Photo: The Menominee River forms a large portion of the boundary line between northern Wisconsin and Michigan’s Upper Peninsula and flows into Green Bay through Marinette and Menominee. According to the Menominee Indian Tribe of Wisconsin, the tribe’s origin story begins at the mouth of the Menominee River, a continued home to sacred sites and agricultural bounty.
“The Indian tribes,” as the U.S. Constitution refers to them, have both rights and responsibilities when it comes to water. Not unlike the state of Wisconsin, Indian tribes are protective of their collective rights and tribal members’ individual rights to protect their water interests while growing tribal productivity and modern local economies. In Wisconsin, scholarship and other writing about Indian water law are sparse and generally deal with water quality and off-reservation treaty rights.
The abundance of water in the Great Lakes region has largely left water-quantity issues under the radar. But water shortages in the American Southwest and in Wisconsin may change all that sooner than we anticipate. The field of law known as “Indian water rights” is as complex as any, meandering through federal Indian law and several relatively distinct but interrelated legal doctrines. The state of Wisconsin and the Indian tribes would be wise to establish and grow a meaningful relationship over their respective water rights and responsibilities sooner rather than later.
Trust Relationship and Trust Responsibility
Understanding Indian water rights requires perusing the double-edged sword of the “trust” doctrine. The U.S. Supreme Court long ago analogized the relationship between the federal government and the tribes as one like a guardian to its ward,1 dubbed by courts as the so-called trust relationship, intended to maintain good-faith political relations between the federal government, states, and the tribes. This is one reason that the federal government claims a seat at the table when Indian water rights are at issue.
Professor Richard Monette joined the University of Wisconsin law faculty in 1992, where he has also served as the faculty director of the Great Lakes Indigenous Law Center, an academic center facilitating law students’ work with Indian tribes. He has taught water rights law for 25 years and has served as consultant on water negotiations for several tribes.
Monette is an enrolled member of the Turtle Mountain Band of Chippewa, where he grew up and for whom he was twice elected Chair and CEO. He has served as staff attorney for the United States Senate Committee on Indian Affairs and as director of the Office of Congressional Relations in Bureau of Indian Affairs.
However, the federal government has since invoked this political relationship to justify unilaterally managing Indian assets, including water, oil, gas, coal, timber, and the like. This arrangement, akin to a common-law property trust, with a corpus, trustee, and beneficiary, has been dubbed the trust responsibility. This is another reason the federal government is often at the table when Indian water rights are in dispute. Importantly, because the politically based trust relationship existed before the property-based trust responsibility, the two concepts are distinct, but they are also very much interrelated and both come to bear in the Indian water rights arena.
Reserved Rights Doctrine
More than one century ago, the U.S. Supreme Court issued two opinions that laid a lasting foundation for Indian water rights. In United States v. Winans,2 a 1905 opinion involving implied access to water to exercise expressly reserved treaty fishing rights, the Court wrote: “Indian treaties are to be construed not as a grant of rights to the Indians, but a grant of right from them – a reservation of those not granted.” Three years later, the Court issued Winters v. United States,3 ruling that tribes impliedly reserved enough water to sustain a homeland, in disregard of the state’s water rights’ regime.
Winans set the cornerstone of logic for all later treaty rights cases, while Winters brought that logic into the water law arena. Together, they breathed life into a “reserved rights” doctrinal development that mirrors the 10th Amendment for states, acknowledging that tribes were on the North American continent first with inherent sovereignty; tribes did the giving rather than the receiving and whatever they did not relinquish to the U.S. they reserved to themselves; and first and foremost, “reservation” includes a habitable homeland.
Equal Footing Doctrine
In many Indian water cases, the states invoke reserved rights in the context of the equal footing doctrine, a long-standing construct whereby all states (the 13 that formed the original United States and the 37 that came after) have an equal relationship with the federal government. The doctrine is one of the more intellectually fascinating developments in U.S. law, especially when it comes to Indian water rights, when a state’s 10th Amendment reserved rights directly clash with a tribe’s reserved rights. The equal footing doctrine was the cornerstone of both states’ arguments against Indian water rights in Winans and Winters.
Under the U.S. Constitution and implementing laws, the states did not make treaties with tribes; the federal government did. Consequently, states did not directly acquire their future territories on their own; rather, the federal government acquired territories that would become future states. So, here’s the rub – if a tribe reserved rights from the federal government in a treaty, then the federal government had an obligation to “reserve” those same rights from the new state. But attaching the term “reserve” to the federal government’s dealing with the states summarily turns 10th Amendment logic on its head. As a result, while tribes’ reserved rights prevailed against the 10th Amendment and the equal footing doctrine in Winans and Winters, disputes continue.
Generally, each U.S. state determines its own system for
governing water, and two water-law regimes –
riparian and prior appropriation – dominate.
In the years following Winans and Winters, federal courts began applying reserved-rights logic to federal lands as though a national monument somehow held the same reserved rights as a tribe secured in a treaty. In response to this federal “mission creep,” U.S. Senator Pat McCarran (b. 1876, d. 1954) of Nevada, a state that contains much federal land and relatively little water, shepherded through Congress a law that waived the federal government’s sovereign immunity during any state general-stream-water adjudication.4
Perhaps inevitably, especially because federal reserved water rights had piggybacked on Indian reserved rights in Winters, the Supreme Court applied this law, referred to as the McCarran amendment, to Indian water rights.5 As a result, tribes find themselves fighting for water, almost always against a state, in that state’s own courts.
