Western state water law has been notorious for its failure to protect streamflows. One potential means of providing the missing balance in western water allocation has always been Indian water rights, which are federal rights "reserved" from state laws. These federal water rights usually have priority over state-granted rights because they typically were created in the 19th century, well before most Western state water allocation systems were even established.

Over two decades ago, in 1983, Justice William Brennan assured Indian tribes that their reserved water rights would not be compromised by subjecting them to state court adjudications under the so-called McCarran Amendment, an appropriations rider given expansive interpretation by the Supreme Court in the 1970s and 1980s. Justice Brennan's belief that state courts--comprised largely of elected judges--could treat tribal claims evenhandedly, despite the high stakes and entrenched interests involved in Western water rights adjudications, has never been evaluated.

This study aims to begin to fill that gap by examining the results of six Western water right adjudications--five of which were in state courts--involving the Klamath, Wind, Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The results suggest that Justice Brennan's optimism was quite misplaced: in none of the cases studied did a court order restoration of streamflows necessary to fulfill the purpose of the tribe's reservation. Instead, in an apparent effort to reduce the displacement of current water users, the state courts created a number of new legal principles to limit or diminish tribal water rights..

The paper concludes that in the McCarran Amendment Era tribes must resort to extrajudicial means of restoring streamflows necessary to fulfill the purposes of their reservations. It shows how some tribes have employed settlements--and even state law--to achieve partial streamflow restoration, which is all that now seems possible in an era in which their claims are usually judged by skeptical state court judges who face reelections in which entrenched water users exert considerable influence.

Just like the desert shows a thirsty man
A green oasis where there's only sand.
You lured me into something I should have dodged.
The love I saw in you was just a mirage.
--Smokey Robinson (1967)[1]

I. Introduction

Reserved water rights have always been controversial in the West. The Supreme Court created the doctrine in its famous Winters decision of 1908,[2] basically to interject some equity into federal-tribal relations in which Indian reservations were being "pulverized" by Dawes Act allotments.[3] The reserved rights doctrine, which awards water to federal reservations to fulfill their purposes, has the potential to destabilize western water rights built around state systems grounded on diversions and temporal priority because the priority assigned these federal rights is the date of the reservation, not the date of use.[4] And since fulfilling the purposes of federal reservations often requires maintaining streamflows for wildlife, watershed, and aesthetic purposes, application of reserved rights offered the prospect of restoring streamflows depleted by state systems which offer little effective protection for instream uses.[5]

Although reserved water rights are the product of federal law, due to a 1952 appropriations rider known as the McCarran Amendment,[6] federal reserved water rights are increasingly being interpreted by state courts. After the U.S. Supreme Court ruled that the McCarran Amendment waived the federal government's sovereign immunity defense and gave consent for the government to be joined in state court suits determining the water rights of all users within a river basin,[7] the Court ruled that reserved rights were subject to state adjudications.[8] The Court then twice ruled that Indian reserved rights were subject to McCarran Amendment adjudications.[9]

The policies served by the McCarran Amendment, as Justice Brennan explained in the San Carlos Apache decision, are to avoid "duplicative litigation, tension and controversy between the federal and state forums, hurried and pressured decisionmaking, and confusion over the disposition of property rights."[10] In dissent, Justice Stevens responded that federal courts were an appropriate forum for resolving Indian reserved water rights, and their decisions could then be incorporated into state decrees.[11] Stevens observed that: "States and their citizens may well be more antagonistic toward Indian reserved rights than other federal reserved rights, both because the former are potentially greater in quantity and because they provide few direct or indirect benefits to non-Indian residents."[12] He cited a congressional promise in the federal courts' jurisdictional statute that Indian tribes could invoke a neutral federal forum,[13] and also the McCarran Amendment's silence regarding Indian tribal claims.[14]

Whether Justice Brennan's or Justice Stevens's view of the appropriateness of state court adjudications of Indian reserved water rights has proved more accurate, and whether the resolution of Indian reserved water rights claims actually produces streamflow restoration, have never been carefully studied. This article attempts to fill that void by examining the assertion of tribal reserved water rights claims in six well-known cases over the last quarter-century. These cases form the bedrock of modern tribal reserved rights law in the McCarran Amendment Era. They include McCarran Amendment adjudications in five different western states, plus one federal court proceeding, and involve celebrated rivers like the Klamath, the Big Horn, the Yakima, the Snake, and the Gila, as well as Pyramid Lake.

The article first explains the case law these adjudications have produced. Although reserved water rights are the product of federal law, application of the McCarran Amendment has produced a fractured doctrine, as state courts make their own interpretations of federal law. This examination should help clarify the origins and nature of some these fissures. More importantly, the article explores the result of the assertion of reserved tribal rights claims on streamflows in the West. The study reveals that reserved rights case law in the McCarran Amendment Era has not produced restored western streamflows. Instead, any streamflow improvements were more likely the product of settlements or from negotiations with state water agencies and congressional delegations after tribal reserved rights received judicial recognition.

In short, by authorizing state courts to interpret federally-reserved water rights, the McCarran Amendment has forced tribes into hostile forums in which tribes must be prepared to compromise their claims for streamflows that fully support the purposes of the reserved rights, perhaps settling for stream improvements that can partially restore river ecosystems. Although tribal reserved water rights claims may open the door to discussions about streamflow restoration, in practice the McCarran Amendment Era has reduced these claims to mere bargaining chips rather than vehicles for achieving the purpose of reservations through streamflow restoration.

This article proceeds to examine each of the six assertions of reserved rights, including the history of litigation and its aftermath, focusing specifically on whether that aftermath has included any improvements in streamflows. Five of the cases involve McCarran Amendment adjudications in which state courts have or will determine the scope and sometimes the existence of reserved water rights: Oregon's Klamath Basin adjudication, Wyoming's Big Horn adjudication, Washington's Yakima Basin adjudication, Arizona's Gila River adjudication, and Idaho's Snake River adjudication. A sixth case study, the controversy over Truckee River flows into Pyramid Lake, did not involve a state McCarran Amendment adjudication, but the Pyramid Lake Pauite Tribe has successfully employed state law to improve streamflows in the wake of the Supreme Court's refusal to recognize the tribe's reserved water necessary to sustain its fishery. Several tribes have successfully pursued post-adjudication settlements, usually aided by congressional funding.[15]

The article concludes that in the McCarran Amendment Era, tribal hopes for a neutral forum to adjudicate their reserved water rights claims has been largely a mirage. In this era, now dominated by state law and state courts, tribes must pursue settlements which compromise their water right claims based on fulfilling the purpose of the reservation, or they must emulate the dexterity with federal and state law that the Yakama Nation and Pyramid Lake Tribe have shown following their judicial defeats.

