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Tribal water rights law
During the 1850s, 1860s, and 1870s, many western tribes signed treaties with the United States government. In these treaties the tribes ceded enormous tracts of land to the US. All these ceded lands immediately became public lands, and over next half century the government opened some for settlement, sold others to entrepeneurs and speculators, and reserved the rest for uses like national forests, national parks, and Indian homelands.
Trying to find a livable balance among the ways of life of indigenous peoples, a largely arid landscape, an economic system based on private property, and a legal system based on individual rights has proved to be a difficult and often explosive task. And no more so when it comes to the west's most precious commodity -- water.
Much of how the west deals with water law and its tribes has been argued over and decided in courts. So in this section, we offer guides to some of the touchstone cases that continue to shape how westerners deal with water claims and tribal rights. Winans has guided decisions about tribal fishing rights. Winters has become synonymous with the notion of a reserved water right and its relation to the doctrine of "prior appropriation". The Wyoming Big Horn cases offer insight into how much water a tribe has reserved and what it can use it for. And Nevada provides a good illustration of the conflict between the quest for certainty and the quest for justice in water rights cases.
Helpful print sources: Books
Getches, David H. Water Law in a Nutshell. St. Paul: West Publishing Co., 1997.
Gould, George A. and Douglas L. Grant. Cases and Materials on Water Law. 6th ed. St. Paul: West Group, 2000.
McGuire, Thomas R., William B. Lord, and Mary G. Wallace, eds. Indian Water in the New West. Tucson: U of Arizona P, 1993.
Shurts, John. Indian Reserved Water Rights: The Winters Doctrine in its Social and Legal Context, 1880s-1930s. Norman: U of Oklahoma P, 2000.
Stapilus, Randy, ed. The Snake River Basin Adjudication Reference: Water for Idaho's Next Century. Boise: Ridenbaugh Press, 1999.
Burton, Lloyd. American Indian Water Rights and the Limits of Law. Lawrence: UP of Kansas, 1991.
Donaldson, Ivan J. and Frederick K. Cramer. Fishwheels of the Columbia. Portland, Oregon: Binfords & Mort, 1971.
Helpful print sources: Articles
Blumm, Michael C., Dale D. Goble, Judith V. Royster, Mary Christina Wood. "Judicial Termination of Treaty Water Rights: The Snake River Case." Idaho Law Review 36 (2000): 449-
Getches, David H. "Beyond Indian Law: The Rehnquist Court's Pursuit of States' Rights, Color-Blind Justice and Mainstream Values." Minnesota Law Review 86 (December 2001): 267-
McGovern, Gina. "Settlement Or Adjudication: Resolving Indian Reserved Rights." Arizona Law Review 36 (Spring 1994): 195-
Mergen, Andrew C. and Sylvia F. Liu. "A Misplaced Sensitivity: The Draft Opinions in Wyoming v. United States." University of Colorado Law Review 68 (Summer 1997): 683-