Nature of the Right. The Nation possesses extensive water rights but these rights are largely unquantified. The Navajo Nation claims aboriginal, historic, appropriative and reserved rights to the use of all the water necessary for the Navajo Reservation to be the permanent homeland for the Navajo people. Such rights to water have been judicially recognized by the United States Supreme Court in Winters v. United States, 207 U.S. 564, 567 (1908). “Winters rights” or “reserved rights” have the following attributes:
See also: In re the General Adjudication of All Rights to Use Water in the Gila River System and Source,
- a priority date based on the date the lands were taken into trust where the water is to be used
- are satisfied out of the unappropriated water available when the lands were taken into trust
- apply to all tribes whether lands were set aside by treaty, statute or executive order
- are not lost through non-use and cannot be abandoned
35 P. 3d 68, 76 (2001). The Winters doctrine does not stand for the proposition that tribes always possess the most senior right or that tribes are entitled to all the water arising on, flowing through, or under their reservations.
Measure of the Right (PIA).
The United States Supreme Court recognized that water reserved by the United States and Indian Nations "was intended to satisfy the future as well as the present needs of the Indian Reser¬vations...." Arizona v. California, 373 U.S. 546, 600 (1963). Stated another way, the water was reserved "to make the Reservations livable...." In order to quantify the water rights of five Indian tribes in that case, all five lie below Lake Mead, the Supreme Court adopted the Practicably Irrigable Acreage (PIA) standard. The water rights for these tribes were quantified based on the water necessary to irrigate the “practicably irrigable acreage” on the five reservations. Under this test, to determine if land is practicably irrigable, the following questions must be answered by technical experts:
- Historical - Was the reservation created to develop agriculture?
- Hydrology - Is water available?
- Soil Classification - Are soils arable, i.e., are they suitable for growing crops?
- Engineering - Can the water systems be developed?
- On-Farm Design - Can the farm system be developed?
- Agronomy - Can the crops be grown?
- Market Studies - Is there a market for the crops?
- Economics - Is the proposed project economically defensible?
Water Rights for Non-Agricultural Uses. A more difficult issue is the extent to which water has been reserved for the benefit of tribes for non-agricultural uses. The Arizona Supreme Court has held that PIA is not the exclusive quantification measure for determining water rights on Indian lands, and the quantity of water reserved must satisfy both present and future needs of the reservation as a livable homeland. In Re: The General Adjudication of All Rights to Use Water in the Gila River System and Source, 35 P. 3d 68, 76 (Ariz. 2001). Please note that this decision is binding only in the State of Arizona. This decision is not binding in the States of Utah or New Mexico.
Lessons from other Tribes.
There are only three cases where Indian water rights were litigated resulting in final decreed water rights:
- Arizona v. California. The rights to five tribes on the Colorado River below Lake Mead are subject to a decree issued by the United States Supreme Court. The rights of the five tribes are limited to water for agricultural use based on PIA.
- Big Horn (Wyoming). The tribes on the Wind River Reservation were awarded substantial surface water rights under the PIA standard. The tribes did not receive an award for municipal or industrial uses and were denied a reserved right to use groundwater.
- Mescalero Apache (New Mexico). The tribe was not successful in proving claims based on PIA; however, it received a small award of water, including groundwater for historic uses and municipal and commercial uses.
General Stream Adjudications. Water rights are quantified through lawsuits known as general stream adjudications. These lawsuits involve hundreds, sometimes thousands, of parties. The Navajo Nation is located almost entirely within the Colorado River Basin (see the map on the Home page). There is no single general stream adjudication for the entire Colorado River. Instead, general stream adjudications exist for various sub-basins within the Colorado River system, on a state-by-state basis. State courts have jurisdiction to adjudicate Indian water claims by virtue of the McCarran Amendment, 43 U.S.C. § 666, which allows the United States to be sued in state court for the purpose of quantifying federal and tribal water rights in a general stream adjudication. Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983). The Navajo Nation is currently a party in five general stream adjudications. Because of the vast size of the Navajo Nation, its water rights cannot be quantified in a single adjudication.