II. The Klamath Tribes' Reserved Rights: Time Immemorial Priority and a Thirty-Year Delay

The Klamath River rises in Upper Klamath Lake, in south-central Oregon, at the confluence of the Wood, Williamson, and Sprague Rivers, and winds circuitously through the Cascade Mountains in southwest Oregon and the Klamath National Forest in northwestern California before emptying into the Pacific Ocean twenty miles south-southeast of Crescent City.[16] The Klamath Basin encompasses 15,600 acres. The basin is divided between California and Oregon, with two-thirds located in California. For several thousand years before the first white settlers ever set foot in the region, the Klamath Tribes[17] hunted, fished, and foraged for subsistence throughout the Klamath River Basin.[18] Historically, the tribes were dependent on the river and the fish it produced, harvesting thousands of pounds of fish annually.[19]

In 1864, the Klamath Tribes relinquished their aboriginal title to more than 22 million acres in south-central Oregon and northern California to the United States in return for a reservation of approximately 1.9 million acres in south-central Oregon, and the "exclusive right" to hunt, fish, and gather on the reservation.[20] Despite some instability in the years following the treaty concerning the boundaries of the reservation,[21] the Klamath Tribes established several successful economic enterprises, including freight and cattle companies and a successful sawmill.[22] The Klamath Tribes achieved a measure of social and economic self-sufficiency which practically no other Indian tribe could match,[23] apparently encouraging Congress to terminate the Klamath reservation in the misguided 1954 Klamath Termination Act.[24] In enacting the Klamath Termination Act, Congress sought to eliminate federal superintendence over the tribes, dispose their land, and abolish federal services available to them.[25] Under the Act, most were induced to give up their interest in tribal land for a cash payment.[26] For those members who opted not to accept the cash payment, the federal government placed a portion of the otherwise liquated reservation in a private trust for the remaining tribe members.[27] In 1973, the private trustee sold the land that it was holding in trust for those members and disbursed the proceeds to those Indians who had refused the initial payment.[28]

Although the Klamath Termination Act explicitly preserved the tribes' water and fishing rights,[29] the state of Oregon disputed the significance and extent of the tribes' rights, arguing that the rights could be exercised only by Indians who were members of the Klamath Tribes at the time of the Termination Act, and that tribal rights did not extend to any lands that had been disposed under the General Allotment Act of 1887.[30] In 1979, in the second Kimball v. Callahan,[31] the Ninth Circuit rejected Oregon's arguments, holding that the Termination Act expressly recognized and secured the tribes' hunting and fishing rights.[32] Moreover, the court held that those rights extended to the descendants of every member of the tribe.[33] The court did rule, however, that the tribes' treaty hunting and fishing rights could be regulated by the state for conservation purposes.[34]

A. The Adair Cases: Recognition Without Water

The federal government filed suit in 1975 in an effort determine the water rights of the U.S. Fish and Wildlife Service, which had succeeded to the tribes as owner of the Klamath Marsh--now the Klamath National Wildlife Refuge--within the Williamson River Basin.[35] The tribes intervened to protect their treaty water rights necessary to protect the hunting and fishing rights that the Kimball decision ruled had survived termination.[36] The district court did not issue its first opinion in United States v. Adair (Adair I)[37] until 1979, about the same time the Ninth Circuit decided Kimball. Adair I confirmed that the 1864 Treaty guaranteed the tribes an implied right to water necessary to protect the tribes' fishing and hunting rights.[38] Perhaps more significantly for water users throughout the Klamath Basin, however, the court concluded that these impliedly reserved rights had a "time immemorial" priority date, which survived the termination of the reservation.[39]

The state and the non-Indian water users in the Klamath Basin appealed to the Ninth Circuit, arguing that the district court erred in awarding reserved water rights to the tribes.[40] The state also argued that the district court should have dismissed the case under the Colorado River abstention doctrine.[41] In United States v. Adair (Adair II),[42] the Ninth Circuit rejected the state's abstention arguments, concluding that the district court properly exercised federal jurisdiction.[43] The appeals court noted that the district court carefully limited its ruling to a determination of the priority of reserved water rights arising under federal law and left the actual quantification and administration of those rights to the state proceeding.[44] By so doing, the district court's ruling actually furthered the policy considerations underlying the McCarran Amendment and the abstention doctrine--that is, avoiding duplicative and piecemeal adjudication of water rights and promoting judicial efficiency. [45]

On the merits of the case, the Ninth Circuit affirmed the district court's holding that at the time the Klamath Reservation was established, Congress intended to reserve water on the reservation "not only for the purpose of supporting Klamath agriculture, but also for the purpose of maintaining the Tribe's treaty right to hunt and fish on reservation lands."[46] Although the Ninth Circuit upheld the district court's "time immemorial" priority date, the court confusingly qualified the Klamath Tribes' fishing rights, stating that the treaty entitled the tribes only to "the amount of water necessary to support its hunting and fishing rights as currently exercised to maintain the livelihood of Tribe members, not as these rights once were exercised by the Tribe in 1864."[47] According to the court, the Klamath Tribes' hunting and fishing rights "secure[] so much as, but not more than, is necessary to provide the Indians with a livelihood--that is to say, a moderate living."[48] The court also noted that whatever the scope of the Indian reserved hunting and fishing right, it did not entitle the tribes to restored wilderness conditions--what the court called a "wilderness servitude."[49] It would be a mistake, however, to interpret Adair II as foreclosing restoration of river flows, since the court's statement was that the tribes were entitled to "the amount of water necessary to support its hunting and fishing rights as currently exercised to maintain the livelihood of Tribe members, not as these rights once were exercised by the Tribe in 1864. . . . unless, of course, no lesser level will supply them with a moderate living."[50]

Shortly after the federal government filed suit in Adair I, the state of Oregon initiated the Klamath Basin Adjudication in 1975.[51] The state took virtually no further adjudicative action for nearly fifteen years, however. Consequently, the state was compelled to reissue notices of intent to adjudicate to all water users in the basin when it finally decided to proceed with the adjudication in 1990.[52] The state's 1990 issuance of notices of intent prompted the United States to challenge the adequacy of Oregon's adjudication of federal reserved water, fishing, and hunting rights.[53]

In United States v. Oregon,[54] the federal government argued that despite the McCarran Amendment's waiver of sovereign immunity, Oregon's adjudication was insufficiently comprehensive to warrant the application of the waiver because it excluded groundwater claimants and those with state-certificated rights.[55] The federal government also maintained that the McCarran Amendment waived sovereign immunity as to "suits" in "court"--not state administrative adjudications.[56] The Ninth Circuit rejected these arguments, holding that tribal reserved water rights could be quantified in state adjudication, even if the that adjudication begins before an administrative agency and excludes certain classes of water rights holders.[57] Despite that decision, the state has made only glacial progress quantifying Indian reserved water rights--or any other water rights for that matter--in the Klamath Basin.

More than twenty years after the district court first recognized the existence, scope, and priority of Indian water rights in the Klamath Basin, the federal government and the Klamath Tribes returned to federal court to ask whether the tribes' reserved water rights included water to support their gathering rights, and how the "moderate living" standard announced in Adair II applied to the quantification of the tribes' water right.[58] In United States v. Adair (Adair III),[59] Oregon District Court Judge Owen Panner confirmed that the Klamath Tribes' reserved water rights included water necessary to support the tribes' gathering rights, as well as their hunting, fishing, and trapping rights, and that the priority date for those rights was time immemorial.[60]

The district court then proceeded to address the relationship between the "moderate living" standard and the quantification of the tribes' reserved water rights, flatly rejecting any state quantification of the tribes' reserved water rights that failed to reserve enough water to support a "productive habitat."[61] Noting that the "moderate living" standard qualifies--rather than replaces--the initial quantification of Indian reserved water rights, the court outlined a two-step approach to determining its effect on the quantity of the tribes' right.[62] First, the tribes were entitled to "'whatever water is necessary to achieve' the result of supporting productive habitat."[63] Second, the court concluded that the "moderate living" standard applied only "if tribal needs may be satisfied by a lesser amount."[64] The court noted that without water sufficient to fulfill the purposes of the reservation, state water users could effectively abrogate tribes' treaty rights to hunt, fish, gather, and trap on reservation lands--yet only an Act of Congress may terminate Indian treaty rights.[65]

Finally, the court turned to the parties' dispute concerning the meaning of the Ninth Circuit's "as currently exercised" language in Adair II, which the state maintained restricted the scope of the tribal right to that amount of water used in 1979. Judge Panner rejected that argument, concluding that the "as currently exercised" phrase must be construed to refer "only to the moderate living standard which recognizes that changing circumstances can affect the measure of a reserved right."[66] Any other result, he concluded, would be inconsistent with the fulfillment of the purposes of the reservation.[67]

