-Indians fear that the Winters Doctrine
will destroy the economy of the West and bring non-Indian development
to a halt. Paul Bloom writes that "It cannot be stressed too much
that the economic impact on the non-Indian economies of the western
states would be severe and deleterious" if Winters Doctrine
5
rights were developed to their greatest extent (1971:690). Indians
fear that the government's failure to develop Winters Doctrine rights
will destroy not only tribal economies but their entire way of life.
Rupert Costo argues that: "There is no issue so critical to Indian
affairs today, as the issue of water rights and resources. It cannot
be too often emphasized, or too strongly insisted that this is THE
most important problem confronting us. . . a problem concerning our
very survival" (1972:4).
Although Indians and non-Indians often disagree as to how
to resolve their conflicting water claims, all parties agree that
the problem is severe. Phillip Fradkin calls it "the sword of Damocles
that hangs over the West" (1981:155). According to a report by the
Arizona Academy, "all other water conflicts and disputes pale into
insignificance compared to the political effects Indian demands could
nave" (1977:12). Richard Foreman writes that "the controversy on
the extent of such 'reserved' Winters Doctrine rights is now at
the crux of Western water problems" (1981:58).
The conflict between the two doctrines of water rights (and
therefore the conflict between Indians and non-Indians) is more severe
now than in the past because of increasing water scarcity. Most
western water has already been allocated, hence the potential resolution of Indian claims is becoming more of a question of re-allocation
of water, not just another allocation of water. The resulting conflict
is exacerbated by the concomitant increase in western population
and the rise of Indian political assertiveness.
6
This is not to argue that the conflict is of recent origin.
In 1872 the Indian Superintendent visited the Gila River Reservation
and reported that "The water question is paramount to every condition
affecting the progress and well-being of the tribes. . . ." (Superintendent's Annual Report for 1872:48). Subsequent chapters in this
dissertation will provide evidence that the present crises in water
rights originated long ago; its roots can be traced to basic cultural
values and Anglo ideas of law, civilization, and resource development.
For many years almost nothing was done to stem the inevitable clash
between the Winters Doctrine and the Prior Appropriation Doctrine.
These two approaches to water rights developed independent of each
other until the reality of increasing water scarcity in the the face
of increasing demands forced the doctrines into a showdown. It has
been a long-time coming, and now it is upon us.
Unfortunately the literature on water rights and water policy
has also tended to isolate the Winters Doctrine from the reality
of western water development under the Prior Appropriation Doctrine.
There is an enormous body of literature which discusses the Winters
Doctrine solely within a legal context. Many authors have debated
the "true" meaning of the case law, and many have discussed what
the Winters Doctrine should do, or will do, or could have done.
But the actual impact of Winters--and its potential future
impact--cannot be fully understood until the Winters Doctrine is
examined within the larger political context of water development
as a whole. In other words, to understand the impact of the Winters
7
Doctrine on Indian water development it is necessary to understand
non-Indian water development.
This emphasis on the totality of water development is necessary
because Indians and non-Indians are competitors, not only for water,
but also for water projects and the federal funding necessary to
finance them. In the American west water almost always has to be
stored and diverted before it is useful for economic development.
If Indian tribes seek to apply their water rights for economic development--to turn "paper" water into "wet" water--it will be necessary
to build water projects. But those projects will compete with nonIndian projects that divert water away from Indian reservations.
The competition for water projects assumes even greater relevance because, to a great extent, water rights decisions in the West
have been made simply through the process of water development.
Non-Indians have invested millions of dollars in water projects that
divert water away from Indian reservations. They now argue that
it would be too costly to abandon those projects and allow the water
to be diverted to Indian projects. In a sense, water rights decisions
have been made through default. The relative allocation of water
for Indians and non-Indians has been determined, not by water rights
decisions, but by water development decisions. Whoever got the water
projects got the water. The old adage "possession is nine-tenths
of the law" is particularly relevant to this situation. Therefore,
8
to understand the reality of water rights it is necessary to understand
the politics of water projects.
But an understanding of the politics of water projects is
impossible without examining all water projects, not just those in
the West where Indian reservations are facing severe water shortages.
Funding for water projects is not just a regional matter, it is the
product of a national policy that involves many different aspects
of water development. Politically, all water projects are related,
as subsequent chapters will show. Norris Hundley argues convincingiy
that "to focus only on the West is to obscure the national significance
of the present crisis over Indian water rights and to ignore the
role of the federal government in today's hotly contested battles.
• . ." (1978:454). The present situation in regard to Indian water
development is not just a product of the case law related to Winters,
nor is it simply a product of federal Indian policy. While these
factors are important they are but two variables in the broader question
of national water resource development in the United States.
The following chapters attempt to place Indian water development within the larger context of the politics of water resource
development as it relates to both Indians and non-Indians. Chapter
2 presents a model of decision-making that helps explain some of
the basic differences between Indian and non-Indian water development.
The model presents two types of decisions, and hypothesizes that
one type of decision best discribes Indian water development decisions,
9
while non-Indian water development decisions have included both types
of decisions.
Chapters 3 through 6 present a chronological examination
of Indian and non-Indian water development. Chapter 3 studies the
origins of the Winters Doctrine and the origins of the government's
water development policy for non-Indian lands. Some authors have
argued that the federal government has long emphasized federal control
over water resources in order to protect Indians from state and local
authorities. Others have argued that the federal government has
clearly evidenced a concerted deference to state control over water
resources. In Chapter 3 I will argue that both of these views are
correct; the federal government has pursued a schizophrenic water
policy that at times favors federal control over water resources,
and at other times clearly defers to state control. Hence, Chapter
3 concerns the earlist roots of the present conflict over water.
Chapter 4 covers a period of time beginning with the Winters
decision and the passage of the 1902 Reclamation Act and ending with
the 1970s. The first section of the chapter discusses the Bureau
of Indian Affairs' water development program, and the second section
examines the federal water programs administered by the U.S. Bureau
of Reclamation and the U.S. Army Corps of Engineers. This presents
an opportunity to compare the progress of Indian and non-Indian water
development over a seventy year period, and look at the conflict
between the two programs that slowly began to emerge in the mid-fifties.
10
Chapters 5 and 6 cover the "contemporary" period of water
resources development which begins with Carter's announcement of
comprehensive water reforms and covers his four-year struggle to
implement those reforms, and examines Reagan's water resources policies. The first of these two chapters looks at the strength of the
Indian's competitors for water and water projects; the non-Indians
who allocate, build, and use federal water projects. It would be
difficult in deed to understand the potential for Indian water development without first assessing the strength of the competition.
The second of these two chapters investigates the role of
Indian tribes and the Winters Doctrine in the political milieu of
contemporary water policy. The recent emphasis on negotiation represents a significant departure from the past tendency to separate
the legal development of Winters rights from the actual development
of water resources, which takes place primarily in a political context.
In short, in recent years Indian water has become more politicized.
The implications of this change are discussed in that chapter.
The final chapter reviews the major arguments of the dissertation, and identifies several factors which I think will have an impact
on future decisions regarding Indian and non-Indian water development.
CHAPTER 2
A DECISION-MAKING MODEL APPLIED TO INDIAN
AND NON-INDIAN DEVELOPMENT
Introduction
In this chapter I will introduce a model of decision-making
which can be applied to Indian and non-Indian water development.
The purpose of the model is to simplify and clarify the relationships
between a variety of relevant variables, which in turn will clarify
the differences between Indian and non-Indian water development,
and explain how Indian water development fits into the larger context
of the politics of federal water development.
This chapter is divided into three sections. The following
section develops a decision typology consisting of two types of decisions: "process decisions," and "substantive decisions," and discusses
three political variables which help clarify the difference between
the two decision types. A second section applies the decision-making
model to Indian and non-Indian water development, and a final section
summarizes and concludes the chapter.
A Model of Decision-making
There is a voluminous literature which attempts to classify
public policies and public policy decisions according to a specific
criteria. While an exhaustive review of these studies is not necessary, a sampling of these typologies will indicate the breadth and
11
12
diversity of the categories and the kinds of criteria that are uti-
lized.
Some scholars have concerned themselves with policy typologies
while others have developed classifications of decisions. Among
the policy typologies, Lowi's (1964) tripartite categorization of
distributive, redistributive, and regulatory policy is perhaps the
best known. Other well-known typologies are Froman's "areal/segmental"
classification (1967), Eulau and Eyestone's "adaptive/control" distinction (1968) Edelman's "symbolic/material" dichotomy, and those of
analyses which classify policy along an incremental/non-incremental
dimension (Braybrooke and Lindblom, 1963; Etzioni, 1967; Schulman,
1975).
A number of scholars have also developed typologies of policy
decisions. Snyder (1958), and Robinson and Majak (1967) created
taxonomies based on decision "determinants". March and Simon (1958)
identified decision "styles," while other scholars have based their
work on decision impacts (Van Dyke, 1968; Salisbury, 1968).
Although the distinction between policies and policy decisions
is not always clear in the literature, I will use as my unit of analysis policy decisions, defined as a choice among policy alternatives.
This assumes that a decision is a more discrete, more specific phenomenon than the broader concept of policy (Rose, 1969; Anderson, 1975;
Heclo, 1979). Hence, the typology presented in the following pages
is conceptually similar to previous taxonomies of policy decisions
using decision impact as the basic criterion. However, the decision
13
types developed in this chapter are based on expected decision impacts.
It is often difficult for decision-makers to accurately anticipate
the actual impact of a decision because policy decisions nearly always
generate unanticipated impacts. Hence, policy-makers must decide
upon the basis of expected rather than actual decision impacts.
Process Decisions
A number of scholars have categorized policy decisions on
the basis of their impact on the policy making process itself. Dror
defines "metapolicymaking" as policymaking on how to make policy"
(1968:160). Froman identified "structural" decisions as those that
"affect the distribution of advantages and disadvantages within a
political system" (1967:98). Salisbury utilizes a concept he calls
"
constitutional policy," defined as "authorative decisions that pre-
scribe the rules and specify the structural characteristics of the
authoritative decisional system, i.e., government" (1968:154).
Drawing from these concepts, I will use the term "process
decision" to refer to a policy decision where the expected primary
impact will be on the political process and those who participate
in it. A process decision is an attempt by a decision-maker to alter
the decision-making process to his advantage. This advantage is
then utilized by the decision-maker during subsequent decision making
-
to aid him in achieving favorable decisions in the future.
Process decisions can involve every facet of the decisionmaking process; changes in decision-making personnel, modification
of decision rules or procedures, the creation, alteration or abolition
14
of decision-making institutions, or a change in levels of authority
and power. Also included under the rubric of process decisions are
decisions which appear to deal with substantive allocations but are
unenforceable or have no mechanism for implementation. This type
of decision is useful to decision-makers because it creates certain
tactical advantages; it provides an opportunity for credit-taking,
it sometimes obfuscates issues and responsibility, or it buys time.
Hence the primary impact of these kinds of decisions is on the political process and those who participate in it. -411
In sum, a process decision is a political tool designed to
create advantages which aid the decision-makers in making subsequent
decisions in his favor.
Substantive Decisions
The concept of substantive decisions, like process decisions,
is also based on a number of previously defined concepts of a similar
nature. Froman defines substantive policy as those which deal with
"specific government programs" (1967:100). Robinson and Majak use
the term "outcome" to refer to the impact of a decision on the total
environment (1967:184-85). Van Dyke has developed a concept of substantive policy which includes decisions "designed to have consequencies
primarily outside the governmental system itself" (1968:178-80).
Drawing from these concepts, I will use the term "substantive
decision" to refer to a policy decision where the expected primary
impact will be a substantive allocation to a recipient population
outside of government. The word "substantive" is used here to mean
15
that the decision does more than just simply affect the decisionmaking process and those who participate in it; the decision must
actually allocate resources of value to a recipient population outside
of government. Substantive decisions would include both the bestowal
of these resources and the denial, removal or re-allocation of them.
It should be emphasized that enforcement and implementation
are crucial factors in distinguishing between process decisions and
substantive decisions. Decisions which deal with substantive issues
but lack enforcement mechanisms which would insure that an actual
allocation takes place are process decisions. Robert Dahl makes
this point when he defines an "effective" decision as any decision
"accompanied by measures to insure that the [decision] will be
acted upon" (1958:279).
The distinction between process decisions and substantive
decisions is clear in most cases. However, there are policy decisions
that defy a simple dichotomization. This problem is not unique to
the typology presented here. Several scholars have commented on
the lack of exclusivity which plagues models of public policy-making
(Steinberger, 1980; Greenberg et al., 1977; Hofferbert, 1977; Lineberry
and Sharkansky, 1971). Policy-making is sufficiently complex that
it is nearly impossible to construct rigid theoretical categories
of policy. An alternative approach is to think in terms of a continuum
where policy decisions vary along a continuous dimension without
rigid demarcations. Such an approach probably comes closer to modeling
the reality of public policy decision-making.
16
In terms of the model presented here a decision continuum
can be used to represent process and substantive decisions, in addition
to decisions which possess characteristics of both. Some examples
might help to clarify such a continuum. On the far left are strictly
process decisions such as; changing the committee assignment of a
bill, appointing a different person to head a government agency,
or changing the cost-benefit formula used in evaluating government
projects. On the far right are substantive decisions such as a grant
to a local community, funding for a water project, or a law that
eliminates air pollution.
In the center of the continuum are policy decisions that
result in both process and substantive impacts. An example would
be the establishment of a new government research institute which
expends research funds and constitutes a new organizational entity
of the government that makes important research decisions.
The process/substantive decision continuum can be clarified
by examining three political variables which have an impact on decisionmaking, and can be applied specifically to Indian and non-Indian
water development. The first one concerns the relationship between
the two kinds of decisions. Process decisions vary according to
the extent to which they pre-determine the outcome of subsequent
substantive decisions. Some process decisions have a vague, indirect,
unpredictable impact on subsequent decisions while others lead directly
17
to substantive decisions. In other words, some process decisions
skew the decision-making process to such an extent that specific
substantive decisions will almost inevitably follow.
This has important political implications. Perceptions of
what is at stake will vary according to the probability of subsequent
substantive decisions. In the case of Indian water development the
Winters decision was vague and indeterminate. With a few minor exceptions,
it did not directly lead to significant substantive decisions. For
the most part it only produced more process decisions. In contrast,
a number of process decisions made in regard to non-Indian water
development lead decisively and directly to substantive decisions.
These decisions altered the decision-making process so that it was
politically rewarding to make substantive allocations for non-Indian
water projects. This will become evident in the following chapters.
A second political variable which has an impact on decisionmaking is the extent to which a decision is perceived as a zero sumchoice. In a situation where there are clearly perceived winners
and losers there is a greater potential for conflict. The losers
will invest their political resources in an effort to stop the decision.
Hence, in a zero-sum situation there will almost always be opposition,
and a greater temptation for decision-makers to make a process decision.
In a non-zero-sum situation, where only benefits are perceived, it
is easier politically to reach a substantive decision. In the case
of water policy, decisions allocating water and water projects to
18
Indians have long been perceived as zero-sum choices; gains for Indians
are viewed as losses for non-Indians. But non-Indian water development
is a classic case of a policy perceived to be non-zero sum. The
costs of massive water development are just now becoming apparent;
for many years national water development has been viewed only as
a "good" distributed by government. As a result of these perceptions,
it has been much easier politically to make substantive decisions
in regard to non-Indian as opposed to Indian water development.
A final variable which has an impact on decision-making concerns the relative political resources of competing interests. Policy
decisions are characterized by a high degree of conflict when two
conditions are met; first, there are two adversarial parties, and
second, both parties have the will and the political resources to
contest the decision. In the case of water development only the
first of the conditions existed until recently; there were two adversarial parties--Indians and non-Indians--but the former lacked the
resources necessary to have a significant impact on the outcome of
water resource decisions. This allowed policy-makers to make significant substantive water resource decisions which benefited non-Indians
in an atmosphere of low conflict, which is, of course, politically
attractive.
These three variables (the probability factor, perceived
zero-sum, and relative political resources) are important because
they have an effect on the political milieu surrounding policy decisions. But it is important to note that these variables do not have
19
the same impact on all decision-makers. These are political variables:
the decision-makers who are most susceptible to political pressure
feel the greatest impact from them. This would include elected officials and bureaucrats who are sensitive to constituency demands.
Federal judges, on the other hand, are less susceptible to direct
political pressure, and can afford to ignore--at least to some extent-political pressures that are a result of the three variables discussed
above. This helps explain why the judicial branch and the legislative
branch have diverged so significantly in respect to Indian and nonIndian water development. It also explains why the federal bureaucracy
has not always dutifully implemented court decisions in regard to
water rights.
The Model Applied to Indian and
Non-Indian Water Development
The decision typology developed in the previous section provides an oportunity to clarify the relationship between two different
types of decisions, and three political variables that have an impact
on those decisions. This should lead to a greater understanding
of the differential rate of development of Indian and non-Indian
water resources. Using the decision typology as a model, water policy
decisions can be classified accordingly. The principal hypothesis
of this dissertation is that Indian water development has been characterized predominately by process decisions while non-Indian water
development has been characterized by both process and substantive
decisions. In this section I will first discuss Indian water
20
development has been characterized by both process and substantive
decisions. In this section I will first discuss Indian water development,
then non-Indian water development, and point out how they correlate
with each decision type. The remainder of the dissertation will
attempt to empirically verify that correlation.
Very little water development has actually taken place on
Indian reservations. But this paucity of development does not mean
that there has been no policy activity in this area. On the contrary,
policy-makers have been involved in Indian water development for
over a hundred years. Most of the activity, however, has taken place
in the courts. As a result, a complex set of court decisions, known
as the Winters Doctrine, constitute the principal decision-making
activity in regard to Indian water. With a few exceptions, these
decisions can be classified as process decisions; their principal
impact has been on the decision-making process itself. This can
be attributed to three limitations of Indian water policy.
First, the Winters Doctrine, and the rights enunciated by
that doctrine, are vague and ill-defined. The original case of Winters
v. U.S. formulated a broad, abstract legal principle. It did not
define the parameters of Indian rights, nor specify the exact applications of those rights, nor suggest or clarify how such rights might
be implemented. In short, the Winters decision raised more questions
than it answered, and nearly all subsequent case law has been an
attempt to clarify Winters rather than implement Winters. A brief
review of the case law makes this quite evident.
21
Since the Winters decision was handed down the question of
applicability has arisen repeatedly: Does the doctrine apply only
to irrigation water?
(U.S. v. Conrad Investment Co., 1908; U.S.
v. Alexander, 1942; U.S. V. Ahtanum Irrigation District, 1956; Arizona
v. California, 1963; U.S. v. New Mexico, 1978) Does it apply to
past uses or future needs? (U.S. v. Conrad Investment Co., 1908;
U.S. v. Walker River Irrigation District, 1939; U.S. v. Ahtanum Irrigation District, 1956) Are all Indian reservations covered by the
doctrine? (U.S. v. Walker River Irrigation Co., 1939) Does it apply
to groundwater? (Tweedy v. Texas, 1968; Cappaert V. U.S., 1976)
The courts have also struggled with other questions concerning
the Winters Doctrine: Can Indian water rights be adjudicated in
state courts? (U.S. v. District Court for Eagle County, 1971; U.S.
v. District Court for Water District Number Five, 1971; Akin v.
U.S., 1976; Northern Cheyenne, Etc. v. Adsit, 1982; San Carlos Apache
Tribe v. State of Arizona, 1982) Can reserved waters be sold or
leased? (Skeem v. U.S., 1921; U.S. v. Powers, 1939) Also, what
impact does allotment have on Winters Doctrine rights? (Skeem v.
U.S., 1921; U.S. v. Parkins, 1926; Scheer V. Moody, 1931; Anderson
v. Spear-Morgan Livestock Co., 1938; U.S. v. Powers, 1939; U.S. V.
McIntire, 1939; U.S. v. Alexander, 1942; Phelps v. Hanson, 1947;
Segundo v. U.S., 1954; Merril v. Bishop, 1955; U.S. v. Preston, 1965;
Confederated Salish and Kootenai Tribes v. Namen, 1974; Colville
v. Walton, 1978).
22
Despite the courtts 75 year struggle to establish the parameters of Winters it is still unclear as to which waters are reserved.
There is still extensive disagreement over the scope of reserved
rights and how they might affect water development. Some important
questions, such as compensation for the loss of water rights, have
not even been addressed by the courts. As a result, the Winters
Doctrine is extremely difficult to implement. Its ambiguity permits
its detractors to minimize it or ignore it when making important
water policy decisions.
A second limitation of Indian water policy which has diminished
the substantive impact of decisions in this area concerns the role
of Congress. The Congress, almost without exception, has refused
to become involved in the controversy over Indian water rights.
Congress has had many opportunities to clarify Winters, to substantiate
Winters, or even to abolish Winters, but it has chosen to leave the
matter to the courts. It is a classic case of non-decision-making
(Bachrach and Baratz, 1970) where Congress has refused to decide.
The courts have been forced to interpret congressional intent in
a virtual vacuum of congressional activity. This leaves the courts
no choice but to make broad assumptions with little legislative guidance.
Such interpretations are inevitably subject to conflict, disagreement,
and reinterpretation. In other words, congressional intent in regard
to Indian water is extremely vague and the case law reflects this
vagueness.
23
The third limitation on Indian water policy concerns the
dependence on litigation as a mode of problem resolution. Minorities
have often relied upon the courts when majoritarian institutions
refused to acknowledge their demands, and the courts have often been
receptive. But there are significant costs to the litigation strategy.
The courts are well equipped to enunciate legal principles but they
lack the enforcement capability required to implement those principles
in the political arena. In some cases rights are essentially selfenforcing, for example free speech, and thus do not require extensive
enforcement activity. But other rights, such as Indian water rights,
are meaningless unless they are accompanied by a persistent and diligent effort to enforce those rights.
A number of scholars have indicated that the Supreme Court,
because of its lack of enforcement capability, is dependent upon
the other branches of government to enforce its decisions. Stephen
Wasby writes that "the degree to which government officials enforce
or attempt to enforce court rulings. . . is critical because those
rulings are not self-enforcing. Executive branch officials do not
often directly attack Supreme Court decisions but they may severely
damage the possibilities for compliance by refusing to take firm
action to implement them" (1978:235).
Wasby was writing in regard to government bureaucracies,
but the Congress and the President can also impede judicial implementation. Cortner and Lytle state that, ". . . what the Court must fear
most is not only a hostile President but also a hostile Congress
24
united behind the President. If such a lineup occurs, there is little
to prevent the elected branches from prevailing over the Court in
event of conflict" (1971:31). In the case of the Winters Doctrine
the Congress, the President, and the bureaucracy prevailed over the
Court simply by ignoring Winters and continuing to formulate water
policy with little regard to Indian rights.
When the executive and legislative branches resist court
decisions they usually prevail; Robert Dahl examined a sample of
Supreme Court cases and concluded: "It is an interesting and highly
significant fact that Congress and the President do generally succeed
in overcoming a hostile court on major policy issues" (1968:362).
In short, "The Court's history is punctuated by a number of episodes
in which its policies were implemented badly, o ten by design" (Baum,
1981:18 )4 ).
Implementation problems are exacerbated when a decision requires funding to be implemented. Lawrence Baum writes that: "Through
legislation Congress can influence the implementation of Supreme
Court decisions. Its most important tool is budgetary. Congress
can provide or fail to provide funds to carry out a decision" (1981:205).
This point is particularly relevant to Indian water rights. The
ensuing chapters, which emphasize budgetary allocations, will make
this clear.
Because of the court's limited capacity to enforce its decisions, the judicial branch is ill-prepared to formulate important
policies without the support of the other branches of government.
25
This point is succinctly made by Stuart Scheingold, who argues that
it is a myth that the courts effectively change policy:
This point is succinctly made by Stuart Scheingold, who argues that
it is a myth that the courts effectively change policy:
The myth of rights leads us to believe that litigation is
an obvious and effective answer to any footdragging by
opponents of the new order. . . direct deployment of legal
rights in the implementation of public policy will not
work very well, given any significant opposition. Litigation
may be helpful to individuals who have the resources and
determination to pursue remedies through the court system.
But courts cannot be relied upon to secure rights more
generally in the society for reasons rooted in legal policy
and political power (1974:117).
Scheingold argues that reliance on litigation obscures substantive
issues, increases conflict, and often results in purely symbolic
activity. "The consequence" he concludes, "is to sharply restrict
the effective range of courts in the implementation of public policy"
(130).
As a result of these three limitations, (the ambiguity of
Winters, the absence of congressional support, and the inability
of the Court to implement its decisions) the Winters Doctrine has
had an extremely limited impact on the actual allocation of water
to Indian reservations. However, the decision created political
and legal advantages for Indian tribes which they have used in subsequent process decisions, and on a few rare occasions, substantive
decisions. For the most part, however, Indian water policy has been
characterized by process decisions.
This conclusion becomes more evident by examining Indian
resource decisions in regard to the political costs and benefits
26
This point is succinctly made by Stuart Scheingold, who argues that
it is a myth that the courts effectively change policy:
This point is succinctly made by Stuart Scheingold, who argues that
it is a myth that the courts effectively change policy:
The myth of rights leads us to believe that litigation is
an obvious and effective answer to any footdragging by
opponents of the new order. • . direct deploy ent of legal
rights in the implementation of public policy will not
work very well, given any significant opposition. Litigation
may be helpful to individuals who have the resources and
determination to pursue remedies through the court system.
But courts cannot be relied upon to secure rights more
generally in the society for reasons rooted in legal policy
and political power (1974:117).
Scheingold argues that reliance on litigation obscures substantive
issues, increases conflict, and often results in purely symbolic
activity. "The consequence" he concludes, "is to sharply restrict
the effective range of courts in the implementation of public policy"
(130).
As a result of these three limitations, (the ambiguity of
Winters, the absence of congressional support, and the inability
of the Court to implement its decisions) the Winters Doctrine has
had an extremely limited impact on the actual allocation of water
to Indian reservations. However, the decision created political
and legal advantages for Indian tribes which they have used in subsequent process decisions, and on a few rare occasions, substantive
decisions. For the most part, however, Indian water policy has been
characterized by process decisions.
This conclusion becomes more evident by examining Indian
resource decisions in regard to the political costs and benefits
27
outlined previously. Political costs are high because the opposition--non-Indian water users--possesses considerable political resources.
Thus there is a great deal of conflict over any decision to allocate
significant amounts of water to Indians. As unallocated water grows
more scarce, and demands for funding increase, a substantive decision
assumes an increasingly zero-sum aspect, which also increases conflict.
As confict increases and political resources are marshalled against
the decision, there is a greater likelihood that the decision-maker
will make a process decision, especially one that is vague and does
not inevitably lead to a substantive decision in favor of Indians.
The Winters case law is an excellent example of that kind of decision.
However, this argument does not mean that the Winters Doctrine
is an vacuous symbolic gesture. Although very few substantive decisions
have resulted from Winters, the process decisions have had a favorable
impact on the decision-making process. Until recently, most of that
impact was limited to a strictly legal context; Winters led to many
subsequent favorable court decisions, but that does not solve the
problem of implementation and enforcement. To solve that problem
the Winters Doctrine must be applied in a political context. Thus,
Winters has the potential to be a valuable political tool when utilized
in the political process. Winters Doctrine rights help compensate
for the extremely limited political resources of Indian tribes.
In fact, the Winters Doctrine is perhaps their most valuable political
resource. Another quote from Scheingold's eloquent analysis reinforces
this conclusion:
28
Instead of think 'ng of judicially asserted rights as
accomplished social facts or as moral imperatives, they
must be thought of, on the one hand, as authoritatively
articulated goals of public policy and, on the other, as
political resources of unknown value in the hands of those
who want to alter the course of public policy. The direct
linking of rights, remedies, and change that characterizes
the myth of rights must, in sum, be exchanged for a more
complex framework, the politics of rights, which takes into
account the contingent character of rights in the American
system (1974:7).
-
In sum, the process decisions which comprise the Winters
Doctrine constitute an important political tool that can be applied
to subsequent decisions. Whether those will be substantive decisions
or simply more process decisions depends in part on how well the
tribes utilize this tool "of unknown value" in the political process.
In contrast, non-Indian water development is characterized
by numerous process decisions and many significant substantive decisions. The process decisions made in this area have practically
guaranteed subsequent substantive decisions. In other words, they
predetermined to a great extent the substantive decisions that followed. As a result, huge sums of money have been spent, and massive
amounts of water have been diverted and allocated to non-Indians.
Conflict over these allocations has been reduced through extensive
logrolling and the consequent disaggregation of project benefits.
Perceived zero-sum allocations have been minimized by expanding water
development budgets and, until recently, the availability of unallocated water. Non-Indian water users have developed extensive political
29
resources which they can use to create political benefits for those
who decide in their favor and political costs for those who do not.
These political resources have also been used to create institutional
arrangements (i.e., process decisions) that are conducive to continued
substantive decisions of considerable magnitude.
Conclusion
The decision typology developed in this chapter helps explain
some of the differences between Indian and non-Indian water development
activity. It clarifies these differences by establishing two types
of policy decisions and then explaining how Indian and non-Indian
water development decisions correlate with the decision types.
Three important points need to be reiterated. First, this
chapter has emphasized the importance of enforcement and implementation, which play a crucial role in distinguishing between process
and substantive decisions, and concomitantly, play an important role
in the development of Indian and non-Indian water resources. Enforcement capability varies across the three branches of government, with
the judicial branch being the most poorly equipped to implement its
own decisions. Enforcement is also affected by the perceived political
costs and benefits resulting from a decision. Schiengold makes this
point in his discussion of compliance to zero-sum court decisions:
"the compliance calculation is the will to resist. Put most simply,
when the stakes are high, conflict is likely to be most intense and
the losers will to resist likely to beat its strongest. The stakes
are probably highest when the rights at issue are inelastic--that
30
is, when victory is directly and totally at the expense of the loser"
(1974:129).
A second point which deserves reiteration concerns the proposition put forth in Chapter 1 that Indian water development can best
be understood by examining it within the larger political context
of federal water resources development. If the model presented here
is accurate, then Winters Doctrine rights are most valuable as a
political tool. Hence, any effort to determine the relevance and
ultimate impact of Winters must move beyond a discussion of the legal
context of Indian water rights. Lawrence Baum also emphasizes the
importance of the political context: "the Court's impact on society
is severely constrained by the context in which its policies operate"
(1981:211).
A final point that I want to emphasize is the importance
of examining policy phenomena in terms of their impact. Previous
studies of Indian water problems often emphasized legal principles
or congressional and judicial intent. Many authors have argued over
the "true" meaning of the case law. But in the final analysis, the
most important question is: what has actually been accomplished
in terms of water allocation and delivery? Or in other words, what
is the impact of the decisions that have been made? The following
chapters will attempt to answer that question.
CHAPTER 3
THE HISTORICAL ORIGINS OF THE CONFLICT OVER
WESTERN WATER RIGHTS
Introduction
The roots of the controversy over Indian water rights reach
into the distant past of the Anglo experience in the New World.
To some extent this conflict is simply one facet of the larger clash
of cultures between the white man and the red man. A better explanation of the water rights crisis can be found by examining, not the
conflict between the Anglo and Indian cultures, but the conflict
between two facets of western Anglo culture. The first concerns
the complex system of Anglo-American law developed over the centuries.
