The Future of Indian and Federal Reserved Water Rights: The Winters Centennial

4: Winters and the Contemporary Landscape

81 Today’s western water world is very different from the one in which the Winters case was promulgated—or even the one in which Arizona v. California and United States v. New Mexico were issued.1 In 1908 the West was barely beyond being a frontier. In the past several decadesithasbeenoneofthefastest-growingareasintheUnitedStates.During the 1990s the West gained more than ten million in population. Five western states are usually among the list of fastest-growing states in the nation: Nevada, Arizona, Colorado, Utah, and Idaho. Even a small increase in California’s population means a lot of people. In 1908 Indian populations had been reduced by the stresses of dislocation , illnesses, and the struggles with the advancing Anglo-European populations . During the 1990s, however, Indian populations increased between 26 percent and 110 percent (depending on definition), compared to 13 percent for all Americans.2 Indian populations are also young: a median age of 28 years, more than six years younger than the nation as a whole.3 Yet today Indian tribes struggle with the challenge of providing education, medical care, and economic opportunities for their youth so that communities remain vital and tribal culture is preserved. In1908thelocalIndianagenthandledmanyissuesinvolvingtriballandsand waterwhiletraditionalformsoftribalgovernancepersistedinaseparate—often Winters and the Contemporary Landscape John E. Thorson  chapter 4 82 PART II clandestine—manner. A century later many tribes have adopted constitutions and governments under the Indian Reorganization Act.4 But in almost all cases, tribes have become more governmentally and economically independent .Manytribeshaveadoptedwatercodesandcreatedwaterresourcedepartments to manage their water. In 1908 water use in the West was generally limited to family farms, small cities and towns, and mining. In 2008 water is used for a broad range of beneficial purposes: municipal and industrial, energy production and hydropower, recreation, and environmental protection, among others. Urban water purveyors are becoming the major players, spiking demand and setting prices in growing water markets. In many basins the Endangered Species Act requires water to restore species.5 Even agricultural water use, which remains the largest water use in the West, has dramatically changed in the past one hundred years. Today irrigated farming relies on large dams, reservoirs, and conveyance systems. Farms are much larger and are often under corporate ownership and management. Much cropland has moved from alfalfa and grains to high-value produce and wine grapes. More and more of this production is being diverted from food or fodder to biofuels. Water, of course, is more scarce and subject to more demand than in 1908. In basins like the Colorado and Missouri, yearly flows remain below longterm averages. Lake Powell may never fill completely again. California governor Arnold Schwarzenegger declared a statewide drought emergency in 2009, and Oakland and the East Bay were under rationing. This occurs at a time when there are more demands on the supply: for power production, urban use, environmental restoration and protection, farming, and of course, to now meet the delayed fulfillment of large tribal water claims. In 1908 Americans were just beginning their century-long affair with petroleum and the internal combustion engine. In 2008 Americans and others are negotiating the terms of their divorce from oil, gas, and other carbon-based fuels. The marriage certainly had its romantic moments, but the abuse to the hydrologic cycle and future generations has been extensive. What all this means for water supply and utilization is a great uncertainty facing us all. Especially since the early 1970s tribes, and the federal government on their behalf, have been active in asserting Winters rights in almost all western states. This development corresponded with increased population growth in the West, energy development, and the need for states to improve their water right records. The result was that ten western states commenced or expanded 83 Winters and the Contemporary Landscape massive, complex lawsuits known as general stream adjudications. These cases, often involving tens of thousands of parties and hundreds of thousands of water rights, have taxed the state and federal court systems and all participants . Common to almost all of these cases has been the strong tribal and federal advocacy for sizeable reserved water rights for tribal and other federal land, with priority dates extending in many instances to the 1800s, if not time immemorial. The litigation results of these cases, even after a quarter century, have been few but important. But the cases have stimulated negotiations that have produced an impressive set of Indian water right settlements. These two dozen settlements...