Same Decision, Different Results?

     Indian Water Rights and

    the Wind River Case

By Michael A. Massie*

 

 

      During the past century American Indians have overcome numerous obstacles in their struggle to survive in a changing world while retaining as many traditions and as much of their land as possible. While many problems persist on modern reservations, the Native Americans' successes have been remarkable, especially since they have been compelled to operate, for the most part, in a world of white man's laws.[1]

      Initially, the federal government assumed the role of guardian of the tribes' interests, promising to preserve their resources to further the goals of acculturation and economic self-sufficiency. However, Indians soon learned that the gov­ernment served the desires of the White majority and watched as apparent legal and legislative victories benefited only non-Indian interest groups. By taking a more active role in pro­tecting their own interests, many Native Americans are now in a better position to identify and take advantage of their le­gal rights.

      The history of Indian water rights illustrates this point, particularly when comparing the results of a 1908 Supreme Court decision, which established the legal precedent for those rights, with the court's 1989 ruling concerning the Wind River. While the issue of Indian water rights is certainly one of the least researched aspects of Wyoming's history, the ramifications of the "Wind River decision" may influence the future of the state more than any event that occurred in the late 1980s.

      The court case that transpired earlier in this century involved two tribes and the state of Montana.[2] Soon after the formation of the Fort Belknap Reservation in north-central Montana in 1873, the resident Gros Ventres and Assiniboines experienced the consequences of that era's American Indian policy. Demonstrating a lack of understanding of the area's arid environment, government officials insisted that the tribes forsake their previous lifestyles, centered around the pursuit of bison, and farm small tracts of land. Most of the reservation's agents thought that agriculture would teach the Indians "civilized" values and fuel the acculturative process. This belief later formed the foundation of the 1887 General Allotment Act. During the following year, an executive agreement with the Fort Belknap tribes stipulated that the Indians would receive farming equipment in exchange for relinquishing their title to some of their land.

      Many factors hampered the agents' efforts in converting the Gros Ventres and Assiniboines into farmers, including the desire of many of the men to raise stock rather than till the soil. Whether farming or ranching, agricultural operations suffered consistently from the dry environment. Seeking to correct this problem, the agents convinced Congress to appropriate $20,000 biannually to Fort Belknap for the construction of an irrigation system. Four watering projects were initiated by 1903, with the hope that farming and stock raising would benefit from irrigation and, thus, stabilize the tribes' economy.

      However, a shift in American Indian policy at the turn of the century undermined the tribes' ability to profit from this development. Some of the country's influential politicians, scientists and anthropologists were disappointed that American Indians had not made as much progress as had been anticipated toward acculturation during the last two decades of the 19th century. Failing to recognize the cultural biases and false premises that formed the foundation of this philosophy, most of the "experts" insisted that it would take decades for the Indians to learn the tools of civilization. At the same time, leaders in Western states and territories lobbied the federal government to remove the reservation lands that the tribes were not farming and make these tracts available to non-Indian settlers.[3]

      To meet the Westerners' demands and to reflect the growing pessimism of the Indians' ability to acculturate, political leaders and reservation agents urged non-Indians to lease, or purchase in some cases, tribal lands and resources. The desired results of this policy were to enhance the western economy while maintaining the goal of acculturation. Ideally, Whites exploiting tribal resources would now serve as examples of the benefits of "civilization" for their Indian laborers.

      By the mid-1900s the Fort Belknap agents leased large tracts of the reservation lands to non-Indian grazers and sugar beet growers and actively sought corporations to build a sugar refinery. Of course, the attractiveness of these leases de­pended upon irrigation. When the Milk River, which forms the reservation's northern boundary, dried up in 1905, the hopes of the Indians and Whites on the Fort Belknap Reservation were suddenly dashed.

      Lured by the nation's homestead laws which promised cheap land, ranchers had settled along the Milk River above the reservation though the 1890s. Like the reservation's resi­dents, the newcomers depended upon the river to irrigate crops and hay meadows. After a  few years of drought, the river's flow dwindled until these ranchers' diversions pre­vented any water from reaching the reservation. Insisting that the state possessed the right to regulate water use within its boundary, Montana refused to recognize the tribes' water rights and condoned the situation.

      Faced with the destruction of the reservation's economy , agent Logan requested that the Justice Department sue the ranchers to force them to allow water to flow to the reservation. The department complied and after years of litigation and appeals, the U. S. Supreme Court rendered its decision in 1908.

      Winters v. United States proved historically significant for two reasons. First, the justices set the precedent for Indian water rights by determining that the Gros Ventres  and the Assiniboines had preserved their water rights in the 1888 Executive Agreement. Even though this right was not specifi­cally written in the accord, the United States and the tribes "implied" that adequate water must accompany the grounds that formed the reservation or the land would be worthless and uninhabitable. Since the tribes possessed the earliest (senior) water rights to the Milk River, their needs must be met before those of the other diverters of the river.

      The judges further ruled that the Native Americans could utilize this water for beneficial purposes, primarily for agriculture at this time, and the amount of water that the tribes could divert may increase in the future to account for the expansion of the reservation's population. This "future use" clause distinguishes Indian water rights from those acquired under the laws of prior appropriation which most Western states recognize.

      The judges' decision not only established the precedent for the Indian's rights to water, but it raised several questions which continue to plague this issue. How would the Indians' right be quantified? Could non-agricultural use of the water be considered "beneficial"? Since the Fort Belknap Reserva­tion was formed by executive order, does the Winters decision apply to Indians reserves created by treaty or a legislative act? Must the water be a certain quality? Can the Indians sell or lease their rights? Does the reserved quantity include groundwater or just surface water? During the past 80 years, courts have addressed some of these questions but have failed to provide precise answers.