That system formulated some of man's most advanced ideals of fairness
and equity; a presumption of innocence, equality under law, and basic
civil liberties, to name a few. The second aspect of western civilization is an intense commitment to pragmatic achievement; the belief
that hard work and a practical mind can--and should--overcome all
obstacles, be they technical, religious, political, or moral in nature.
This practicality in method sometimes conflicted with the
traditional legal principles of fairness and equity. Faced with
unprecedented situations in the New World, western man found it necessary to create new laws, principles, and standards as he went along.
Chief Justice John Marshall recognized the inventive character of
31
32
the European mind when he discussed the Doctrine of Discovery, the
legal and philosophical basis of the conquest of the New World:
However extravagant the pretension of converting the discovery
of an inhabited country into conquest may appear, if the principle has been asserted, and afterwards sustained,. . . it becomes
the law of the land. So, too, with respect to the concomitant
principle, that the Indian inhabitants are to be considered
merely as occupants. . . . However this restriction may be
opposed to a natural right, and to the usages of civilized
nations, yet if it be indispensable to that system under which
the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by
reason and certainly cannot be rejected by courts of
justice. . . . (Johnson v. McIntosh, 1823:544).
Although western man's legal principles and his pragmatism have
often been in conflict, there has never been a serious effort to
eliminate one in favor of the other. Rather, they co-exist within
the same sociopolitical system. This builds conflict, an institutionalized contradiction which is most apparent when one branch of government formulates lofty legal principles while the other branches of
government devote themselves to the pragmatic development of an entire
continent.
This situation of built-in conflict aptly describes the struggle over Indian water rights. Conflicting government action has
given rise to two opposing camps, one Indian, one non-Indian. Each
camp can point to past governmental activity in support of its viewpoint. This chapter reviews the historical background of the governmental activity upon which these opposing viewpoints rest. My principal hypothesis is that there is ample evidence to support both
viewpoints.
33
A long history of case law forms the foundation of the Winters
Doctrine. Winters was an important step forward in terms of case
law designed to recognize Indian rights, but it was not a radical
departure from the past. The significance of the Winters case lies
in the fact that it brought together a diverse set of legal principles
from both Indian law and water law. It was not a far-flung exercise
in judicial fantasy, but rather a serious attempt to amalgamate existing legal principles.
The argument for state control over water rights also has
a long history, reflected primarily in statutory law. Deference
to state law by the federal government is a time-honored precept
of our system of federalism. In certain policy areas the federal
government acquiesces to, and sometimes explicitly acknowledges,
state administration.
In the issue area of Indian water rights, these two approaches
are in conflict. Each is an important exception to the other. In
this chapter I will first discuss the legal origins of the Winters
Doctrine and then discuss the origins of federal deference and support
for state granted water rights. The first section will emphasize
case law while the second section will deal primarily with statutory
law. It will become evident in this chapter that much of the Indian
case law, lacking in enforcement and implementation, conforms to
the definition of process decisions while the statutory support for
non-Indian water development produced significant substantive decisions.
34
I hope to emphasize the inherent conflict between these two
approaches by juxtaposing them in a single chapter. In effect it
is an effort to give equal time to each argument, but the results
of these conflicting approaches are inherently unequal. One approach
is based on statements of principle (i.e. process decisions) while
the other is distinguished by the large number of substantive decisions
that have actually appropriated significant amounts of water and
significant amounts of funds for water projects.
It will become evident in this chapter that the federal government has been pursuing two contradictory courses for a considerable
length of time. This conflict has intensified in recent years because
of the increasing scarcity of water in the face of increasing demands
for water. It is a conflict that has been long in coming, hence,
proposals for solutions to this conflict must take into account the
federal government's long-standing commitment to two policies that
are mutually incompatible.
Seven Legal Principles: Precedent for "Winters v. U.S."
The doctrine of federal reserved water is one of the most
important and most controversial concepts in western water law.
The landmark case of Winters v. U.S. (1908:564) established for the
first time an explicit recognition of Indian (and hence federal)
reserved water rights. Prior to Winters, these rights were implied,
but never specifically recognized by either statute or case law.
Winters and a series of subsequent cases have firmly established
the legal principle of reserved Indian water rights as a natural
35
outgrowth of the federal policy of reserving lands for Indian tribes
(Conrad Investment Co. v. U.S., 1980:829; U.S. v. Walker River Irrigation
District, 1939:334; U.S. v. Ahtanum Irrigation District, 1956:321;
Arizona v. California, 1963:546).
The Winters case was a step forward in terms of protecting
Indian interests, but it was not revolutionary or without precedent.
Quite the contrary, the Winters Doctrine was a culmination of seven
distinct principles of law that coalesced for the first time in the
Winters case. There is substantial precedent for each of these seven
legal principles, which are: the reservation of water, the principle
of non-use, the expansion of a water right for future use, the preferential treatment of Indians, the federal guardianship of Indians,
the communal ownership of water, and the supremacy of federal law.
Together, these basic principles of law form the legal precedent
of the Winters Doctrine.
Some scholars have suggested that the Winters Doctrine is
a "new", unprecedented form of water law (Bloom 1971:669-93), but
precedent for the distinctive legal principles that are embodied
in the doctrine can be found in Roman, French, Spanish, Mexican,
English, and Canadian law, as well as United States case law. Our
legal heritage is the product of these various legal systems, which
have all contributed to our uniquely American system of law. They
are of particular relevance to the western United States, where most
Indian reservations are located, because parts of that section of
the country have previously been under the jurisdiction of Spanish,
36
Mexican, French and English law. The Louisiana Territory, ceded
to the U.S. from France in 1803, comprised a large part of is now
the western U.S. Spain and Mexico ruled what is now the American
Southwest until the 1848 Treaty of Guadelupe Hidalgo. The British
at one time controlled a large portion of what is now the northwestern
U.S. While European sovereigns have come and gone, the Native Americans
have remained. They have been subjected to a succession of foreign
legal systems which have contributed to the present system of law
in the United States. This chapter will investigate this legal heritage and point out the long-established legal principles which form
the basis of the Winters Doctrine.
A Reservation of Water
The most prominent characteristic of the Winters Doctrine
is the idea of creating a protected source of water for the exclusive
benefit of Indian peoples. This is not a new concept in water law.
A 1713 law of New Spain declared that; "Indian towns shall be given
a site with sufficient water, arable lands, woodland, and access
routes so that they can cultivate their lands" (Taylor, 1975:194).
This reservation of water was based on the presumption that
the Indians had established a prior use of the water. But the Spanish
concept of prior use is much closer to the Winters approach than
it is to the more restrictive notion of prior use found in the Prior
Appropriation Doctrine. Under Spanish law, if an Indian town used
some of the flow from a water source, then the entire water source
was reserved for the exclusive use of the Indians. The right was
37
not limited to the amount of water actually diverted, as it is in
the Prior Appropriation Doctrine. Spanish law stated that all Indian
pueblos held "prior water rights to all streams, rivers, and other
waters which crossed or bordered their lands" (Cohen, 1971:383).
According to historian William B. Taylor, "Water cases that refer
to prior use dating from pre-conquest times generally mention only
the source of the water, not how much of the land had actually been
irrigated" (1975:204). The U.S. District Court's decision in United
States v. Ahtanum Irrigation District formulated a similar idea when
it established a reservation of water for Indians independent of
actual use:
It does not appear that the water decreed to the Indians in
the Winters case operated to exhaust the entire flow of the
Milk River. But the Winters case. . . shows the Indians were
awarded the paramount right regardless of the quantity remaining
for the use of white settlers. . . . It is plain that if the
amount awarded the United States for the benefit of the Indians
in the Winters case equalled the entire flow of the Milk River,
the decree would have been no different (1956:325).
It is clear that both Spanish law and the Winters Doctrine
do not limit reserved rights to only the water that was actually
being diverted and used. A corollary to this point of law concerns
what is known as the "irrigable acreage" doctrine. Under Spanish
law, the pueblos were given title to land "and the water needed to
irrigate them" (Taylor, 1975:197, 204). The right was not limited
by the amount of water being diverted at the time, but by the total
number of irrigable acreas. In 1963, 355 years after the Spanish
law cited above was written, the U.S. Supreme Court in the case of
Arizona v. California reached a similar conclusion; "the only feasible
38
and fair way by which reserved water for the reservations can be
measured is irrigable acreage" (1963:600-01).
Another common element in the Spanish concept of reserved
rights and the Winters Doctrine concerns the official documentation
of quantified Indian rights. The Spanish law, recognizing the difficulty in quantifying all water rights, periodically recognized
rights that had been informally established through occupancy and
prior use (Taylor 1975:200, 207). Similarly, the Winters Doctrine
does not require an explicit recognition of reserved water; the right
is implied, and need not be limited by non-Indian rights that have
been officially recognized by state law. Both the Spanish law and
the Winters Doctrine display a preference for reserved rights when
they conflict with legally recognized non-Indian rights. The Ramo
de Mercedes lists several instances where individual land grants
were anulled because they infringed upon Indian rights (Taylor, 1975:196).
Many of the Indian rights established under Spanish law were
later adopted by the Mexican government after 1821 (Maynez 1978:641).
When these lands were transferred to the United States in 1848, the
Treaty of Guadelupe Hidalgo stipulated that all rights established
under Mexican law were to be recognized by the United States (Art.
VIII and IX, 10 Stat. 308). These rights have since been recognized
by U.S. courts in the case of Texas v. Valmont Plantations (1901:853)
and Los Angeles v. San Fernando, et al. (1967:79).
Precedent for the idea of a reserved right can also be found
in U.S. state law. The states have fiercely resisted the establishment
39
of federal reserved rights, but many states have adopted a similar
approach by establishing a reserve of water for towns and cities
(Hutchins 1942:351-52).
The Riparian Doctrine: The Principle of Non-Use
While there are significant differences between the Riparian
and Winters Doctrine, there are some common characteristics. The
origins of the Riparian Doctrine can be found in ancient Roman law,
the Code Napoleon, and English common law. Samuel Wiel, in his highly
regarded treatise entitled Water Rights in the Western States (1911),
wrote that the Winters decision "and other recent cases uphold waterrights similar to common-law Riparian rights, in the Unites States,
as to waters on Indian reservations."
Specifically, both of these doctrines establish rights to
water that is contiguous to a specific, designated tract of land.
Under the Riparian Doctrine, these tracts of land belong to landowners
whose property includes the banks of a stream or other body of water.
Under the Winters Doctrine, the tracts of land are federal reservations
which are bordered or traversed by a stream or body of water. Also,
neither doctrine requires actual beneficial use of the water. The
absence of a beneficial use requirement differentiates these two
doctrines from the Prior Appropriations Doctrine, and permits the
reservation of water regardless of use.
Wiel cites a 1625 case in Scotland that held that a riparian
land owner need not use the waters in question in order to maintain
his rights; "For albeit he had no present use thereof, yet he might
40
possibly find thereafter some use for the same" (Wiel 1919:139).
Wiel traces this point of law to the Code Napoleon; "Neither nonuse
nor priority is of importance. The right of use given by article
644 (Code Napoleon) is not lost by nonuse" (1918:260). Compare the
statements just cited with the language in a 1933 U.S. Statute that
guaranteed the Pueblo Indians:
. . a prior right to the use of
water from streams running through or bordering on the respective
pueblos. . . such water rights shall not be subject to loss by nonuse
or abandonment thereof as long as title to said lands shall remain
in the Indians" (48 Stat. 108 (Ch. 45) 1933:111).
Spanish law also recognized the principle of nonuse. The
discussion in the preceding section established the fact that the
ultimate extent of a water right granted by a merced was expandable
until all irrigable acreage was irrigated. Until that time, however,
the total amount of water needed to irrigate all the irrigable acreas
did not have to be put to beneficial use to preserve the right (Taylor,
1975:197).
Expansion for Future Use
Both Spanish law and the Winters Doctrine provide for the
future expansion of a reserved right. The Riparian Doctrine also
allows for future expansion, but stipulates that increased future
use must not impinge upon the water rights of others. In this respect,
Riparian rights are unique. Neither Spanish rights established by
merced or the Winters Doctrine are limited by such a condition.
41
Under Spanish law the extent of "pueblo" water rights as
interpreted by several decisions in the California courts, is: "Measured
by the needs of the city [pueblo] and its inhabitants. But no limit
is placed on the magnitude of actual needs. The right grows with
the number of inhabitants to whatever extent this number increases"
(Hutchins, 1960:751). Thus, under certain circumstances Spanish
law provides for the future expansion of a reserved water right.
The Winters Doctrine also provides for increased future use of reserved
water. Two important cases make this abundantly clear:
What amount of water will be required. . . may not be determined
with absolute accuracy at this time; but the policy of the
government to reserve whatever water. . . may be reasonably
necessary, not only for the present uses, but for future requirements is clearly within the terms of the Treaties as construed
by the Supreme Court in the Winters case (Conrad Investment
Co. v. U.S., 1908:831).
The implied reservation looked to the needs of the Indians in
the future. . . the water of Ahtanum Creek was not limited to
the use of the Indians at any given date but this right extended
to the ultimate needs of the Indians as those needs and requirements should grow (U.S. v. Ahtanum Irrigation District, 1956:327).
Preferential Treatment of Indians
A pivotal concept in the Court's reasoning in the Winters
case was that of interpreting treaties and other agreements to the
advantage of the Indians. Ambiguities and language subject to interpretation are to be resolved in favor of the Indians: ". . . and
we have said we will construe a treaty with the Indians as 'that
unlettered people' understood it, and as justice and reason demand
in all cases where power is exerted by the strong over those whom
they owe care and protection" (U.S. v. Winans, 1905:380). This Doctrine
42
of Preferential Treatment has a long history in both U.S. case law
and Spanish law (Cohen, 1942:5-15). Greenleaf quotes the Recopilacion
of 1681, a legal code for New Spain, providing that "no injustice
should be done to Indians. . . that their communal lands should in
no case be invaded, that Indian villages. . . should be given preference in case of a clash of interests" (Greenleaf 1972:88). Taylor
quotes another law in the Recopilacion which implies preferential
treatment to Indians; "The Indian communities, in relation to other
interested parties, shall be granted all consideration" (Taylor 1975:193).
The Preferential Treatment Doctrine has been a central tenet
in U.S. Indian law since 1832 when the Supreme Court in the famous
case of Worcester v. Georgia, wrote: "The language used in treaties
with the Indians should never be construed to their prejudice. .
. How the words of the treaty were understood by this unlettered
people, rather than their critical meaning, should be the rule of
construction" (1832:582). The Preferential Treatment Doctrine has
since been upheld in a number of cases. One of the better known
examples is Jones v. Meehan:
In construing any treaty between the United States and
an Indian tribe. . . the treaty must. . . be construed,
not according to the technical meaning of its words to
learned lawyers, but in the sense in which they would
naturally be understood by the Indians (1899:11; also see
Chaote v. Trapp, 1912:665).
This doctrine was deemed sufficiently important by the Congress that
it was extended by statute in 1834 to include hiring practices of
the Bureau of Indian Affairs (U.S. Statutes at Large 4, Sec. 9:735-
38). This practice has been sanctioned by the Civil Service Commission
43
(5 C.F.R. 6.100, 6.110(c)(1)) and recently upheld in the 1974 case
of Morton v. Mancari (1974:535).
Federal Guardianship of Indians
From the incipient stages of American Indian policy, the
federal government has officially functioned as a guardian of Indian
peoples. In many instances government policy has failed to fulfill
this responsibility. Nevertheless, the courts have repeatedly upheld
this legal principle. In the Winters case the federal government,
in its role as guardian, sued on behalf of the Ft. Belknap Indians.
In almost all subsequent cases dealing with Winters Doctrine rights
the federal government--not the tribes--was the plaintiff. The court,
in recognizing this federal responsibility, established a federal
water right which the government could reserve for the benefit of
the Indians. The roots of this legal principle can be traced to
early Spanish and British policies. It has since enjoyed a long
history in U.S. case law.
Felix Cohen, a leading scholar of Indian law, has described
the thread of federal protection that runs through both Spanish and
U.S. law:
Just as the federal courts in the United States, and other
federal officials, have had repeatedly to intercede for the
protection of Indian rights threatened by white neighbors or
local officials in Indian areas, so the Spanish Crown had
repeatedly to intercede to protect the Indians against similar
threats. . . .
It is a striking fact that so often in the history of Spain,
Spanish-America, and the United States, oppression of Indians
has come from local neighbors and officials and help has come
from a far-off central government (1942:14-15).
44
An excellent example of the Spanish principle of guarding Indian
rights are the extensive Taos litigations in 1815, where "the government went to great lengths to defend Indian rights" (Greenleaf, 1972:106).
The British government also established a policy of federal
protection of Indians. In the Royal Proclamation of 1763, the British
government assumed responsibility of evicting all persons unlawfully
occupying Indian lands. In 1838 the British policy was "to protect
and cherish this helpless race" (Harper, 1947:134). In 1867, the
British North America Act gave the new federal government of Canada
exclusive jurisdiction over Indians and lands reserved for Indians.
This prevented local or provincial governments from taking advantage
of the Indians. The policy stemmed from a recognition of the fact
that the "chief exploitation of Indians came from neighbouring landhungry colonists who also controlled local and provincial governments.
Only an Imperial [i.e. federal] intervention in favour of the Indians
could help maintain the balance and keep the peace" (Upton, 1973:59).
The Indian Act of 1876 (Clause 25) explicitly protected Indian lands
from white settlement (Manuel and Posluns, 1974:162; Ponting and
Gibbons 1980:9-10).
In the United States the policy of federal guardianship over
Indians was initiated in the landmark case of Cherokee Nation v.
Georgia in 1831. Chief Justice Marshall wrote that the Indian tribes
were "domestic dependent nations. . . . Their relationship to the
United States resembles that of a ward to his guardian" (1831:1).
The policy enunciated by John Marshall in Cherokee Nation has been
45
reiterated by the courts in many subsequent cases. In 1885, in the
case of U.S. v. Kagama, the Supreme Court explicitly outlined the
ideal of federal guardianship, and then explained why such a doctrine
is necessary:
These Indian tribes ARE wards of the nation. They are
communities dependent 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 local ill feeling, the
people of the states where they are found are often their
deadliest enemies. From their very weakness and helplessness,
so largely due to the course of dealing with the federal
-,
government with them and the treaties in which it has been
promised, there arises the duty of protection and with it the
power. This has always been recognized by the Executive and
by Congress, and by this Court, whenever the question has arisen
(1885:383-4).
Explicit in the Court's decision in Kagama is the duty of
the federal government to protect Indians from state governments,
which are often their "deadliest enemies." In the landmark case
of Arizona v. California, the Supreme Court enunciated the constitutional basis of exclusive federal jurisdiction over Indian matters,
and then applied this doctrine specifically to federal water rights,
noting that earlier case law:
• . . cannot be accepted as limiting the broad powers of
the United States to regulate navigable waters under the
Commerce Clause and to regulate government lands under Art.
IV, Sec. 3, of the Constitution. We have no doubt about the
power of the United States under these clauses to reserve
water rights for its reservations and its property (1963:59798).
Communal Ownership of Water
One of the most prevalent values in western society is the
concept of individual property rights. The ideal of "rugged
46
individualism" plays an important role in the western ethos, and
is nowhere more evident than in the Anglo subjugation of what is
now the western United States. The Prior Appropriation Doctrine
extends individual property rights to include the use of free-flowing
waters, even though such waters might originate in the public domain.
This was in recognition of the practical necessity of providing individual water rights to individual mining claims and to individually
owned tracts of land. Thus the Prior Appropriation Doctrine is oriented
toward private rather than public use of water to meet the needs
of individual entrepreneurs (Munro 1956-57:226-7). In contrast,
the Winters Doctrine establishes a communal concept of water rights,
applied to either a tribal community (i.e.,an Indian reservation),
or a tract of land held in trusteeship by the government for the
use of the public (i.e., non-Indian federal reservations). Both
of these uses are communal in nature. The Winters Doctrine has been
criticized because it is antithetical to the notion of individual
private entrepreneurship, and thus poses a threat to economic development (Munro, 1956-57:222).
But communal rights to water is a legal principle dating
back to ancient Rome. Wiel quotes the Institutes of Justinian, which
says, "By natural law these things are common to all: air, running
water, the sea, and as a consequence the shores of the sea" (Wiel,
1918:254).
The Roman concept of communal waters is also in evidence
in Spanish law. Article Six of the plan of Pitic stipulates that
47
after a new town: n . . . has been laid out and its boundaries have
been marked off, its pastures, woods, water, game, stone quaries,
fish, etc., shall be for the common use and benefit of the Spaniards
and Indians residing therein" (Greenleaf, 1972:98). Under Spanish
law a reservation of communal water was not usually drawn along racial
lines, but according to community boundaries. If the community was
all-Indian, then the reserved communal waters would be for the benefit
of only those Indians. There were also grants of communal water
rights to non-Indian and mixed communities (Bloom 1971:685-86).
The Supreme Court has also recognized the relationship between
communal land ownership and the establishment of reservations as
havens for Indian existence. In the 1905 case of Winans v. U.S.,
the high court explained that while every individual Indian has reserved rights, reservations were established as communal grants of
land to each tribe as a whole: "Reservations were not of particular
parcels of land, and could not be expressed in deeds as dealings
between private individuals. The reservations were in large areas
of territory and the negotiaitons were with the tribe" (1905:381).
The principle of communal rights, a product of centuries
of legal tradition, was extended to water rights for Indian reservations in Waters v. U.S. The grant of an implied reservation of water
was made to the tribes that held communal property (i.e. reservations),
not to individual Indians; "the waters of the Milk River was reserved
by the terms of that treaty for the use and benefit of the Indians
residing on the reservation" (1908:745). The subsequent expansion
48
and affirmation of the Winters decision has contributed to the continued existence of tribal culture. Communal land and water still
play a central role in the concept of tribal identity.
The Supremacy of Federal Law
Any discussion of the Winters Doctrine would be incomplete
without a reference to the supremacy of federal law and treaties
over state law. Federal supremacy is relevant to the Winters Doctrine
in regard to both water law and Indian law.
The federal government's authority to regulate water is found
in the Constitution, specifically the Property Clause, which states
that: "The Congress shall have power to dispose and make all needful
rules and regulations respecting the territory or other property
belonging to the United States" (Art. IV, Sec. 3); the General Welfare
Clause, which gives Congress the power to "provide for the. . . general
welfare of the United States" (Art. 1, Sec. 8); and the Supremacy
Clause, which states that the Constitution and the laws of the United
States "shall be the supreme law of the land" (Art. VI). Frank Trelease,
an eminent authority on state-federal relations in water law, writes
that these clauses vest broad powers in the federal government over
water law:
Reserved rights stem from the supremacy clause and the
need for water to carry out federal functions. The
power to make such reservations cannot be doubted, and
they can be created by any form of notice of intent to
use unappropriated water for any contemplated federal
purpose on any lands in any state in the union (1971:1 )47).
49
This view has been repeatedly upheld by the Supreme Court, most notably
perhaps in the case of United States v. Rio Grande Dam and Irrigation
Company. "A State cannot by its legislation destroy the right of
the United States, as the owner of lands bordering on a stream, to
the continued flow of its waters; so far at least as may be necessary
for the beneficial uses of the government property" (1988:690).
The Winters case did not "invent" any new powers of the federal government in regard to water. It merely applied an extant power to Indian
reservations, and reiterated the government's power to do so (Winters
v. U.S., 1908:748).
The Constitution also gives the federal government exclusive
jurisdiction over Indian affairs. The Commerce Clause states that
"Congress shall have the power. . . to regulate commerce with foreign
nations and among the several states and with the Indian tribes (Art.
1, Sec. 8). The treaty-making power of the federal government (Art.
II, Sec. 2) is also of paramount importance. The federal government
signed over 380 treaties with various Indian tribes prior to 1871
(Getches, et. al, 1979:XVII). Much of the subsequent litigation
concerning Indian water rights is based on these treaties. These
constitutional provisions effectively place Indian tribes, and their
reserved land and water, beyond the jurisdiction of state law. The
federal government's power to allocate water, by virtue of federal
supremacy, cannot be impinged upon by state law without congressional
approval.
50
It is clear that the seven basic legal concepts embodied
in the Winters Doctrine evolved from a long tradition of western
legal principles. Precedent for these concepts can be found in U.S.
case law, as well as Roman, French, Spanish, British and Canadian
law. The Winters Doctrine amalgamized these concepts into a single
coherent legal principle. However, legal principles must be enforced
and implemented if they are to become more than a symbolic reassurance
that the government is concerned. The legal principles enunciated
by the courts must be accompanied by a concomitant effort by the
executive and legislative branches of government to transform those
principles into substantive reality.
In the case of Indian water rights, the reality of the situation has failed to live up to the principles established by the
courts. American Indians have lost much at the hands of the federal
government, their "guardian." Congressional policies have often
contradicted the legal principles brought together in Winter v. U.S.
Also, it is important to note that the Winters decision said
nothing about a guarantee of water projects. In the West, water
rights are often useless unless the water is diverted, often across
considerable distances, to a point where it can be put to use. Therefore, if Indian water rights are to be implemented in any meaningful
way, projects that divert water must be considered.
51
The Historical Context of
Winters v. U.S.: Western Water Policy
The previous section of this chapter discussed seven legal
principles that are embodied in the landmark case of Winters v. U.S.
But while the Supreme Court was enunciating legal principles the
Congress was making dramatic moves to settle the West. Indian peoples
were seen as an impediment to westward expansion so it was necessary
for the Congress to move decisively to solve the "Indian problem."
Hence, much legislative activity was in direct contravention of the
-41,1
principles enunciated by the Judiciary.
Legislation: To Settle the West
The 1908 Winters decision, and its ultimate impact on western
water policy, can be better understood if it is viewed within a broad
historical context. This gives the reader an understanding of the
general policy framework extant at the time, and illustrates the
contrast between judicial principle and the substantive legislation
passed by Congress.
After the Civil War, westward expansion became a major national
goal. Relying upon the concept of Manifest Destiny, millions of
settlers headed West. To facilitate this expansion the Congress
passed the 1862 Homestead Act to encourage settlement on public domain
lands. The 1862 Act awarded tracts of land to permanent settlers,
but it failed to specify how water might be legally procured for
those lands. In an attempt to clarify this problem the Congress
52
passed the Mining Law of 1866 which recognized local custom based
on prior appropriation as a legitimate method of appropriating water:
Whenever, by priority of possession, rights to the use
of water for mining, agricultural, manufacturing or other
purposes, have vested and accrued, and the same are
recognized and acknowledged by the local customs, laws,
and decisions of the courts, the possessors and owners of
such vested rights shall be maintained and protected in the
same and the right of way for the construction of ditches
and canals for the purposes herein specified is acknowledged
(14 Stat. 153).
In 1870 Congress passed another law that provided that all
lands acquired under the Homstead laws must recognize and abide by
the water rights established under the Law of 1866. Together, these
two laws ". . . recognized and sanctioned possessory rights to water
on the public lands asserted under local laws and customs, thereby
validating, in effect state appropriation water laws. . . (Krulitz,
1979:565).
In 1877 the Congress reiterated its support for state-sanctioned prior appropriation law and continued western settlement by
allowing larger homesteads if the owner irrigated the land and followed
existing state water rights law:
. . . the right to the use of
water. . . on or to any tract of desert land of 640 acres, shall
depend upon bona fide prior appropriation; and such right shall not
exceed the amount of water actually appropriated. . . •" (The Desert
Land Act of 1877).
Family Farms For All
These laws encouraged millions of settlers to move west into
newly opened areas and begin farming, or attempting to farm, the
53
arid lands of the public domain. The government envisaged settling
the West via the plow of the individual farmer. Central to this
policy is the Anglo concept of private property; each farmer would
reap the harvest of his own land. But Indian reservations, held
communally by all members of the tribe, did not conform to this concept. To remedy this conflict the Congress passed the Allotment
Act of 1887 which attempted to alot a parcel of land to each individual
Indian so that he might emulate the Anglo concept of farming private
parcels of land. The Allotment Act also stipulated that all "surplus"
land (i.e., what is left over after the allotments are made) could
be sold to incoming settlers. The main purpose of the Act was to
break up Indian reservations, destroy tribal identity, and force
Indians to adopt an Anglo lifestyle. In President Roosevelt's words,
the Act was "a mighty pulverizing engine to break up the tribal mass"
(Tyler, 1973:104).
The Allotment Act failed to convert a great many Indians
into farmers and it failed to destroy tribal identity. It did succeed,
however, in transferring large portions of Indian reservations to
white settlers, greatly reducing the amount of tribal lands. In
1887 Indian tribes held about 138 million acres in reservation lands.
By 1934, after the allotment policy was finally abandoned, this figure
had been reduced to 48 million acres, a decrease of 65% (Washburn,
1971:75).
The Indian's loss of land was compounded by a scarcity of
water on the lands that remained under Indian ownership. As early
54
as 1669 Pima Indians in Arizona were complaining of water shortages
(U.S. Congress, 1929:47). But the scarcity of water also plagued
the non-Indian farmers in the West. An inherent problem in the concept
of individual private farms was the inability of most farmers to
raise the capital necessary to finance anything more than crude,
ineffective irrigation works. In the arid West water was often a
considerable distance from potentially irrigable lands. Few farmers
had the resources to construct the expensive projects necessary to
transport large amounts of water over such distances. Frederick
Turner, in his well-known treatise The Frontier in American History,
wrote that ". . . no conquest of the West was possible by the old
individual pioneer method. . . expensive irrigation works must be
constructed, cooperative activity was demanded in the utilization
of water supply, and capital beyond the reach of the farmer was required" (1921:258).
This placed the individual farmer in somewhat of a predicament.
He needed irrigation water, but he would have to compromise his individuality if he joined with other farmers in a cooperative irrigation
system financed and constructed by the government.
This created a predicament for western state governments.
They did not have the capital necessary to build irrigation projects,
but state governments were reluctant to give up their newly acquired
control over water development. It seemed somewhat ironic; the federal
government had delegated control over water rights to the states,
and now the states were in a position which required them to seek
55
aid from Washington. But that aid would increase the potential for
federal control over water development. The western states had to
accomplish the difficult task of obtaining federal monies without
the imposition of federal control. Such a task would require a great
deal of political maneuvering.
Federal Funding, State Control,
and Private Agriculture
Initial suggestions for a government-sponsored reclamation
program were enthusiastically endorsed by some and soundly rejected
by others. It would take just the right combination of geographic,
economic, and political factors to overcome both local resistance
to federal interference and a recluctance in Washington to spend
a lot of money on a distant desert waste land. Two areas appeared
to have that combination of factors; one in western Nevada and one
in central Arizona. Both areas were extremely arid, but nearby rivers
offered protential dam sites. Water could be stored behind a dam
and then diverted through a system of channels to agricultural lands.
Arizona and Nevada also possessed important political assets; both
were represented by influential legislators and lobbyists who weilded
a great deal of influence in Washington. Their task was to convince
the federal government that their state offered the best site for
the first federal reclamation project. Both of these areas also
included Indian lands; the Pimas in central Arizona and the Paiutes
in western Nevada.
