Federal Indian Reserved Water Rights: in the News

Linda Burlington

As described in the Message from the Chair, on Aug. 12, 2002, the ABA House of Delegates passed a Resolution regarding Indian water rights settlements. For further information see www.abanet.org/adminlaw/annual02/110.doc. Also, the Nov./Dec. 2002 issue of the Section's newsletter Trends will include an article on the historical background of the Indian water rights issue. The text of the ABA Resolution follows.

AMERICAN BAR ASSOCIATION
HOUSE OF DELEGATES
2002 Annual Meeting
Aug. 12-13, 2002
Washington, D.C.

SUBMITTED BY THE

SECTION OF ENVIRONMENT, ENERGY, AND RESOURCES AND COSPONSORED BY THE SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES

Report No. 110

Supports adequate federal efforts to assist in the settlement of longstanding Indian water right claims, predominately in the western states.

Approved as Revised

The recommendation was revised to read as follows:
RESOLVED, That the American Bar Association endorses the use of negotiation and settlement processes to resolve Indian reserved water right claims provided the concerned Indian Tribes elect to pursue such processes, as well as the availability of adequate technical resources as an important precondition for achieving successful settlements, and specifically urges Congress and the
Administration to support these settlement processes by:
1. Continuing to make the negotiation of Indian water right settlements a high priority of the U.S. Department of the Interior and the U.S. Department of Justice;
2. Appointing and funding federal negotiating teams in every river system or basin where settlement prospects are favorable and requiring federal negotiating teams to regularly elicit and incorporate, consistent with the federal trust responsibility, the views of the Tribes involved when formulating federal
negotiating positions and to bear a fair share of mediation costs and technical and legal work directly supporting settlement discussions;
3. Providing timely and adequate funds so that Indian Tribes have the legal and technical expertise necessary to participate effectively in settlement processes and ensuring, in conjunction with state governments, that other water users also have necessary legal and technical resources;
4. Appropriating adequate funds for the settlements themselves and for federal teams to assist in implementing the settlements; and 5. Ensuring that the resources necessary for negotiating settlements and for settlements themselves do not compete with other Department of the Interior funding priorities.

FURTHER RESOLVED, That when evaluating proposed settlements, the federal government should consider not just avoided federal litigation costs, but other factors as well including (a) the opportunity to address historic injustices, with the goal of fulfilling the continuing federal trust obligation to support viable tribal communities; and (b) the settlement's potential benefit to local, State, and national economies.