The state and several individual water users appealed to the Ninth Circuit, arguing that the district court should either have dismissed the case on ripeness grounds or abstained from exercising its jurisdiction.[68] Oregon claimed that the state agency's 1999 "Preliminary Evaluation" established no permanent standard for measuring the tribes' water rights, since the parties were free to contest those findings through administrative processes and eventually before the Oregon courts.[69] Because there was no final Klamath Basin Adjudication determining the scope and extent of the tribes' reserved rights, Oregon argued that the case was not yet ripe.[70]

The Ninth Circuit agreed with the state, holding that further factual development of the Klamath Basin Adjudication was necessary to determine what standard of quantification Oregon would actually apply to the tribes' rights.[71] Until the Oregon Water Resources Department (OWRD) embraced and applied a final standard for determining the tribes' rights, the state's "minimum amount of water necessary" standard was subject to change. Indeed, there were at least two steps--the administrative hearings and the final administrative decision--at which that standard could be altered.[72] Thus, the state's preliminary adoption of the "minimum amount of water necessary" was not a final agency action ripe for review.[73]

By dismissing the case on ripeness grounds, the Ninth Circuit avoided ruling on the merits of Judge Panner's habitat protection ruling.[74] More significantly, however, the decision effectively precluded further federal court review of any Klamath Tribes' reserved water rights claims until the state completes the Klamath Basin Adjudication.[75] This is an exceedingly complex and time-consuming process that started thirty years ago, and is unlikely to be completed any time soon.

In the Adair decisions, the federal courts confirmed that the Klamath Tribes have time-immemorial reserved water rights, including instream flows, to satisfy the purposes--hunting, fishing, trapping, gathering, and agriculture--for which the tribes and federal government agreed to establish the Klamath Reservation in 1864.[76] However, as a result of the Oregon and Braren decisions, the quantification of these water rights is now left to the state OWRD administrative adjudication.[77] Although the federal courts acknowledged the tribes' paramount water rights nearly a quarter-century ago, the state provides no protection for those rights until the OWRD manages to quantify them in the state adjudication.

B. The Situation Today

Following unsuccessful efforts in the late 1990s and early 2000s to resolve Klamath water rights claims through an alternative dispute resolution process,[78] OWRD broke the tribal water rights claims into eight separate cases that corresponded to the different subbasins of the Klamath River, including Klamath Lake, and Klamath Marsh.[79] In late 2005 and early 2006, the tribes, the federal government, and other parties briefed the issues in these cases for the state's Office of Administrative Hearings of OWRD.[80] This agency scheduled hearings for 2007, with the goal of issuing a decree by the end of that year.[81] Although the state announced that the 1999 "preliminary evaluation" standards at issue in Braren will be given no weight in the forthcoming adjudication,[82] it is hardly clear just what standards, beyond those articulated in the Adair cases, ODWR will apply in quantifying the tribes' reserved instream rights.

Over a quarter-century after the court in Adair I recognized the Klamath Tribes' reserved instream flow rights, the Klamath tribes continue to await the outcome of the state comprehensive adjudication process in order to obtain river water to which their treaty entitles them. Although the litigation that the tribes undertook to obtain recognition of their reserved water rights was a critical first step on the road to obtaining "wet rights" to instream flows, it is quite evident that that was only the first step in a process which has yet to come to full fruition. And partly because the tribes' water rights claims have languished in the state administrative process, Klamath River salmon runs reached critically low levels, requiring the closure of the off-shore salmon harvesting along the Oregon and northern California coasts in 2006.[83] Litigation and negotiations continue over the relicensing or removal of four dams licensed to Pacificorp, currently blocking treaty-reserved fish from passing up the Klamath River into Oregon.[84] The scope of the Klamath Tribes' reserved water rights might be resolved as part of a settlement focusing on fish survival and dam removal,[85] making the state administrative water rights adjudication moot.

III. The Wind/Big Horn River Litigation: Water Rights That Cannot Be Used

The Wind/Big Horn River system originates in several creeks along the north side of the Wind River Mountains Range in west-central Wyoming. The Wind flows about 200 miles southeasterly across the Shoshone Basin and through the Wind River Indian Reservation, then northward, through a gap in the Owl Creek Mountains where, after flowing out of Boysen Reservoir, its name becomes the Big Horn River, a tributary of the Yellowstone River.[86] The 1868 Second Treaty of Fort Bridger established the Wind River Indian Reservation for the Eastern Shoshone Tribe.[87] Ten years later, the federal government moved the Northern Arapaho onto the reservation.[88] The reservation was subsequently diminished in a series of agreements the federal government negotiated with the tribes.[89] By the turn of the 20th century, the tribes--once nomadic buffalo hunters--were failed agrarians, dependant on the federal government for food, shelter, and clothing.[90]

Meanwhile, settlers inhabited the tribes' ceded lands under public land disposal statutes. They first settled lands along the river that could be easily irrigated in the semi-arid climate. Gradually, they expanded into the upper basin, where irrigation projects (both private and government-funded) were necessary to sustain agriculture.[91] There is consequently considerable non-Indian irrigation on both ceded lands and the reservation itself.[92]

A. The Big Horn Adjudication

In January 1977, the Wyoming legislature, responding to the Supreme Court's 1976 decision subjecting tribal reserved rights to McCarran Amendment procedures,[93] authorized system-wide state adjudications for water rights, including federal water rights.[94] Two days later, the state filed suit in Wyoming district court concerning the Big Horn River Basin, including among the defendants the federal government as trustee for the tribes.[95] In what became the first state court quantification of Indian reserved rights, the district court appointed a special master who, after four years of proceedings, issued a 1982 report recommending that the court find that the purpose of the Wind River reservation was to establish a permanent homeland for the tribes and recognize a reserved water right for the tribes to fulfill that purpose. The master quantified reserved rights for irrigation, stock watering, fisheries, wildlife, aesthetics, as well as for domestic, commercial, industrial, and municipal uses.[96]

In its 1983 decision, the district court declined to adopt the master's recommendations, refusing to recognize reserved rights for non-agricultural purposes. However, the court did approve the part of the master's report that quantified reserved irrigation rights based on the number of practicably irrigable acres within the reservation.[97] The court concluded that the purpose of the Wind River reservation, as evident from the text of the Second Treaty of Fort Bridger, was "purely agricultural."[98] The state, the tribes, and numerous other parties appealed to the Wyoming Supreme Court.

Six years after the district court decision, a fractured Wyoming Supreme Court affirmed the district court.[99] Concerning the reservation's purpose, the court acknowledged the canon of treaty construction that calls for construing treaties generously in favor of the tribes but emphasized the treaty language referring to "said agricultural reservations."[100] This phrase, along with other treaty provisions authorizing agricultural allotments, providing seeds and farm implements, and promising stipends and bonuses for farming, convinced the court that the sole purpose of the reservation was agricultural.[101] The court was not persuaded by the tribes' clear intention of continuing to hunt and fish on the reservation or by post-treaty agreements and Indian agent reports describing the continuation of such non-agrarian pursuits.[102]

In terms of instream flows, the most important tribal claims were for fisheries and for wildlife and aesthetics. The Wyoming Supreme Court recognized that other courts had recognized reserved water rights for fisheries, but the court noted that those were due to express treaty provisions or situations where tribes "were heavily, if not totally, dependent on fish for their livelihood."[103] The court faulted the special master for thinking that a reserved right for fishing could be implied where a tribe was only "partially dependent upon fishing," noting that the district court determined that the Wind River tribes had "neither a dependency upon fishing nor a traditional lifestyle involving fishing."[104] Absent an express treaty provision or an historic heavy dependence on fishing, the court would imply no reserved right for fish.[105]