56
Support for a federal reclamation program grew as more parties-federal, state, and private--saw possibilities of furthering their
interests. There was considerable conflict, however, over the amount
of federal control that would accompany federal funds. At one extreme
Major John Powell, Director of the newly created U. S. Geological
Survey, envisioned a massive program of strictly controlled federal
planning, scientific research, and development. According to one
author, Powell "single-mindedly pursued what can only be characterized
as a massive 'land grab' of the west, withdrawing from entry 850
million acres of the public domain. He set about designing largescale plans for their 'orderly' surveying, irrigation and development
under federal guidance' (Cuzan, 1982:17)
Opposed to Powell's scheme for federal control were state
and local interests as well as powerful western legislators such
as Nevada's Senator Stewart and Congressman (later Senator) Francis
Newlands, also of Nevada. They wanted a federal reclamation program,
but without extensive federal control. They did not want to violate
the policy of deference to state control established in the Acts
of 1866, 1870, and 1877. Ultimately Powell's critics won the "titanic
struggles" (Glass, 1964:188) over the issue of federal control and
forced Powell to resign from the U. S. Geological Survey to make
sure his schemes were put to rest permanently.
An important element of support for federal reclamation came
from the conservationist movement. They reviewed desert lands from
a utilitarian perspective. They abhorred waste of natural resources,
57
and to them unplanted arable land was a waste of resources. Waters
rushing to the sea, without first being diverted for man's benefit,
was also reviewed as wasteful. So they supported reclamation as
a method of efficiently utilizing natural resources.
Another important political factor concerned funding for
projects. While Congress was willing to accept a low level of federal
control, a number of legislators, particularly easterners, objected
to the wholesale redistribution of funds from the heavily populated
east to the sparsely populated west. Hence it became necessary to
include a repayment clause in any reclamation bill. This would obligate project beneficiaries, organized into districts, to reimburse
the government for project costs.
Given this political situation, both Nevada and Arizona lobbied
for a reclamation bill in hopes of procuring the first project.
In Arizona two river basins, the Salt River and the Gila River, competed vigorously for the first reclamation project. In the Gila
River Valley the town of Florence adopted a strategy that allied
the town with the Pima Indians, who inhabited the Gila River Reservation just downstream from the town. The Pimas had at one time been
a very prosporous tribe due to extensive irrigated agriculture.
But subsequent upstream appropriations by non-Indians in the 1860's
and 1870's deprived the tribe of the water necessary for their lands.
The tribe was soon reduced to a state of starvation (Bowden, 1977).
The leaders of Florence reasoned that they stood a better
chance of attracting a federal project if they allied themselves
58
with the Indians downstream. They concluded that a project with
two groups of beneficiaries--Indians and whites--would be more attractive than their competitor's proposal for the Salt River which
ignored the needs of the Indians in that valley.
The 1902 Reclamation Act
The first attempt to pass a reclamation bill failed, but
a year later Roosevelt assumed the Presidency after McKinley's assassination.
An ardent conservationist, Roosevelt supported the recla-
mation movement. In 1902 Congressman Newlands of Nevada again introduced a reclamation act and this time he was succcessful.
The 1902 Reclamation Act established a reclamation fund,
to be financed by the sale of public lands. This fund would be used
. in the examination and survey for and the construction and
maintenance of irrigation works for the storage, diversion, and development of waters for the reclamation of arid and semi-arid lands. .
. ." (388). The Act stipulated that capital costs would be repaid
by project beneficiaries within ten years, but they would not have
to pay interest. Farms receiving reclamation water could not be
over 160 acres, and the acquisition of water must conform to state
water law:
Nothing in this Act shall be construed as affecting or
intended to affect or to in any way interfere with the laws
of any State or Territory relating to the control, appropriation,
use, or distribution of water used in irrigation, or any vested
right acquired thereunder, and the Secretary of Interior, in
carrying out the provisions of this Act, shall proceed in
conformity with such laws. . . the right to the use of water
acquired under the provisions of this Act shall be appurtenant
to the land irrigated, and beneficial use shall be the basis,
59
the measure, and the limit of the right (Section 8, 32, Stat.
390).
In a review of early reclamation policy, Supreme Court Justice
William Rehnquist discussed this obvious deference to state law which
has characterized all water law statutes:
The history of the relationship between the Federal
Government and the States in the reclamation of the arid
lands of the Western States is both long and involved,
but through it runs the consistent thread of purposeful
and continued deference to state water law by Congress
(California v. U.S., 438 U.S., 1978 645:653).
The 1902 Act also created the U.S. Reclamation Service to plan, construct and operate the projects (Reclamation Act of 1902:389).
It is important to note that the Reclamation Act was not
passed because of a need for increased agricultural production.
Indeed, eastern farmers fought the bill because they feared new competition that would flood the market. The Act was part of the grand
scheme to settle and civilize the West: "The Reclamation Act of
1902 was a logical and specific means of furthering the National
political objectives of settlement and economic development, as applied
to the undeveloped arid West. . . more irrigated agriculture was
then seen. . . as a National strategic instrument. . . •" (Caulfield,
1982:4). Thus the basic purpose of the act was to serve the principle
of Manifest Destiny. In view of this broad, patriotic goal, the
Reclamation Service was expected to work feats of near-miracle proportions; it was to transform the West ". . . from a land of sprawling
cow towns and crude mining settlements in the midst of barren desert
60
waste into prosperous modern communities supported by lush farmland"
(U.S. Congress, 1971, Part 3:28-46).
The Act was not without its detractors, however. Eastern
legislators predicted that it would "ultimately cost the country
billions of dollars" and "unlock the doors of the Treasury" (Hibbard,
1965:449).
Reclamation Projects and the Indian Tribes
The first question that needed to be answered after the passage
of the act was; where would the first project be? The Salt River
basin, which includes Phoenix, was still competing with Florence
and their Indian allies in the Gila River Valley. Also, western
Nevada, whose Congressman had sponsored the Reclamation bill, expected
to receive a project. Ultimately the Secretary of Interior chose
the Salt River Valley over the Gila River Valley as the sight of
one of the first reclamation projects. The residents of Florence,
bitterly disappointed, learned too late that their strategy of allying
themselves with the Pima Indians had hurt their cause. It became
evident very quickly that Indian tribes would not be among the beneficiaries of Reclamation projects:
The 1902 Reclamation Act. . . did not contemplate the
construction of irrigation projects for Indian reservations.
National reclamation called for total repayment of
construction costs: water-user's associations would have
power to bind their land for the fulfillment of any contract
with the government. The executive branch had neither the
power to put a lien on Indian land nor to force Congress
to appropriate to the Indians their share of the construction
costs. No special arrangement were made for the proposed
Indian irrigation projects under the Newlands Bill, and it
61
is doubtful whether the topic was even discussed (Smith,
1981:143).
The requirement for repayment was not the only reason why
Indian tribes were not included among the potential beneficiaries
of reclamation projects in 1902. Three other reasons can be cited.
First of all, reclamation was the scion of two popular movements in America; the westward expansion of Anglo civilization and
the growing interest in natural resource conservation. The Indians
were viewed as an impediment to both of these. Attempts to "civilize"
the American Indian through policies such as allotment had failed
for the most part. Indians held doggedly to their tribal identity
and traditional way of life and very few became successful private
farmers in the Anglo mold. Because they performed so poorly as farmers
it was viewed as wasteful to divert water to them when it culd be
more efficiently put to use by anglo farmers. Frederick Newell,
the first Director of the Reclamation Service, opposed irrigating
the Gila River Indian reservation in Arizona with water from reclamation projects because "several acres well-tilled by white men would
be destroyed for the benefit of one acre poorly worked by the Indians"
(Davis,1896:4). Reclamation personnel in Nevada, also the site of
one of the first projects, expressed a similar attitude (Townley,
1978:21-28).
A second problem for Indians was the anomolous position of
Indian water rights vis-a-vis the reclamation policy of deference
to state water rights. Indian tribes have an exclusive relationship
62
with the federal government which, according to the Constitution,
has the power to regulate commerce with the Indian tribes. As a
result the tribes do not deal directly with state governments. But
under the reclamation Act of 1902 all water must be approved by state
law. In other words, the Indians were left out from the very beginning
because of this "catch-22" in the law. The Winters decision was
the initial move in an eighty year effort to rectify this situation.
A third reason why the Indians stood little chance of gaining
from the 1902 Reclamation Act was the anti-Indian attitude prevalent
at the time. During the early stages of debate over reclamation
policy Indian wars were still being fought in many areas of the West.
By 1902 memories of Geronimo, the Ghost Dance, and Custer were still
fresh in the minds of westerners. They were in no mood to share
scarce water with their former enemies. This attitude was evident
among Reclamation Service personnel. A 1907 engineer's report from
the Truckee-Carson Project in Nevada stated that "The Paiute is regarded as a worthless Indian ordinarily and I am included to believe
that he generally lives up to his reputation" (Townley, 1978:21).
In Arizona an observer wrote that it was doubtful that the "rich
and alert American interests" in the Salt River Valley "would leave
a drop of water for the Indians" (Smith, 1981:1 4 7). Of course Indians
)
were not the only victums of racial prejudice during that era. A
wave of xenophobic hysteria was sweeping the country, directed against
all non-whites and the "swarthy ones" from eastern Europe. The Reclamation
Act codified one aspect of this racist sentiment by declaring that
63
"no Mongolian labor shall be employed" on water projects (Reclamation
Act 1902:389).
To a great extent many of these problems still exist today,
although in somewhat altered form in some cases. In 1932 the Leavitt
Act exempted Indian reservations from the repayment requirement,
but this creates political problems in the appropriations process.
Indian claims to water are still viewed as an impediment to efficient
western development, the clash of state and federal laws continues
to this day, and anti-Indian sentiment still exists throughout the
-.,
West, although it is usually expressed now in more subtle terminology.
The Indians who thought the Winters decision would solve these problems
wre mistaken. The Indian Commissioner at the time of the Winters
decision presciently wrote that "the Indians feel very much elated
over the fact that their rights have been protected. . . . But O'Lord,
they don't know the white man with his bulldog tenacity and never
give up spirit" (Hundley 1982:42).
Conclusion
There is a built-in conflict between the seven legal principles
embodied in the Winters case and the substantive policies pursued
by Congress. As a result American Indians have often suffered because
of those substantive policies. When the White Man first came to
North America an estimated 900,000 Native Americans populated the
land. By 1900 their population had been reduced to about 250,000
(Fey and McNickle, 1970:9-10). These surviving Indians were placed
64
on reservations, which were gradually reduced in size until less
than half of the original acreage was left by 1900. These remaining
lands were mostly arid, incapable of agricultural production without
irrigation water.
The principle of reserved rights--water reserved for Indians
at the same time land was reserved for them--was formulated by the
Supreme Court in 1908. It was based on established legal principles
and was intended to help Indians become farmers in the mold of the
White Man.
But these same waters were needed to help non-Indians settle
the West and become farmers too. The Congress responded decisively,
not to the needs of the Indians, but to the needs of the western
settler. Legislation was passed to give settlers land, then more
laws were passed to allow them to appropriate water for that land
according to their own laws. But this was still insufficient, so
the Congress provided direct aid in the form of federal reclamation
projects. By 1908, the year of the Winters decision, the Congress
had gone to great lengths to help the non-Indian settler in the West.
The decisions made by the courts in regard to Indians offer
an abstract principle which has, with a few exceptions, failed to
be translated into substantive reality. This is particularly true
in the area of water rights. Indians have what is often called "paper"
water rather than "wet" water; their water exists only on paper.
This paper water originated with the Winters decision while at the
65
same time the federal government was acting decisively to supply
wet water to non-Indian western settlers.
In this chapter I have traced the historical origins of western
water policy as it relates to both Indians and non-Indians. By the
early Twentieth Century a troublesome schism, which had been developing
for years, was exacerbated by the federal reclamation program on
one hand, and the Winters decision on the other. By 1908 the federal
government was clearly pursuing two conflicting water policies.
One, formulated by the courts, made extensive but vague promises
of federal guardianship and aid for Indian reservations. The other,
formulated primarily by the Congress, gave land, water, control over
water rights, and water projects to non-Indian settlers in the West.
As a result, the legal principles enunciated in the Winters case
were not reflected in early federal water resource programs.
In the following chapter I will examine the relative growth
of Indian and non-Indian water development programs. The former
became the responsibility of the Bureau of Indian Affairs while the
latter was handled by the Bureau of Reclamation and another federal
agency, the U.S. Army Corps of Engineers, which gradually expanded
its activities into the western states.
By 1908 basic water policy had been formulated. After that
it became primarily a matter of bureaucratic implementation, which
is, as we shall see, a very political process. Thus, the following
chapter is concerned with the politics of the federal bureaucracy
and how it influenced the course of Indian and non-Indian water development.
CHAPTER 4
INDIAN AND NON-INDIAN WATER DEVELOPMENT: 1902-1975
Introduction
In the previous chapter I discussed two conflicting policies
that have been pursued by the government. Each has a long history.
With the passage of the 1902 Reclamation Act, and the Supreme Court's
decision in Winters v. U.S., each of these policies became more pronounced,
and it became much more difficult for the federal government to formally
renounce and abandon either policy. The obvious question is: how
did the federal government deal with the inevitable conflict that
would result from these two policies?
In Chapter 2 I hypothesized that the federal government attempted to resolve this conflict by developing two different approaches,
one characterized primarily by process decisions, the other characterized by both process and by substantive decisions. Given the scarcity
of western water, policy-makers chose to minimize the actual impact
of the Winters Doctrine and maximize the impact of non-Indian water
development under the auspices of state law.
In this chapter I will attempt to provide support for the
model by examining the substantive impact of these two policies from
the turn of the century to about 1975. Hence, the time frame for
this chapter begins with the Reclamation Act and the Winters decision,
and continues to the seventies when changes occurred in both water
66
67
policy and Indian rights policy and the era of "contemporary" water
policy began (the subject of the following two chapters).
The first section of this chapter deals with the Bureau of
Indian Affair's 116 year-old water development program for the Indian
reservations. This program reflects many other aspects of Indian
policy as well as some features of the federal government's reclamation
policy; allotment, the leasing or selling of Indian lands, and the
idea that reclamation projects are reimbursable. This section also
examines the relationship between Indian water rights and Indian
water development.
The second section of this chapter is concerned with nonIndian water development, and examines the agencies of the federal
government that administer the federal water development program.
The focus of this discussion is on sources of political support,
agency funding, and the scope and number of water projects. This
section also deals with federal-state conflict (the inevitable result
of the dual policies discussed in the previous chapter) and its impact
on these agencies and Indian tribes.
A concluding section compares the actual substantive impact
of the Indian and non-Indian water development programs, and assesses
their significance in terms of the model presented in Chapter 2.
Indian Water Development
The Bureau of Indian Affairs' water development program predates the Winters decision by forty years; in 1867 the government
appropriated money to construct an irrigation canal on the Colorado
68
River Indian Reservation (Act of Mar. 2, 1867:514). Since that time
the BIA has had an ongoing program for Indian water development.
This long-term program provides an opportunity to assess the impact
of the Wintrs Doctrine on Indian water development and measure the
overall success of the BIA program.
Rather than provide a chronology of Indian water development,
this section will be organized into six topical subsections. The
first four are concerned with characteristics of the BIA water development program which imposed special limitations or costs on the Indian
tribes that were involved in the program. The fifth topic describes
the role of water rights in the BIA program and how that agency responded to the Winters decision. These five subsections emphasize
the period of time following the Winters decision in order to provide
a historical context for the decision and permit an assessment of
the short-range impact of the case on the actual development of Indian
water. The sixth subsection provides an opportunity to assess the
long-term impact of Winters on Indian water developent by looking
at budget expenditures for the BIA water development program and
the number of acres irrigated from 1905 to 1975.
Water for Allocated Lands
During the land allotment period (1887-1934) nearly all Indian
water development activity was geared toward the allotment policy.
Irrigation projects were reviewed as a component of the allotment
program, hence, water was only provided to Indians who had accepted
an allotment. This attitude was reflected in numerous bills passed
69
by Congress. Soon after the Reclamation Act became law Congress
allowed for reclamation project water to be provided for allotted
lands on the Yuma and Colorado River Reservations (Act of April 21,
1904: Sec. 25). Four years later Congress broadened this provision
to include all reservations with "allotments made to Indians under
the fourth section of the General Allotment Act (Act of April 30,
1908). This policy was reiterated in the Act of June 25, 1910, which
explicitly defined the government's policy on Indian water development:
"And whenever it shall appear to the President that lands on any
reservation subject to allotment by authority of law have been or
may be brought within any irrigation project, he may cause allotments
of such irrigable lands to be made to the Indians. . . ." (Sec. 17).
Given the deleterious impact of the allotment policy, early
Indian water development carried a high price. Tribal entities received no water; only the individuals who were willing to accept
allocated lands benefited from the program. As a result, water development was used as an enticement to Indians to abandon their tribal
loyalties in exchange for irrigation water.
Reimbursability: Indians Pay for Projects
Until 1914 Indian projects were either funded by the federal
government or from general tribal funds, but the Act of August 1,
1914 changed this policy and required that project beneficiaries
pay both construction and maintenance costs. This immediately created
an enormous financial burden for the Indians who were receiving irrigated water. A year after the new policy was enacted the Commissioner
70
of Indian Affairs argued that it created "a great injustice to the
Indians" (Report of the Commissioner of Indian Affairs, 1915:47).
By 1917 the reimbursement program had "greatly swelled Indian
indebtedness" (Kelly, 1979a:2 )4 7). Since the Indians had no capital,
and they were charged according to their ability to pay, only the
non-Indians who were using water from the Indian projects paid into
the reimbursement coffer. In 1920 Congress made repayment mandatory
(Act of February 14, 1920) but it was nearly impossible to fairly
assess the charges (Cohen, 1942:249). Efforts to collect repayment
funds proved futile, and in 1924 another law was enacted deferring
the charges imposed by the 1920 statute (Kelly, 1979b:257).
On several occasions legislation was introduced to eliminate
the reimbursement requirement but these attempts were never successful
because of the recalcitrance of the House Appropriations Committee
chairman (Kelly, 1979b:265). By 1930 it was clear that the reimbursement policy was a failure; $48 million had been expended but only
$5.2 million had been reimbursed, nearly all of it from non-Indians
(Report of the Commissioner of Indian Affairs, 1930:22). Finally,
after the Appropriation's Committee chairman failed to get re-elected,
the Leavitt Act was passed in 1932 (Act of July 1, 1932). This law
permitted the Secretary of Interior to modify, defer or cancel the
Indian's liability to re-pay construction charges but maintained
the requirement for repayment of maintenance costs, according to
ability to pay. This act is still in force, and has been applied
to power production as well as operation and maintenance.
71
Today about 70% of the maintenance costs are reimbursed, and all
of the costs of power production are reimbursed.
Although the BIA irrigation program has received considerable
federal subsidation, the tribes and individual Indians have paid
for some of the costs of the program. The repayment requirement
as originally formulated placed unrealistic financial burdens on
the Indians. Yet despite the insistence on reimbursement, the tribes,
at least until recently, had little control over the program. The
Act of 1908 provided for irrigation construction as the Secretary
of Intrior "deems for the best interest of the Indians. . . •" (Act
of April 30, 1908). On at least one occasion an Indian tribe (the
Papago) was provided with a project they did not want, and then told
to pay for it (McCool, 1981:62). In short, a unilaterally imposed
debt sometimes created significant economic burdens on tribes and
individual Indians during the early years of the BIA water development
program.
Water Gained, Land Lost
One of the prices Indian tribes paid for water development
was the increased loss of lands. Due to the Indian's lack of capital,
tribal lands were sold to pay for irrigation projects. This practice
occurred even before the reimbursement requirement of 1914 was passed.
In 1908 (the year of the Winters decision) Congress authorized the
Ft. Peck irrigation project, to be financed through the sale of reservation lands (Report of the Commissioner of Indian Affairs, 1908:3).
The Act of June 25, 1910 permitted the Secretary of Interior to acquire
72
reservation land for power and reservoir sites which might be necessary
for "any irrigation project" (Sec. 13).
After the Indian Reogranization Act of 1934 the government
discontinued the practice of selling Indian lands to pay for projects,
but it still permits the Secretary of Interior to acquire Indian
lands for non-Indian water projects. From 1936 to 1974 the government
acquird 488,226 acres of Indian lands for federal water projects
(American Indian Policy Review Commission Final Report, 1977:310).
Water development has indeed been costly in terms of the loss of
Indian lands.
Non-Indian Recipients of Indian Water
The term "Indian irrigation project" is something of a misnomer.
With a few exceptions, most of these projects provide water to a
substantial number of non-Indians. The BIA has a long-standing policy
of leasing irrigated Indian lands to non-Indians. In 1910 about
35% of the reservation land actually being irrigated was leased to
whites (Report of the Commissioner of Indian Affairs, 1910:21).
During the era of full reimbursability non-Indian leasing
created a problem because in some cases the tribe as a whole was
held liable for construction charges for a project that provided
water to non-Indians. In 1916 the Commissioner of Indian Affairs
noted that "The injustice of tying up Indian funds to construct irrigation works to supply lands for the use of whites is, of course,
apparent" (p. 46). Ultimately repayment requirements for the tribes
73
were eased; the Congress also eased repayment for non-Indians with
a series of morotoriums passed during the Depression (Cohen, 1942:250).
The BIA has continued to lease large amounts of land to nonIndians because, according to a BIA spokesman "land is better used
by non-Indians" (Dorner, 1959:218). The impact of this policy is
exacerbated by two factors; first, much of the best land has been
leased to Anglos, and second, it has been leased at a very low rate.
Levitan and Hetrick found that in 1969 non-Indians grossed $109.3
million from farming activity on Indian land but only paid $13.8
million in rent, which is far below market prices (1971:134). As
a result, Indians only receive one-third of the gross earnings from
agricultural production on Indian lands; the other two-thirds goes
to non-Indian lessees (U.S. Commission on Civil Rights, Staff Report
#2, 1971:19).
By 1974 non-Indians were farming 71% of all irrigated Indian
land (1974 BIA 50-1 form, Part 1). Table A provides a breakdown
of Indian/non-Indian farming on some of the larger "Indian" irrigation
projects. They range from 100% Indian to 100% non-Indian, but the
largest percentage of non-Indian holdings are in the largest irrigation
projects. It is quite clear that the BIA water development program
has delivered more water to non-Indians than it has to Indians.
The Role of Water Rights in the BIA
Water Development Program
Prior to the Winters decision the BIA expended a portion
of the funding allocated to irrigation development for the purchase
74
Table 1. Irrigated Acreage on Indian Reservations Farmed by Indians
and Non-Indians.
Reservation
Indian
Operator
Non-Indian
Operator
Crow Creek
150 (55%)
121 (45%)
Crow
Standing Rock
2,754 (9%)
300 (100%)
Ft. Hall
10,780 (16%)
Umatilla
0
27,533 (91%)
0
56,033 (83%)
360 (100%)
78 (1%)
Duck Valley
6,455 (99%)
Ft. McDermitt
2,853 (100%)
0
500 (100%)
0
Moapa
Adapted from the Report on Reservation and Resource Development and
Protection, Task Force Seven, the Final Report of the American Indian
Policy Review Commission, 1976.
75
of water rights that had been granted by state governments. A review
of BIA policy, as expressed by the Commissioner of Indian Affairs,
indicates that the Winters Doctrine had very little actual impact
on the Bureau's water development program.
The annual reports of the Indian Commissioner immediately
before and after the Winters decision reflect a continuity of policy;
the only mention of Indian water rights is in regard to funds set
aside for the purchase of those rights. No explicit discussion of
water rights occurred until 1911, when the Commissioner noted that
BIA personnel in the field showed "a general alertness concerning
the Indian's water rights" (1911:16). But the report indicates that
the BIA was still following state law, and commends the states for
allowing the Bureau sufficient time to establish the Indian's rights
under state law (1911:16).
However, the patience of the state governments was apparently
wearing thin despite the Commissioner's commendation. Kelly writes
that "by 1912 Utah and Wyoming were both threatening to revoke Indian
rights to irrigation projects within their boundaries unless the
lands were utilized (i.e., met the state requirement for beneficial
use) immediately. . . . (Commissioner) Sells was forced to lease
an increasing number of acres of irrigated Indian land to whites
in order to preserve Indian rights to water" (1979:247). Significantly, there was no construction work on Indian irrigation projects
that year "on account of the condition of the water rights" (Report
of the Commissioner, 1912:54).
76
The Winters Doctrine was not mentioned in the Commissioner's
annual reports until 1913, five years after the decision was handed
down. In his reference to the Winters Doctrine the Commissioner
took a very restrictive view and indicated that Indian water rights
in some cases still depended on recognition by state law:
The water right for Indian lands rests upon common-law
riparian rights in some cases, and in others it would
appear that beneficial use of watr must be made before
title can be acquired. The United States Supreme Court
has decided in the case of Winters v. The Unitd States
(207 U.S., 564) that prior appropriation by the United
States and beneficial use by the Indians is not necessary,
because of an implied reservation of water with and at the
time of the reservation of the the land sufficient for
the the irrigation thereof. However, the land in question
had not been allotted, and the case did not involve the
rights of any individual Indian but settled the right
of the United States on behalf of unallotted Indians
(Report of the Commissioner, 1913:19).
Apparently the BIA wanted to continue to observe the requirements
of state law, regardless of Winters. One BIA official has indicated
that the agency was reluctant to anger powerful non-Indian water
users;" the state laws of irrigation would be followed to avoid criticism by white land owners" (quoted in Fradkin, 1981:145).
By 1914 the BIA began to make funds available "for protection
of irrigable lands from damage by loss of water rights" (Report of
the Commissioner, 1914:33) implicitly recognizing that such loss
was occurring. The BIA's action was prompted by a 1913 Congressional
Commission which found that the Yakima Indians' water rights had
been usurped by local Anglos. The Congress reacted decisively and
guaranteed by law a specific amount of water to the Yakima Tribe
because they "had been unjustly deprived of the portion of the natural
77
flow of the Yakima River to which they are entitled. . . ." (Act
of Aug. 1, 1914). It was a rare example of a substantive decision,
made by Congress for Indians, which explicitly recognized the tribe's
right to water and appropriated funds ($635,000) to cover reclamation
costs.
The BIA's practice of providing funds to purchase state-granted water rights continued for many years. The language in the appropriation bill for 1908 is almost the same as that found in budgets of
the New Deal era. It appears that the agency was still committed
to expending its resources in an effort to conform to state law.
In later years the budgetary language was modified, but in some cases
water rights were mentioned in order to limit budgetary support for
water rights acquisition. For example, the 1962 federal budget for
the BIA's irrigation construction program states that "no part of
this appropriation shall be used for the acquisition of land or water
rights within the states of Nevada, Oregon, or Washington either
inside or outside the boundaries of existing reservations" (Federal
Budget, 1962:724).
In sum, the Winters Doctrine does not appear to have had
an immediate and/or profound impact on the policy of the BIA. The
agency's water development program does not appear to reflect the
impact of the Winters decision, at least not until more recent years.
Budgetary Growth of the BIA
Water Development Program
By the time of the Winters decision the BIA had expended
nearly $4.2 million for Indian water development (Report of the
78
Commissioner, 1909:98). The Commissioner concluded in 1910 that
"there are millions of acres of irrigable lands in Indian reservations"
(Report of the Commissioner, 1910:21) and declared an intent to irrigate it. Five years later a different commissioner admitted that
the BIA had a long way to go before it reached that goal; "it is
evident that much more land must be eventually provided with water"
(Report of the Commissioner, 1915:4 4 ). How much progress has been
)
made? How much has been spent in the effort to irrigate the "millions
of acres" of irrigable Indian land? Table B provides some of the
answers.
The budget figures in Table B are not entirely comparable
over time because of inflation and changes in budgeting computation.
To help identify these changes the table provides the titles of the
line items which correspond to the figures in the column labeled
"appropriation." This gives the reader an idea of when and how the
BIA budget for water development has changed from 1905 to 1975.
Table B also provides the numbers of acres irrigated on Indian reservations.
The data in Table B should be interpreted in light of the
previous discussion. One must remember that a large percentage of
the irrigated lands are farmed by non-Indians. Also, some of the
land included in the figures is fallow at any given time. Despite
these limitations Table B provides an idea of the progress made by
the BIA program on behalf of Indian water development. It is noteworthy that not all expenditures are for irrigation. The BIA program
79
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82
has also provided wells and delivery systems for domestic use and
livestock.
The budget totals indicate a classic pattern of incremental
budget increases. The Winters decision certainly did not precipitate
a rush to develop Indian water; the appropriation for 1908 was $810,000
(Report of the Commissioner, 1908:54), while the sum for the following
year was actually smaller (Report of the Commissioner, 1909:49).
In the long run, however, appropriations have increased. This increase
has been painfully slow, however; the funding for 1945 is only $4004,000
more than the funding for 1910. In more recent years funding has
grown due to inflation. Only in 1975, when a large sum was included
for the Navajo irrigation project, has the budget grown rapidly.
Irrigated acreage also shows an incremental pattern of increase,
at least until 1970 when the total acreage decreased. The progress
made by the DIA irrigation program since the Winters decision can
be guaged by examining the percentage of Indian land that is irrigated.
According to the 1910 Commissioner's Report, a total of 118,640 acres
were irrigated by Indians at the time the Winters decision was handed
down. Seventy years later the National Indian Water Policy Review
stated that 370,000 acres of land were being irrigated by Indians
(Gerard, 1978:17). That amounts to one percent of all Indian agricultural lands. Clearly the "millions of acres" of irrigable Indian
lands alluded to by the Indian Commissioner in 1910 remain undeveloped,
or are cultivated by Non-Indians.
83
The BIA water development program has at best been a limited
success. Initially the program imposed some important costs on Indians;
it was part of the allotment policy, which damaged tribal identity
and greatly reduced Indian land holdings; water projects were sometimes
financed through the sale of Indian lands; tribes were sometimes
forced into heavy debt to finance projects; and irrigated Indian
lands proved to be a magnet to non-Indians who leased those lands
at a very low cost. Also, the BIA does not appear to have responded
effectively to the Winters Doctrine, at least not until recently.
Criticism of the BIA's water development program is not a
recent phenomenon. The history of the program is punctuated with
hearings, reports and scholarly work that point out its shortcomings.
The 1928 Preston-Engle Report on Indian irrigation concluded that
the larger projects should be turned over to the Bureau of Reclamation
and the smaller ones abandoned. A 1947 Senate hearing concentrated
on the inability of the BIA to complete its irrigation projects (U.S.
Congress, Senate 19 )4 7:2254-79, 2283-85). A study completed in 1959
stated that; "There are no plans to speed up the development of irrigable Indian land. There is no program to get Indians established on sufficient sized units. There is no program to solve the
problems of land, management, and inadequate credit for undertaking
development. Nor are such programs being planned" (Dorner, 1959:179).
In 1971 another study concluded that "the failure to irrigate Indian
lands is largely due to opposition from other non-Indian water users
and to indefensible tendencies of the BIA to promote its own best
84
interest" (Levitan and Hetrick, 1971:137). A 1976 report from the
Secretary of Interior again remarked on the slowness of completion
and lack of rehabilitation of projects (Kleppe, 1976).
By 1975 the BIA had spent a total of $260.6 million on its
irrigation construction program (Appendix to the Budget for FY 1978:
468). The program was plagued with problems, progress was extremely
slow, and non-Indians were using most of the water that had been
made available. In terms of direct benefits to Indians the program
irrigated one percent of Indian lands and created revenue for Indians
through the leasing program.
In the meantime, other federal agencies were busy working
on water development projects for non-Indians. In many cases these
projects involved water sources that were of potential use to Indian
reservations. Also, they competed with Indian projects for funds.
The following section examines these non-Indian projects and the
federal agencies that build them.