      What occurred on the Fort Belknap Reservation in the decades that followed the Winters decision is just as signifi­cant as this judicial case. Given the United States' Indian policy of the era, the court's verdict benefited the Whites more than the Gros Ventres and the Assiniboines. The reservation's agents used the guarantee of water rights to lure more non-Indian leasees on the tribe's lands. By 1925 non-Indians controlled 58 percent of the reservation's irrigated land, paralleling the loss of other tribal resources, particularly coal and timber. Water was even funneled off the reservation to neighboring landowners and corporations. Because the Indians exerted little control over the reservation's resources, land and laws, they were not in the position to take advantage of the rights defined in the Winters decision.

      This was unfortunate because the federal government not only failed to protect the Indians' water claims at Fort Belknap, but it has been one of the biggest violators of Indian water rights during the past 80 years. During this time, non-Indian politicians and administrators have generally been the decision-makers in the Bureau of Indian Affairs, which is part of the much larger Department of the Interior that manages much of the Western public lands. Consequently, it is not surprising that federal water policies through the past century have overwhelmingly favored large, publicly-funded water development projects that have served western cities and non-Indian interests at the expense of the tribes' water rights.

      Listing all of the federal decisions and government-financed projects that have preempted Indian water rights is well beyond the scope of this brief paper. The Bureau of Reclamation has perhaps been the most frequent violator of the Native Americans' "Winters" rights. Its dams have created flooding and water quality problems on reservations, and the agency has sold the tribes' water to non-Indian ranchers, farmers, power plants, and cities. As Senator Robert Kennedy once quipped, "Reclamation might just as well be the cavalry all over again."[4]

      The history of the Wind River reservation reflects the federal government's abuses of Indian water rights. In signing the 1905 Land Cession, the United States promised the Arapaho and the Shoshone tribes that the proceeds from the sale of the ceded land would be used to acquire water rights and build an irrigation system for the reservation. A local white-owned irrigation company failed and few settlers purchased homestead tracts around Riverton than the government expected. The promised ditches were never completed. Further, Arapaho landowners were assessed fees whether or not they used the irrigation ditches that were built. When they could not pay the bills, they were compelled to sell or lease their land. Forced to seek employment with the government, many of them subsequently worked on the very ditches that precipitated their predicament and several never received the wages that they were promised.[5]

      In the 1930s the Bureau of Reclamation built the Midvale Irrigation Project, diverting much of the Wind River just be­fore it enters the reservation and funneling it to nearby non-Indian farmers and ranchers. As the 1989 Supreme Court decision confirmed, much of this water belonged to the Indians.

      The bureau appeared in the 1960s with another plan to encourage the development of non-Indian resources by using tribal water. In order to spur coal mining in northeastern Wyoming and southeastern Montana, the agency advocated diverting water from several nearby reservoirs, including the one at Boysen. Since much of the water in Boysen Reservoir belonged to the Shoshones and Arapahoes, this scheme would have robbed the tribes of their ability to develop the reservation's economy. This project was eventually scrapped, primarily because of protests from conservationists over the environmental costs of the undertaking, not because of any concern over the illegal use of the Indians' water.[6]

      By the 1970s Indians throughout the country were in a better position to begin reversing decades of lost water rights. In addition to winning some key court decisions that confirmed treaty rights, some tribes had formed organizations, such as the Native American Rights Fund (NARF), that provided important legal assistance. Now, many Native Americans aggressively pursued protection of their resources rather than depend upon White administrators and politicians to safeguard tribal claims. While NARF won several legal battles, federal courts indicated that Indian water rights possessed some limits and urged the tribes  to attempt to settle their differences over water issues with Western states through negotiation or initially, in the state court systems.[7]

      Using federal funds offered by the Carter administration, the Wind River reservation tribes conducted a study to determine the history, quantity, and extent of their water rights. The tribes entered into negotiations with the state of Wyoming. When talks broke down, Wyoming and the tribes embarked upon a series of legal battles in 1975 that culminated in the Supreme Court decision in 1989.

      Generally confirming the findings of the "Winters" court, the justices determined that the Shoshones' and the Arapahos' water priority dated to the establishment of the reserva­tion in 1868 and awarded the tribes approximately 500,000 acre-feet, or a little less than one-half of the flow of the Wind River and its tributaries that rise on Indian lands. Like their predecessors at the turn of the century, the 1989 court did not specify for what purposes the water could be employed or whether the Indians could sell or lease their claims. Nevertheless, the Supreme Court confirmed the tribes' rights to water that some non-Indians had been using for generations.

      Even though the rulings in these cases were similar, the results will be quite different. While the Fort Belknap Indians failed to benefit from the "Winters" decision at that time, today's Shoshones and Arapahos have more control over their resources than their counterparts of 80 years ago. They have the ability, knowledge, and probably the clout to make this court decision stick in order to use their water as they wish. Within the year after the Supreme Court decision was handed down, they had utilized their rights to restock fisheries, to maintain a minimum stream flow, and to lease some of the resource to the state for local non-Indian landowners. While the court's decision and the tribes' use of the water continue to generate controversy, the tribes appear to have the power to determine how approximately one-half of the Wind River will be utilized.

      The Wind River decision exerted a significant influence in the West. Wanting to avoid the long, expensive court battle that Wyoming experienced, Colorado reached an agreement with the Southern Utes and the Mountain Utes on water rights, and Idaho struck a similar accord with the Fort Hall Shoshones.[8] For now, many Western tribes are asserting their "Winters rights" and becoming major players in determining water ownership and use in the arid West....

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