As for wildlife and aesthetics, for which the master had awarded sixty percent of historic flows, the district court found insufficient evidence justifying reserved rights for these purposes.[106] The Wyoming Supreme Court affirmed the district court's conclusion that the reservation's purpose was exclusively agricultural, observing that no other purpose was mentioned in the treaty language, and determining that the tribes and the federal government failed to introduced sufficient evidence of "a tradition of wildlife and aesthetic preservation" to justify an implied reserved water right.[107]

Although the court's rulings on instream issues were adverse to the tribes, and the court also rejected the tribes' claim for reserved groundwater,[108] the decision did produce a substantial award for tribal irrigation. Using the "practicably irrigable acreage" test to measure the scope of the reserved irrigation right,[109] the court affirmed a quantification of over 500,000 acre-feet of water.[110] When the U.S. Supreme Court affirmed, dividing evenly on the issue of applying the practicably irrigable acreage test after Justice O'Connor recused herself,[111] the tribes were left with a substantial amount of water for an agricultural purpose that they did not wish to pursue.[112]

In order to use part of its decreed reserved rights for instream purposes, the tribes proceeded to adopt the Wind River Interim Water Code and establish the Wind River Water Resources Control Board, which in turn issued an instream flow permit for 252 cubic feet per second of Wind River flows for "fisheries restoration and enhancement, recreational uses, groundwater recharge, and downstream benefits to irrigators and other water users."[113] But when the tribes subsequently complained to the state engineer that upstream diverters were depleting Wind River flows below the level called for in the tribal permit, the engineer refused to take action against the diverters, claiming that tribes' right was only to divert water, not preserve stream flows.[114]

The tribes sued, and the Wyoming district court appointed another special master, who issued another report favoring the tribes. This time the district court agreed with the master, declaring that the tribes could use their federal reserved rights as they wished, regardless of Wyoming state law, and appointing the tribal water agency as the administrator of all on-reservation water rights.[115] But a deeply divided Wyoming Supreme Court reversed.

The court produced five different opinions from its five justices.[116] A majority ruled that the tribes could not change the use of their reserved rights to future water[117] from irrigation to instream, but the reasoning was hardly clear. Two justices concluded that the change was impermissible because it was inconsistent with state law, which restricted instream flows to state ownership.[118] Another thought that state law did not govern, but that the federal treaty prohibited instream use.[119] Both interpretations ignored U.S. Supreme Court precedent upholding the right to transfer irrigation water to other uses.[120] The court also overruled the district court concerning the tribal water agency administering on-reservation water rights, concluding--again on a 3-2 vote--that only the state engineer possessed authority to administer water rights.[121]

B. The Situation Today

The Wyoming Supreme Court decisions frustrated the Shoshone and Arapaho Tribes' efforts to secure instream flows in the Wind River. Tribal efforts to develop water for irrigation on the Wind River Reservation, and to seek alternative means of securing instream flows, have been in limbo for the past fifteen years, in part due to lack of funding for water projects on the reservation.[122] However, the tribes continue to negotiate with the state and federal governments over the use of their reserved water rights, including the possibility of exchanging a portion of their water rights for funding of on-reservation water projects.[123] Although the Wyoming Supreme Court decisions stopped the tribes from transferring their water to instream use, it is possible that the tribes may be able to persuade the state to obtain and hold instream rights in exchange for allowing more water storage on the Wind River Reservation.[124] Additional water storage is an important goal for the state, and the reservation is the only feasible location for building new storage in the Wind River Basin.[125]

In addition to their continuing efforts to secure additional instream flows and water development opportunities based on the tribes' decreed reserved water rights, the tribes have worked with the United States Environmental Protection Agency (EPA) on civil and criminal enforcement of the Clean Water Act in order to preserve the water quality in the Wind River and to improve water delivery on the reservation. In 2001, EPA ordered a cattle company to restore a section of the Wind River it had degraded by releasing some 4,000 cubic yards of streambed sediment into the river.[126] Four years later, three businesses agreed to settle EPA claims for polluting within the boundaries of the Wind River Reservation in violation of the Clean Water Act, Safe Drinking Water Act, and Oil Pollution Act by paying $1.327 million in penalties.[127] The violations included underground injection and surface discharges which contaminated tribal drinking water.[128] The penalties included some $700,000 for so-called "supplemental environmental projects" on the reservation, including the purchase and installation of piping and other equipment to upgrade water treatment facilities and provide better quality and quantity of drinking water to tribal members.[129] And, in 2006, with the tribes participating as amicus in the appeal, the Tenth Circuit upheld the conviction of an irrigation district manager for building earthen dikes in the Wind River adjacent to the reservation in violation of the Clean Water Act.[130] Although these regulatory enforcement efforts have not put water back in the river, they have helped improve the quality of the water that is there and will allow the tribes to develop projects that may reduce water waste on the reservation, potentially enhancing stream flows.[131]

IV. The Yakama Effort to Restore a Salmon Stream: "Time-Immemorial" But "Diminished" Reserved Rights

The headwaters of the Yakima River are in the Cascade Mountain Range in central Washington. The Yakima, which flows some 214 miles southeasterly until it joins the Columbia River near Tri-Cities, Washington, was once home to the largest salmon runs in the upper Columbia Basin,[132] but has been subject to heavy irrigation since the late 19th century. Largely as a result of dam building and irrigation diversions, Yakima Basin salmon declined from nearly 1,000,000 returning adults to fewer than 5,000 by the mid-1990s,[133] and its coho (Oncorhynchus kisutch), sockeye (Oncorhynchus nerka), and summer chinook (Oncorhynchus tshawytscha) runs went extinct.[134]

The decline of Yakima Basin salmon has been especially difficult for the Yakama Indian Nation, which has been dependent on salmon fishing for subsistence, commerce, and culture for centuries.[135] The Yakama Reservation, established by treaty in 1855,[136] was established in part to allow the tribe to continue their historic fishing practices. The treaty expressly promised the tribe the exclusive right to take fish on-reservation and also "the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory," off of the reservation.[137] The Yakama joined in litigation filed in 1970, seeking, among other things, to have a federal court declare that the express treaty "right of taking fish" supplied protection of salmon habitat from degrading activities like irrigation diversions. The district court deferred on that issue but ruled that the treaty entitled the tribes the right to half of the salmon harvests,[138] which the Supreme Court affirmed in 1979.[139]

A. The Acquavella Adjudication

After the Supreme Court decision, the Yakama renewed their habitat protection claim, maintaining that the operation of a Yakima Basin dam was threatening to dewater salmon redds (nests). In the fall of 1980, the district court ordered that sufficient water be left in the Yakima River to protect the threatened redds,[140] a result the Ninth Circuit eventually affirmed in 1985.[141] Neither this case, nor the Supreme Court's 1979 decision dealt directly with the tribes' reserved water rights, however, as those were already at issue in a McCarran Amendment adjudication of all rights in the Yakima Basin, known as the Acquavella adjudication, which the state filed in 1977.[142] In 1989, after considerable procedural wrangling,[143] the district court quantified the Yakama Nation's reserved rights for irrigation and ruled that while the tribe had reserved water for fish with a priority date of "time immemorial,"[144] the scope of the tribe's reserved right for fish had been substantially diminished and were limited to the minimum instream flow necessary to maintain anadromous fish life in the river, according to annual prevailing conditions.[145]