Non-Indian Water Development
During the first two decades of the Twentieth Century water
resource development entered what might be termed the modern age;
massive federal irrigation projects, giant dams, hydro-electric power,
and basin-wide planning all became important aspects of federal water
resource development at that time. Of course, the Reclamation Service,
which became the Bureau of Reclamation in 1923, was not the only
federal agency responsible for water resources. The Army Corps of
Engineers, organized in 1802, was responsible for many facets of
85
the water development program. Together, these two agencies accounted
for most of the federal funds allocated to water development. Always
popular politically, the drive to develop the nataion's water resources
proceeded at an astonishing pace without benefit of any plan or comprehensive coordination. Theodore Roosevelt described such an approach
to water development as "a disconnected series of porkbarrel problems,
whose only real interest was in their effect on the re-election or
defeat of a congressman here and there" (Roosevelt, 1913:211).
In this section I will review the development and growth
of the federal water resources program, beginning with the era following the 1902 Reclamation Act and the 1908 Winters case, up to the
election of Jimmy Carter and his attempt to reform water policy.
Specifically, I will discuss the modification and growth of the reclamation program, the expansion of the Corps of Engineers, the growth
in federal funding for water projects, and the growing conflict of
state, federal, and Indian interests that developed as a result of
the water resources program.
The Bureau of Reclamation
The 1902 Reclamation Act envisaged a scheme whereby the federal
government would develop irrigation projects for western farmers,
who would then pay the government back from the profits accrued from
their irrigated agriculture. This pay-back provision was written
into the bill due to the insistence of eastern politicians who objected
to a "give-away" of national funds that would benefit the west.
86
Soon after the reclamation program began it developed problems
with the payback schedule. However, the program was gaining political
support, so western legislators were able to pass the Reclamation
Extension Act of 1914 which extended the repayment period from ten
to twenty years and provided appropriations to compensate for the
extended repayment period. The bill was designed to help "create
an irrigated empire in the West" (Cong. Record, 1915).
The 1914 Act set two important precedents. First, it demonstrated a willingness on the part of water policy decision-makers
to liberalize the repayment schedule, and second, it provided funding
from the general treasury, thus abandoning the notion that the irrigation program would be financially self-supporting.
Once it became politically feasible to liberalize the repayment
provision, western legislators pushed a succession of bills through
Congress that eased repayment requirments. Laws were passed in 1921,
1922, 1923, 1924, 1926, 1931, 1933/ 1934, 1935, 1936 and 1939; all
of them were designed to provide relief from the repayment requirement
(Burness, et al., 1980:810).
During the same period of time the scope of the reclamation
program was expanded. In 1928 the production of hydroelectric power
was added to the program (The Boulder Canyon Project Act). Flood
control was added in 1936 (The Flood Control Act of 1936). The following year a Water Resources Commission was created to investigate
ways to structure repayment schedules "without undue burden on water
users". . . (Act of Aug. 31, 1937).
87
By 1939 the reclamation program had grown enormously in terms
of scope, activities, budget, and number of projects despite the
inability of irrigators to meet repayment costs. Finally, in 1939,
the idea that project beneficiaries should pay for their projects-never a workable proposition--was abandoned in favor of an abilityto-pay approach; the Reclamation Project Act of 1939 provided that
irrigators would repay part of the project costs based on ability
to pay, and the repayment period was set at forty years plus a tenyear period of grace. This was a far cry from the original ten-year
full repayment program.
Following a lull in activites during World War II, reclamation
reached even greater heights in the 1950's as the Bureau became more
aggressive in its attempt to expand its activities. According to
one scholar, it was "quite clear that the Bureau of Reclamation was
expanding its control over water use through actively initiating
and planning. . . projects. . . ." (King, 1959:20).
As the Bureau of Reclamation expanded operations it developed
close ties with interest groups, local congressmen, and state governments. William Warne, writing very favorably of the Bureau, explained
that:
The nature of the reclamation program has required close
contractual relationships with organized water-user
groups. . . . The legal requirement that the Bureau file
water rights applications with the state engineers. . .
has made it necessary to maintain close liaison with water
officials in the state capitols of the west. . .it the
Bureau has been sympathetic with local leaders who have
sought the economic growth and development of their
communities. . .. Thus a clientele of the most active
88
local leaders has been developed for the Bureau. . ..
(Warne, 1973:174-5).
The support of western congressmen and water-user interest groups
has proven especially helpful during the appropriation process.
While the Bureau has encountered increasing opposition in recent
years, its close relationship with these sources of support have
helped it to maintain a relatively high level of funding.
By all acounts, the Bureau has achieved its original mission-to encourage western settlement and "make the deserts bloom" with
_.
irrigatd agriculture. This is abundently evident in every western
state. By 1974 the Bureau had invested $6 billion in completed project
facilities (U.S. Congress, 1975, Part 4:85), and accomplished the
following:
11 million acres of land currently provided with irrigation service, and an additional 9 million acres to be irrigated upon
completion of ongoing construction.
6 million kilowatts of hydropower generation capacity in operation,
and an additional 4i million kilowatts of capacity under construction.
3.5 million acre-feet of municipal and industrial water deliveries,
and an additional 1.6 million acre-feet upon completion of future
construction.
16,236 miles of transmission system (U.S. Congress, 1975, Part
4:3).
89
By the mid 1970's so much money had been allocated to the
Bureau of Reclamation that many commentators believed that the agency
had developed nearly all of the feasible irrigation project sites
in the west (excluding Indian reservations). Given the severe constraints of water supply and the lack of suitable topographic conditions, the Bureau may have completed its original mission. During
the 1974 appropriations hearings the Bureau admitted that ". . .the
original objective
of the Bureau has been met.. .the west is now
developed. . ." (U.S. Congress, 1974, Part 2:154). Obviously the
Bureau was not considering Indian reservations when that statement
was made.
In recent years the Bureau of Reclamation has been searching
for new responsibilities and the agencies' future directions remain
unclear. However, its ongoing reclamation construction program continued to attract large appropriations throughout the seventies.
In 1977 the Bureau's budget totalled $973 million.
Despite the Bureau of Reclamation's recent problems there
is no doubt that the agency has functioned effectively as an agent
of western development. Billions of dollars have been allocated
to the Bureau and vast amounts of water have been diverted by its
projects. The reclamation program has been very popular in Congress,
which has responded by providing the substantive allocations necessary
to make the program a success. Reclamation has also proven to be
very popular with state governments, which have responded by awarding
water rights to the beneficiaries of reclamation projects.
90
Corps of Engineers
The Corps of Engineers is one of the oldest and most successful
agencies in the federal executive branch. Its history is one of
continuous expansion of mission and funding. Organized in 1802,
the Corps quickly developed a close relationship with project beneficiaries and members of Congress. In 1824 the first Rivers and Harbors
Bill was passed, authorizing the Corps to take charge of maintaining
navigation on the Mississippi and Ohio Rivers (River and Harbors
Act of May 24, 1824).
The 1824 Act was only the first in a long litany of statutes
that expanded the Corp's responsibilities, and hence its budget,
prestige, and power. Its mission was enlarged to include flood control
in the Mississippi Valley (1850), control of the Mississippi River
Commission (1879), hydroelectric power development (1909), comprehensive water resource planning (1917), beach erosion prevention (1930),
control over the development of a nationwide flood control program
(1936), hurrican protection (1955), and flood plain studies for all
of the major rivers in the United States (1960) (The Corps of Engineers,
1976). More recently the Corps has become active in the areas of
environmental protection, and recreation.
The Corp's incredible expansion can be attributed to its
relationship with the Congress and clientele groups. Writing in
1951, Arthur Maass found that the Corps was very responsive to interest
groups and local support, and that "relations between the Engineer
91
Corps and the Congress are uncommonly cordial" (Mass, 1951:43).
He concluded that the Corps operates as a nearly autonomous agency:
They regard themselves as the "engineer consultants' (if
and when they choose to consult) and constractors of the
Congress and therefore as independent of any other
executive agency of however high degree. When they demean
themselves to report to anyone in government, it is to the
Congress. Their record shows that they not only regard
themselves as independent of the Army and the Secretary of
Defense, but even of the President (IX).
The Corps' autonomy is protected by congressmen and wateruser constituent groups who want Corps projects to be built in their
area; the Corps recipricates by building them (Ferejohn, 1974; Mazmanian
and Nienaber, 1979). The agencies' autonomy and power have allowed
it to compete very effectively against other federal agencies, including the Bureau of Reclamation. As the nation expanded westward,
so did the Corps. By 1957, 44% of all authorized Corps projects
were in the seventeen western states in which the Bureau of Reclamation
operates (U.S. Congress, 1957, Part 1:43-63). Also, the Corps has
built a number of projects which are either directly or indirectly
concerned with irrigation. In fact, the Corps of Engineers wrote
the first report on the practicability of western irrigation six
years before the Reclamation Act was passed (Warne, 1973:11). Both
agencies have expanded to such a degree that their is considerable
overlap in their activities. During the appropriations hearings
in 1974, Gilbert Stamm, Commissioner of the Bureau of Reclamation,
provided a description of this expansion and consequent overlap:
The Corps' mission initially was flood control and
navigation. There was a time when projects were divided
pretty much on that basis. If they were primarily flood
92
control, they fell within the Corps of Engineer's interest;
if they were primarily irrigation and water supply, they fell
into our area of primary interest.
Generally, over the years you could have divided them on
that basis. However, a great many projects of the Corps of
Engineers have involved irrigation water in recent years and
a great many of ours have involved flood control. There have
been a few cases where projects investigated by reclamation
have been authorized for construction by the Corps of
Engineers, and possibly some vice versa (U.S. Congress, 1974,
Part 3:711).
As a result of this overlap and competition there "has been
noisy combat. . . between the Bureau and its ancient rival, the Army
Corps of Engineers" (Warne, 1973:174). Federal water resource development is a lucrative field of activity for federal agencies attempting
to expand and increase appropriations. Both the Corps and the Bureau
of Reclamation strive to build the projects that congressman and
water-user organizations find so desirable. Although the Bureau
of Reclamation has constructed billions of dollars worth of projects,
the Corps has accomplished considerably more. By 1973 the Corps
had built 4,000 projects, including;
--19,000 miles of waterways
--500 harbors
--350 reservoirs
--9,000 miles of flood control structures
--7,500 of "improved" channels
--50 hydropower projects with a generating capacity of 12 million
killowatts
--100 emergency responses
(Corps of Engineers 1973).
93
Clearly the Corps of Engineers has been very successful
as an agent of development. By 1976 the agency had a real property
investment of $88 billion, and had spent $8 billion for flood protection.
Millions more were allocated for other Corps' functions (The Corps
of Engineers, 1976:25-26). The agency has made a dramatic contribution
to the economic development of America.
Problems with the Federal Water Development Program
Thus far in this section I have discussed the federal government's commitment to water resources protection, which has been institutionalized in the form of the Army Corps of Engineers and the Bureau
of Reclamation. These agencies are responsible for impressive accomplishments; they have literally changed the face of America.
The program has not been without problems, however. The
water resources program depended on local political support; indeed,
the Corps and Bureau derive their strength from their close relationship with local water-users and the congressmen that represent them.
But the Corps and the Bureau are federal agencies, and quite often
local interests conflict with federal government activities. Nowhere
is this conflict more evident than in the area of water resources,
and it is exacerbated by the federal government's dual commitment
to the Winters Doctrine on one hand, and a deference to state water
law on the other.
The inherent conflict of these two federal commitments has
intensified with time. Initially, the federal water resource program
simply ignored the developing body of case law concerned with reserved
94
rights; for many years there was no appreciable change in this federal
water development program that reflected the impact of Winters v.
U.S. Congress continued to allocate large sums of money for water
development without any provisions for Winters Doctrine rights.
As late as 1955 the proponents of state-controlled water
development could ignore the Winters Doctrine with impunity. Many
of them were simply unaware of the federal reservation doctrine and
had no way of knowing that the federal government, which had also
ignored the practical impact of Winters, would ever decide to actiVély
pursue reserved rights to water. The Pelton Dam decision in 1955
(Federal Power Commission v. Oregon) suddenly convinced the states
that the federal government was serious about reserved rights. The
Pelton decision is important because it broadened perceptions of
the scope and relevance of federal reserved rights. Prior to Pelton
the reserved rights doctrine was generally viewed as simply an "Indian
protection" doctrine. Since Indian water development had been virtually
ignored it was thought that the Winters Doctrine could also be safely
ignored; at least that appears to be the perception of state-level
policy-makers. But Pelton made it clear that the federal government
could evoke the Winters Doctrine for all kinds of water development
activity, not just Indian irrigation. Suddenly the Winters Doctrine
was perceived as a broad federal right, not just a case in Indian
law. State governments reacted with fear and trepidation, and federal
policy-makers suddenly became avid supporters of the doctrine of
reserved waters for all federal reservations.
95
In the aftermath of the Pelton decision one commentator wrote
that the case established an "over-riding government right, never
before known or believed to exist" (Davis, 1960:21). That perception
describes the reaction of probably most water policy-makers. Even
though the Congress had passed the 1920 Federal Power Act, establishing federal control over power development, and the courts had repeatedly affirmed the Winters Doctrine, very few policy-makers questioned
the federal government's long-established deference to state water
law.
In response to the Pelton decision several members of Congress,
with the support of water-user groups, began pushing for a legislative
solution to the conflict between state law and the federal reserved
doctrine. Beginning with the Barrett Bill in 1956, dozens of socalled "water rights settlement acts" have been introduced in Congress.
Nearly all of these bills were disigned to repudiate federal reserved
rights when they conflict with state-granted rights. The Barrett
Bill, which is typical, stated that "It has not been and is not the
intention of the Congress that Federal agencies, in pursuing their
programs for water resources development. . . shall have any prerogative to pre-empt the field or to cast clouds on the security of prior
rights under state law. . •" (1956:Sec. 2). None of these bills
have passed; since the federal reserved rights doctrine has been
expanded to include all federal reservations, not just Indian reservations, the federal government has an abiding, wide-ranging interest
96
in reserved rights. Hence, there has always been substantial resistence to the settlement bills.
With the failure of all legislative proposals, and increasing
federal interest in reserved rights, the relationship between the
states and the federal government has deteriorated over the past
twenty-five years. In 1961 the Senate Select Committee on National
Water Resources declared that the "conflicts between the States and
the Federal Government over the control and use of water are growing
sharper and more serious" (Report, 1961:65). Ten years later Frank
Trelease wrote that "there is federal-state conflict in the field
of water rights. There is confusion, uncertainty, bad feelings,
jealousy and bitterness" (Trelease, 1971:11). This animosity is
the result of the dual, inherently conflictual, approaches to water
development that have been espoused by the federal government.
The federal-state conflict over water has placed federal
water development agencies in an awkward position. Since they are
dependent upon local support and state cooperation these agencies
are reluctant to antagonize local authorities. Hence, both agencies
follow state water rights laws; the Bureau of Reclamation is required
to file under state water law by the Reclamation Act, and the Corps
of Engineers manual, entitled Water Resources--Policy and Authorities,
states that "Downstream waters made available by a project are subject
to allocation under state laws. The parties desiring to use the
water impounded by a rservoir must acquire the necessary water rights
under the provision of state laws" (quoted in Clyde, 1982:529).
97
As a result these agencies have not been active in developing
federal reserved water rights. This is particularly true for the
Bureau of Reclamation. William Warne writes that: "The Bureau has
not become embroiled in the federal-state water rights controversy
that has embittered the western states during the past two decades.
It has never asserted a superior right, has not imposed its projects
on communities, and is therefore not suspected of ambitions to arrogate
states' rights" (1973:176). Indian tribes have claimed that the
Bureau's disregard of federal reserved water rights has excluded
the tribes from the benefits of the reclamation program; according
to one Indian leader ". . . the vast majority of projects authorized
by Congress and developed by the Bureau of Reclamation have been
for the benefit of non-Indian communities" (U.S. Congress, 1974:80).
The 1973 National Water Commission reached a similar conclusion.
The Final Report concluded that the Bureau's policy "was pursued
with little or no regard for Indian water rights. . . and without
any attempt to define, let alone protect, prior rights that Indians
might have had. . . ." (Final Report, 1973:474-5).
The Bureau of Reclamation denies these allegations. In a
1976 report the agency stated that: "In developing and studying
water and land resources relative to Bureau of Reclamation projects.
. • the prior rights of Indians have been consistently recognized.
Benefits from these projects to land and water owned and utilized
by Indians have been substantial" (Bureau of Reclamation, 1976: cover
letter). The report lists and describes thirty operating projects
98
that provide benefits to Indian reservations. But the report also
lists sixteen projects unde a section labeled "Areas of Possible
Controversy."
The Corps of Engineers has also been in conflict with Indian
tribes. In 1956 the Seneca Nation attempted to stop a Corps dam
that would flood nearly their entire reservation. According to one
author the Corps "was determined to ride roughshod" over the Indians
(Douglas, 1971:x). The Senecas took their case to court but lost,
and the Corps flooded the reservation (Seneca Nation v. Brucher,
1958). In another case the Corps condemned lands on the Winnebago
Reservation for a river development project. Again the court upheld
the Corps' claims and allowed the project to be built (U.S. v. 697.30
Acres of Land, 1970). The Corps has also been criticised for its
handling of a project on the Papago Reservation, where the agency
displaced twenty families in order to build a dam but allegedly failed
to keep an agreement to relocate those families (Morgan, 1971:57-
66).
Although the cases just cited are significant, they pale
in importance compared to Corps activity in the Upper Missouri River
Basin, where four Corps dams inundated 356,366 acres of reservation
lands. The impact on the affected tribes was devastating; over onethird of the members of five Souix reservations were relocated.
The dams destroyed nearly all of the tribes timber land, and most
of the wild game habitat and the best agricultural lands (Lawson,
1982:45-67). According to author Vine Deloria, a member of one of
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the affected Souix tribes, the Corps was "appallingly insensitive
to the Indian's rights and needs" (Deloria, 1982).
The Corps policy toward Indians remains something of an enigma.
In response to a letter requesting a statement of the Corps' policy
on Indian rights and the Federal Reserved Rights Doctrine the agency
responded that they have never been "extensively involved in the
issue of Indian water rights, and we have found that Indian rights
vary so from tribe to tribe due to differing treaties and statutes,
etc., that we must address each question as it arises on an independent
basis" (Flachbarth, 1981).
It is quite evident that the dual water policies pursued
by the federal government have created enormous conflict and controversy. For fifty years the federal government ignored the implications
of the Winters case. The Congress minimized the impact of Winters
by pursuing a water policy that failed to take into account the inevitable conflict between federal reserved rights and a massive non-Indian
water development program based on state control. It was not until
the Felton decision in 1955, when the concept of reserved rights
was actually applied to non-Indian uses, that the federal government
began to take notice of reserved rights. Prior to 1955 the Winters
Doctrine was viewed as relevant only to Indian claims, and the Congress
paid little heed to its enforcement or implementation. But with
the Felton decision the reserved rights doctrine began to be viewed
by Washington as a way expanding federal control over water development, and the bitter state-federal feud over water began in earnest.
100
The Pork-Barrel: Congressional Courtesy and Water Projects
Although the federal water development program has been plagued
with problems it has still managed to build thousands of projects
at a cost of billions of dollars. To understand the remarkable success
of this program it is necessary to take a closer look at the special
status of non-Indian water projects in Congress. Water projects
are extremely popular with congressmen because they provide a convenient vehicle for constituency service. A congressman can increase
his support in his home district by providing his constituents with`
tangible evidence that he is doing his job and fighting for the folks
back home. Nothing is more appropriate for this than a water project
that provides jobs and a host of benefits ranging from flood control
to irrigation, hydroelectric power, navigable transportation, and
recreation. As a result, a system of reciprocal symbiotic support
has developed in Congress known as the "buddy system" or "congressional
courtesy". Under this system each congressman is expected to vote
for the water projects in the districts of his fellow congressmen.
In return he can expect their vote for the projects he proposes for
his district.
The only real constraint on this system is the finite financial
resources of the federal government. The Congress authorizes many
more projects than could possibly be built because it requires no
actual commitment of funds to authorize a project, but it looks good
in the home district. The cutting edge of project decision-making
lies in the actual appropriation of funds for projects. This has
101
important policy ramifications. It shifts the policy-making power
away from the authorizing committees, which for the most part merely
rubber-stamp project proposals submitted by federal construction
agencies, and places the important policy choices in the hands of
the appropriation committees. This violates a basic principle of
Congress--that the appropriations process should decide amounts of
money, not basic policy. But the descretion of the Appropriation's
committees is so vast, given the present backlog of $60 billion of
authorized but as yet unappropriated funding, that choices as to
which projects to fund constitute an important policy function.
Hence the most effective way to control water policy is to control
the budgets of the federal government's two principle construction
agencies; the Army Corps of Engineers and the Bureau of Reclamation.
It is the budgets of these agencies that are considered sacrosanct
by many members of Congress, especially members of the appropriations
committees and subcommittees. Given this institutional arrangement
it is not surprising that the federal water resources program has
been so successful.
This kind of tripartite alliance is often referred to as
an "iron triangle" or a "subgovernment." They dispense a form of
federal largesse commonly known as "pork-barrel," which is a federal
expenditure made primarily on the basis of political considerations.
It is important to note that Indian tribes are not part of this iron
triangle and hence do not receive much in the way of pork-barrel.
The three sides of the water development triangle are the Public
102
Works authorization and appropriation committees and subcommittees,
the federal construction agencies (primarily the Bureau of Reclamation
and the Corps), and water-user interest groups. The Indian tribes
do not participate at any of these three stages. First, Indian matters
are handled by the subcommittee on Indian Affairs and the committee
on Interior and Indian Affairs, not the public works committees.
Second, Indian water projects are funded through the BIA, not the
Bureau of Reclamation or the Corps. And third, the water-user interest
groups referred to above are antagonistic to Indian water claims;
they are the Indian's competitors for water and water projects.
In view of the exclusivity of the water development iron triangle
it is not surprising that Indian tribes have not benefited from its
outputs.
Conclusion
In this chapter I have attempted to draw a distinct contrast
between Indian water development, and non-Indian water development.
The former has proceeded at a snail's pace and accomplished little,
while the latter has been remarkably successful. It is a study of
opposites. This provides explicit support for the two principle
hypotheses of this dissertation.
First, it demonstrates that the Winters decision has not
had a significant substantive impact; it is caselaw that has proven
to be very difficult to enforce or implement without the political
support necessry for funding. In contrast, the Congress has made
many substantive decisions in regard to non-Indian water development.
103
In fact, the Corps of Engineers and the Bureau of Reclamation are
so successful as conduits of substantive decision that it is appropriate to think of non-Indian water development as a form of "institutionalized substantive decision-making." This institutionalization makes
it easier to make generous substantive decisions on a repetitive
(i.e., annual) basis. The iron triangle of non-Indian water development creates extensive benefits for decision-makers, and their supporters, while the costs are widely distributed.
In contrast, Indian water development has never become a
major priority for either the BIA or the federal government as a
whole. The Indian Irrigation program is not part of the iron triangle
of water policy so decision-makers have few incentives--and many
disincentives--to fund Indian water development. Since Indians and
non-Indians are competing for the same water and the funding to build
water projects, the political strength of the iron triangle of nonIndian water interests assumes gret importance. Indians are forced
to rely on the Winters Doctrine for their source of support, but
as of 1975 the impact of that decision was primarily limited to the
governmental process; it continued to generate caselaw and court
claims, and government studies lamented its lack of implementation
and enforcement, but very little actual water was delivered and utilized
by American Indians.
A second principle hypothesis concerns the dual but conflicting
policies pursued by the federal government. The seeds of this conflict, as shown in chapter three, were sown long before the Winters
104
decision and the Reclamation Act. But in the period from 1908 to
1975 the fruit of these policies became readily apparent as the conflict between state government, the federal government, and the Indian
tribes intensified. As unallocated water became more scarce the
costs of pursuing two mutually contradictory policies became more
critical, and conflict intensified.
The period of time from the Winters decision to 1975 did
not bode well for Indian tribes. Despite the repeated legal recognition of Indian rights, little water was actually allocated and delivered
to Indian reservations. But the 1970s were a time of profound change,
especially in terms of Indian policy and water policy.
Indian policy entered a new era in the seventies with the
advent of Indian self-determination. In 1970 President Nixon stated
that "the time has come to break decisively with the past and to
create conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions" (Nixon, July 8, 1970).
This policy was codified in the 1975 Indian Self-Determination and
Education Assistance Act. However, as Joyotpaul C. Chaudhuri points
out, "Ultimately the success of 'self-determination' is tied in part
to the resource allocation to specific Indian programs" (1982:18).
The BIA water development program is an excellent example of the
kind of "Indian program" Chaudhuri is referring to.
The seventies was also a time of change for water policy.
Opposition to pork-barrel water projects began to intensify as environmentalists and fiscal conservatives began to challenge the traditional
105
approach to water development. This movement culminated in the election
of Jimmy Carter in 1976; he promised to completely reform federal
water policy.
What impact would these changes have on Indian and non-Indian
water development? Would the juggernaut of Anglo water projects
be slowed, allowing an increasingly aggressive Indian water development
program to consume what is left of the West's unallocated water?
The following chapter will examine this "juggernaut" of federal nonIndian water policy and compare it to the recent progress of the
Indian water program.
CHAPTER 5
CONTEMPORARY FEDERAL WATER POLICY: THE BATTLE OVER WATER
PROJECTS DURING THE CARTER AND REAGAN ADMINISTRATIONS
Introduction
Non-Indian water users have been quite successful in their
drive for water resource development; billions have been spent for
the construction of thousands of projects. Prior to 1977 few attempts
Jig
were made to reduce the massive water project expenditures long favored
by Congressmen, their organized constitutents, and federal water
resource agencies. However, beginning in 1977 President Carter attempted to reduce water project expenditures and alter the decisionmaking process that often resulted in alleged "pork-barrel" water
projects. More recently President Reagan attempted to limit federal
expenditures on water projects as part of his overall efforts to
reduce the size of the federal budget. These attempts to alter water
policy and reduce project expenditures have given rise to claims
that the era of federal water projects is coming to a close. This
chapter examines these claims by evaluating the impact of the proposed
Carter and Reagan reforms on water project expenditures and the water
policy decision-making process.
The hypothesis of this chapter is that the existing tripartite
alliance of water user interest groups, water resource construction
agencies such as the Army Corps of Engineers and the Bureau of Reclamation, and members of Congress--which I will refer to as the water
106
107
policy establishment--successfully resisted attempts by the Carter
and Reagan Administrations to increase executive control over the
water project appropriations process or significantly decrease water
project expenditures. Although the water policy establishment experienced some setbacks in recent years, it is still quite successful
in obtaining funds for federal water projects.
This chapter is organized into three sections. The first
concerns efforts to alter the water policy decision-making process.
This section will review Carter's and Reagan's endeavors to increase
executive control over the decision-making structure which determines
how water projects are authorized and funded. The second section
deals with appropriations, and details the attempts by Carter, and
to a lesser extent Reagan, to reduce expenditures for specific appropriations. The third section provides an empirical validation of the
second section by utilizing three measures of budgetary strength.
A concluding section discusses potential changes in water policy
and how they may affect Indian water development.
It is necessary to take a close look at the political health
of the water policy establishment because it has such a pervasive
impact on Indian reservations. Indians and non-Indians have been
in direct competition for water and water projects for most of this
century, and this competition is now intensifying as demand increases
in the face of dwindling supplies. Indian tribes are now at a critical
juncture; they are finally marshalling their political resources
108
(the topic of the following chapter), and demanding their share of
water. The question is; can they compete effectively against the
traditional political dominance of the water policy establishment?
To answer that question we must assess the political strength of
both Indian and non-Indian interests.
Federal Water Project Expenditures: Declining?
Beginning in the early seventies federal water policy underwent
several important changes. The rise of the environmental movement,
changing national spending priorities, and shifting political alliances
all affected national water policy. These changes prompted some
of the leading scholars of water policy to suggest that the era of
large federal water projects was coming to a close.
In 1975 Henry Caulfield, a leading authority on water policy
and past Director of the Water Resources Council, remarked that "the
federal water development program is politically dying if not already
dead" (Caulfield, 1976:180). After the announcement of Carter's
new water policy this view became more prevalent. In 1978 Stoevener
and Kraynick wrote that President Carter's 1978 budget was "an example
of the deemphasis of water resource investments among other national
objectives. . . (1978:59). More recently water policy scholars have
discussed the "distinctly diminished role" of federal water resource
agencies (Howe, 1980:16) and the "declining federal role in water
resource development" (Edgmon and de Young, 1982:5). Gottlieb has
concluded that "the era of the pork-barrel seems to be ending" (Wall
Street Journal, March 2, 1983:22).
109
Several students of water policy trace this apparent diminution
of support for federal water projects to Congress, the traditional
champion of federal funding for water development. Congressman Morris
Udall stated in 1977 that while "the old water lobby is still powerful.
. . a new breed of suburban congressman is saying we're at the end
of the federal dam-building period" (The New York Times, December
17, 1977:4). Edgmon and de Young have written that "There no longer
exists a formative group of Congressmen willing to defend federal
water projects. . • • H (1982:5).
There is no doubt that the political environment surrounding
federal water resource development has changed significantly in recent
years. There is more resistence to project funding in Congress and
the established water lobby is less powerful than it was in the past.
But does this mean that the federal water resource program is dying?
Are federal expenditures for water projects decreasing at a significant
rate? Is the federal role in water development declining? I will
argue in this chapter that the water policy establishment has successfully resisted attempts to alter the traditional approach to water
development, and with few exceptions has prevented any significant
cuts in project funding. Despite some recent setbacks and opposition
from the Carter Administration, the Reagan Administration, environmentalists, and fiscal conservatives, federal water resource development continues unabated. And while Congress no longer supports water
projects with the same knee-jerk reaction typical of past years,
it still remains a bastion of support for substantial water project
110
expenditures. This is not to say that there have not been changes
in recent years. In the face of increasing opposition the water
policy establishment has adapted in some ways, and will continue
to adapt, in order to pursue its principle activity of dispensing
federal funds for water projects. Nevertheless the traditional goal
of federal water policy--to serve congressional and bureaucratic
constituents through water resource development--is still being served
and there is little reason to believe it will not continue for quite
some time to come.
Although nearly all Indian reservations are ni the West,
it is important to understand that western water projects are an
inextricable part of the total water policy establishment. The iron
triangle of water policy serves interests in every region--and congressional
district--of the nation. Also, all projects compete for the same
finite funds.
The West is, however, unique in some respects. Obviously
it is more arid that the rest of the country so there are more irrigation projects and fewer navigation projects. Also the 17 western
states are the only states in which the Bureau of Reclamation is
authorized to operate. But the West is not the exclusive domain
of the Bureau; the Army Corps of Engineers also constructs hundreds
of projects in western states. Carter's FY 1978 budget request for
the Corps contained funding for 80 western projects (42% of the total)
(U.S. Congress, 1977, Part 1:490). Clearly water development in
the West is bound to the fortunes of both of these agencies. And
111
these two agencies play a central role in national water policy.
Hence the ensuing discussion is concerned with all water projects,
not just those in the West.
Attempted Reforms in the Water
Policy Decision-Making Process
In this section I will review the reforms proposed by the
Executive Branch, which can be divided into three categories; changes
in authorization and appropriation criteria, bureaucratic reorganization, and budgeting reform (the latter category includes three
items: user fees, cost-sharing, and full-funding). I discuss each
of these categories separately.
