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 ., 0 ..0 .--i <a ....,.. Z .. 0-) 0 --.1- 0 C 0 0 0 • .0 cn .0 0 ., Ln r--• r--- ,-1 CO CO CO .w 4-) -0 C) ..-1 c.) CL) 4-) •H) (.) 0 -0 H el. G G. H ,--i ch ri Ci ri .. CO' a a CO • H $4 • • a) G CO •• G P rz4 br, 1-1 P o P $.4 •H c..) CU P. 0 H •,--I •HI a P P .0 3-1 P .-I Hi C`) fi. 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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 99 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. 120 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. 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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 188 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 189 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. 192 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 193 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 196 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. 197 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. 199 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 201 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. 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