The Washington Supreme Court affirmed in a puzzling 1993 decision. Employing standard rules of treaty interpretation, the court noted that ambiguities must be interpreted in the tribes' favor, and therefore ruled that neither a 1906 federal statute authorizing dams in the Yakima Basin, nor a 1914 statute expanding the tribe's irrigation water rights, nor other government actions over the years terminated the tribe's fishing rights.[146] But in an apparent effort to avoid ordering a restoration of treaty-time streamflows, the court concluded that a series of unspecified government actions between 1905 and 1968 produced "encroachment upon and significant damage to the Indians' treaty fishing rights," and consequently "substantially diminished"--though they did not abrogate--such rights.[147] Thus, the court affirmed the trial court's ruling that the Yakama's reserved water for fishing was limited to the minimal amount necessary to maintain salmon, according to annual prevailing conditions.[148] This unprecedented interpretation of diminishing--or partially abrogating--treaty rights, despite a lack of clear intent to abrogate, was inconsistent with Supreme Court standards.[149]

The court drew support for its diminishment rationale from a 1968 Indian Claims Commission settlement, in which the tribe accepted $2.1 million for damage to its fishing rights occurring as a result of dam construction, unscreened irrigation diversions, and the like.[150] But while the claims commission had jurisdiction to award damages, it had no jurisdiction to take or diminish treaty rights, a fact subsequently noted by the New Mexico Court of Appeals in refusing to follow the Washington Supreme Court's reasoning.[151]

B. The Situation Today

The Washington Supreme Court decision seemed to be a crushing blow to the Yakama Nation's efforts to restore salmon runs to the Yakima Basin. But in 1995 the trial court in the McCarran adjudication interpreted the Supreme Court's recognition of a limited habitat right "to maintain fish life" in the river as requiring both tributary flows and flushing flows in the mainstem.[152] The latter decision required the Bureau of Reclamation to release some 600 acre-feet of storage water to help facilitate fish migration.[153]

In ensuing years, the Yakama Nation has successfully litigated and negotiated to obtain "wet" rights based on its reserved water rights and to keep additional water in the Yakima River and its tributaries. After the federal court's decision protecting the imperiled salmon redds from dewatering in 1980,[154] the Bureau of Reclamation began operating the Yakima Project[155] using "flip-flop operations," which means annually reducing flows in the upper arm of the Yakima River, while increasing flows in the Naches River, an upper tributary of the Yakima, to ensure that spring chinook salmon redds remain inundated.[156] In 1994, after the Washington Supreme Court recognized the Yakama Nation's "diminished" instream flow rights,[157] Congress passed the Yakima River Basin Water Enhancement Project Act.[158] One goal of this statute was to provide increased instream flows to protect salmon and steelhead runs.[159] The legislation included specific numerical criteria for instream flows, including target flows at two dams in the Yakima Project.[160] The statute also established a Conservation Advisory Group, including representatives of the Yakama Nation and other stakeholders, to provide recommendations for a basinwide conservation program.[161]

The Yakama Nation has also been successful in directly influencing the operations of the Yakima Project to improve instream flows for fish protection. The Yakama now have a voice in setting the level of instream flows through the Yakima Project System Operations Advisory Committee, a group of fishery biologists (including biologists from the Yakama Indian Nation), which advises the Bureau of Reclamation Secretary of the Interior regarding annual biologically-based flows for salmon protection.[162] The Secretary uses these recommendations to determine the flows necessary to maintain all the life stages of the fish in the Yakima River and tributaries.[163] The Yakama Nation retains the right to have the state court enforce minimum flows under prior orders in the Acquavella adjudication, but to date it has not had to do so.[164]

The Yakama Nation has also participated in negotiations that have led to the settlement of water rights claims in the on-going adjudication, resulting in several irrigation districts agreeing to give up part of their claims to water rights and implement water conservation projects to enhance instream flows.[165] For example, in 2003, a settlement among the Sunnyside Division, the Washington Department of Ecology, the Bureau of Reclamation, and the Yakama Nation gave Sunnyside and its members confirmed water rights of 435,422 acre-feet.[166] Sunnyside waived its claims to another 23,098 acre-feet, reducing the demand on Yakima Basin streamflows,[167] and also agreed to implement water conservation projects by 2016 that will achieve a total savings of 29,162 acre-feet of water, two-thirds of which will augment Yakima Basin flows.[168] Although all parties agreed to keep these improved instream flows to satisfy the Yakama Nation's reserved water rights and Yakima Project purposes,[169] the settlement is silent as to the legal mechanism for doing so.[170] The federal Bureau of Reclamation holds title to the water, but only the state of Washington can hold title to instream flow rights under state law.[171] Because the Bureau does not want to relinquish title, one possibility is a long-term (e.g., 99-year), nominal-fee lease from the federal government to the state that would allow the state to place the water rights into the state trust water rights program.[172]

Thus, through litigation, negotiation, and settlement, the Yakama Nation has been able to improve Yakima Basin streamflows for fish habitat protection over the last two decades. The tribe has not invariably triumphed in court,[173] but judicial recognition of the existence of its reserved water right for fish equipped the tribe with leverage that it has been able to successfully employ in administrative and congressional fora, producing some promise of restored salmon runs in the Yakima Basin after over a century of decline.

V. The Gila River Settlements: Water Quality, A Challenge to PIA, and Some Wet Water

The Gila River, a tributary of the Colorado River, is one of the largest desert rivers in the world, historically flowing for some 630 miles. It rises in the mountains of western New Mexico, flows southwest through the Gila National Forest, through the San Carlos Apache Reservation in eastern Arizona, and then westward across Arizona, where it flows through the Gila River Indian Community (GRIC) southwest of Phoenix. Below Phoenix, due to agricultural and municipal diversions, the river is largely a trickle; prior to water project development it flowed intermittently into the Colorado near Yuma, Arizona.[174] The Gila was largely excluded from the epic Supreme Court litigation over the Colorado River that pitted Arizona against California.[175]

The GRIC includes twenty-two villages within a 580-square mile reservation in central Arizona, southwest of Phoenix.[176] Congress established the reservation, shared by the Akimel O'odham (Pima) and the Pee Posh (Maricopa) people, in 1859.[177] The people of the GRIC traditionally depended on agricultural crops watered by the Gila River for their livelihood.[178]

A. The Globe Equity Decree and Ensuing Litigation

In 1937, the U.S. government completed Coolidge Dam, creating the San Carlos Reservoir[179] on the Gila River upstream from the community and downstream of the San Carlos Apache Reservation. The dam's purpose was to store flood waters, half of which were reserved for allottees on the GRIC.[180] Downstream of Coolidge Dam, the Gila flows to the Ashurst Hayden Dam, which diverts water to the GRIC and to non-Indian irrigators.[181] Below Ashurst Hayden Dam, the river is ephemeral, flowing only in response to precipitation or water releases from upstream dams.[182]While there is now no consistent streamflow on the reservation, the river was intermittent pre-development.[183]

There has been considerable conflict over Gila River flows over the past eighty years, the precipitating event being congressional authorization of the Coolidge Dam in 1924 for the primary purpose of providing water to allotted lands on the GRIC.[184] The next year, the federal government filed suit, seeking a judicial determination of the rights and priorities of both Indians and non-Indians to Gila River streamflows.[185] A decade later, the parties agreed to a consent decree, the 1935 Globe Equity Decree (so named because it was entered by the federal district court located in the city of Globe), which established the measure, extent, and limits of the rights of all the parties and their successors in interest to divert the waters of the Gila River. Without expressly mentioning reserved rights, the decree recognized that the Pima Indians of the GRIC had an "immemorial" priority right to 120,000 acre-feet of irrigation water, and the Apaches above the reservoir had an 1846 priority date (prior to all other diverters) to 6,000 acre-feet of irrigation water.[186]