Both President Carter and President Reagan have attempted
to change the decision-making process that determines which projects
are authorized, and how they are funded (the actual amount of funding
is the topic of the following section). All of these proposed changes
were designed to increase presidential control over water project
expenditures, and reduce the ability of the Congress to use water
projects as a form of constituency service. As the following discussion will make clear, the Carter and Reagan Administrations failed
to significantly alter this decision-making process.
Changes in Authorization and Appropriation Criteria
The foundation of Carter's water policy reforms rested upon
a more stringent criteria for project authorization and funding.
He wanted to emphasize a "more realistic assessment of both economic
and environmental costs and benefits" (White House Press Release,
112
April 18, 1977). Specifically, this meant a shift in three basic
aspects of water project authorizations and appropriations. First,
Carter wanted to adopt a non-structural approach to water development.
This proposal struck at the very heart of traditional federal water
policy. An article in The Washington Post stated that
The new water policy. . . will be an effort to reverse
the historic tide of massive structural water works, providing billions of dollars in federal subsidies for selected
areas and economic interests. . . . Such changes would
amount to a revolution in water policy, challenging the
historic American faith in technology as the answer to all
water problems (December 19, 1977:1-4).
-4
Second, Carter wanted to emphasize environmental protection
and conservation. This goal could be partially accomplished simply
by adopting a non-structural approach, but it would also require
additional expenditures to mitigate past damages or alter future
projects to conform to new environmental criteria.
A third change in project approval criteria concerned the
discount rates and interest rates that were used to compute project
costs and benefits. By law projects must achieve cost-benefit unity,
or in other words, the costs must be equal to or less than the benefits. An important variable in the cost-benefit ratios is the interest
rate and discount rate. Federal water development agencies followed
the long-established practice of computing these rates according
to the rate that existed when the project was authorized, which often
occurs many years prior to when funds are actually appropriated.
To ensure that this practice continued the Congress passed a law
in 19714 making it mandatory (PL 93-95, Sec. 80(b)). Carter proposed
113
that these rates be computed when funds are actually appropriated,
not when the project was authorized. In his view this would provide
a more realistic, up-to-date total of actual project costs. Simply
by changing interest rate and discount rate computation from the
date of authorization to the date of appropriation, many projects
lose their positive cost-benefit ratio. For example, the Applegate
Lake project had a cost-benefit ratio of 1.34 at a rate of 3 1/4%,
the rate that was current when the project was authorized. But this
ratio is reduced to 0.64 it is computed at 6 3/8%, the rate that
was current when funds were initially appropriated.
Carter's new project criteria sparked a bitter controversy
during debate over the 1978 omnibus project authorization bill.
Congress attempted to authorize 160 new projects which not only failed
to meet Carter's new standards, but did not meet the lenient criteria
usually followed by the Congress (Weekly Report, August 12, 1978:2150).
Ultimately the bill died the day before adjournment (HR 13509, HR
8309) but since there was a backlog of 385 projects that were authorized but not yet funded there was no immediate need to authorize
more projects (Weekly Report, March 4, 1978:569).
On June 6, 1978 Carter reiterated his intentions of establishing new project criteria that stressed conservation, non-structural
alternatives, and current interest and discount rate formulas (U.S.
Congress 1979, Part 1:3-7). In order to insure compliance by the
Army Corps of Engineers, the Bureau of Reclamation, and other federal
agencies, his administration developed a new "standardized water
114
project planning manual" based on the new criteria (Federal Register,
July, 1979).
The Congress responded by introducing the 1980 Omnibus authorization bill which would waive cost-effectiveness requirements for
new projects if Congress deemed them unnecessary, and also allow
new project authorizations without completed feasability studies.
The bill also authorized 125 new projects (HR 4788). The House Appropriations Subcommittee on Public Works estimated the total cost of
the new projects at $2.37 billion. The Congressional Budget Office
estimate for the same projects was $4.3 billion (Weekly Report, January
19, 1980:155-56).
Reaction to the bill came quickly. President Carter pointed
out that the new projects were scattered throughout 70% of the congressional districts in the nation, evidence that the system of congressional courtesy still shaped water policy. Howard Jarvis ran a fullpage ad in The Washington Post in protest of the authorization bill.
He called it a list of "brazen boondoggles" (January 23, 1980:3).
The House responded by adding to the bill an authorization to build
a monument to the Corps of Engineers and 61 more projects (Weekly
Report, February 9, 1980:366-7). The bill passed the House with
sufficient strength to override a veto, but, like the 1978 omnibus
bill, it died a slow death during the last days of the session.
Carter succeeded in stopping the 1978 and the 1980 omnibus
authorization bills. Proponents of the view that the federal water
program is declining point to these victories. But in terms of policy
115
impact, the failure of these bills had little effect due to the enormous backlog of authorized water projects. The General Accounting
Office estimated that there is a $60 billion backlog of authorized
but as yet unappropriated funding for water projects (GAO Report
to the Congress,
1983). Clearly the federal water resources program
could continue to operate without any new authorizations for a considerable period of time. The important question then, in terms of longrange impact on water policy, is authorization criteria. Carter
failed to alter the existing method of computing interest rates,
and he failed to create new, enforceable criteria concerning environmental and non-structural considerations. Hence the authorization
criteria remain virtually unchanged. The Congress did not abide
by any new criteria for project authorization and funding. Water
projects continued to be approved using the traditional criteria
which give congressmen the maximum opportunity to bring federal water
development funding to the home district.
It is unclear how changes in authorization criteria would
affect Indian tribes. Stricter criteria would make it more difficult
for the water policy establishment to generate project funding, but
it might also make it more difficult for Indians to obtain projects.
One of the liabilities of cost-benefit analyses, upon which project
authorization is based, is that they fail to take into account social
and cultural impacts. Yet these are precisely the kinds of variables
which are important to Indian tribes attempting to protect their
way of life. Therefore, new authorization criteria that tightened
116
calculations of economic variables but fail to recognize the importance
of cultural variables would undoubtedly work to the disadvantage
of the Indian tribes. Without a recognition of the link between
water rights and cultural preservation the tribes are in a no-win
situation in regard to project criteria.
Bureaucratic Reorganization
Both Carter and Reagan wanted to increase presidential control
over water resources planning by reorganizing lines of authority.
Under existing conditions federal construction agencies could operate
in a nearly autonomous fashion by maintaining close ties with Congress
and bypassing the White House during the planning stages. Carter
tried to interject a measure of presidential control into this process
by enlarging the review function of the Water Resources Council (White
House Press Release, June 6, 1978). However the Congress fiercely
resisted any interference with its traditional control over water
resource planning, and refused to provide the authorization necessary
to transfer power to the Water Resources Council (Weekly Report,
October 14, 1978, and May 12, 1979). Reagan tried a similar approach
when he proposed a new Office of Water Policy but again the Congress
failed to go along (U.S. Congress, 1981, Part 3:371; Weekly Report,
July 18, 1981:1293). Reagan then attempted to gain more control
over water resources by channeling powers of review to various other
bureaucratic entities, but again without much success (Weekly Report,
June 19, 1982:1462).
117
The most significant reorganization proposal in recent years
was Carter's plan to establish a new Department of Natural Resources
which would control water resources planning. Similar proposals
have surfaced periodically over the last fifty years, but none have
been accepted by Congress because they would interfere with the autonomy
of the water project construction agencies. One Senator told Carter,
"Look, your going to get your nose bloodied on this one--why take
on one your sure to lose?" (The New York Times, February 12, 1979:A-
16). Carter's plan for a new Department of Natural Resources soon
died a quiet death.
Neither Carter nor Reagan succeeded in breaking the crucial
link between water project construction agencies and the Congress.
Both presidents attempted to inject a measure of Presidential control
by reorganizing the lines of administrative authority. Thus far
they have failed; the water policy establishment remains intact in
terms of its bureaucratic organization.
These attempts to reorganize the water policy bureaucracy
could have an impact on Indian tribes because both the Bureau of
Indian Affairs and the Bureau of Reclamation are in the Department
of Interior. The BIA's effectiveness is compromized because the
Interior Department usually sides with the more powerful Bureau of
Reclamation in any disputes involving Indian and non-Indian water
resources (U.S. Commission on Civil Rights, 1973:136). The removal
of the Bureau of Reclamation from the Interior Department might help
alleviate some of this conflict.
118
Budgeting Reform
A third area in which both Carter and Reagan attempted to
reform the water policy decision-making structure concerns budgeting
procedure; how projects are budgeted and who pays for them. Three
different budgeting reforms have been proposed in recent years; userfees, cost-sharing, and full-funding.
Both Carter and Reagan tried to impose a user-fee on those
who use the nation's waterways. In 1978, Carter pushed a user-fee
bill through Congress, but in the process the bill was watered down.
to the point where it provided just a small fraction of what Carter
wanted (Weekly Report, May 6, 1978:1091-92). Reagan has repeatedly
beseeched Congress to increase the user-fees set in 1978, but has
yet to succeed (Weekly Report, October 3, 1981:1918; U.S. Congress,
1981 Supplemental, Part 1:566-69, 631-33).
Cost-sharing is closely related to the idea of a user-fee,
but rather than tax individual users, cost-sharing proposals require
local and state governments to share a portion of project costs.
Carter worked hard for a cost-sharing bill throughout his tenure
at the White House. His Interior Secretary, Cecil Andrus, predicted
that cost-sharing legislation would be supported by states that have
"good projects and are willing to put their money where their mouth
is" (The New York Times, May 17, 1979:16).
Secretary Andrus was wrong, however. States with a large
number of projects, especially western and southern states, allied
themselves with Congress in opposition to any form of cost-sharing.
119
President Reagan has also worked assiduously for a cost-sharing component in water project budgeting. He has made nearly every
administration proposal for water project funding contingent upon
some form of cost-sharing (U.S. Congress, 1982, Part 3:14). However,
the Congress has refused to go along (Weekly Report, August 18, 1982:
2141). As of this writing mandatory cost-sharing has yet to become
law; Congress can still allocate water project funds to their home
districts and states without the burden of any new cost-sharing provisos.
A final component of the proposed budgeting reforms concerns
the use of "full-funding"--the inclusion of the entire cost of a
project in the original appropriation bill. Carter favored this
approach because it would make the entire cost of a project obvious
when funds are initially appropriated. He reasoned that if Congress
had to acknowledge the long-range costs of water projects at the
point of initial appropriation it would be more difficult to be fiscally extravagant. Full-funding would eliminate the legislator's traditional right to annually dole out increments of federal project funds
to home districts and states and thus would limit the usefulness
of water project expenditures as a vehicle for constituency service.
Carter first proposed full-funding in 1978 when he introduced
a list of 36 new starts--all of them full-funded. The Congress ignored
his proposal, and continued funding projects for FY 1979 in the traditional manner (Weekly Report, June 17, 1978:1525-28, and August 19, 1978:
2183). Carter ultimately gave up his full-funding strategy.
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The cost-sharing and user-fee proposals discussed above would
not have a direct effect on Indian reservations since Indians are
protected by the Leavitt Act which limits Indian liability for project
costs. However, Indians would indirectly benefit from such proposed
reforms because non-Indian water projects would then be less attractive
politically. In other words, there would be less pork in the porkbarrel. Full-funding would probably affect Indian and non-Indian
projects in the same manner, making all of them more difficult to
authorize.
Carter and Reagan failed to increase executive branch control
over the water project decision-making process, and they failed to
significantly reduce the ability of Congress to use water projects
as a form of constituency service. While Carter and Reagan were
attempting to alter the water policy decision-making process they
were also attempting to reduce some aspects of the annual appropriation
for water projects. This is the subject of the following section.
Appropriations: The White House vs. The Congress
During his campaign for the Presidency, Jimmy Carter repeatedly
stated that he would attempt to reduce the funding for federal water
projects if elected. He kept his promise, and continued to battle
water project expenditures throughout his term, although his zeal
was diminished somewhat in later years by repeated failure. President
Reagan also endeavored to make selected changes in the level of federal
funding for water projects.
121
This section will review these efforts to reduce water project
expenditures. Specifically, I will examine the controversy over
Carter's so-called "hit lists", his veto of the FY 1979 Public Works
budget, and his diminishing zeal to confront the Congress on the
water project issue during the latter part of his Administration.
I also will examine the highly selective budget cuts proposed by
Reagan, and his Administration's renewed interest in water resource
development.
The Carter "Hit Lists"
Only a month after assuming office President Carter announced
that he was considering the possibility of reducing or deleting funds
for 18 ongoing projects. This announcement came one week after 74
Congressmen sent a letter to Carter expressing their "support for
your efforts to reform the water resource programs of the Army Corps
of Engineers and the Bureau of Reclamation" (Fradkin, 1981:5).
Four of the 18 projects were directly involved with disputes
over Indian rights. Carter cited the "potential conflict with Indian
water rights" as part of the reason he wanted to delete funding or
modify the Oahe Project in South Dakota, the Garrison Diversion in
North Dakota, and the Bonneville Unit of the Central Utah Project.
He also wanted to modify the Central Arizona Project by, first, eliminating Orme Dam, which would inundate most of the Ft. McDowell Indian
Reservation, and second, changing the allocation of project water
to Indians (White House Press Release, April 17, 1977).
122
Carter's announcement provoked an instant uproar of disapproval
from congressmen, governors from western states, and interest groups.
They dubbed his list of project cuts a "hit list", and demanded that
the projects be reinstated. Unperturbed, Carter added a nineteenth
project to the list and ordered that another 320 projects be reviewed
on the basis of more stringent economic, environmental and safety
standards (The New York Times, February 21, 1977:1). By cutting
funds for nineteen projects Carter hoped to save $289 million. Eight
of the projects were being built by the Bureau of Reclamation and
eleven were Corps of Engineers projects (The New York Times, February
22, 1977:13).
Even though Carter's February cut list was only a tentative,
preliminary effort, the Congress reacted decisively. The 74 congressmen who wrote to him earlier explained that they wanted Carter to
resist new project starts, but not to interfere with projects already
being constructed. Both houses passed resolutions that required
Carter to spend funds on the projects (The New York Times, March
13, 1977:24). Western governors were also not willing to agree that
the age of federally funded water projects was coming to a close.
Even Governor Lamm of Colorado, who had spoken out against massive
water project appropriations, was furious that three Colorado projects
were on the list. Throughout the Spring of 1977 Carter battled congressmen, governors, and interest groups who were totally committed to
the traditional concept of massive federal water resource development.
123
On April 17, 1977 Carter announced his final recommendations
regarding water project appropriations. This list was somewhat different from previous cut lists. It restored funding for nine projects,
but it also recommended that 18 projects be deleted and deauthorized
and five be significantly modified (two projects were placed on the
list because, among other things, they were in conflict with Indian
water rights). It is interesting to note the relationship between
these projects and membership on the House and Senate Appropriations
Committees. Of the 23 projects recommended for cuts or deletions,
18 of them were either in states with Senators on the Senate Appropriations Committee on in congressional districts with Congressmen on
the House Appropriations Committee. In other words, 78% of the projects
Carter considered to be the most marginal were in areas represented
on either the Senate or House Appropriations Committees.
The Senate Appropriations Subcommittee on Public Works was
particularly hard hit by Carter's project cuts; 77% of them were
from states that had projects on the list (both of the Senators from
North Dakota serve on the Public Works Subcommittee but that did
not keep the massive Garrison Diversion Project off the list).
The apparent relationship between membership on appropriations
committees and Carter's cut list does not necessarily indicate that
committee members draw more projects to their areas. Rather, it
indicates that a significant percentage of marginal projects are
in areas represented by appropriations committee members (this conclusion assumes that Carter's decision criteria were legitimate measures
124
of project marginality and his proposed cuts were not chosen to punish
committee members). It is doubtful that Carter was "targeting" members
of the appropriations committees for his cuts because in the same
April 17 press release Carter restored funding for nine projects
that appeared on previous cut lists, seven of which were from areas
represented by appropriations committee members (four of those were
from the states of Senate Public Works Subcommittee members). This
reinforces the conclusion that members of the appropriations committees
sponsor marginal projects. Also, all of the restored projects hadfailed previous tests of acceptability. Evidently members of the
appropriations committee, with the support of many of their colleagues,
appropriated funds for a number of projects in their home districts
that could be considered marginal. This is a testimony to the strength
of the system of congressional courtesy and the key role that the
appropriations committees play in that system.
It is important to note that Carter's suggested cuts were
quite modest relative to the total budget for water projects. His
April 18, 1977 press release requested that funding be deleted for
18 projects and reduced for 5 projects, which represents a tiny proportion of the 292 ongoing Corps of Engineers projects and the 75
ongoing Bureau of Reclamation projects. In other words, Carter attempted to delete funding for 4.9% of all ongoing projects, and reduce
funding for 1.4% of those projects.
Yet even this modest decrease proved to be extremely difficult
to achieve. The Congress ultimately passed an appropriations bill
125
that deleted funding for nine projects, modified three, and delayed
one pending further study (HR 7553). Carter agreed to accept funding
for nine projects he wanted to delete and deauthorize. Of those
nine projects, eight were in states whose Senators served on the
Appropriations Committee. Seven of those Senators also served on
the Public Works Subcommittee (Weekly Report, July 2, 1977:1338).
The final appropriation bill for fiscal year 1978 was a grudging compromise. The Congress, angered by even a samll intrusion
into its domain of water projects, promised to renew the fight for
the nine lost projects in the next session. In a final act of defiance
the Conference Report for the appropriations bill made it clear that
the deletions were only temporary:
The conferees are agreed that the Congress retains the
right to select water resource projects for funding. All
authorized water resource projects will be considered on
their merits, and each and every authorized project will be
considered by the committees in the deliberations on the 1979
appropriations bill (House Report 95-507).
Reluctantly Carter signed the bill since it cut at least
a few projects and did not fund any new construction starts. The
61 members of the House who had voted against the bill were angered
that Carter did not veto it. They had risked their good standing
with fellow house members (i.e., violated the buddy system) by backing
the project cuts (Weekly Report, July 30, 1977:1585).
FY 1979: The Carter Veto
The House Appropriations Committee was once again prepared
to battle Carter over water project expenditures when they reconvened
126
to consider fiscal year 1979 appropriations. Their first act was
to restore funding for eight of the projects deleted the previous
year, add $221 million to Carter's initial request, and propose 41
new construction starts (HR 12928).
Carter immediately responded with the promise of a veto,
and then produced his own list of 36 new project starts that met
his new criteria. But the Congress ignored his new project proposals
and maintained their support for their own 41 new starts at an eventual
cost of $1.3 billion. The vote on the House Appropriaton Committee's
bill, which totaled $10.3 billion for public works, was a lopsided
263-59 (Weekly Report, June 24, 1978:1634). The Senate was willing
to make a few concessions to Carter, but not many. Ultimately they
passed a bill that funded seven of the deleted projects and included
most of the 41 new starts proposed by the House. Many of the new
projects did not even meet the Congress' own unrestrictive criteria,
much less Carter's new criteria (Weekly Report, August 12, 1978:2150).
Carter immediately vetoed the Public Works Appropriation
Bill (renamed the Energy and Water Development Bill) for FY 1979.
The House sustained it. A compromise bill was then formulated that
cut seven of the eight objectionable projects, but did not substantially reduce the overall expenditure level (H.F. Res 1139-PL 95-482).
Tom Bevill, Chairman of the House Appropriation Subcommittee on Public
Works, and Bennett Johnston, chairman of the Senate Appropriations
Subcommittee on Public Works, made it clear that the project cuts
were only temporary, and promised to "preserve the perogatives of
127
the Congress" in all future budget decisions concerning water projects
(Weekly Report, October 14, 1978:2924).
Carter Moderates His Opposition to Project Funding
By 1979 Carter had begun to weary of the bitter feud with
Congress over his attempts to reduce water project expenditures.
No longer attempting to slash agency budgets, he merely endeavored
to reduce their rate of growth. In fact, Carter's proposed FY 1980
budget represents a 13.04% increase in the combined budgets of the
Corps of Engineers and the Bureau of Reclamation, including funding
for ten new Corps projects and six new Bureau of Reclamation projects
(U.S. Congress, 1979, Part 1:8, 795). Two of these projects had
been deleted from the 1978 appropriations bill and failed to meet
Carter's new standards as set forth in Carter's policy statements
of April 17, 1977, and June 6, 1978 (Weekly Report, January 27, 1979:177).
The Congress, pleased by the generosity of the Carter proposal,
and possibly sobered somewhat by the veto of the previous year's
bill, turned back a drive to once again fund the hit list projects
cut the previous year. They remained adament however in their refusal
to consider the full-funding aspect of Carter's bill (Weekly Report,
July 28, 1979:1558-59). Ultimately an appropriatons bill acceptable
to both the White House and Capitol Hill awarded $3.2 billion to
the Corps of Engineers, and $617.6 million to the Bureau of Reclamation
(U.S. Budget, FY 1980).
Carter's proposed budget for FY 1981 was essentially a status
quo budget. He requested no new starts, and maintained the same
128
general level of funding as the previous year (U.S. Congress, 1980,
Part 1:2649). An election year was an inopportune time to challenge
the water project establishment. Carter's efforts to reform water
policy had cost him a great deal of support, especially in the West
and the South.
Carter called the 1981 Appropriations Bill "a constructive
compromise" (The New York Times, October 2, 1980:18). It included
funding for three of the projects that were previously cut, and totaled
nearly $4 billion in water project expenditures for the Corps of
Engineers and the Bureau of Reclamation (U.S. Budget, 1983). After
signing the bill the President stated that he wanted to make clear
his "continuing interest in working with the Congress in pressing
for reforms in water resources policy" (The New York Times, October
2, 1980:18).
The Reagan Budget Cuts: Selective Reductions
Carter never got the opportunity to continue "working with
the Congress". In 1980 he lost in every western state and every
southern state except Arkansas and Georgia. Both of these regions
have long favored expensive federal water development. Timothy Wirth,
Congressman from Colorado, claimed that Carter "never understood
the emotional and substantive importance of water to the West. .
. Carter's water policies are no longer a partisan issue. . . both
parties are united in opposition. These policies are an issue that
Mr. Carter couldn't ever overcome out West" (The New York Times,
October 14, 1980:IV-23).
129
One of Reagan's first actions upon assuming office was to
radically revise Carter's budget proposals for FY 1982; the President's
revisions to the FY 1982 budget were generally based on the principle
of stretching out capital investments and a reduction in certain
lower prority activities within the Civil Works Program. .
." (U.S.
Congress, 1981, Part 1:560). The "certain lower priority activities"
means recreation, environmental studies, water quality studies and
some forms of flood control. The proposed Reagan budget did not
significantly reduce budgeted activities which form the heart of
traditional water resource development--those related to economic
activity such as navigation, irrigated agriculture, and hydro-electric
production. For example, the proposed 1982 revised budget for the
Corps of Engineers was 7% lower than the Carter request but still
a 5% increase over the Corps' appropriations for the previous year.
Furthermore, 73% of the proposed Reagan cuts were for three projects
whose primary benefit was recreation (U.S. Congress, 1981, Part 1:579).
Much of the rest of the reductions were due to personnel cuts in
established recreation areas (U.S. Congress, 1981, Part 1:581).
According to Secretary of Interior James Watt, the reductions "will
not have a significant impact on the need for water resources projects
or the pace with which they come on line" (U.S. Congress, 1981, Part
3:6).
Yet even these modest reductions met with some resistence
in the House. The Appropriations Committee voted to increase spending
for Corps and Bureau projects by $114 million above the previous
130
year's appropriations, and $21.7 million more than the Reagan proposal.
The Committee also agreed to delete only one--not three-Corps projects
(the two that the Committee wanted to keep were veterans of early
Carter "hit lists") (Weekly Report, July 18, 1981:1296).
In September of 1981 Reagan issued a revised budget request
lower than his original March request. The Senate took this into
consideration, and reported out a bill lower than that passed by
the House. Reagan threatened to veto a compromise bill that contained
considerably more money for water projects than he requested, primarily
because of funds for energy projects which are part of the same appropriation bill (Weekly Report, November 28, 1981:2352). Ultimately
Reagan signed the bill, deciding that $375 million over his request
did not "bust the budget" (Weekly Report, December 12, 1981:2433).
The President's willingness to compromise on water projects,
but not on spending for social programs, prompted angry reactions
from some legislators. Senator Metzenbaum, upset about the Senate's
support for the President's budget, exclaimed: "We're not going
to worry about people who will go hungry and people who will be starving. We're not going to worry about senior citizens going cold this
winter. But don't lay a hand on those water projects. What's so
sacred about water projects?" (The New York Times, May 12, 1981:1V-
22). Senator Proxmire called the water project expenditures the
"most bloated" part of the budget proposed for 1982 (The New York
Times, May 12, 1981:1V-22).
131
The Reagan budget did not contain any new construction starts,
a policy that President Carter had pursued with vigor. However,
both Watt and Reagan have indicated that they "are committed. . .
to new starts" as soon as the economy recovers (U.S. Congress, 1981,
Part 3:2-6). Robert Broadbent, Commissioner of Reclamation, asured
Westerners that the Reagan government is a "pro-water policy administration" that foresees a serious water crisis if there is not a major
effort to develop water resources (Tucson Citizen, January 20, 1982:3-
A). In response to statements such as these, an officer of the National
Water Resources Association stated that "People have gotten the signal,
loud and clear, that the War on the West is over" (The New York Times,
September 28, 1981:15).
The Reagan budget proposal for FY 1983 reflected the Administration's commitment to water resource development. Funding for
the Bureau of Reclamation increased to $950.3 million, up 23% from
1982. The largest part of that increase was for construction (U.S.
Congress, 1982, Part 3:57). Funding for the Corps of Engineers decreased slightly, but still totaled a very substantial $2.7 billion.
The Corps was deprived of a budget increase partly as an inducement
to Congress to pass cost-sharing legislation.
As always, the members of the Approopriations Committee raised
the issue of new construction starts. Secretary of Interior James
Watt explained that the Administration planned to set up a "contingency
fund" of $48 million to be used for new starts for both the Bureau
and the Corps that were still in the planning stage but would be
132
proposed in the near future (U.S. Congress, 1982, Part 3:3, 14).
Watt was effusive in his praise for the House Appropriation Subcommittee on Energy and Water Development, promising to work with them
to "build America". He stated that "billions of dollars" will be
needed to stave off "the largest biggest crisis that will confront
America. . . a water shortage in the 1990's" (U.S. Congress, Part
3:1-2). (Keep in mind that this is the same man who referred to
Indian reservations as "an example of the failures of socialism".)
The House Appropriations Committee responded to Reagan's
budget proposal by adding nearly $250 million in water projects (HR
7145); "Many of the extra dollars would go for projects in the home
districts and states of committee members" (Weekly Report, September
25, 1982:2371).
Neither President Reagan nor Carter were able to significantly
reduce water project expenditures. Their efforts were not totally
in vain however; they did succeed in imposing a few cuts in expenditures for a short time. But this will only have a temporary effect
since the Reagan Administration plans to increase project expenditures
in the near future. The temporary, and relatively modest, pause
in project expenditure growth is evident in Graph A, which is reproduced from the FY 1983 Budget in Brief (p. 43). Following a slight
decline during 1981-83, expenditures slowly begin to increase through
1984-85. In comparison, pollution control, conservation, and recreation drop off precipitously (additional budget data is discussed
133
Outlays for Natural Resources and Environment
Billions
S Billions
16
16
Total
12 —
'Conservation,
Recreation,
and Other
Water Resources
111111111(1
0
1973 74 75 76 77 78 79 80 81 82 83 84 85
Fiscal Years
Estimate
Figure 1. Graph-- Outlays for Natural Resources
and Environment
134
in the following section of this paper). Of course, these budget
figures are only proposals. The actual fugures will undoubtedly
be higher due to the congressional penchant for spending money on
water projects.
The failure of Presidents Carter and Reagan to reduce water
project funding is clear. It is also evident that the Congress,
despite some internal opposition, remains a bastion of support for
water projects. This conclusion can be strengthened by a more indepth examination of actual budget figures, the topic of the following
section.
Three Measures of Budgeting Success
The previous sections of this chapter discussed efforts on
the part of Carter and Reagan to decrease the amount of money appropriated for non-Indian water projects and reform the decision-making
process responsible for those appropriations. I concluded that their
efforts have, with some minor exceptions, failed, and the water policy
establishment continues to operate in a traditional fashion. This
conclusion can be tested further by utilizing various measures of
budgeting success that have been developed in the literature.
Measures of Budgeting Success
A number of scholars have developed measures of budgeting
success by examining the relative growth or decline of agency requests,
executive requests and actual appropriations over time (Fenno, 1966;
135
Sharkansky, 1968; Crecine, 1969; Davis, Dempter, and Wildavsky, 1971;
Wanat, 1974; LeLoup, 1975; Meier and Lohuizen, 1978; Tucker, 1981). .
For the purposes of this chapter I will use three measures
to indicate executive and congressional support for water project
expenditures. The first measue, "executive support", is the percentage
change between the President's budget request and the previous year's
appropriation (the President's request is sometimes called presidential
estimate or recommendation). This measure demonstrates the extent
to which the President is willing to increase an appropriation from.
,
one year to the next.
The second measure, "congressional support", is the percentage
change between the executive request and the actual appropriation
for the same year. This measure demonstrates the impact of Congress
on the President's budget and the extent to which they are willing
to fight for an appropriation increase or decrease.
The third measure, "budget expansion", indicates the annual
percentage change in appropriations from one year to the next. To
a great extent this measure represents a composite of the other two
measures since it reflects the combined influence of both the executive
and legislative branches.
These measures (and this entire chapter) are relevant to
a discussion of Indian water rights because so much money has been
spent diverting water away from the Indian reservations to non-Indian
lands. Congress has shown a bias in favor of non-Indian water development. This hypothesis can be tested further by examining relative
136
expenditures for both Indian and non-Indian water projects. Hence,
the data for water project expenditures will be presented as two
distinct sets of appropriations; one for Indians and one for nonIndians.
Non-Indian water project expenditures are operationalized
as the combined appropriations for the U.S. Army Corps of Engineers
and the U.S. Bureau of Reclamation. These two agencies account for
nearly all federal water project appropriations, although a small
portion of expenditures go to other federal agencies such as the
Soil Conservation Servce and the regional power administrations.
However, in terms of agencies that divert both water project funds
and/or water away from Indian reservations, the Bureau and the Corps
are the best examples.
Indian water project expenditures are operationalized as
the combined funding for two line-items in the budget of the Bureau
of Indian Affairs; one is for "irrigation systems", which funds the
"construction, extension and rehabilitation of irrigation systems
and related electric power systems on Indian reservations." The
second line-item is for the "operation, repair, and maintenance of
Indian irrigation systems."
The Data and Discussion
Table 3 presents the data for these appropriations and the
three measures of budgetary success. A control group, operationalized
as federal spending other than defense, payments to individuals,
and net interest (labeled "all other" in the U.S. Budget in Brief
137
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00 cD rn -7 rv ,7 C0
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un '..0 V1 ..7 .1 N. r4 aD 001 CO .-10r4
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, 177-,7----.77---c0 0, CD •-1 ...I rn ...7 0'1 sr) ... c0 0, 0 -I <ni rn
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CA CA Cm CA CA cm Cm cm ce cn Cs cn Cm CA Cm Cm ch
138
for FY 1982) is also provided to illustrate the comparative growth
in expenditures for water projects and other domestic spending programs.
