Water is the basis of life on this planet and the foundation of civilization. We generally classify types of Water resources as surface water, ground water, sea water, and a glacier. In many parts of the world, water is a limited, and even scarce reso...
Water is the basis of life on this planet and the foundation of civilization. We generally classify types of Water resources as surface water, ground water, sea water, and a glacier. In many parts of the world, water is a limited, and even scarce resource. Water and land issues have traditionally been prime reasons for conflict. Water is the property of the public. The public trust doctrine can limit the exercise of water rights. Water shortages, drought, polluted water supplies, and environmental degradation continued to be major problems during the twentieth century.
American Indian policy consistently produced one result important to Anglo-Americans moving west during the 1800s: making more land available for settlement. The United States accomplished this by removing Native Americans from their ancestral homelands. The United States generally treated Indian tribes as foreign sovereign nations and often considered them enemies. Despite the tribes' powers, by the 1820s, non-Indian settlers continued west for new land. Water rights are also unique because they vary in both their origins and attributes. Water rights may be created by the common law of property or by state and federal statutes. In the East, where one is surrounded by streams, ponds, lakes, and rivers, it is easy to take water for granted. The Southwest has been a hot spot for many years when it comes to fights over water.
The ‘Marshall Trilogy’, named after then Chief Justice John Marshall, established the legal foundations for resolving sovereign jurisdictional disputes between American Indian tribes, states, and the federal government. As a result of the Marshall trilogy, federal law generally prohibits states from exercising regulatory authority on Indian lands unless Congress has authorized such action.
American Indian communities have a unique status in the United States. The concept of reserved rights springs from foundational principles of inherent sovereignty. The trust doctrine is the mechanism by which federal obligations to Indian tribes are judicially enforced. The trust doctrine requires that the United States and its agents protect Indians' native separatism by acting in the best interests of the Indian tribes.
Conflicts over scarce water resources are not a modern trend. A Water Rights can exist as diverse forms. Specifically, Indian tribes possess significant water rights. Indian tribes control large amounts of land in western states, and vast entitlements to water are associated with reservations. Indian tribes possess a property interest in reserved water rights. Relying on this reserved rights concept, the Supreme Court in Winters v. United States specifically held that Indian tribes have an implied reserved water right to sufficient water to render their land habitable. Indians on the Fort Belknap Reservation in Montana asserted they were entitled to ‘reserve’ water in the Milk River for future purposes.
Under the Winters Doctrine, this property right in water vested in the tribes no later than the time of the formation of the reservation, and could date from time immemorial. However, the Court failed to specify a method for computing these reserved water rights. Left unquantified, these water rights challenge established state water rights, threaten to displace current state water uses, and impede effective water planning and development by state governments.
Three legal doctrines for non-Indian water allocation are observed in the United States: ①Riparian Doctrine, ②the Prior Appropriation Doctrine, and ③the Dual System (based on a combination of the ① and ② Doctrines). Pursuant to common law riparianism, riparian property owners hold a right to a portion of the continued natural flow of a river. The eastern riparian water rights doctrine, which limits water use to those persons with lands bordering a river or lake, eventually proved ill-suited for the arid West.
The prior appropriation doctrine, which embodied the principle ‘first in time, first in right’, arose in response to western needs to suit the aridity and geography of the region. The priority date of an appropriative right is the date the water is first put to use and determines who receives water in times of shortage, because senior rights are satisfied before junior appropriators receive water. The quantification of water rights is an important litigation process in the arid West where water resources are scarce and subject to strict regulatory laws. Indian reserved rights conflict with the prior appropriation system.
Tribes possess civil and criminal jurisdiction over their members. By contrast, Indian tribes have no criminal jurisdiction over non-Indians, whether on Indian land or not. Likewise, tribes appear to lack regulatory authority over non-Indians on non-Indian land outside the reservation. In 1987, Congress authorized EPA to ‘treat an Indian tribe as a state(TAS)’ for certain CWA programs. Specifically, the EPA interpreted the amendment as allowing tribes to establish more stringent water quality standards than those imposed by states or the federal government. The state opposed granting the tribes' TAS status to the extent such status would extend to reservation lands and surface waters owned in fee by nonmembers of the tribes.
As long as there have been people and communities, conflicts exist at any time and anywhere. But methods for resolving disputes have been developed, ranging from ADR to the highly technical rule systems. Westerners rely on formal legal institutions to resolve water resource dispute along the region's rivers and streams. The water resource dispute is the most complex type of formal methods. In earlier times, however, other cultural institutions exercised social control over water. Indian approaches to water management exemplify some of these more traditional methods.
In recent years, interest in ADR(Alternative Dispute Resolution) has grown from various angles. ADR is both the oldest and some of the newest ways of resolving conflicts that have legal implications. Currently major countries, including the USA, have developed and contrived to activate ADR in order to both choose effective means for dispute resolution and establish the reformation of the judicial system. ADR movement is an effort within the non-native judicial system to develop and utilize informal processes to prevent and resolve disagreements with minimal interaction with the formal court system. The primary motives for developing and using informal processes in the water resource dispute are saving money and time by avoiding lengthy waits for access to court and bypassing the arduous and time-consuming formal trial process.
ADR and litigation over tribal water rights shape the future of Indian and non-indian communities throughout the western United States. The standing requirement emanates from Article III of the U.S. Constitution, which requires that court hear only case or controversy. The CWA permits an ordinary citizen or public interest group to seek civil penalties against the EPA or a private party for violations of the act. As for the judicial branch, many tribes have created their own court system with extensive court rules and procedures. The doctrine of exhaustion of tribal remedies is a reflection of an ongoing tension between tribal and federal courts. Scientific uncertainty is often a major factor in legal disputes involving in social controversies with major environmental consequences of water.
Many Western states currently are engaged in extensive and protracted water rights litigation. Individuals and groups often disagree. Only small percentage of such disputes result in the filing of a lawsuit. ADR is considered superior to litigation in quantifying Indian water rights for several reasons. One particular advantage is that the ADR process provides a more flexible environment in which Indian communities can negotiate their rights according to each tribe's particular needs and circumstances. Not only ADR forms such as negotiation, settlement, conciliation, mediation and arbitration but also diverse forms of ADR such as peacemaking, early neutral evaluation are adopted in the US as the method of water resource dispute resolution.
ADR often are an attractive alternative for the quantification of Indian reserved rights. Although all tribes received the same kind of water right under Winters, how that right is quantified in the settlement process may be determined by factors such as a tribe's political influence, reservation acreage, geographical region, economy, legal resources, population and timing. Tribal peacemaking is a modern yet ancient form of ADR which Native American peoples have developed to settle conflicts within their communities and with outside groups. The EPA has been using ADR, most prominently in cases concerning the Compensation, and Superfund or CERCLA, since the late 1980s.
ADR is available to resolve a wide range of disputes, but have the defects of its qualities. One specific method is not suitable for all kinds of disputes. In selecting a method, several factors have to be prudently considered after closely reviewing the matter. The most important factor is to make people aware of the fact that ADR has many merits such as a low-cost, smooth agreement, speedy resolution, etc. It was confirmed that the resolution of disputes by formal proceedings is no longer the rational method. In this respect, ADR will be regarded as the most efficient means in solution of water resources dispute.