Implementation of the Globe Equity Decree produced numerous legal skirmishes over the years.[187] One pathbreaking judicial result was the 1994 decision of the federal district court ruling that irrigators upstream of the San Carlos Apache Reservation had to allow the tribe's 6,000 acre-feet irrigation water to flow undiverted, in order to ensure that the quality of the water delivered to the reservation was sufficient to grow crops, the first decision to recognize the important proposition that water quality was a component of reserved rights.[188] Encouraged by the Supreme Court's expansive view of the McCarran Amendment's waiver of federal sovereign immunity,[189] the Salt River Valley Water Users Association initiated what became the Gila River adjudication in 1974.[190] Between 1992 and 2006, the Arizona Supreme Court produced six major decisions in the Gila adjudication.[191]

The most significant of these decisions were the Arizona Supreme Court landmark rulings in 1999 and 2001, which--disagreeing with the Wyoming Supreme Court on several issues[192]--held that 1) groundwater could be the subject of a reserved rights claim;[193] 2) the purpose of establishing an Indian reservation was to create a "permanent home and abiding place";[194] and 3) the standard measurement for reserved irrigation water--"practicably irrigable acreage" (PIA)--was not the exclusive measure of reserved water.[195] The court concluded that basing the scope of reserved rights on potential irrigation in the 21st century was inequitable, anachronistic, and potentially overly generous:

A permanent homeland requires water for multiple uses, which may or may not include agriculture. The PIA standard, however, forces 'tribes to prove economic feasibility for a kind of enterprise that, judging from the evidence of both federal and private willingness to invest money, is simply no longer economically feasible in the West.'[196]

To replace PIA, the court adopted a two-part feasibility test, which considered whether the proposed use was 1) practicably achievable and 2) economically sound, and suggesting a multi-factor test to employ in quantifying reserved rights, including considering historic tribal dependence on water and its cultural significance, both of which might affect instream flows.[197]

Even prior to the Arizona Supreme Court's 2001 decision, the GRIC and other parties to the adjudication negotiated a settlement.[198] After the decision, Congress adopted that settlement in 2004, incorporating it into the Arizona Water Settlements Act.[199] That statute promised the GRIC 653,500 acre-feet of water from the Central Arizona Project and the Gila, Salt, and Verde Rivers.[200] The Act also provided funding for the GRIC to build a new water delivery system, supplying total estimated economic benefits of $200-400 million.[201] The statute did not restrict the GRIC's use of the water on its reservation, and also specified that the GRIC may lease a portion of its water to off-reservation water users.[202]

The settlement neither authorized nor prohibited the GRIC from using a portion of its irrigation water to instream flows, but presumably the community may do so under its water code or by a decision of the GRIC Council.[203] The Arizona Water Resources Department will have no involvement concerning any on-reservation change of use.[204]

B. The Situation Today

The GRIC is now developing the Pima-Maricopa Irrigation Project to irrigate some 146,000 on-reservation acres of agricultural land on-reservation, a plan that envisions using some of that water to restore riparian habitat, including recreational fisheries.[205] However, because the tribes of the GRIC were traditionally agricultural, and there was no significant fishery in the lower Gila River due to its intermittent nature, the GRIC does not anticipate using its water to restore historical flows in the Gila River.[206] In addition, although Arizona is one of three states (besides Alaska and Nevada) which allow a private party to hold instream flow rights,[207] the settlement does not authorize the GRIC to obtain additional off-reservation water, or to market its settlement water off-reservation, except leasing to surrounding communities.[208]

VI. Pyramid Lake Restoration: Effectuating Federal Reserved Rights Through State Implementation

In its natural state, Pyramid Lake was the second-largest inland lake in the western United States.[209] The lake is fed by the Truckee River, which carries the outflow from Lake Tahoe.[210] Lower, shallower, warmer, and more saline than Lake Tahoe, Pyramid Lake--located around forty miles northeast of Reno, Nevada--is the largest remnant of Lake Lahontan, which covered much of northwestern Nevada at the end of the Ice Age. Although at fifteen miles long and eleven miles wide, it is now only one-tenth the size of the Great Salt Lake, Pyramid Lake has twenty-five percent more volume.

The Pyramid Lake Paiute occupied the lake area when it was first mapped by John C. Fremont in 1844. The lake and the surrounding area was set aside by the Bureau of Indian Affairs for the Northern Paiute in 1859 and confirmed by President Grant as one of the first executive order Indian reservations in 1874.[211] Today, the lake, which supports populations of Lahontan cutthroat trout[212] and cui-ui[213]--both of which are listed under the Endangered Species Act[214]--lies entirely within the reservation, as does the lower twenty-five miles of the Truckee River.

Pyramid Lake fish are listed under the ESA because of the effects of the Newlands Project, the nation's first reclamation project, which produced the Derby Dam in 1905[215] that in turn blocked fish passage to spawning grounds and diverted water bound for Pyramid Lake into Lahontan Reservoir on the Carson River for irrigation. Without adequate river flows from its only source, the lake became more saline (now one-sixth as saline as the ocean) and declined some seventy vertical feet.[216] As a result, the Pyramid Lake Tribe and the federal government fought a long series of legal battles attempting to restore Truckee River flows and the Pyramid Lake ecosystem.

A. Pyramid Lake Litigation: The Federal Trust and Some State Implementation

The first litigation over Truckee River flows, occasioned by the construction of Derby Dam, began in 1913, brought by the federal government to secure water rights for the Pyramid Lake reservation. Over thirty years later, the case settled, producing what became known as the 1944 Orr Ditch Decree. That decree recognized 32,000 acre-feet of reserved water for tribal irrigation, with an 1859 priority, but the federal government asked for no reserved water for the Pyramid Lake Paiute Tribe's fisheries.[217]

The Orr Ditch Decree did not allocate rights to all the water, in the Truckee River, at least not in above-average water years. So in 1972 the Pyramid Lake Paiute Tribe--in the first water case in which a tribe sued its trustee, the federal government--sought to enjoin the government from allocating waters in excess of the Orr Ditch Decree to local irrigators.[218] In what retrospectively might seem to be a surprising result, the district court agreed with the tribe that the federal government had violated its trust obligation, ruling that government had breached its fiduciary responsibility by allocating excess water on the basis of a "judgment call."[219] The court ordered the secretary "to assert his statutory and contractual authority to the fullest extent possible [to formulate a closely developed regulation that would preserve water for the tribe.]"[220]

The tribe's successful assertion of the trust doctrine concerned only excess waters not allocated by the Orr Ditch Decree. The next year, in 1973, the federal government sought to reopen the allocations in the Orr Ditch Decree, finally claiming water rights for the tribe's fishery.[221] The district court dismissed the case on res judicata grounds, but the Ninth Circuit reversed, finding a lack of adversity between the government the Truckee-Carson Irrigation District and suggesting that the government had breached its fiduciary duty to the tribe by neglecting the tribe's fishing rights.[222] But the Supreme Court, in a 5-4 decision, reversed the Ninth Circuit, concluding that there was no breach because Congress had, by assuming trusteeship for the tribe while authorizing the Newlands Project which damaged the tribe, had required the secretary "to carry water on at least two shoulders . . . ."[223] As a result, the Court ruled that the federal government "cannot follow the fastidious standards of a private fiduciary," and thus the secretary did not breach his duties when he failed to protect the tribal fisheries in the Orr Ditch Decree.[224] The Court gave no attention to the fact that the Orr Ditch Decree never expressed any intention to terminate the tribe's fishing culture or the fact that for centuries tribal members had been fishermen.[225] A respected Indian law scholar concluded that the best explanation for the decision was Chief Justice Rehnquist's campaign against Indian tribal autonomy.[226]

B. The Situation Today

The Supreme Court's decision in Nevada v. United States foreclosed the Pyramid Lake Paiute Tribe from using its reserved rights for the protection of its historical fisheries--a bitter irony, given that the water decreed to the tribe in the 1944 Orr Ditch Decree was based on the supposedly agricultural purpose of the Pyramid Lake Reservation, notwithstanding the fact that tribal members had for centuries been fishermen.[227] Despite this apparently crushing setback, over the past twenty years the tribe has successfully used Nevada state water law, water quality litigation, and pressure based on the ESA status of the cui-ui and Lahontan cutthroat trout to secure additional instream flows in the Truckee River and into Pyramid Lake.