Table 3 illustrates the consistent congressional support
for non-Indian federal water projects. The Congress successfully
raised appropriations over the President's request every year since
1970. Although presidential support for water projects has declined
significantly in recent years, the Congress has steadfastly attempted
to increase expenditures. The water policy establishment is still
operating although the lack of presidential support has slowed the
increases in project expenditures. In some years project funding
has slightly decreased, but never more than 4.84%, which occurred
when President Reagan's FY 1982 budget sailed through Congress.
The control group makes it clear that Reagan cut other domestic programs more than he cut water projects.
A different pattern emerges for Indian water projects. Both
executive and congressional support are highly variable, and the
absolute level of appropriations remains quite low. However, when
President Carter attempted to increase Indian project expenditures,
congressional support quickly evaporated. The only year that the
Congress agreed to a significant increase in expenditures was in
1980, which was necessary to fund the newly authorized Fallon and
Ak-Chin projects (prior to 1980 the Navajo Indian Irrigation Project
was the only significant project under construction). But the gains
made in 1980 were lost in the first two years of the Reagan
139
Administration when Indian projects were cut much more severely than
the control group expenditures or the non-Indian projects.
The most significant difference between Indian and non-Indian
water project expenditures is in the absolute level of expenditures.
In 1982 an estimated $3.67 billion was spent on non-Indian water
projects while $31 million was spent on Indian water projects. In
other words, 0.8% of all water project funds for 1982 were spent
on Indian projects. Congressional support for Indian water projects
appears to be contingent upon a continued low level of funding; when
Carter attempted to raise Indian project funding the Congress fierce-
ly--and successfully--resisted.
It is important to understand the magnitude of the differences
in funding for Indian and non-Indian water projects. According to
the U.S. Budget Appendix for FY 1983 (Detailed Budget Estimates),
the total commulative funding for the construction of Indian irrigation
systems up to September 30, 1980 was $438 million. This figure can
be compared to selected non-Indian projects to provide a perspective
on the relative magnitude of project expenditures. For example,
the 18 "marginal" projects Carter wanted to delete and deauthorize
in 1977 cost more than $2.5 billion. The Bureau of Reclamation's
Garrison Diversion Project will cost an estimated $610 million.
The Corps of Engineers' Tennessee-Tombigbee Waterway will cost an
estimated $1.4 billion (U.S. Congress, 1977:32, 37).
The data in Table 3 can provide additional insights if they
are summarized into mean scores for 1967-77 and 1978-83. These figures
140
are presented in Table 4. The mean scores for both executive and
congressional support for the contemporary period differ dramatically
for the Indian and non-Indian data. Recent Presidents, primarily
Carter, were supportive of Indian projects but not non-Indian projects.
For Congress the scores are just the opposite. In terms of budget
expansion, non-Indian project expenditures increased faster than
the control group while the Indian projects were cut.
The data in Tables 3 and 4 clearly support the hypothesis
that the water policy establishment is still quite successful in
terms of project appropriations, and that the Congress is still the
principle source of support for those appropriations. The data also
supports the conclusion that there are important differences in the
sources of support for Indian and non-Indian water project expenditures. Congress consistently supported non-Indian water project
expenditures, but only supported Indian projects when the expenditure
level was relatively low. With the exception of 1980 (the year both
the Fallon and Ak-Chin Projects were funded) the Congress resited
attempts by the executive branch to increase Indian project expenditures. The difference between Indian and non-Indian water project
expenditures increased under the Reagan Administration.
Conclusion
Indians throughout the western United States must compete
with non-Indians for water and the projects that are necessary to
divert and deliver that water. Non-Indians have been aided in their
long struggle for water projects by the water policy establishment,
141
Table 4. Mean Scores
EXECUTIVE
SUPPORT
CORPS/
B of R
BIA
CONGRESSIONAL
SUPPORT
BUDGET EXPANSION
CORPS/
B of R
BIA
CORPS/
B of R
BIA
CONTROL
1967-1977
- .63
2.44
8.36
10.50
7.61
12.08
8.48
7978-1982
-7.66
38.90
8.74
-27.29
1.53
-2.74
0.09
___.
142
an alliance that serves the needs of congressmen, federal water project
construction agencies, and their constituients.
Recently, some water policy scholars have suggested that
the era of federal water projects is coming to an end. This conclusion
is based in part on the fact that no new projects were authorized
in recent years and both Carter and Reagan attempted to decrease
water project expenditures.
This chapter reaches a different conclusion, however. I
have argued that the water policy establishment survived recent challenges and continues to serve its traditional interests. The absence
of new project authorizations is inconsequential because of an immense
backlog of authorized projects that have yet to be funded. In the
meantime the Bureau of Reclamation and the Army Corps of Engineers
have kept busy with 289 projects already underway. Both Carter and
Reagan failed to reform the water policy decision-making process
or wrest control over project criteria from the Congress. As a result,
three billion dollars are spent annually on federal non-Indian water
projects. The continuing success of the water policy establishment
provides support for the model presented in Chapter 2. Substantive
decision-making in regard to non-Indian water projects has been institutionalized to the point where it is extremely difficult to change
either the decision-making process itself or the total amount of
money that is allocated. It is still politically advantageous to
spend large sums of money on non-Indian water development.
143
While the President and the Congress battled over water project
authorization and appropriations Indian tribes were busy trying to .
solidify their claims to water. By the mid-seventies Indian tribes
had broadened their strategy to include the political arena as well
as the courtroom. This chapter provided a broad view of federal
water policy. The next chapter examines the tribe's struggle for
water, which takes place within the larger context of federal water
policy.
CHAPTER 6
THE POLITICS OF CONTEMPORARY INDIAN WATER RIGHTS
Introduction
The previous chapter was concerned with federal water policy
from 1977 to the present. I argued that the water policy establishment
remains a viable source for funding non-Indian water projects. Hence,
the long tradition of substantive decisions that allocate funds for
non-Indian water projects continues.
However, there have been some significant developments in
regard to Indian water rights. According to the model presented
in Chapter 2, the case law concerning Indian water rights developed
independently of the statutory law that allocated water and water
projects. The latter proceeded without any significant response
to the former, and vice-versa. But beginning with the Carter Administration an increasing emphasis on negotiaiton and legislation began
to change this relationship; Indian water rights were no longer the
exclusive product of litigation. Rather, they became the subject
of intense political activity in addition to the more traditional
court activity. Hence, this chapter is concerned with the politics
of contemporary Indian water rights.
It was during the Carter Administration that the first significant progress was made to negotiate rather than litigate Indian water
rights. Carter officially endorsed negotiation as a means of
144
145
settlement. He also attempted to formulate a coherent strategy for
the inventory and quantification of all federal reserved rights.
Many of the policy initiatives concerning Indian water rights that
were begun by Carter were continued by the Reagan Administration.
He too stressed negotiation and legislation as an alternative to
litigation. Reagan also pushed hard for the inventory and quantification of Indian water rights.
Of course there are important differences between these two
administrations in regard to water rights. Carter's proposals were
part of an overall plan to overhaul the entire water policy-making
system. He wanted to increase federal control over water. In contrast, Reagan wants to increase state control over water and maintain
the existing system of water resource development, within certain
fiscal limits.
While significant progress has been made in some areas, there
is still a long way to go before most Indian water rights cases can
be resolved. President Carter inherited a nearly intractable situation; two conflicting legal doctrines--Winters and Prior Appropriation-were on a collision course. The Indian tribes, standing steadfastly
behind the Winters Doctrine, were determined that the fight over
water rights would not be another chapter in a 300 saga of bitter
defeat and loss. Non-Indian water users, hoping to expand the application of the Prior Appropriations Doctrine and state-granted rights,
saw the Indian tribes as an ominous threat to the economic health
of the American West. Each side distrusted the other. The federal
146
government, caught somewhere in the middle, was distrusted by both
sides, but nevertheless charged with the responsibility of providing
a solution. That soution remains elusive and the gap between the
two sides remains large, but there has been progress in some areas.
The first section of the chapter discusses the role of the
Carter Administration and his persistent attempts to resolve the
conflict over water rights without years of time-consuming litigation.
The second part of the chapter deals with the Reagan Administration
and its efforts to continue the search for a final resolution of
Indian claims. The third section examines the Bureau of Indian Affair's
budget under both the Carter and Reagan Administrations, and explains
its relevance to the negotiation process. A concluding section offers
an overview of the progress made and the problems that remain.
Indian Water Rights and the Carter Administration
This section will review Carter's proposals concerning western
water rights and the response they provoked from Indian tribes, western
states, and interest groups. Specifically, I will discuss the National
Indian Water Policy Review, Carter's 1978 Water Policy statement
concerning water rights, and the reaction to them. I will also examine
the Indian tribe's attitude toward negotiation and legislation as
a substitute for litigation, and the role of western state governments
in the formulation of Carter's water rights policy. A final discussion
will evaluate Carter's success in implementing his stated policy
goals.
147
Indian Water Rights as an Integral Part
of Carter's Water Policy
When Jimmy Carter assumed the Presidency one of his first
acts in office was to challenge the firmly entrenched system of massive
water project expenditures. The President had high hopes of dramatically reforming nearly every aspect of federal water policy. One aspect
of that policy which caused particular concern was the increasingly
intense controversy surrounding western water rights. Widely conflicting claims by Indian tribes, the federal government, and western
states were provoking acrimonious political discussion as well as
numerous lawsuits and countersuits.
In response to these enormous problems President Carter attempted to institute several reforms in regard to Indian water rights
that were part of the larger program of reforms discussed in the
previous chapter which tried to redirect the decision-making process
that allocated water and water project expenditures. Hence, Indian
water rights policy under the Carter Administration was inextricably
tied to the Administration's efforts to modify the entirity of the
federal government's water policy. It was inevitable that much of
the resistence to Carter's general policy reforms would diminish
the potential success of his attempts to solve the problems concerning
Indian water. Carter's relationship with western water users and
western state governments throughout his administation was antagonistic
and adversarial. Nevertheless he pursued a number of controversial
reforms in the area of Indian and federal water rights. His zeal
for new policies diminished over time as he encountered bitter
148
opposition, but there were still several significant developments
in the issue area of Indian water rights.
When President Carter began developing a list of projects
that he wanted to delete and/or deauthorize, Indian water rights
were a factor in his decision as to which projects to cut. Four
of the projects placed on the original cut list in early February,
1977, were recommended for cuts because of, among other problems,
a conflict with Indian water rights.
For many years two of these projects--the Garrison Unit in
North Dakota and the Oahe Unit in South Dakota--have had an impact
on Indian reservations in the area. When the Garrison Dam was built
in 1953 it flooded one-fourth of the Ft. Berthold Indian Reservation
(American Indian Policy Review Commission Report, 1977:310). The
Bureau of Reclamation wanted to enlarge the project with additional
dams and canals which would, according to the Bureau of Reclamation,
help the Indians; "Restoration of the lake complex will entice outdoor
recreation enthusiasts from a wide area providing for the Indians
an excellent opportunity for concession and other visitor-use services
and facilities" (Bureau of Reclamation, 1976:UM-3). The Oahe Reservoir, when first built, flooded 160,889 acres of Indian lands (Lawson,
1982:50). Additions called for over 100 miles of canals and more
reservoirs which "might provide significant area redevelopment benefits
to four nearby Sioux Indian Reservations" (Bureau Reclamation, 1976:UM7).
149
But both of these projects diverted water away from Indian
reservations for non-Indian use. The Garrison Unit would irrigate
an additional 250,000 acres and the Oahe would add another 190,000
acres, little of it Indian land. For this reason, and because of
potential environmental disruption; Carter recommended in his April
18, 1977 policy statement that the Oahe be deleted and the Garrison
Project be significantly modified (White House Press Release, April
18, 1977).
The Carter Administration correctly viewed the conflict over
water rights as an integral part of the larger problems confronting
contemporary water policy. The entire water policy structure was
characterized by a lack of planning and coordination. Decisions
were made in an ad-hoc, piecemeal fashion without regard to longrange goals and impacts. Political factors prevailed over other
criteria for development. The lack of coordination which plagued
Indian/non-Indian water problems also characterized nearly all other
aspects of water development. Hence the search for a solution to
the water rights problem was just one facet of Carter's total effort
to reform water policy.
The National Indian Water Policy Review
On May 23, 1977 Carter announced that his Administration would
undertake a comprehensive study of various water problems to improve
"economic efficiency, safety, environmental protection, and fair
distribution of project benefits" (Federal Register, July 15, 1977:36788).
The latter item was a reference to problems concerning federal and
150
Indian reserved water rights. The issue promised to be as devisive
and acrimonious as the fight over project expenditures. A few days .
before Carter's announcement was made, Montana Congressman Ron Marlenee
called hearings to protest Interior Department regulations concerning
water use on Indian reservations. Non-Indians were upset because
the regulations permitted reservations to establish their own water
codes. Indains were upset because they felt the regulations gave
the Secretary of Interior too much control over Indian water (Billings
Gazette, May 21, 1977). An Omaha Nebraska newspaper headlined "Water
Rights for Indians Near a Boil" (Omaha World Herald, May 19, 1977).
It was within this context, and the more widespread furor
over the "hit list", that Carter announced his plan to create a Policy
Committee that would, within six months, produce issue papers on
various aspects of water policy. The day after the President's announcement Secretary of Interior Cecil Andrus, in a speech before the National
Conference on Water, outlined nine actions which he claimed would
lead "toward a comprehensive and realistic natonal water policy".
Among them was a call for the "quantification of Indian water rights
and federal reserved water rights" (Federal Register, July 6, 1977:34564).
Both Indian and non-Indian interests immediately began to
apply pressure on the Administration, hoping their views would be
reflected in the upcoming issue papers. According to William Veeder,
the Indian community "immediately mobilized for the purpose of demanding that their rights be protected in any policy that might ultimately
be issued" (1978:6). In order to partially appease Indian interests
151
the Secretary of Interior appointed the first Assistant Secretary
for Indian Affairs, Forrest Gerard.
In a meeting with Indian leaders on July 12, the Policy Committee chairman Guy Martin attempted to assure the Indians that the
Administration understood the difference between Indian rights and
federal rights. The tribes worried that their interest would be
lumped together with all other federal reservations (Veeder 1978:6).
But on July 25 the Water Resouces Council issued a study paper in
the Federal Register which appeared to include all reserved rights
under one category (July 25, 1977:37957-59). Indian leaders were
troubled that Indian water was not distinguished from federal water.
In an effort to explain their position the Water Resources Council
published an explanation three days later:
The Secretary of Interior is fully aware of the unique
status of the Indian as beneficiaries of the trust responsibility. . . . Indians are the owners of a beneficial
right to. . . water related to their reservations. . . .
Indian water rights are not the same as "federal rights" and,
therefore, cannot be included in a policy statement involving
"federal rights" and no separate option paper on Indian
rights to the use of water will be published (Federal Register,
July 28, 1977).
(the decision not to publish a separate option paper on Indian water
rights was later reversed).
Non-Indian water users also viewed the Carter proposals with
considerable skepticism. They feared that the new policies would
increase federal control over water policy at the expense of the
states. Secretary Andrus and Policy Committee chairman Guy Martin
were kept busy trying to persuade them that the states would retain
152
control over water (Simms, 1980:11). In October Carter met with
several governors and reiterated his commitment to state control
over water; "I want to make clear from the very beginning that there
absolutely will be no preemption of state or private prerogatives
in the use or management of water. This is not the purpose of the
policy at all" (Presidential Documents, 1977:1615).
While Carter was assuring the governors that state water
control was in no danger, Forest Gerard, the new Assistant Secretary
for Indian Affairs, was meeting with Indian leaders, trying to explain
that legal principles must always be considered within the context
of the political reality of water development:
This situation is a political fact of life which represents
the most serious threat to the tribes ability to secure
the water supply to which they are legally entitled. While
legally these considerations are irrelevant to the tribe's
rights, as a practical matter these competing interests cannot be ignored. They represent the most formidable obstacle
against any effort to apply Indian water to beneficial uses
for the Indian owners (quoted in Fradkin, 1981:163).
Contrary to the statement of the Water Resources Council
cited previously, the Carter Administration decided to issue a separate
report on Indian water policy. Written by Forrest Gerard and others
in the Indian Affairs Division of the Department of Interior, the
"National Indian Water Policy Review" was submitted to the President
on January 23, 1978. The report began by pointing out the limitations
of legal principles:
The principles of the Winters Doctrine are an appropriate
nucleus for the development of a federal policy regarding
the use of Indian water on Indian reservations. However,
the legal principles in support of reserved water rights for
the Indian tribes and their members, standing alone, have
153
not resulted in the development of the water resources
for the benefit of the Indian people (4).
The Report emphasized three basic objectives; Indian rights
protection, inventory and quantification of Indian water, and the
development of Indian water resources, and made seven recommendations
based on those objectives:
1. The Government should make a firm commitment to develop Indian
water resources.
2. Federal courts should have exclusive jurisdication over the
-4
adjudication of Indian water rights.
3. In order to minimize future conflicts, Indian tribes, with
the assistance of the federal government, should participate
in the water resource planning process.
4 • The possibility of regional or basin wide legislative solutions
for controversies involving Indian water rights should be
explored.
5. Methods sholud be examined for facilitating negotiated settlements between the tribes and competing parties for the use
of water (5-6).
The Report on Indian water rights was one of several "task
force option papers" submitted to the President in late 1977 and
early 1978. Predictably, there were expressions of cynicism and
concern from all quarters, each group of water users fearful that
policy reforms would reduce their chances of receiving more water
or more water project funding. Western states voiced fears that
154
Carter was trying to usurp state control despite his statements to
the contrary. Vice-President Mondale reasured the states that the
Administration would not change the existing deference to state water
law (Weekly Report, March 4, 1978:565). The Justice Department,
on the other hand, objected to the report's emphasis on state control
over water, and claimed that a policy based on the reports would
be "inaccurate, incomplete, confused and biased" and would "result
in jeopardizing the property rights of the United States" (Simms,
1980:10).
The president planned to use the five task force reports
as the foundation of a new water policy, to be announced in the Spring
of 1978. In the meantime, both Indian and non-Indian interests continued to promulgate their points of view. The National Governors'
Association proposed that federal water rights be adjudicated and
administered by state governments to "insure that there is equity
and that procedures are prompt and orderly. . . ." They also proposed
that federal claims be very specific as to purpose, location, and
extent, and that compensation be provided to owners of state-vested
water rights "if those rights are taken by the United States or Indian
tribes" (GAO Report to the Congress, 1978:48-9).
In contrast to the National Governors' Association the National
Congress of American Indians (NCAI) and the National Tribal Chairmen's
Association (NTCA) issued a press release calling for an entirely
different approach. They took issue with a number of statements
that appeared in the task force reports. First, they stressed the
155
difference between Indian and federal water rights. They also claimed
that allotted lands sold to non-Indians were not entitled to Indian .
water rights and that Indians were entitled to full equitable title
to water, not just a beneficial right to use. They also took issue
with the Secretay of Interior's control over Indian water, and proposed
that the McCarran Amendment be amended to exempt Indian tribes.
Perhaps the most important point however, at least as far as the
Carter Administration was concerned, was the Indian's resistence
to quantification--the centerpiece of the Carter proposal. The NCAI/
NTCA statement argued that; "Quantification of Indian Winter's Rights
is neither necessary nor desirable at this time. A final determination, made at any given data, is inconsistent with the open-endedness
of the right itself" (GAO Report to the Congress, 1978:49-50).
Obviously the two sides on the issue were still poles apart.
After a year of studies, statements, hearings, and reports very little
progress toward a solution had been made. Nevertheless, Carter proceeded with his proposed reforms. Using the task force reports as
a foundation Carter issued a comprehensive water policy statement
on June 6, 1978.
The Carter Water Policy Statement of June 1978
In regard to water rights the President divided his statement
into two sections; one on federal reserved rights and one on Indian
water rights. At first glance this would seem to dispel the notion
that the Carter Administration was unaware of the distinction between
156
the two, but the text of the section on Indian water rights raises
some doubt abut this:
Indian water rights are an important component of the
long term resolution of water problems in the West. There
have been several important court decisions--Winters v.
United States and Cappaert v. United States in particular-which have established that there were water rights attached
to Indian reservations upon their creation (GAO Report to
the Congress, 1978:70).
The Cappaert case concerned a national monument (i.e., non-Indian
federal reserved rights), not an Indian reservation. This was probably
jut an oversight on the part of the President's lawyers, but to Indian
tribes that were very troubled over the Indian rights/federal rights
distinction it looked very suspicious.
In addition to the paragraph quoted above, the President
stressed two approaches; quantification and negotiation. He directed
the Bureau of Indian Affairs to develop a plan to inventory all Indian
water within ten years, and ordered all federal water development
agencies to evaluate water projects that would develop Indian water
resources once they had been quantified. In an apparent nod to statevested water rights, Carter stated that such development "will be
consistent with existing laws, principles, standards and procedures
governing water resource development" (GAO Report to the Congress,
1978:70-71).
As with all of the previous stages of Carter's attempted
reforms the June 6 Policy Statement provoked a strong response, especially from Indian groups who feared both quantification and negotiation.
An article appeared in the Akwesasne Notes, a pro-Indian newspaper,
157
entitled "Water Negotiations--A New Word for Fraud." Writing in
Wassa a, Rupert Costo warned that "termination will be the ultimate
result of negotiations in which Indians give up their rights piece
by piece" (both quoted in an Indian Law Resource Center mimeograph
1981:98). The states, however, found some solace in the Carter proposals since they did not attack state control. According to the
Congressional Quarterly Weekly Report, western governors had "scared
Carter away from anything but promises for more federal cooperation
and assistance in state water management' (June 10, 1978:1491).
Assistant Secretary Forrest Gerard, in an effort to clarify
the President's new policy, issued a directive to all tribal chairman
explaining that the policy was intended to facilitate negotiation,
and that all Administration action would "be taken in close consultation with Indian tribes" (Gerard, August 24, 1978).
In November of 1978 the General Accounting Office examined
the problem of Indian and federal water rights and endorsed the President's policy initiatives that stressed negotiation and quantification.
However, the GAO Report cautioned that "in the final analysis, legislation may be necessary to resolve many of the controversial questions"
(GAO Report to the Congress, 1978:58). The response to the GAO Report
was typical of the reaction to the Carter proposals. The states
generally supported the document, especially the emphasis on quantification, but took issue with the Report's treatment of Indian and
federal water rights as two distinct issues. Nearly all of the states
158
that responded to the Report objected to the distinction. Arizona's
response was typical:
The report's effort to draw a distinction between Indian
reserved water rights and federal reserved water rights
serves no useful purpose and fails utterly because there
is no real distinction in concept or doctrine. The only
difference between Indian reserved rights and federal reserved rights. . . is the fact that Indian rights may not
be extinguished without compensation. This hardly constitutes
a conceptual or doctrinal difference (87-8).
The Indian response to the report, as expressed by the National
Congress of American Indians, urged that the entire report be rejected
because it reflected "a process underway in state and federal water
policy-making of 'blaming the victim'" (99). The NCAI held that
the Report ". . . place[s] the burden of compromise and loss upon
Indian tribes. . . . The conclusions of the report nowhere discuss
the fact that the problem has been largely created by federal stimulation and subsidation of non-Indian water use and consumption to the
detriment of Indian interests" (101).
Negotiated Settlements
The President's interest in quantification and alternatives
to prolonged litigation was shared by a number of other interests,
including the Congress and some Indian tribes. This approach received
a boost in 1978 when the Ak-Chin Reservation of Arizona successfully
negotiated a settlement of their water rights claims. Although Senator
Kennedy's 1977 bill, the Central Arizona Indian Tribal Water Rights
Act (S. 905), failed, negotiators thought that a less expansive bill
involving smaller amounts of land and water would have a better
159
chance of passage. So, in 1978 Senator Deconcini of Arizona introduced
the Ak-Chin Settlement bill (S. 1582) which would guarantee the de- .
livery of up to 85,000 acre-feet to the reservation annually. In
the House Morris Udall introduced a companion bill (H. 8099). On
July 28, 1978, President Carter signed the Ak-Chin bill (P.L. 95-
328), setting an important precedent. In return for the guaranteed
water the tribe agreed to forfeit all other claims to water under
the Winters Doctrine (Indian Affairs, #98, 1978-79:4).
The Kennedy bill, the Ak-Chin bill, and the President's nevi
policy of negotiation/legislation encouraged a number of tribes to
consider negotiation as an alternative. The Papago Tribe of Arizona,
which had filed suit against all non-Indian water users in the area
in 1975, began working with government negotiators in hops of finding
an equitable solution (The Washington Post, February 6, 1978). In
Colorado the Ute Mountain Ute and Southern Ute Tribes also expressed
an interest in negotiation. Their incentive to negotiate derived
in part from their support for the Dolores Project, which was placed
on the President's original cut list in February, 1977. The tribes
supported the project because it would provide water for tribal irrigation. They hoped to trade future claims to water in return for a
guarantee of Dolores Project water (Denver Post, January 2, 1978).
The Carter Administration responded positively, and reversed its
position on the Dolores Project. When Carter issued his April 18,
1977 list of projects he recommended continued funding for the Dolores
Project, in part, because of "Benefits to the Ute Mountain Ute Indian
160
Tribe and no guarantee of implementing other alternatives for Indian
economic development" (White House Press Release, April 18, 1977). Successful negotiations over water rights were the exception
rather than the rule, however. In most cases the opposing sides
were so far apart that negotiation outside of court was nearly impossible. In Montana, for example, the debate over Indian water was
particularly bitter. Non-Indians formed two organizations to oppose
Indian claims to water, the "Citizens Rights Organization" (Billings
Gazette, April 16, 1977) and "Montanans Opposed to Descrimination"
(Billings Gazette, May 21, 1977). Their efforts were supported by
the Billings Chamber of Congress and the town of Hardin, Montana.
At the Montana Cattleman's Association's 1977 convention they passed
a resolution calling for the abolition of Indian sovereignty and
all Indian water rights (Billings Gazette, November 20, 1977). The
Indian tribes were also adamant about their rights, and formed a
coalition to protect them (Indian Historian, 1979:34). In such an
atmosphere the potential for voluntary negotiations was negligible.
According to one source, "the Carter Administration hoped to use
the Montana situation as a showcase of how their negotiation process
would work. However, negotiations broke down, virtually before they
had begun, triggering a race to the courthouse" (Indian Law Resource
Center, 1981:101).
By 1979 Carter's proposed water rights reforms had made little
progress. His emphasis on negotiation prompted both sides to organize
into cohesive political pressure groups which directed prodigious
161
amounts of criticism at each other and at the Carter Administration.
The President appeared to be caught in the middle in a no-win position.
Both sides also became more expansive in their claims to water, adopting a classic bargaining strategy of inflating demands in expectation
of a compromise based on a portion of those demands. The Navajos
claimed five million acre feet, more than a third of the entire flow
of the Colorado River (GAO Report of the Congress, 1979:87). NonIndian residents of Nevada claimed that Indian rights to water "would
disrupt their lives and decimate their fortunes. . . and result
in the destruction of the existing economy of western Nevada. . .
." (U.S. Congress 1979, Part 3:566).
Furthermore, Indian leaders continued their opposition to
legislation and negotiation. One tribal leader summed up the Indian
perspective: "We have the President's water policy of quantification
and negotiation, the Akin case giving the states jurisdiction, the
states rushing to their courts. They call this assimilation. I
call it annihilation" (Dellwo, 1980:115). Rather than enter into
negotiations most tribes continued to sue for their rights in federal
courts. By 1979 the number of Indian water rights cases in federal
court had increased to 26 (Yale Law Review, 1979:1711).
Limits to Litigation
In 1979 there were a number of events which undoubtedly weakened the Indian's faith in litigation as a friendly arena. Attorney
General Griffin Bell made several statements throughout the first
two years of the Carter Administration which raised fears among Indians
162
that he was not completely committed to the protection of Indian
property rights. In May of 1979 he attempted to reassure officials .
in the Interior Department that he would protect Indian rights.
However, Attorney General Bell stressed that he must "make his own
independent evaluation of the law and facts" in regard to Indian
claims, and that it was his responsibility to resolve "competing
and overlapping interests" (Indian Affairs, #98, 1979).
Indian tribes also became concerned that the Supreme Court
was no longer receptive to claims under the reserved rights doctrine.
In two important cases, California et al. v. United States (1978)
and United States v. New Mexico (1978) the high court reversed the
historic expansion of the reserved rights doctrine. The tribes also
suffered a setback at the federal district court level. In November
of 1979 two federal district judges allowed the State of Montana
to adjudicate Indian water rights, and dismissed a motion to have
those rights adjudicated in federal courts. This was done in the
interest of "wise judicial administration" (Northern Cheyenne Tribe
v. Tongue River Water Users, 1979). A similar decision was made
by the district court in Arizona (San Carlos Apache Tribe v. State
of Arizona, 1979). Both of these decisions were later remanded by
the Ninth Circuit Court of Appeals (Northern Cheyenne, Etc. v. Adsit,
1982, and San Carlos Apache Tribe v. State of Arizona, 1982) but
the Supreme Court recently upheld the district court's decisions,
allowing state courts to adjudicate Indian water rights (Arizona
163
v. San Carlos Apache Tribe, 1983; Montana v. Northrn Cheyenne Tribe,
1 9 83).
The Indian tribes also experienced problems with at least
one of Carter's nominees for a federal judgeship. In 1979 Edward
Reed was nominated to be the Federal District Judge in Reno, Nevada,
a district that includes 19 Indian reservations. These tribes vehemently objected to Reed's nomination since he served as Nevada's chief
counsel in United States v. Truckee-Carson Irrigation District and
was viewed as anti-Indian. In that case Reed had argued that the
"common weal and the economy of the state of Nevada would be seriously endangered" by a decision in favor of Indian water rights (U.S.
Congress, 1979, Part 3:566). Despite the tribe's opposition, Reed
was confirmed and now presides over the Federal District Court in
Reno. His court will undoubtedly hear many important Indian water
rights cases.
The events described above make it clear that litigation
is not a completely safe and secure path to water rights for the
Indian tribes. But despite these limitations, many Indian leaders
felt that negotiations, wich involve a more politicized decisionmaking process, were still more dangerous to the tribes than litigation:
Indians are a 'politically impotent minority,' Puget Sound
Gillnetters Ass'n v. United States District Court, 573 F.2d
1123, 1128 (9th Cir. 1978). . . More than anyone else in the
United States, Indians are dependent upon the federal courts
for the vindication of their rights. . . . Indians are
greatly outnumbered and extremely poor. We cannot fight
effectively in the political arena. The federal courts are
our only recourse (U.S. Congress, 1979, Part 3:565).
164
The States Resist the Carter Reforms
The Indian tribes were clearly balking at Carter's plan to resolve water rights through negotiation. And the states continued
to pressure the Administration to minimize Indian claims and avoid
prolonged litigation. Although the Administration never proposed
any pro-Indian settlements, state governments and their non-Indian
allies were still suspicious of Carter and his plans for water rights
reform. To a great extent this suspicion was the result of Carter's
efforts to decrease water project funding and dismantle the water
policy establishment. The states were hesitant to accommodate the
man who tried so persistently to deprive them of their traditional
sources of funding for water development.
