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'Winters Doctrine' on water rights still haunts the American West

WASHINGTON - When a U.S. Supreme Court ruling in 1908 gave rise to the ''Winters Doctrine'' of reserved tribal water rights, only the U.S. government stood between tribes and a settler-state thirst for water that threatened many reservations with drought.

A century later, for a host of highly practical, place-based reasons, tribes and states have gotten together to negotiate water rights settlements throughout the Western states. According to a handful of advocates before a House of Representatives subcommittee on water and power April 16, now only the various presidential administrations and their narrow view of settlement costs stand in the way of establishing water rights on all sides.

In brief, they argued that the administration, through the Interior Department, won't pick up its fair share of the settlement tab. Often, where tribes are concerned, costs include water infrastructure projects, pipelines and treatment plants, for instance.

Through Michael Bogert, chairman of the Working Group on Indian Water Settlements, Interior put up a stiff resistance to the charge.

''The federal government should provide incentives for stakeholders to consider mutually beneficial settlement rather than rancorous litigation where possible,'' Bogert testified. ''But there is a line between a reasonably tailored incentive and being placed on the hook for costs that are disproportionate to the benefits of settlement.''

Tribes and their local partners have taken to bringing their negotiated settlements to Congress, sometimes with success. But the new idea on April 16 was to dedicate an existing reclamation fund as a permanent funding source for Indian water settlements. Sens. Pete Domenici and Jeff Bingaman, the senior Republican and Democrat, respectively, from New Mexico, have brought the proposal forward in a bill, S. 1711 in the Senate. It will have to meet with the approval of the full Congress, which would have to appropriate monies from the Interior fund. But in the early going, it has met with enthusiasm from Navajo Nation President Joe Shirley Jr. and from John Echohawk, executive director of the Native American Rights Fund.

''We believe that Congress must set aside funds to be used exclusively for Indian water rights settlements,'' Shirley said. ''In the absence of such set-asides, funding for water rights settlements will compete with funding for other programs out of the Bureau of Indian Affairs budget. ... We do not wish to fund any Indian water settlement at the expense of other important programs to the Navajo Nation and to other Indian tribes. ... A reclamation water settlement fund ... represents the kind of approach that we favor because it does not take money from other tribal programs.''

Echohawk, a veteran of water rights issues, said that over the course of almost four decades, NARF has encountered a consistent challenge - federal inability to fund the resolution of tribal water rights claims.

''For centuries, the federal government has promoted and subsidized non-Indian water rights to the detriment of vested tribal water rights. In the past four years alone, the Bush administration spent $2.3 billion on water infrastructure in Iraq, $1.6 billion on water-related issues in other countries, and $2.5 billion on water rights claims in the [American] West outside of Indian country. ... We strongly urge this committee [Natural Resources, through its subcommittee on water and power] to support the New Mexico senators ... We believe securing a permanent funding mechanism will resolve most of the problems of settling Indian water rights throughout the West.''

Susan Cottingham, director of the Montana Reserved Water Rights Compact Commission, also represented the Western Governor's Association and the Western States Water Council. In view especially of widely feared water shortages, she warned of the future costs associated with failing to settle tribal water rights claims, which are strong under the Winters Doctrine, senior to most other claims, and not subject to reduction through nonuse.

''While the number of pending settlements is set, the cost of implementing them will continue to rise. Postponing this [trust] duty only increases its cost to the nation, as it perpetuates the hardship to Indian people unable to enjoy the full use of their water rights and the inability of non-Indian governments to plan for water use in the absence of firm data on respective use entitlements.''