The tribe has been an active participant in federal litigation and settlements aimed at keeping water in the Truckee River and Pyramid Lake to protect the cui-ui and Lahontan cutthroat trout and maintaining the river's water quality. In 1985, the federal district court in Nevada obtained jurisdiction over the 1972 District of Columbia district court decree in Pyramid Lake Paiute Tribe v. Morton,[228] and then ordered the Department of the Interior to adopt operating criteria and procedures for the Truckee River to cause surplus water from the Stampede Reservoir to flow down the Truckee into Pyramid Lake.[229] The changed operations produced more litigation, and the Ninth Circuit eventually upheld the Department's authority to manage Stampede Reservoir to provide instream flows in 1989.[230]

In an effort to resolve some of the long-standing disputes over Truckee River water rights, including the tribe's claims, Congress passed the Truckee-Carson-Pyramid Lake Water Rights Settlement Act in 1990.[231] The Settlement Act required the Secretary of the Interior to negotiate an operating agreement for the Truckee River and Newlands Reclamation Project that would to enhance flows in the Truckee River for the Pyramid Lake fishery to help meet the requirements of the ESA, including a recovery plan for the cui-ui.[232] The Act also established an economic development fund of $40 million for the tribe as well as a separate $25 million fund for the recovery of the lake's fisheries.[233] Six years later, in October 1996, the tribe agreed to drop the Clean Water Act lawsuits it had brought in 1988--thus conceding to changes in the operation of the Reno/Sparks wastewater treatment plant--as part of the 1996 Truckee River Water Quality Agreement.[234] In return, the two cities and the Department of the Interior agreed to spend $24 million to purchase existing water rights on the Truckee River from willing sellers and dedicate that water to instream flow approved by the state engineer.[235] By 2006, the federal government and the cities had spent about $8 million of the settlement amount acquiring approximately 4,500 acre-feet of water rights for instream flows.[236] The tribe administers the federal part of program, which results in the creation of instream rights under Nevada law, titled in the tribe's name.[237]

The tribe has also successfully asserted its rights under Nevada water law to obtain additional instream flows. In 1998, the Nevada state engineer granted the tribe's application, under Nevada state law, for the remaining unappropriated water in the Truckee River.[238] These new tribal water rights are junior to existing rights and are subject to state law.In 1999, the Nevada legislature amended state water law to protect owners of Truckee River and other state surface water rights from forfeiture due to non-use, thus ensuring that water rights used for instream flows would not be forfeited.[239] Then, in 2001, the state engineer approved the tribe's application for a temporary transfer of nearly 25,000 acre-feet of its reserved irrigation water rights to instream use to protect fish during a drought year.[240] Although the right transferred was a reserved tribal water right, so that the tribe arguably could have sought the change of use in federal court, it decided instead to use the state transfer procedures.[241] According to the tribe's water resources director, this process of establishing tribal instream rights under state law has encouraged the tribe and upstream water users to view themselves as partners in restoring the Truckee River.[242]

Thus, through a multi-faceted approach including litigation, settlement, and use of the state water rights process, the Pyramid Lake Pauite Tribe has been able to restore some instream flows to the Truckee River despite the 1983 Supreme Court decision that denied its attempt to use the reserved rights doctrine to restore its fisheries. The ensuing use of settlement and state law to produce tribal instream flows has begun to transform the lower Truckee and may perhaps eventually do the same for Pyramid Lake itself.[243]

VII. The Nez Perce Tribe and the Snake River Basin Adjudication: Settling to Avoid a Hostile State Judiciary

The Snake River--the Columbia's largest tributary--rises above Jackson Lake, Wyoming and flows westerly through central Idaho, then north along the Idaho-Oregon border, and eventually west through southeastern Washington to its confluence with the Columbia River.[244] For several thousand years, the Nez Perce lived throughout the valleys and canyons of the Snake River Basin in small, peaceful fishing villages.[245] Historically, the Nez Perce fishery encompassed at least fifty different sites in the Snake River Basin, each yielding between 300 and 700 adult salmon per day.[246]

In 1855, the Nez Perce signed the first of two treaties with the United States, relinquishing aboriginal title to some 5.5 million acres in southeastern Washington and northeastern Oregon in return for a reservation of approximately eight million acres and the exclusive right to harvest fish in streams running through the reservation.[247] Like the other Indian treaties signed with Washington Governor Isaac Stevens,[248] the Nez Perce Treaty also reserved to the tribe the "right of taking fish at all usual and accustomed places in common with citizens of the Territory."[249]

Although the 1855 Treaty required the United States to defend the Nez Perce reservation,[250] the government failed to prevent homesteaders, miners, and grazers from trespassing and settling on reservation lands.[251] Instead, the United States attempted to quell growing tensions between settlers and the Nez Perce by reinitiating treaty negotiations with the tribe, persuading the Nez Perce to cede most of its remaining tribal lands.[252] Consequently, in 1863, the Nez Perce ceded approximately ninety percent of the lands the tribe reserved in the treaty just eight years earlier, retaining only a 750,000-acre reservation east of Lewiston, Idaho.[253] The tribe also expressly retained its 1855 treaty rights to both on and off-reservation fishing rights.[254] Despite the long history of judicial interpretation of such treaties on terms favorable to the Indians,[255] however, the Nez Perce have not fared well in either federal or state courts when asserting water rights necessary for the preservation and protection of the tribe's treaty right to fish.

A. The Nez Perce Tribe Meets a Hostile Judiciary

In Nez Perce Tribes v. Idaho Power Company,[256] for example, the federal District Court of Idaho denied the tribe compensation for the damage done to its salmon fisheries by Idaho Power Company's (IPC) construction and operation of the Hell's Canyon dams on the middle Snake River.[257] Under the Federal Power Act (FPA), each federal dam licensee is liable for all damages to the "property" of others caused by the construction, maintenance, or operation of its projects.[258] The Nez Perce alleged that IPC's Hell's Canyon dams, which permanently blocked salmon access to nearly eighty percent of the historical spawning grounds in the upper Snake River and decimated salmon populations in the Snake River Basin,[259] entitled the tribe to damages under the FPA as well as under federal common law.[260]

Despite judicial precedent recognizing that the Stevens treaties not only created tribal property rights,[261] but also reserved for the tribes a fair share of harvestable salmon runs[262] and water necessary to protect fishing rights,[263] the district court held that the Nez Perce had no property rights for which compensation was due because the tribe did not own an absolute right to the individual fish in any given salmon run.[264] Instead, so the court reasoned, the Nez Perce Treaty created only treaty rights--that is, the treaties merely reserved to the tribes "an opportunity to catch fish if they are present at the accustomed fishing grounds."[265] According to the court, the Nez Perce treaty rights restricted the tribe's compensation claims to those against the government--not private parties like IPC.[266] In so ruling, the district court failed to recognize that the Indian treaty fishing right is in fact a property right--a piscary profit à prendre[267]--which burdens non-parties to the agreement, including private parties and subsequently incorporated states.[268] Before the Ninth Circuit heard an appeal of this decision, Idaho Power Company and the tribe settled the case.[269]

Five years after the federal district court ruled that the Nez Perce treaties implied no right to protect salmon habitat from damage caused by private parties,[270] the Nez Perce and the United States as trustee for the tribe filed water rights claims in the Snake River Basin Adjudication (SRBA), a McCarran Amendment proceeding involving all water claims in the Snake River. From the special state court established to adjudicate the SRBA, the tribe sought recognition of its claims to waters necessary to preserve the tribe's express treaty-reserved fishing rights.[271] Like the implied reserved rights recognized by the Supreme Court in U.S. v. Winans[272] and the Ninth Circuit in U.S. v. Adair,[273] the Nez Perce argued that the treaties implied a federal right to streamflows necessary to preserve the tribe's bargained-for treaty right to fish in the Snake River Basin.[274] Without such a right, the tribe maintained, its treaty fishing rights would be virtually meaningless.