The state's suspicions of Carter's motives were aroused even
further when the Solicitor of the Department of Interior, Leo Krulitz,
issued an opinion on June 15, 1979 concerning the water rights of
four federal agencies (Krulitz, 1979). In this opinion the Solicitor
formulated an expansive view of federal water rights, including the
formulation of a new doctrine of federal non-reserved rights. The
states were quick to denounce the Krulitz opinion. Richard Simms,
General Counsel for New Mexico's Water Resources Division, wrote
that the Krulitz approach to water rights "is neither representative
nor utilitarian. On the contrary, it is designed to undermine federalstate relations and provide a basis upon which to execute laws respecting non-navigable western waters which have never been passed" (Simms,
1980:16). Secretary of Andrus disagreed. He claimed the Krulitz
165
opinion followed state law "to the greatest extent practicable" and
provided for only the "true needs of the federal government" (The
New York Times, June 24, 1979:16). The opinion did not discuss Indian
rights.
Amidst this furor over water rights in 1979 there was one
small victory for the Indians. Congress agreed to finally meet a
73 year old commitment to transfer
2,640 acres of irrigable land
to the Fallon Indian Reservation in Nevada and provide funds for
a small irrigation project there (Indian Affairs, #100, 1979:2). 4
-
Carter entered the last year of his presidency with his proposed water reforms in disarray. In regard to water rights he had
for the most part failed to bring Indian and non-Indian water users
together at the bargaining table. There was still a large gap between
Indian and non-Indian claims. This controversy intensified when
Secretary of Interior Andrus announced that he was considering an
increase in Indian allocations from the Central Arizona Project (CAP),
a massive Bureau of Reclamation project that will divert Colorado
River water to central and southern Arizona. An Arizona newspaper
immediately raised the alarm; "should Secretary of the Interior Andrus
use Central Arizona Project water to satisfy Indian water claims,
the state's cities, mines and electric utilities will be the losers"
(Arizona Republic, January 6, 1980:1).
Indian allocations for the CAP were set in 1976 at 257,000
acre-feet, but the tribes were dissatisfied with the allocation and
two tribes filed suit. Andrus suggested that the Indian allocation
166
be increased to 309,810 acre-feet, a 21% increase. Arizona Congressman
Robert Stump called the Andrus proposal a "gross misapplication"
of federal responsibility and the latest example of "administrative
arrogance" (The Arizona Daily Star, September 18, 1980:2). Indian
leaders complained that the allocation was still inadequate and they
needed more water (Arizona Republic, October 14, 1980:13). One aspect
of the controversy involved the transfer of treated municipal effluent
to Indian reservations in exchange for drinkable CAP water. The
Indian tribes refused to accept effluent as a substitute for more
CAP water.
When the final allocation was announced in December, the
Indian allocation was 309,828 acre-feet, and there was no requirement
that the tribes accept effluent in lieu of CAP water. In Andrus'
words, the allocations were intended to "contribute to the maintenance
of pemanent tribal homelands for these tribes. . . ." (Federal Register,
December 10, 1980:81271). But the Governor of Arizona, Bruce Babbitt,
objected strenuously to the allocations, calling them "unsatisfactory,
unworkable and illegal" (The Arizona Daily Star, December 2, 1980:1).
Babbitt immediately filed suit against the allocations, claiming
they were illegal because an environmental impact statement had not
been prepared (Babbitt v. Andrus, 1980). Carter left office before
the issue was resolved.
President Carter's attempts to resolve the controversy over
western water rights were not a success. He failed to attain four
important goals that were proposed at the beginning of his
167
Administration; negotiation rather than litigation, the inventory
and quantification of Indian water rights, the development of Indian
water resources, and federal jurisdiction of Indian water rights
cases. Each of these deserves elaboration.
With the exception of the Ak-Chin settlement and a willingness
on the part of the Papago Tribe to negotiate, his policy of resolving
water rights disputes through negotiation rather than litigation
was a failure. All of the parties involved--the tribes, state governments, and the federal government--remained suspicious, distrustful,
and generally unwilling to temper their demands. By the end of 1980
there were 57 cases in court dealing with Indian water rights. These
cases occurred in eleven states and nearly every major western watershed (U.S. Congress, 1982, Part 3:34-44).
The President's plan to inventory and quantify Indian water
rights also failed to progress very far. In August, 1980 the Bureau
of Indian Affairs finished the Ten-Year Plan for Review of Indian
Water claims that was ordered by Carter in his June 6, 1978 Water
Policy Message. The Ten-Year Plan estimated that a complete inventory
would cost $143 million (Department of Interior, August 1980). It
is doubtful that such a sum will be appropriated for Indian water,
given the fact that only $438 million has been appropriated for all
aspects of Indian water development up to 1980 (U.S. Budget Appendix,
1982:I-M58).
A third aspect of Carter's Indian water policy reform concerned
increased development of Indian water resources, but this also met
168
with very limited success. In 1978 and 1979 Carter proposed a significantly expanded budget for Indian irrigation but, as the budget data
in the previous chapter indicated, the Congress successfully resisted
these attempts. Irate lawmakers were not willing to spend money
on Indian water projects as long as Carter was talking about cut
lists and deletions for non-Indian water development. The 1980 budget
finally increased spending for Indian water projects, but then Carter
ordered the BIA to plan significant cuts in its 1981 and 1982 budgets
for irrigation projects, perhaps in an effort to appease some of
his non-Indian western critics (Indian Affairs, No. 101, 1980:1).
A fourth goal of the Carter Administration--exclusive federal
court jurisdiction over Indian claims--also failed to become a reality.
As events in Montana, Arizona, New Mexico, and other states made
clear, state governments have vigorously pursued adjudication of
all water rights in state courts in accordance with basin-wide planning
provisions of state law. The Supreme Court has now sanctioned state
adjudication of Indian water rights.
As the new incoming President prepared to take office the
situation in regard to Indian water rights had changed very little.
A great deal of political maneuvering, symbolic reassurances, planning,
and commission studies had taken place, but very few substantive
decisions were made. The two exceptions were the Ak-Chin bill and
the Fallon bill. But both of these reservations are very small (21,840
acres and 8,120 acres, respectively) and the amount of water involved
was not large.
169
However, some important trends began to develop during the
Carter Administration which will undoubtedly have an impact on future
water rights settlements. First, some of the disadvantages of a
purely litigative approach became apparent. The conservative trend
of the Supreme Court, the potential appointment of hostile judges
in the lower federal courts, and the trend to state court adjudication
all provide an incentive for the tribes to investigate other possible
arenas of decision-making.
Secondly, the emphasis on negotiation made the importance
of political strength at the bargaining table abundantly clear to
Indian tribes. As a result, Indians have become much more sophisticated politically in recent years. This sophistication has manifested
itself in three significant ways. First, the tribes have developed
a number of effective interest groups which have had an important
impact on both litigation and negotiation. In addition to the older,
more established groups such as the National Congress of American
Indians and the National Tribal Chairmen's Association, new organizations have been formed. The Native American Rights Fund, a legal
defense program for Indians, was established in 1971. By the beginning
of Carter's presidency they were involved in cases in 40 states,
including the negotiations concerning the Papago water rights controversy (Starling, 1979:587-91). The Council of Energy Resource Tribes,
representing 34 Indian tribes, also played an important role in water
rights negotiations. The Council adopted an effective strategy of
tying tribal water claims to other tribal resources such as coal,
170
uranium, and oil. In an age of energy shortages this creates an
effective bargaining tool.
A second way in which tribes have developed a more sophisticated political approach is evident in their efforts to defeat the
Orme Dam in Arizona, which would have inundated nearly all of the
Fort McDowell Indian Reservation. In the struggle to defeat Orme
Dam the Indians demonstrated an ability to not only bring together
various tribes behind a single cause, but to also form potent political
alliances with non-Indian interests. A coalition of Indian groups
joined forces with environmental organizations and tax-conscious
citizens organizations. These interest groups all opposed Orme Dam
for different reasons, but they were able to work together effectively.
In a show of solidarity, Indians from nearly all Arizona tribes joined
in a "Trail of Tears" march to the state capitol where they were
met by their non-Indian allies. Ultimately Orme Dam was defeated
(Arizona Daily Star, November 15, 1981:1).
A third way in which tribes have developed more sophistication
is through voting. Although Indians are few in number many of them
are geographically concentrated. While their impact on national
elections is negligible, they can in some cases have an impact on
local or regional races, including the contest for the U.S. House
of Representatives. A case in point is Arizona, where a large Indian
population has had an impact on several elections. Recent evidence
indicates that Indians are voting in ever-increasing numbers, and
171
are aware of candidate's stands on issues and vote accordingly (McCool,
1982:104-111).
This increasing political sophistication is in part due to
the growing emphasis on negotiation which began in earnest with the
Carter Administration. Although President Carter failed to engineer
any major substantive decisions in regard to Indian water rights
his concerted effort to emphasize negotiation and legislation rather
than litigation produced a flurry of activity by the end of his term.
It had finally become apparent to the various parties involved that',
in the face of rising concern over water shortages and an impending
water crisis, it was absolutely necessary to resolve at least some
of the conflict and contradiction embodied in western water law.
Indian Water Rights and the Reagan Administration
In this section I will review the politics of Indian water
rights under the Reagan Administration. Specifically I will discuss
legislative proposals which attempt to impose a blanket water rights
settlement (the all-inclusive approach), and legislation designed
for specific reservations (the tribe-by-tribe approach). I will
also discuss the continuing interest in negotiations, a policy began
by Carter and adopted by Reagan.
All-Inclusive Settlement Bills
By the time Ronald Reagan assumed the presidency there were
a number of proposed legislative settlements being considered, and
active negotiations were proceeding along several fronts. Both Indian
172
and non-Indian interest groups were actively participating, along
with officials from state and federal government.
The Indian tribes had high hopes for the new administration.
During the campaign Reagan was asked what he would do about Indian
water rights. He responded:
The best protection of Indian water rights is the
perfection of those rights through beneficial usage of
the water by Indian people. This can be done with assistance
to the tribes and their people for them to develop their
energy, agricultural, and other tribal natural resources
(The CERT Report, November 21, 1980).
On the basis of such statements, and because of their disillusionment
with Carter, some tribal organizations endorsed the Reagan candidacy.
While Reagan and Carter were campaigning for the presidency
in 1980 the Western Conference of the Council of State Governments
was drafting a legislative proposal entitled the Water Rights Coordination Act. This proposal was similar to previous proposals, beginning
with the Barrett Bill in 1956, to limit federal reserved rights and
increase state control over water resources. This bill, like all
of its predecesors, never became law.
The drive for an all-inclusive legislative settlement act
soon shifted to a proposal offered by the Western Regional Council,
a coalition of 47 western business interests. The most recent in
a long line of proposed all-inclusive settlement acts, the Council
bill is similar to its predecessors in many respects but also presents
some new ideas. The preamble of the bill states that "Comprehensive
management by the western states of the limited water resources and
173
an early quantification of Indian water rights are essential to forestall a water crisis" (Western Regional Council, 1981:1).
Specifically, the bill seeks to accomplish seven basic policy
goals:
--Establish an Indian Water Rights Commission that would recommend
to the Congress specific amounts of water for each tribe (4-10).
--Quantify all Indian water rights within two years after the
Commission submits its reports. This would be accomplished through
legislation that would guarantee specific amounts of water to tribes
(2-3).
--After Indian water rights have been quantified they "shall
thereafter be fully subject to the water laws of the state in which
the reservation, or any part thereof, is located" (10-11).
--Compensate any Indian tribe or owner of a state water right
if quantification prevents them from exercising that right (11).
--Waive the sovereign immunity of Indian tribes and "other impediments to jurisdiction to state courts" (11).
--Create a second commission, the Indian Water Projects Commission,
which would allocate funds to finance Indian water projects (13).
Indian reaction to the proposed bill was swift and scathing.
Alberta Tippeconnic of the Intertribal Council of Arizona stated;
"It's a racially motivated bill and its unconscionable in terms of
Indian affairs and Indian people" (The CERT Report, January 29, 1982:
11). The executive committee of the National Congress of American
Indians rejected the bill out of hand, and John Echohawk of the Native
174
American Rights Fund called it "a confiscation of the Winters Doctrine"
(The CERT Report, February 29, 1982:14).
In response to these attempts to pass water rights settlement
acts the National Congress of American Indians formulated a position
paper in October 1981 entitled "National Resources, Litigation and
Trust Responsibilities". The sections of the position paper that
dealt with water rights made specific recommendations for congressional
action. First, NCAI asked the Congress to amend the McCarran Amendment
to exempt Indian water rights from state court adjudication. Second,
the paper asked for immediate approval of tribal water codes, and
third, it called for a moratorium, if requested by a tribe, on all
non-Indian development which anticipates the usage of water that
may be subject to Winters Doctrine rights. The paper also called
for more funding for Indian irrigation projects, and supported the
resolution of water rights conflicts on a tribe-by-tribe basis rather
than the all-inclusive approach expressed in bills such as the one
proposed by the Western Regional Council (National Congress of American
Indians, 1981:Sec. 1).
Settlement Bills for Individual Tribes
The NCAI's call for tribe-by-tribe negotiation was not a
new idea. The 1978 Ak-Chin Settlement Act was the first successful
attempt to establish a tribe's water right through negotiation and
legislation. It set an important precedent, but the Ak-Chin Reservation
is very small, hence, a more important case, in terms of the viability
of tribe-by-tribe negotiations, was the ongoing discussions concerning
175
the Papago Reservation, the second largest reservation in the United
States.
Approximately one-third of the Papago Reservation's nearly
three million acres is considered potentially irrigable (Foster,
1978:188). The only source of water in the area is groundwater,
which is rapidly being depleted by off-reservation uses. In 1975
the tribe filed suit against the City of Tucson and near-by mines
and farms, claiming 160,000 acre-feet as compensation for depleted
groundwater (Civ. No. 75-39 TUC, D. Ariz.). There were over 17,000
defendants in the case. The City of Tucson's future depended on
the outcome of it and the legal and technical questions relevant
to the case were enormously complex. It was obvious to all parties
that a litigated settlement would take years. In 1978 a committee
was formed, called the Water Resources Coordination Committee, to
attempt to work out a mutually acceptable bill that would settle
the water rights question and eliminate years of uncertainty and
costly court battles. This committee was an informal discussion
group consisting of the tribe, the Corps of Engineers, the Bureau
of Reclamation, and representatives of the defendants. Congressman
Morris Udall, from the Tucson area, took an active interest in the
negotiations, and in 1980 drafted a proposed bill (H.R. 7640). In
1981 hearings on the bill were held, and a second draft was introduced
(4363). A final draft was finally introduced in November of 1981
(Roop, 1982:8).
176
Not all members of the Papago Tribe were pleased with the
final bill. The original draft called for 160,000 acre-feet for
the Papagos, the same amount that was claimed in the 1975 lawsuit,
but through successive drafts this amount was reduced to 76,000 acrefeet (The Arizona Daily Star, November 23, 1981). Furthermore, the
bill specified which districts of the reservation received the water,
leaving most of the districts on the reservation without any benefit
from the bill. In December of 1981 the Papago Tribal Council asked
Udall to amend the bill to provide water to an additional reservation
district and to supply financing to put the water to use (The Papago
Runner, January 20, 1982:8).
The final bill introduced in 1982 did not add any additional
reservation districts but it did provide funds for development.
Titled the Southern Arizona Water Rights Settlement Act, the bill
guaranteed annual delivery of 76,000 acre-feet of water to the Papago
Reservation from a variety of sources including the Central Arizona
Project and underground acquifers. The bill also directs the Secretary
of the Department of Interior to build a water delivery system and
set up a $15 million trust fund to help the tribe develop an efficient
water use system. In return the tribe would drop its lawsuit and
abandon all future claims to water. The act passed the House by
a substantial margin (311-50) and was approved by the Senate by voice
vote two months later (Weekly Report, June 12, 1982:1404).
The Southern Arizona Water Rights Settlement Act was a major
step toward the successful negotiation of water rights conflicts.
177
The bill involved a substantial amount of water in an area suffering
from a critical water shortage. Through seven years of negotiations .
both sides had made compromises and adjustments. Also, the bill
contained the very important stipulation that the Papagos would receive
not only water rights, but a water project to deliver the tribe's
water. In other words, the Papagos would receive wet water, not
just paper water. The bill was hailed as an important precedent
which could become the model for subsequent water rights negotiations.
On June first President Reagan vetoed the Papago settlement-
,
bill. Technically, the veto was based on what Reagan called a "serious
flaw"; "The United States Government was never a party to the negotiations. . . . The result of this negotiation was that the United
States Government. . . would bear almost the entire financial burden
of the settlement at a potential initial cost of $112 million and
an annual cost of approximately $5 million. . . ." (Weekly Report,
June 19, 1982:1498). It was possible for Reagan to claim that the
federal government was never a party to the negotiations because
the Water Resources Coordination Committee, where most negotiations
took place, was an informal body with no expressed authorization
to negotiate for the federal government. The veto gave the President
an opportunity to express his disapproval of the cost of the bill
and push for a rewrite that would shift some of the costs of the
bill from federal to state and local sources. In other words, Reagan's
cost-sharing approach to water projects was applied to the Papago
project as well.
178
Negotiators went back to work on the bill, this time making
sure that the federal government's presence was official. A new
settlement was worked out which shifted some of the costs to local
governments and businesses. Under the new arrangement the federal
government will pay only $5.25 million of the $15 milion trust fund.
Local government and businesses will pay an equal amount, and trust
fund interest, which will accumulate until 1990 when the project
is finished, will provide the rest of the $15 million (National Journal,
October 30, 1982:1843). The new agreement was passed by both the
House and Senate as part of a bill which also authorized the Buffalo
Bill Dam in Wyoming and set a new acreage limit for federal reclamation
projects (Weekly Report, August 28, 1982:2142).
The Reagan Policy Clarified, The Tribes
Search for a Strategy
While the debate over the Papago bill, the Western Regional
Council bill, and other proposed legislation was taking place, the
Reagan Administration attempted to establish a general policy on
western water rights. During the first year of his presidency Reagan
sent his Secretary of Interior on a "good-will" trip to western states
to reassure them that the Administration fully supported state control
over water rights. Watt stated that the Reagan water policy would
defer to "the historic primacy of state water management" (The New
York Times, September 12, 1981:1). Secretary Watt also announced
that a new Solicitors Opinion, known as the Coldiron Opinion, renounced
the non-reserved rights theory formulated in the 1979 Krulitz Opinion.
179
The Caldiron Opinion adopted a very narrow view of federal rights
to western water (King, 1982:428-30).
The Reagan Administration further clarified its position
on western water rights with the announcement of a new policy on
July 14, 1982. Secretary Watt explained that the administration
favors negotiation as the preferred method of resolving the numerous
Indian water rights lawsuits: "President Reagan has forcefully indicated his concern that these suits--which have stalled essential
economic progress in both Indian and non-Indian areas--be settled
quickly through negotiated settlements that are equitable to all
parties" (Decision, No. 1, 1982:1).
Secretary Watt also announced on July 14 the appointment
of William P. Horn, Deputy Interior Under Secretary, as the Administration's chief water rights negotiator, and the formation of a new
seven member committee called the Interior Policy Advisory Group,
chaired by Solicitor Coldiron, to assist in water rights negotiations
(The CERT Report, July 23, 1982:15). Horn's attitude on Indian water
rights negotiations reflects the Administrations cost-conscious,
utilitarian approach; ". . . negotiation; that is the cost-efficient
way to go about it. It saves all of us time and effort in court.
• • • " (National Journal, October 30, 1982:1841).
While the Reagan Administration was formulating its position
on western water rights the nation's Indian tribes were refining
theirs. At a 1981 "Symposium on Indian Water Policy" sponsored by
the American Indian Lawyer Training Program a variety of tribal
180
spokesmen and interested individuals convened to discuss strategy
and approaches.
The emphasis of the convention was on the politics
.
of formulating water policy, which reflects the tribes' growing political
strength and sophistication, and an awareness of alternatives to
litigation. The announcement for the Symposium made this point quite
clear:
It is imperative that Indian water rights move from legal
abstraction to actual beneficial use. . . . As the arena of
water conflict changes from traditional forms of litigation
over the Winters Doctrine to include problems of actual use
and regulation of water, Indians face new problems requiring
fresh approaches to formulating tribal water policies
(American Indian Lawyer Training Program, 1981).
Peter MacDonald, Navajo tribal chairman, spoke on the first
day of the conference an argued for an aggressive approach emphasizing
resource development and tribal political strength:
There are alot of lawyers here. You lawyers shouldn't
have one-track minds. Don't just sell us rights and lawsuits. We can't drink them. . . . And you water experts.
Don't just sell us long-term plans. Because the water
won't be there unless we can find a way to use our water
now. . . . I am interested in claims awards. I am interested
in water. I am interested in survival (The CERT Report,
July 23, 1982:5).
MacDonald called for the establishment of national or regional tribal
water cooperatives that could pool Indian water rights and other
bargaining advantages in order to put water to beneficial use. In
essence, tribes would become involved in water marketing, which would
secure their rights through beneficial use, and also provide muchneeded tribal revenues (Folk-Williams, 1982:25).
Also speaking at the Symposium was Kenneth L. Smith, assistant
secretary of Indian Affairs. He assured his audience that he had
181
"no intention whatever of trying to push tribes into negotiating
water settlements if they do not want to negotiate" (The CERT Report,
July 23, 1982:11). But Smith argued that the Reagan Administration
strongly favors negotiation, and that "quantification is inevitable.
• • . The tremendous economic pressure will force the end of openended rights" (The CERT Report, July 23, 1982:5).
The American Indian Lawyer Training Program provided another
forum for discussing Indian water rights in September, 1982, at the
first annual Indian Resources Institute. One of the main topics
on the agenda was "The Politics of Indian Water", which stressed
"concerted political action on the part of tribes nationally and
regionally to counter non-Indian pressure" (The CERT Report, July
23, 1982:21).
Conflicting Perceptions of Negotiations
By 1982 many tribal leaders and the Reagan Administration
were stressing negotiation, but that attitude was far from unanimous.
There were still many Indians who distrusted the negotiating process.
At the 1981 Symposium Ronnie Lupe, Chairman of the White Mountain
Apache Tribe, stated that his tribe consistently "refuses to negotiate.
. . In the strongest terms we have rejected the request both
to quantify and to negotiate. It is our position that the term 'quantify' is just as much a fraud on the Indian people as the word 'negotiate'. . . ." (Decision, 1982). According to William Veeder, a longtime supporter of Indian interests, Reagan's plan to quantify and
negotiate Indian rights is an attempt to systematically "plan the
182
Indians out of existence" (National Journal, October 30, 1982:1841).
Furthermore, in many cases the two sides in the dispute are still
so far apart that negotiation is nearly impossible. William Horn,
deputy undersecretary at Interior, stated that only three out of
fifty-five lawsuits are "ripe for settlement" (National Journal,
October 30, 1982:18 42).
)
Part of the reluctance to negotiate can probably be traced
to Indian fears that legislation will be passed that forces the tribes
to negotiate and places restrictions on the negotiations. There
are two possible scenarios that could occur, depending upon the order
in which negotiation and legislation take place. In one scenario,
negotiations would proceed on the basis of mutual consent; each side
would participate in an effort to protect its own interests while
seeking a mutually acceptable accommodation. Once an agreement is
made, legislation would be passed that formally recognized the agreement and made it binding. The Papago negotiations are an example
of this scenario. Most tribes would probably not object to negotiations in that kind of situation where there are no restrictions
placed on the negotiating process.
But there is a second possible scenario where legislation
would preceed negotiation. The legislation would set up time limits
and restraints on negotiations, and force tribes to reach negotiated
settlements or accept a govenment-imposed quantification of Indian
water. This approach is evident in a statement by the Western Regional
Council:
183
Indian interests have suggested that water rights conflicts
can be resolved through negotiation and settlement. The
Western Regional Council believes it would be a serious
mistake to expect that negotiated settlements are realistically'
possible in very many situations. . . . The impracticality
of successfully negotiating conflicting claims between thousands of claimants (state, Indian, and non-Indian) is
evident. . . . The Western Regional Council believes that
the most practical and most sensible way to resolve water
rights controversy in the West is through comprehensive
legislation (Decision, 1982).
Some of the concern voiced by Indian leaders appears to be the result
of fears that the second scenario is what policy-makers have in mind
when they talk of legislation and negotiation. Charles P. Corke, --.4
head of the Land and Water Resources Division of the Bureau of Indian
Affairs, has alluded to these fears; "Some Indian leaders are worried
that they'll be told, 'negotiate or else'" (National Journal, October
30, 1982). Hence, an important factor in any negotiations is the
extent to which participants are not "under the gun" of severe time
constraints or potential confiscation of their rights if the negotiations fail.
The need for strictly voluntary negotiation has become increasingly evident. When the bill proposed by the Western Regional Council
failed to get introduced in Congress and met fierce Indian resistence,
the Council proposed that both sides sit down and discuss acceptable
alternatives. As a result, the Council met with representatives
from the Western Governors Policy Office and three major Indian groups;
The Council of Energy Resource Tribes, the Native American Rights
Fund, and the National Congress of American Indians. In an unprecedented show of agreement these groups wrote a letter to Secretary
184
of Interior James Watt outlining a strategy based on "consensual
negotiated settlements" while at the same time recognizing that "some
parties may seek to resolve their differences by litigation or legislation and we do not preclude those choices" (Western Regional Council,
1982: ). The letter listed three suggestions for expediting negotiations:
1. A program of assistance to tribes to help them inventory
their water resources and water development needs.
2. A prioritized schedule of negotiations which would focus
efforts on those cases where a settlement is likely.
3. Increased federal support for Indian water development with
Indian participation at the national level.
Some of the signatories made plans to meet with Secretary Watt to
discuss these proposals (Newsweek, December 6, 1982:35). As of this
writing the meeting has yet to take place.
The continuing interest in negotiated settlements has generated
a great deal of activity on the part of interest groups and state
governments. The State of Montana has established a Reserved Water
Rights Compact Commission to engage in negotiations with Indian tribes.
Other western states have begun to keep active files on ongoing negotiations and lawsuits. The National Water Resources Association, one
of the best known interest groups concerned with water development,
recently established a special committee to deal with federal reserved
water rights. And, Indian interest groups are devoting considerable
resources to the water rights problem. This increased emphasis on
185
negotiation is an important trend in the long struggle over water
rights. Although there are only a few cases which appear to be near
settlement, at least Indians and non-Indians are discussing issues
in a context other than the adversarial confrontation of the courtroom.
Furthermore, negotiation as an acceptable form of water conflict
resolution is quite recent. The policy of encouraging negotiation
as an alternative to litigation began in earnest with President Carter
in 1978, and has been continued by President Reagan. This six-year
period represents only a small portion of the 75 year history of
conflict over Winters Doctrine rights. Given sufficient time, consensual negotiations may ultimately resolve a large number of troublesome
water rights conflicts. Whether it accomplishes that task fairly
is another question. Given the acrimony generated by the issue,
there will undoubtedly be controversy over any proposed solution.
In this section I have reviewed the extensive activity that
has occurred during the Reagan Administration in regard to western
water rights. Two forms of legislation were discussed; all-inclusive
settlement acts, which would encompass all federal and Indian rights,
and bills that pertain to the water rights of a specific reservation.
The Reagan Administration has continued to emphasize negotiation and quantification, a policy initiated by the Carter Administration. Reagan, like his predecessor, has met with limited success.
Indian tribes remain distrustful. To some Indians, the negotiations
over water have a distinct resemblance to the negotiations over Indian
186
lands that were arranged in the Nineteenth Century; it appears to
be another case of the Anglo disingenuously scheming to get something
for nothing. But other Indian leaders, recognizing the limited value
of water rights, i.e., paper water, are ready to consider negotiation.
They are willing to discuss the possibility of giving up their openended claims to water in exchange for water projects and a secure,
guaranteed right to a specific amount of water.
It would be going too far to claim that a break-through on
the water rights issue has occurred; the gap between the two sides *
-
is still enormous. However, some progress has been made. To a great
extent the success of future negotiations depends on what the Anglo
can offer the Indian in return for a resolution of the uncertainty
over water rights. The most obvious offer the Anglo can make is
funding for water projects that would put to use whatever water the
Indians have left after negotiations are completed. Therefore it
is worthwhile to take a closer look at the Bureau of Indian Affairs'
funding for Indian water resource development. If the trend toward
negotiation continues the success of the BIA as an advocate of Indian
water development will play an increasingly vital role in the search
for a solution to water rights conflicts.
Funding for Indian Water: The Bureau
of Indian Affairs Budget
The first and second sections of this paper were concerned
with the politics of Indian water rights in the Carter and Reagan
Administration. This same subject can be approached from another
187
direction by examining funding levels for the BIA's Indian irrigation
program. One of the things that differentiates the current era of
negotiations from previous decades is the link being forged between
Indian water rights and increased funding for Indian water projects.
These projects have become an important bargaining chip in the negotiations currently taking place.
In view of this increasing emphasis on Indian water projects
the ability of the BIA to secure funds for them becomes a critical
dimension. The competition among federal agencies for funding is
fierce; some agencies consistently do well in the appropriations
process while others do not seem to "have what it takes" to compete
effectively. Research on federal agency budgeting indicates that
some agencies are quite successful at increasing their annual funding,
and possess certain characteristics to which this success can be
attributed (Fenno, 1966; Rourke, 1967; Nienaber and McCool, 1981).
Given the increasing importance of Indian water development, it is
helpful to examine the BIA from a budgeting perspective, and assess
the agency's ability to function as an advocate and funding source
for Indian water development.
In the previous chapter I compared the BIA's water development
budget to the budget data for non-Indian water development. In this
section I compare the relative funding for Indian water development,
Indian rights protection, and the total appropriation for the BIA.
This provides an opportunity to examine the budgets for Indian water
rights and projects and how they compare to the funding for other
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BIA activities. This comparison will demonstate that while the BIA
has experienced periodic success in terms of its total budget, the
Bureau's budget for Indian irrigation has not experienced much growth,
and the funding for Indian rights protection has never been a major
part of the BIA's budget.
First I review the BIA budget under the Carter Administration,
and then discuss the first three years of the Reagan Administration.
I follow this with a discussion of the Bureau of Indian Affairs in
reference to specific characteristics that determine a government
agency's ability to obtain funding and increase its competitive advantage vis-a-vis other agencies.
A table of recent BIA appropriations provides a convenient
reference. Unless otherwise noted references to appropriations in
the following discussion are based on the data in the table.
Limited Budgetary Growth Under Carter
When President Carter took office in 1977 only one percent
of all Indian agricultural land was irrigated. The same figure for
non-Indian western agricultural lands was 5.1 percent (Gerard, et
al., 1978:16). According to the final report of the National Indian
Water Policy Review, "Completion of Indian projects has been a chronic
problem since the inception of the Indian irrigation program. . .
. The record for more recently authorized projects shows little
improvement" (Gerard, et al., 1978:16). In the late seventies the
BIA continued to experience difficulties in obtaining funds for Indian
water development in spite of substantial increases in the overall
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BIA budget. According to U.S. Budget figures, funding for Indian
irrigation remained relatively constant (or decreased if inflation
is taken into consideration) from 1976 to 1979, but the total BIA
budget increased by nearly 30%.
Part of the reason why the BIA was unable to secure sufficient
funding for Indian irrigation can be traced to the traditional conflict
and competition between Indian and non-Indian water use and development; the BIA was no match for powerful non-Indian water-users and
their bureaucratic and congressional allies. But the BIA also continued to suffer from a persistent image as an incompetent, paternalistic agency hampered by bureaucratic rigidity. A recent article
characterized the BIA "as an interest group whose foremost goal is
the preservation of its dominant position regarding Indian tribes.
