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Judge says state-recognized tribe can claim water rights

WASHINGTON - A Virginia Circuit Court judge has said an Indian tribe's reserved water rights claim cannot be dependant upon a tribe's federal recognition status alone.

In a lengthy opinion, Judge Charles Poston, presiding over a case in the Newport News, Va., Circuit Court, also wrote that a U.S. Supreme Court ruling, referred to as the ''Winter's Doctrine,'' gives American Indian reservations first water rights and could be applicable to tribes in the Eastern United States.

The judge dismissed the city of Newport News' motion for summary judgment of the Mattaponi Indian Tribe's claim to water rights under the doctrine, but Poston wrote that a tribe must show a necessity for water before making such a claim.

Because the Mattaponi didn't explicitly assert necessity in the complaint, Poston asked the tribe to specify how the state's riparian water laws wouldn't protect its water rights as well as protect its cultural practices.

''We will amend the tribe's complaint, specifying the necessity for the tribe having reserved water rights, said Emma Garrison, Mattaponi attorney with the Georgetown University Law Center's Institute for Public Representation. ''We were definitely pleased with the judge's decision.''

The Mattaponi have fought for nearly two decades against Newport News and several other Virginia municipalities that would benefit from the construction of a reservoir to be supplied by water from the Mattaponi River. The river serves as a primary source of income for the Mattaponi Indians, since members operate a shad hatchery on their reservation adjacent to the river. Opponents to the reservoir construction argue that the withdrawal of water from the river for the reservoir would adversely affect the shad spawning, harming the Mattaponi's economic, cultural and religious practices.

At issue in the case are water rights. Eastern states follow ''riparian'' water rights, or basic rights for usage of water by those residing along bodies of water. In his opinion, Poston wrote that the courts couldn't ignore the fact that riparian laws may offer inadequate protection to owners.

For this reason, the Mattaponi sought protection under the Winter's Doctrine. To date, only federally recognized tribes in Western states have had water rights granted under the doctrine. Newport News, which sought approval of the reservoir, argued against the Mattaponi's claim because the tribe is located in the East and is only state-recognized.

But Poston explained in his opinion that in the 1908 case that ultimately yielded the Winter's Doctrine, the U.S. Supreme Court ruled that treaties with American Indians to create reservations included ''implied'' reserved water rights, since none of the Indians would have agreed to the reservations' creation without enough water to sustain them.

''Therefore, the reasoning behind the Winter's Doctrine is as equally applicable to state Indian tribes as it is to federally recognized tribes,'' Poston wrote. ''[...] Yet the fact that the Winter's Doctrine has not yet been applied to state Indian tribes does not preclude it from being appropriate in the state context.''

Poston wrote that Western states have a different climate - more arid - than Eastern states, which have more available water. Also, he noted that Eastern states have used the riparian rights, which give all land owners near water the right to share the water and use it responsibly.

However, Poston wrote that while Eastern states may have an abundance of water, an argument Newport News made, the claim of available water to riparian owners in the East ''illustrates why the Winters doctrine may have little applicability in riparian states.''

He also explained riparian laws would most likely protect the tribe's share of water needed, ensuring enough for sustenance and the tribe's cultural uses of water.

Because of these factors, Poston wrote that the court, too, has doubts about the usage of the Winter's Doctrine, particularly in Virginia with its riparian laws.

Despite these factors, Poston wrote that it didn't mean the Winter's Doctrine wouldn't be applicable in a ''riparian jurisdiction'' to ''imply'' reserved water rights ''pursuant to an Indian reservation or treaty-granted right.''

Riparian laws don't offer guarantees of sufficient water to riparian owners, Poston wrote, noting such laws only guarantee ''reasonable use'' of water.

''Riparian law, however, does not guarantee the Tribe the required quantity or quality of water needed to satisfy the purposes for which the Reservation was created,'' Poston wrote.

Because of this, the Winter's Doctrine allows an Indian tribe and a government to override a state's riparian laws to provide enough water for a tribe's sustenance, he wrote.

''The inadequacy of riparian law could necessitate an implication that both a quantity and quality of water needed to achieve the purposes underlying an Indian reservation were reserved at the time of the Indian reservation's creation,'' Poston wrote. ''The same would hold true for ensuring that sufficient water is available to protect any other treaty-granted rights enjoyed by an Indian tribe.''

But Poston added that ''only through this showing of necessity could a tribe, or a government as the tribe's guardian, preempt a state's riparian law in favor of reserved water rights.''

The United States brought the Winter's suit because the country served as the guardian of the American Indians with whom it had treaties and needed to protect the Indians' water rights, he wrote. Likewise, Poston noted the state of Virginia is the guardian of the Mattaponi.