The SRBA court proceeded to ignore the precedents supporting the tribe and the federal government[275] and ruled that its reserved treaty right to fish on ceded lands included no accompanying water right.[276] Judge Barry Wood[277] determined that the Nez Perce Treaty's express reservation of the right to continue to fish off-reservation did not evince sufficient intent to reserve off-reservation water rights necessary to preserve that purpose.[278] Central to the SRBA court's decision was its conclusion that the tribe's claim to off-reservation water was inconsistent with the purpose of the Nez Perce Treaty, which the court thought "was to resolve the conflict which arose between the Indians and non-Indian settlers . . . ."[279] Although certainly the federal government sought to ease tensions between the Nez Perce and settlers by extinguishing aboriginal title and removing the tribe to a reservation out of the onrushing path of settlement,[280] the SRBA court failed to seriously consider the tribal purpose of the Nez Perce treaties: the preservation of its traditional fishing culture through express reservations of fishing rights.[281]

Echoing the earlier federal district court decision,[282] the SRBA court opined that "an implied water right [wa]s not necessary" because the Nez Perce enjoyed no "absolute right to a predetermined or consistent level of fish."[283] For this proposition, the court cited the Supreme Court's decision in Washington v. Passenger Fishing Vessel Ass'n,[284] in which the Court ruled that treaty language like that in the Nez Perce Treaty reserved up to one-half of salmon harvests to tribal fishers but did not establish a minimum entitlement.[285] The SRBA court managed to overlook the Supreme Court's central ruling--that the treaties established an entitlement to the amount of harvestable salmon "necessary to provide the Indians with a livelihood--that is to say, a moderate living."[286] If water is necessary to provide the tribe a moderate fishing livelihood, it is hard understand why the tribe would not have reserved water to fulfill that purpose.

B. The Situation Today

Rather than appeal the 1999 SRBA court decision denying reserved water rights for its off-reservation fishing rights,[287] the Nez Perce and the other parties entered into prolonged mediation in an attempt to settle the case out of court. Over five years later, in March 2005, the tribe settled its claims for on- and off-reservation water rights.[288] The settlement resulted in state recognition of tribal on-reservation water rights, which could be used for instream flows, and the state agreed to acquire and administer instream flow rights on rivers near the tribe's reservation to improve salmon habitat. The terms of the settlement call for the tribe to receive 50,000 acre-feet of water for on-reservation uses consistent with the tribal water code.[289] However, the tribe waived its claims to off-reservation instream flows based on its treaty-reserved fishing rights.[290]

As part of the settlement, the state--the only entity allowed to hold instream flow rights under Idaho water law[291]--promised to establish instream flow rights at nearly 200 locations, selected by the tribe, in the Salmon and Clearwater Basins and also protect 600 springs on federal lands ceded by the tribe.[292] These instream flow rights will be subordinated to water rights existing at the date of the settlement and also to future domestic, commercial, industrial and municipal water rights, but they will not be subordinated to future agricultural water use, except as to a small, varying percentage of use based on land ownership in each subbasin.[293] The state may change the use of these instream flow rights only after consultation with the tribe.[294] Despite the consultation requirement, the state retains ultimate authority to change uses.[295] The state must also identify other flow-limited streams, take measures to augment instream flows, and undertake other habitat improvement projects,[296] although these commitments are quite vague.

The Nez Perce decision to settle its reserved water right claims has yielded a promise of enhanced instream flows outside its reservation through the instream flow rights contained in the SRBA Agreement and through the congressional funding provided in the SRBA Agreement to the tribe and state in separate accounts. The tribe is likely to prioritize use of these funds based on biological and cultural importance, and the state is likely to prioritize these funds based on ESA exposure. It remains to been seen whether the 2005 SRBA settlement will enable the tribe to successfully transform its treaty fishing and water rights into sustainable and meaningful instream flows that can help restore its damaged fishing culture. [297]

VIII. Conclusion

The six cases examined in this study reveal that Justice Stevens's misgivings about states' ability to provide a neutral forum for adjudicating tribal reserved water rights were well justified.[298] No tribe among the six studied here was able to improve streamflows substantially through successful litigation of its reserved water rights. In the McCarran Amendment Era--where elected state court judges have the authority to decide the scope of Indian reserved water rights--perhaps these results are not surprising.[299]

The Klamath Tribes are perhaps the best example of the mirage: over thirty years after initiating federal court litigation, the tribes--despite consistent success on the merits of their claims--have yet to see any improvements in streamflows essential to their treaty fishing rights, as the glacial movement of Oregon quantification inches forward.[300] The tribes of the Wind River Reservation, despite winning a considerable reserved right for agriculture in the Big Horn Adjudication, were frustrated in their attempt to transfer that ownership right to their preferred instream use by the Wyoming Supreme Court.[301] The Yakama Nation saw its attempt to protect its treaty fishing rights with reserved water rights largely rejected by the Washington Supreme Court, which invented out of whole cloth the concept of "diminished" reserved rights.[302]

Settlements loomed large for the Gila River Indian Community, the Pyramid Lake Paiute Tribe, and the Nez Perce Tribe. The Gila River Indian Community used state court recognition of its reserved irrigation rights to convince Congress to produce a statute that recognized the tribe's water rights and supplies the means to effectively use them.[303] Whether this will improve Gila River streamflows is uncertain, but the tribe does have the apparent authority to produce increased streamflows on-reservation.[304] The Pyramid Lake Paiute Tribe perhaps produced the blueprint for the future: despite Supreme Court denial of its attempt to use its reserved rights to restore its fishery, the tribe has over the last two decades substantially improved flows in the Truckee River, and in the process managed to effectively use state law and procedures.[305] This result is due, in large part, because Nevada law allows parties other than the state to hold instream flow rights.[306] The Nez Perce Tribe--frustrated by hostile federal and state court decisions to both its reserved rights claims and apparent precedent--decided to settle for substantially less water and control than it claimed, including allowing the state to determine the existence and scope of instream rights essential to the tribe's treaty fishing rights.[307]

Although the McCarran Era has made tribal reserved water rights claims largely a mirage in terms of producing improved western streamflows, tribal reserved rights are not insignificant. As the Pyramid Lake Pauite Tribe and the Yakama Nation have shown, dexterous use of judicial recognition of their reserved rights can enable tribes to bargain to transform those federal rights into state-recognized rights capable of implementation by established state water regimes.[308] This seems to be the future for tribes like those of the Klamath Reservation, which have yet to transform their federally recognized reserved water rights into state-recognized rights that the state will protect.

This reality will no doubt disappoint those who viewed resolution of reserved water rights claims as a means to revolutionize western water flows. But given the historic and recent hostility of both the federal and state judiciary to tribal water rights,[309] perhaps the best that tribes can do--given the mirage of the McCarran Amendment Era--is to attempt to transform the mirage into meaningful--albeit diminished--streamflow protection that states and state courts, equipped with the immense authority the McCarran Amendment supplies them,[310] will accept.

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