. . and the perpetuation of a bureaucratic ethos. . . •" (Nelson
and Sheley, 1982:83).
Perceptions of BIA incompetence have created resistence in
Congress to increased funding. In 1979 the Senate Appropriations
Committee attempted to cut $6.2 million from Carter's BIA budget
request. The committee report said that "poor program management
by the Bureau of Indian Affairs was undercutting Indian services,"
and as a result there had been a "continuing failure to deliver adequate services to the Indian people despite increased funding" (Weekly
Report, August 19, 1978:2185). In support of their allegations the
Senate Committee cited a GAO Report which was also quite critical
of the BIA (GAO Report to the Congress, February 15, 1978).
190
The following year President Carter, apparently also disenchanted with the BIA, attempted to cut the agency's budget for fiscal
year 1980 by eight percent. More importantly, his drive to cut water
project expenditures was applied to Indian as well as non-Indian
projects; in his March budget revisions he eliminated eight of the
eleven projects proposed in his January budget. The only projects
to receive funding were those that required expenditures to meet
statutory obligations: Ak-Chin, Fallon, and the Navajo Indian Irrigation Project (Indian Affairs, No. 101, 1980:1).
The Navajo Indian Irrigation Project (NIIP) continued to
fall far behind schedule. Although it was authorized concurrently
with the San Juan-Chama, a non-Indian project, the NIIP has never
received commensurate appropriations, a blunt testimony to the BIA's
inability to compete for water project funding. The non-Indian San
Juan-Chama Project was completed ahead of schedule and began diverting
water in 1972. In contrast, by 1979, the year the NIIP was supposed
to be finished, only three out of eleven irrigation blocks of the
project were completed. The BIA delayed the expected completion
date for the project until 1987 (Sombrero, 1982:9-12). Despite the
dilatory completion schedule of the Navajo Indian Irrigation Project,
President Carter recommended further cuts in the project's funding
in 1979.
During the debate over the President's budget Indian irrigation
received some support in Congress, but once again a Senate Appropriations Committee issued a report highly critical of the BIA's ability
191
to manage Indian programs. The report cited "slipshod management"
and an attitude of "paternalism that fosters near total dependency"
as reasons for cutting the BIA's funding (Weekly Report, November
3, 1979:2478).
The budget for Indian rights protection, a line-item in the
BIA budget, experienced modest growth during the Carter years, but
remained a small percentage of the total BIA budget. Rights protection
first appeared as a separate budget item in the 1973 final budget,
funded at $1.9 million. Initially these funds were intended to pay
for lawsuits litigated by the Justice Department. However, in response
to charges of conflict of interest, the Comptroller General announced
in 1974 that the United States was obligated to pay for independent
tribal counsel if the Justice Department was unable to litigate due
to a conflict of interest. Since that time the funding for Indian
rights protection has had to cover the costs of both Justice Department
litigation and the legal costs incurred by the tribes for their own
independent counsel.
By the time Carter took office the annual apropriation for
Indian rights protection had risen to nine million dollars. However,
only part of this money was spent on water rights cases since it
also had to fund lawsuits pertaining to land disputes, hunting and
fishing rights, and other areas of conflict over Indian rights.
By 1980 the funding for rights protection increased to $19,783 million,
which was a significant increase, but still less than two percent
of the total BIA budget of $1,022,807.
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Carter's proposed 1982 budget accurately reflected his priorities in terms of Indian irrigation and overall BIA expenditures.
An insufficient amount of funds was allocated for the operation and
maintenance of Indian irrigation systems, and as a result, "Proper
maintenance will be delayed resulting in deteriorating systems" (U.S.
Congress, 1981, Part 2:299). Funding for the Navajo Indian Irrigation
Project was cut from $11.5 million to $5.1 million and construction
was halted on some aspects of the project due to a disagreement between
the Navajo Tribe and the Bureau of Reclamation over the scope of
the project and the amount of water that will be diverted (U.S. Congress, 1981, Part 2:352-3).
In terms of Indian rights protection Carter's last budget
proposal provided for an increase in funding from $15.2 million to
$18.3 million, but the budget justification made it clear that those
funds would be used to support not only litigation, but also negotiations that would "bring potentially contesting parties together on
a broad scale to consider Indian rights issues on a national setting
to seek areas of common interests and goals" (U.S. Congress, 1981,
Part 2:304). The Budget justification also included a statement
referring to the growing importance of Indian water rights protection;
"As pressures mount on scarce resources, especially water, program
efforts must be expanded to assure that Indian rights are effectively
protected" (U.S. Congress, 1981, Part 2:304). Yet in spite of this
professed commitment to Indian rights, only 1.7% of the proposed
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1982 budget for the BIA was allocated to Indian rights protection
(which includes all Indian rights, not just water rights).
Budget Cuts Under Reagan
As soon as President Reagan took office he began revising
Carter's BIA budget--downward. The new President wanted to convert
some Indian programs into block grants (which drew immediate criticism), and reduce expenditures in nearly all categories, including
Indian irrigation and rights protection. This would reduce the BIA's
total budget from $1.2 billion to $900 million (Weekly Report, November
14, 1981:2226). The Congress refused to accept some of the cuts
and the block grant proposal, and eventually succeeded in restoring
much of the funding (Weekly Report, December 19, 1981:2530).
The budget that Reagan proposed for 1983 continued the budgetcutting trend for the BIA's activities. There were two notable developments in the funding for the irrigation construction program. First,
the President proposed that no funding be made available for the
Navajo Indian Irrigation Project until a study could be completed
which examined the competency of the Navajo Agricultural Products
Industry, (NAPI) the tribal organization responsible for operating
the project (U.S. Congress, 1982, Part 2:8). This study was completed
in 1982 and reached the conclusion that the NAPI was capable of meeting
its responsibilities and recommended continued funding for the project.
The President still refused to provide the funds, however. The Congress ultimately restored three million dollars for the Navajo Project
194
in the final 1983 budget bill which was signed by the President (Corke
interview, 1983).
A second notable development in the irrigation construction
program concerned the Ak-Chin water project. No funds were provided
for the project in the 1983 Reagan budget, but the project's enabling
act requires that a specific sum of money be spent by the end of
fiscal year 1983 (Sec. 5, P.L. 95-328). Without a 1983 appropriation
the required sum could not be reched by the end of the fiscal year.
Furthermore, the amount provided in the enabling act is not enough
to complete the project, so additional authorization must be passed
before sufficient funds can be spent to fulfill the provisions of
the settlement. But the Reagan Administration, as part of their
effort to reduce federal spending, refused to provide additional
funds or the authorization necessary to increase the funding ceiling
for the project.
Since the Ak-Chin settlement was the first Indian water rights
conflict settled by negotiation, other tribes have been monitoring
its development to ascertain the relative advantages and disadvantages
of negotiations. Failure to fund the project would certainly discourage other tribes from negotiating. Kenneth Smith, Assistant Secretary
for Indian Affairs, stated that failure "to pursue the timely funding
of the Ak-Chin project would cause a breach of the May 20, 1980 contract and would seriously damage our ability to negotiate with the
tribal leadership in the future" (The CERT Report, October 7, 1981:9-
11). Charles Corke from the DIA made a similar statement, referring
195
to the "great consternation in the Indian communities with the AkChin having problems getting funds to carry out the settlement"
(National Journal, October 30, 1982:1945).
Indian rights protection also suffered a setback in the 1983
Reagan budget proposal, even though the number of lawsuits concerning
Indian water rights totaled 57 and the BIA received twenty new requests
for legal action. Litigation support was reduced by 10%, and attorney's
fees, the money used to pay for independent tribal counsel, was reduced
by 25% (U.S. Congress, 1982, Part 9:565-90).
The year 1982 also witnessed a continuation of the BIA's
organizational problems and image difficulties. A GAO Report concluded
that the Bureau "has lost accountability over hundreds of millions
of dollars" due to an inadequate accounting and finance system (GAO
Report to the Congress, 1980). The Reagan Administration attempted
to completely reorganize the BIA by replacing the Bureau's twelve
regional offices with six "regional technical Assistance Centers"
(U.S. Congress, 1982, Part 9:442). Ostensibily this reorganization
was designed for "more effective and efficient management" but it
would also give the Administration an opportunity to reduce funds
and services. The Congress refused to accept the plan, however.
The first three years of the Reagan Administration did not
bode well for the Bureau of Indian Affair's budget. Of course the
BIA is certainly not unique in that respect, but the Bureau's Indian
water program could ill-afford the reductions, and as a result, the
pace of Indian water development is noticeably slower. The proposed
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1984 budget holds no promises, either. President Reagan proposed
no funding for the Navajo Indian Irrigation Project and no funding
for the Ak-Chin Project, which will almost certainly provoke a lawsuit
from the Ak-Chin Tribe. The total proposed funding for Indian irrigation in FY 1984 is a dramatic 75% decrease from the irrigation budget
in FY 1982 (1984 U.S. Budget Appendix:I-M51).
Bureaucratic Requisites of Funding Success
It is clear that the Bureau of Indian Affairs has not been
able to secure sufficient funding for its Indian water programs.
The Bureau suffers from a number of problems which prevent it from
becoming an effective proponent of Indian water development. These
problems are due to a lack of certain organizational characteristics
that are associated with a powerful, well-funded agency. Three of
these characteristics, which are identified in the literature concerning bureaucratic power (Fenno, 1966; Rourke, 1967; Nienaber and McCool,
1981) are discussed below.
First, the BIA lacks a strong, supportive constituency.
A well-developed constituency is of paramount importance to the budgetary power of a government agency. But the BIA's constituency consists
of American Indians, who are a small minority and have relatively
little political power (at least until recently). Also, Indians
are often quite critical of the BIA; many of the agencies most vociferous critics are among those whom the agency is supposed to serve.
Hence the BIA receives inconsistent levels of constituency support
during the appropriations process.
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A second variable of agency power is expertise; the possession
of unique and highly technical skills (Rourke, 1976). But the BIA
does not possess the expertise necessary for Indian water development;
it depends on the Justice Department to protect Indian rights, it
depends on the Bureau of Reclamation to construct Indian water projects
and do safety inspections of Indian dams, and it depends on private
consulting firms to monitor Indian water quality. This dependence
on the expertise of others creates a significant political liability
for the BIA.
A third factor that is an important determinant of agency
strength is organizational vitality, or esprit-de-corps, meaning
that the aency possesses a collective self-confidence and a clear
sense of mission. It is beyond doubt that many devoted, competent,
enthusiastic people work for the BIA. But their collective efforts
are hampered by the Bureau's long-standing image as a paternalistic,
oppressive bureaucracy. This image has its roots in the days when
Indian agents were notoriously corrupt, and has been fostered since
then by the capricious, often counterproductive vagaries in the Indian
policy which the BIA must administer. The burden of this image,
coupled with incessant criticism from those whom the agency serves,
are bound to diminish the organizational self-confidence and clarity
of mission of the BIA. To a certain extent the BIA is in a no-win
situation; surrounded by critics, saddled with enormous responsibilities, and plagued with organizational difficulties, the agency has
198
few resources to expend in the struggle for federal funds. And the
lack of funds simply makes all these problems worse.
It is clear that the Bureau of Indian Affairs is unable to
compete effectively in the highly competitive field of federal water
resources. It is outclassed by its more powerful competitors, the
Bureau of Reclamation and the Corps of Engineers. The BIA's weakness
as a competitor for agency funding is not a recent development.
Richard Fenno ranked 36 federal agencies according to their ability
to secure congressional approval of their budget request for the
-4
years 1947 to 1962; the BIA ranked thirteenth out of the 36 agencies
(1966:368). Of course this ranking is based on the BIA's total budget.
A ranking based only on Indian irrigation funding would probably
be even lower. The BIA budget under the Carter and Reagan Administrations continued to provide an inadequate amount of funding for Indian
water resource development. Given the limitations of the agency's
power, this long-standing trend will probably continue. The only
possibility for change lies in the fact that Indian tribes are using
water project funding as a bargaining chip during water rights negotiations. This may provide an additional incentive to provide funding
for Indian water projects. If this happens it will not occur because
the BIA is an effective advocate of Indian water development; at
best the Bureau will serve as a supportive onlooker while tribes
and politicians hammer out the fate of the Indian water claims.
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Conclusion
The last six years have witnessed a number of important trends
in the area of Indian water rights. Although the issue remains far
from settled, five distinct developments have been set in motion
which promise to have an impact on water rights conflicts for some
time to come. Each of these will be discussed.
First, the decision-making environment for Indian water rights
has been expanded to include a political context in addition to the
traditional judicial context. It is important to note that the conflict
over Indian water rights has not moved from the courthouse to the
bargaining table; there is a record number of lawsuits being litigated
at the present time. Rather, the search for solutions has been expanded to include both of these avenues. The future popularity of political
negotiations will depend upon perceptions of the relative advantages
of these two avenues. If the tribes continue to gain political expertise, sophistication, and self-confidence--in other words, more
political power--and at the same time experience a lack of success
in the courts, then they will probably be more willing to rely on
consensual negotiation. If non-Indian participants continue to view
negotiations as a time-saving, money-saving alternative, then they
too will press for more negotiations.
Second, the debate in recent years has accentuated and clarified the distinction between Indian water rights, and water rights
for federally owned lands. The case law over the last twenty years
treated Indian and federal water rights as though they were synonmous;
200
they were both subsumed under the federal reserved water rights doctrine. Indian tribes have resisted this treatment, pointing out
that a single legal doctrine could not protect the interests of disparate entities such as national grazing lands, parks, and forests on
one hand, and Indian communities on the other. The distinction between
Indian and federal rights will become more important if the emphasis
on negotiation continues. Obviously, negotiating with an Indian
tribe will be very different from negotiating with the U.S. Forest
Service or the National Park Service.
A third development concerns the important precedents set
by the Ak-Chin Settlement Act and the Papago settlement bills. These
laws proved that Indian and non-Indian water users can find a common
ground for compromise. Prior to the Ak-Chin bill in 1978 the idea
of a negotiated settlement was only a theory, but it has now become
a reality, and a crucial threshold has been crossed. This will undoubtedly create a more favorable atmosphere for negotiations. However,
an ominous cloud hangs over these agreements; if the Reagan Administration fails to provide funds for the Ak-Chin Project, and thus violates
either the spirit or the letter of the contract, then an entirely
opposite effect could result. The negotiating atmosphere would be
clouded with distrust and skepticism.
A fourth development in recent years is the gradual realization
that the conflict over Indian water rights does not lend itself to
a single, all-inclusive settlement. Since the mid-fifties over sixty
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all-inclusive settlement acts have been proposed, and all have been
soundly rejected. Indian tribes and the federal government are much
more supportive of settlement proposals which deal with each tribe,
or each federal reservation, on an individual basis. Each tribe
represents a unique people in a unique situation, and attempts to
impose a general settlement will inevitably fail to account for the
uniqueness, and therefore be resisted.
A fifth development concerns the increasing importance of
funding for Indian water projects. Funding for water development
has become a major bargaining chip in the negotiatons over water
rights. Given the budgetary problems experienced by the BIA's Indian
irrigation program, and the lack of funding for the Ak-Chin Project,
the negotiating parties must shoulder the responsibility of guaranteeing specific amounts of funding, and providing assurances that the
provisions of the settlement will be carried out.
In regard to Indian water no dramatic policy shifts have
occurred during the Carter and Reagan Administrations. However,
initial steps were taken on a number of fronts. It is still too
early to tell if these nascent efforts will prove fruitful. Many
problems remain and there is still a large gap between Indian and
non-Indian demands. But there is a new potential, a momentum, that
may lead the way out of the 75 year-old conflict over Indian water.
CHAPTER 7
CONCLUSION
A Brief Review
The origins of the present conflict over western water go
back a long time. The Winters Doctrine was an attempt to amalgate
a number of legal concepts already extant in Indian law and water
law under the aegis of one legal principle. At about the same time
the Winters Doctrine was enunciated the federal government was launching an ambitious program to develop western water in conjunction
with state water policy. This program provided federal funding but
allowed states to control the administration of water rights.
For fifty years the impact of the Winters Doctrine was limited
to the courtroom. The BIA's Indian water development program was
not greatly influenced by the burgeoning case law that developed
under the Winters Doctrine; the court's decisions were not sufficiently
explicit or enforceable to result in increased BIA construction activities.
In the meantime, non-Indian water development, in the hands
of the Army Corps of Engineers and the Bureau of Reclamation, was
proceeding at an extraordinary pace. Billions were spent to build
projects of every sort all over the United States. This massive
program of water development was built upon a federal-state relationship based on deference to state water law. There was no attempt
202
203
to develop a comprehensive, long-range plan, and little coordination
of developmental activity.
As long as the federal government did not attempt to claim
any water under the Winters Doctrine the federal-state relationship
remained fairly amicable.
But beginning in the mid-fifties the
federal government began to assert more control over water in the
West. This was not done just to provide reserved waters to Indians,
but to aid the federal government in its efforts to develop hydropower
and protect non-Indian federal reservations such as national forests,
parks, and military reservations. The more expansive the Winters
Doctrine became, the more useful it was to the federal government,
and the more threatening it was to the western states and those who
had acquired their rights under state law.
By the 1970's western water policy was in a state of flux.
Carter's attacks on the water policy establishment, a rising tide
of environmentalism, a new Indian policy based on self-determination,
and an increasing political sophistication among Indian tribes threatened the traditional approach to water development. Previously,
state and federal water policy makers accommodated each other by
ignoring Indian interests; it was the only way they could get along.
But beginning in the seventies that was no longer possible. Under
intense pressure, the federal government increased its activity on
behalf of Indian water rights, but it never gave up its support for
non-Indian water development. In other words, the federal government
continued to pursue a schizophrenic water policy, promulgating legal
204
principles based on federal case law for Indians, while building
water projects based on state-granted rights for non-Indians. Today
the water policy establishment remains strong. However, in recent
years Indian tribes have challenged the water policy establishment
in the political arena. Armed with the threat of potentially openended water rights, the tribes are demanding a share of both water
and water projects.
Five Principle Arguments
In this dissertation I have attempted to shed some light
on the complexities of Indian and non-Indian water development, and
how they relate to one another. The main points of this dissertation
are summarized below as five principal arguments.
A. Indian water development can best be understood as one aspect
of total federal water resources development program. The ultimate
impact of the Winters Doctrine will be determined by political factors
as well as judicial decisions. The Doctrine must be examined within
the larger political context of water development, and not just within
the narrow confines of a judicial context. This is because rights
that are established through the judicial process are implemented
and enforced through the political process. Scheingold writes that
"Rights are declared as absolutes, but they ripple out into the real
world in an exceedingly conditional fashion. The declaration of
rights is ordinarily the prelude to a political struggle. .
• • tt
205
(1974:123). Thus, it is within the political context that Indian
water rights will be transformed from "paper" water to "wet" water.
B. The Winters Doctrine is vague and indeterminate; it offers
no explicit guarantees of water. Without the benefit of congressional
directives this massive body of case law has focused almost exclusively
on establishing the parameters and meaning of reserved water rights.
In other words, the case law is composed almost entirely of process
decisions. Very few decisions have resulted in the actual allocation
of significant amounts of useable water to Indian reservations.
For seventy years the courts have tried to define Winters Doctrine
rights. In most cases they have yet to actually apply them.
However, this is not to argue that the Winters Doctrine is
meaningless or without impact. On the contrary, it has functioned
effectively as a vortex around which Indian claims, hopes, and activity
have revolved. In recent years, as some tribes have moved into the
political arenas of negotiation and legislation, the Winters Doctrine
has become an important political tool. Indian tribes have always
been at a disadvantage in terms of political resources, but the Winters
Doctrine is changing this imbalance. The vague, open-ended nature
of Winters Doctrine rights, the threat of endless litigation, and
the uncertainty created by the doctrine are political bargaining
chips that can be used by Indian tribes in negotiations over water
and water projects.
C. The federal government has long pursued two water policies
which are mutually incompatible; The Winters Doctrine concept of
206
federal reserved rights, and the long tradition of deference to state
control over water. In the words of the Krulitz Opinion, "Federal
water rights are somewhat at war with each other" (1979:554). The
roots of these policies are buired deep in past government decisions.
In effect, the government has given the water away twice; once through
the states, and once through the federal courts. More water has
been legally allocated than is available. The development of two
incompatible water doctrines was possible because there was no attempt
to reconcile one with the other. Each doctrine developed in isolation
of the other and thus made no attempt to accommodate the other.
Until recently only claims under state granted rights actually resulted
in diversion and use of water. But now the Indian tribes and other
federal reservations are demanding that their rights be recognized
too. The two doctrines, always destined for a collision, are now
colliding, and the resulting impact is rocking the foundations of
western water policy.
D. Indians and non-Indians are competitors, not just for western
water, but for water projects and the money to fund them. This includes
all water projects, not just those in the West, since all non-Indian
water projects emanate from the same political milieu--the water
policy establishment which has created a classic iron triangle through
the use of pork-barrel and the system of congressional courtesy.
In effect, the water policy establishment has institutionalized substantive decision-making by creating a decision-making process that
is predisposed to make substantial repeated allocations of project
207
funding over long periods of time. This decision-making process
has a self-generating capacity where one substantive decision creates
the need for another, and so on. Indian tribes, due to bureaucratic
arrangements, their limited political power, and the inherent conflict
of Indian and non-Indian water rights, are not a part of the water
policy establishment, and therefore have not been a recipient of
its output. In fact, because they are competitors, the success of
the water policy establishment has been detrimental to the Indian
tribes.
E. The Prior Appropriation Doctrine has been applied in a de
facto manner to Indian reservations. Water rights in the west have
been determined, not by abstract legal doctrines such as Winters,
but by possession and use. Since the use of water in the arid West
usually requires some form of diversion and storage, it is dependent
upon water development projects. Thus, whoever got the project got
the water. Since the tribes have received very little funding for
water projects they have put very little water to use.
In contrast, non-Indians are claiming water on the basis
of beneficial use which has been made possible through massive expenditures on water projects. They argue that such an investment must
be protected by permitting continued use of the water. In other
words, water use creates water rights, even if they conflict with
the Winters Doctrine. Experience indicates that the best way to
secure a claim to western water is to use it, preferably by investing
208
large amounts of money in diversion projects. This is true for Indians
as well as non-Indians.
The Future
The contemporary situation in regard to western water is
presently in such a state of flux, and is so complex, that it would
be foolhardy to predict the outcome of the multi-faceted conflict
between Indian and non-Indian water needs. However, it is possible
to isolate some of the major variables that will probably play an
important role in the future. Three of these will be discussed below.
The first variable concerns alternative concepts of water
usage. Throughout this dissertaiton I have dicussed primarily water
for irrigation. This is because approximately 80% of the water used
by man in the arid western states is consumed by irrigated agriculture.
Most of the remaining water is used for municipal and industrial
pruposes. All of these uses require some form of development, and
with the exception of municipal use, create economic gain. But there
are other uses of water that are non-developmental and can be applied
to uses other than income-producing activity. These are generally
lumped together under the rubric of "instream uses".
Until recently, most western states limited their definition
of beneficial use to only those uses which required some form of
development, or in other words, diversion and storage (Clyde, 1982:523).
In the last few years, however, some states have expanded the definition of beneficial use to include non-developmental in-stream uses
209
such as wildlife preservation, recreation, and aesthetic considerations
(Sherton, 1981).
This has potential ramifications for Indian tribes. One
possible in-stream use is the preservation of Indian culture. Water
plays a pivotal role in the culture of most Indian tribes. In some
cases, such as the sacred Blue Lake in northern New Mexico, water
plays a direct role in the religion and culture of the tribes. Water
also has an obvious impact on traditional hunting and fishing, an
example being Pyramid Lake in Nevada. In a more indirect fashion
water is necessary to preserve the character of Indian lands, which
form the basis of tribal existence. For a number of years Indian
tribes have been arguing for a moratorium on water development so
the tribes would have some time to prepare their claims (U.S. Congress,
1974:52-54). A legal recognition of in-stream uses to protect Indian
culture and Indian lands would have a similar effect by protecting
from diversion the stream flow set aside for cultural preservation.
An expansion of the concept of beneficial use to include
cultural preservation would allow tribes to claim water under state
law, thus providing a back-up for the Winters Doctrine. Given the
present trend toward state court adjudication of Indian rights this
could become an important source of support for Indian claims.
A second variable which will have a future impact on western
water concerns the Indian tribes' political power. The Winters Doctrine
is an important tool, but its future impact depends upon how it is
210
wielded. The ability of Indian tribes to effectively use the Winters
Doctrine may depend on a number of factors, one of which is Indian
unity. American Indians do not speak with one voice; there are hundreds
of federally recognized indian tribes in the United States today.
Each has unique problems and needs, some of which are in conflict
with each other. Indians are also divided between traditionalists
and modernists, who have different ideas as to how water resources
should be used. Another division among Indians concerns the differing
perceptions of the legitimacy of tribal governments and some of thé
Indian interest groups that are presently acting as spokesmen for
Indians. Some Indians argue that these groups may not represent
their Indian constituency (Deloria 1982:3-4). Who, then, is to wield
the tool of the Winters Doctrine? What are the goals of Indian water
development? These are questions that remain to be answered.
In spite of these problems, Indian tribes are definitely
more effective politically than in the past. Michael Lawson writes
that:
Tribal leaders are no longer as docile, naive, or powerless as
they were a generation ago. They are now more apt to be
trained professionals, more sophisticated in their approach
to tribal problems, more experienced in dealing with the
federal government, while at the same time more skeptical
of its intentions. Above all they are single-mindedly
determined to give meaning to the concept of self-determination, sometimes to the point of advocating complete tribal
sovereignty (1982:195).
This increasing political efficacy among Indian leaders will allow
them to maximize the political clout of the Winters Doctrine, and
compete more effectively in the political arena with non-Indian
211
competitors for water and water projects. Whether they can actually
win in a struggle with the water policy establishment remains to
be seen.
A third variable which will have a future impact on Indian
water is a phenomena that can appropriately be described as a "paradox
of involvement."
For many years Indians have been left out of the decisionmaking process. Important water policy decisions which profoundly
affected Indians were presented to them as a fait accompli. An example
of this can be found in the deliberations over the Colorado River
Compact. Norris Hundley writes that:
• . . little was said about Indians or their water rights in
any discussion of the Colorado River, including the deliberations at league meetings. Indians were a forgotton people
in the Colorado Basin, as well as in the country at large;
and their water needs, when not ignored, were considered
negligible (1975:80).
Since Indians have not participated in the decision-making
process it has not reflected their needs, with deleterious effects
on Indian lands, resources and culture. The absence of Indian participation is nowhere more evident than in the Bureau of Reclamation
and the Army Corps of Engineers. The activity of these two agencies
has a profound impact on Indian tribes, yet Indians can only respond
after the fact to agency decisions rather than participate in them.
The only way this situation can be rectified is if Indians
become directly involved with these agencies, and the most effective
form of involvement is probably as employees, as insiders, who could
represent an Indian point of view from the very beginning of the
212
decision-making process. But this presents a two-dimensional paradox.
First, these agencies are viewed by many Indians as opponents to
Indian interests. Indeed, the Corps of Engineers is part of the
U. S. Army, which not so long ago was at war with some Indian tribes.
Participating in the activity of these agencies might be viewed by
some as inimical to Indian interests. Some may even think of it
as a form of treason. But these agencies would probably be more
responsive to Indian needs if Indians served on their staffs. Indians
need water projects, and it is these agencies that have the expertise
to build them.
A second facet of this paradox concerns Indian culture.
In order to preserve that culture Indians will have to get involved
in the political system of the dominant culture. In other words,
to preserve Indian culture Indians must become familiar with and
participate in Anglo culture. Cultural isolation and withdrawal
no longer affords much protection. The West has grown too small
for that. To protect their culture, and the land and resources it
is based upon, Indians must learn how to function effectively in
the Anglo system. This paradox is perhaps most obvious in terms
of the agencies cited above. Probably nothing is more alien to traditional Indian culture than bureaucracy, but this is precisely where
Indians, lacking the numbers to control elective institutions, can
have an impact. Both the Corps of Engineers and the Bureau of Reclamation are looking for new constituencies. Could Indian tribes
be that new constituency?
213
A fourth and final variable which may have an impact on future
water decisions concerns the context of negotiations over water rights.
Some Indians fear that the negotiation process will simply serve
as a vehicle for transferring Indian resources to non-Indians. To
be successful then, negotiations must be a give-and-take process.
It is clear what non-Indians want from Indians; an abandonment of
open-ended claims under the Winters Doctrine. But what will Anglos
give in return? One possibility is funding for water development,
which I have already discussed. Presumably the Corps of Engineers
or the Bureau of Reclamation would build those projects. This might
possibly hasten the development of an Indian constituency for these
agencies. Also, if continued non-Indian water development is contingent upon a settlement that requires Indian water development, then
the water project establishment might be willing to support Indian
projects as the price of continued Anglo development. Of course
this is most likely in a situation that does not require the zerosum allocation of water rights. In those situations that do require
a zero-sum allocation, non-Inidans might support a settlement as
a way of minimizing the damage to their own claims; they would support
an Indian project in return for a reduction in the amount of water
claimed by Indians. This is essentially what happended in the Papago
settlement.
The context of negotiations would be dramatically altered
if Indian tribes push for incentives other than those related to
water. Tribes may prefer additional land, increased aid for economic
214
development, or maybe changes in the status of tribal autonomy rather
than promises of water projects. The failure of the government to
adequately fund the Ah-Chin project has created doubts among Indians
about the wisdom of accepting the promise of a water project in return
for renouncing future claims under Winters.
A final aspect of negotiations which has important implications
for the future concerns the role of compensation. For many years
the federal government has pursued two mutually incompatible water
policies. To date, the Indians have been the primary victims of
that incompatibility. But merely confiscating non-Indian water to
satisfy legitimate Indian needs does not solve the problems created
by the federal government's contradictory policies; that would only
transfer the onus of past policy errors from Indians to a select
group of non-Indians. Clearly, compensation must play a major role
in negotiations. The solution to this problem will not be inexpensive
if the federal government honors its commitments to Indians and to
those who, in good faith, established water rights in accordance
with state laws.
In a recent issue of the CERT Report the authors asked a
very important question:
Throughout the western states the right to water use has
become a critical issue of staggering dimensions. Some
commentators describe the situation as that of an
escalating war--a bitter conflict between a host of water
users who must compete for dwindling supplies. . . .
Can a proliferation of this crisis be avoided? Can we
stop the mounting water war in the West? (1982:2)
215
At present it is a question without an answer. The stakes are immense.
Indians fear that their way of life will be destroyed if the Winters
Doctrine does not bring water to reservations. Samson Miller, VicePresident of the Mescalero Apache Tribe, has eloquently voiced this
concern:
• • . we are now in fear that our rights which were established
long ago might become eroded like the banks of a swift
running stream. . . . We fear that the water resources will
be spread too thin, that the promise of the Winters Doctrine
will become an empty shell (Report of the Commission on Civil
Rights, 1973:128).
Anglos, although not faced with cultural extinction, are
concerned about the economic impact of Indian claims to water. There
is no doubt that Indian water claims have the potential to significantly alter certain aspects of the western states' economies.
The ultimate resolution of the conflict between Indian and
non-Indian water users depends to a great extent on the ability of
the involved parties to negotiate in an atmosphere of trust. To
date, there has been precious little of that. Hopefully, the future
will offer an opportunity to develop new approaches to water policy
that serve both Indians and non-Indians.
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