"Since the Native American Rights Fund and Western Governors Association convinced Congress back in the late 1980s to encourage and fund tribal water rights settlement efforts, dozens of settlement deals have been inked by tribes, states and non-Indian water users, blessed and funded by Congress and have begun to be implemented. Other settlements are complete and wait only for federal legislation necessary to finalize and implement the deals.

Water rights settlements since 1990 which are either completed, pending federal legislation or in process involve the Colorado Utes, Taos Pueblo, Crow, Blackfeet, Nez Perce, Gila River Indian Community, Zuni, Lummi Nation, Chippewa Creek of the Rocky Boy Reservation, Warm Springs Tribe, Tohono O’Odham, Navajo, Kickapoo, Mandan, Hidastsa and Acara Tribes (Fort Bertold Reservation), Yurok and Klamath Tribes. These are the settlements I’ve been able to find in a quick search; it is not a complete list.

Negotiated settlement of tribal water rights claims makes sense in theory. Water rights cases are expensive, difficult and regularly take decades before final judgment is tendered. Furthermore most tribes do not posses the resources to develop the water once their right to the water is established. It has proven easier to settle with states and non-Native water users and thereby to secure Congressional funding to develop tribal water pursuant to a settlement agreement that is supported by non-tribal water users. In addition, the dominant view among tribal lawyers is that the federal courts have become much less friendly toward tribal water claims than they had been previously.

While every settlement is unique, the general pattern of these settlements is clear: Indian water rights are either reduced or subjected to forbearance in order to accommodate non-Indian water users who would likely loose water if the tribal rights were fully implemented. In exchange for giving up water the tribes receive funding which is typically earmarked for development of water delivery systems or otherwise to develop water infrastructure. Financial support for tribal government departments and funding for aquatic restoration projects is often also included. Contributions to general tribal accounts have sometimes been included as well but at times Congress has resisted settlements which provide unrestricted funds to tribes."

Get the Story:
Felice Pace: Water Thieves or Water Saviors? (High Country News 5/7)