Not surprisingly, tribal members think this is an unfair playing field. Tribes hold firm to the argument that several issues remain federal questions for federal jurisdiction, despite the McCarran amendment, namely whether they have reserved water rights and what quantity of water is necessary for a habitable homeland. Nonetheless, because of the McCarran amendment, water disputes in Wisconsin between the state and the tribes will generally play out in Wisconsin state courts.
State Water Law: Prior Appropriation and Riparian
Generally, each U.S. state determines its own system for governing water, and two water-law regimes – riparian and prior appropriation – dominate. Riparian law generally governs in the more humid eastern states, while prior appropriation evolved in the more arid western states. Riparian rights attach to, and are exercised upon, real property adjacent to a body of water, while prior appropriation ties to development and productive usage in disregard of relative location of the water and the land where it is used.
Over the years, the two systems have become more alike and less distinguishable. Prior appropriation states increasingly recognize the value of using water in situ and generally acknowledge collective interests in sustainable water use. Meanwhile, riparian states increasingly acknowledge priority uses in the form of prescription, akin to prior appropriation, as well as quantification, which dovetails with the nomenclature of high-capacity wells.
The Winans and Winters cases arose in prior appropriation states, whereas Wisconsin uses the riparian system, and that fact alone will cause some slippage when the inevitable exercise arrives to quantify Indian water rights in Wisconsin. While Winters determined Indian water rights largely in disregard of the state’s water regime, application of the McCarran amendment gives states’ water-law approaches great relevance in Indian water disputes, so the nuances of Wisconsin riparian water law will play a role in Wisconsin Indian water rights disputes.
Equitable apportionment is a concept used globally as well as among the U.S. states. It is based on the idea that every polity, as a tenet of its existence and recognition, has a right to enough water to sustain and grow its own society and culture. Generally, equitable apportionment rests on an equal or fair right to reasonable use of shared water sources when considering geography, demographics, and social and cultural self-determination.6
After Winters, which was based on implied water rights for a permanent homeland, Indian water rights could have been viewed as a version of equitable apportionment. However, the U.S. Supreme Court’s application of the McCarran amendment has had the unfortunate effect of subordinating tribal water rights to state jurisdiction and, as a result, subordinating tribal polities and cultures to state social values. Nonetheless, because a habitable homeland remains the objective for Indian water rights, the quantification process will approximate an equitable apportionment exercise. In addition, tribes’ off-reservation treaty rights in Wisconsin, if not violated, will provide some counterbalance to make water negotiations and litigation more fair and equitable for tribes.
Federal Legislation and Indian Water Rights
The least palatable legal development for Indian water rights might be PL-280. In 1953, Congress enacted Public Law Number 83-280, which imposed state jurisdiction over crimes and civil causes of action arising in Indian country located within six states, including Wisconsin and Minnesota.7 So, if Wisconsin criminalizes some aspect of water use, PL-280 would apply state criminal law and jurisdiction in Indian country, even to tribal members.
More important, an unfortunate dynamic in American water law is that because of legislative inaction and a lack of leadership, private civil lawsuits have driven water policy development, often in the context of property or tort disputes. Therefore, presumably, PL-280’s imposition of state law and jurisdiction over civil causes of action would mean civil disputes would play a similar role in fashioning water policy in Indian country, all the while based on underlying societal norms and cultural values of the state of Wisconsin.8 Not surprisingly, in any dispute or negotiation, tribes will impress upon the state that water matters internal to a tribe must reflect the societal norms and cultural values of the tribe itself, which can only happen if disputes are decided using a tribe’s own water rights regime and a tribe’s own courts to resolve disputes.
Federal Indian law often depends heavily on policy – what are the objectives for the Indian tribes, and does the application of law and doctrine help attain those objectives? To cut to the policy chase, do the federal and state governments intend to recognize each tribe’s right to exist and determine its own culture or do they intend to construct a legal regime that destroys them? Governing water in a territorial fashion, just like governing property within a territory, is necessary for any sovereign to balance the various related and sometimes competing forces in a way that preserves and advances the sovereign’s own culture. This might be the central tenet of state water law. It definitely is the central tenet of Indian water law.
From state to state, governing water is an exercise of state culture, and it is fair to say that the balance between public and private rights in water is a clear benchmark of that culture. For example, in Oregon, a state with a strong public trust, a person can cross private property to access public assets such as the ocean, rivers, and mountains. In Texas, which leans more toward individual interests, individuals crossing private property to access public assets will very likely encounter barriers. The granola-snacking hiker in the Pacific Northwest and the shoot-first-and-ask-questions-later Texan are caricatures but they are also unmistakable symbols of their respective cultures. If Oregon and Texas residents disagree with those identities, they have a good deal of power to change them. The question is – will tribes be able to determine the balance between their own public and individual water rights, or will state social norms and cultural values be imposed on them by state law and court decisions?
A Wisconsin case highlighted the maneuvers necessary to determine the proper balance between the state and its residents in determining the state’s culture. In Rock-Koshkonong Lake District v. DNR,9 the Wisconsin Supreme Court wrestled with whether the state government’s power was constitutive in the guise of the public trust doctrine or legislative in the guise of the police power doctrine.10 The larger point is that both these doctrines set the relationship between the government and the citizen, determining the proper balance between collective and individual, between public resources and private property, and between navigable waters and wetlands above and beyond the ordinary-high-water mark. Like Oregon and Texas, Wisconsin uses these legal mechanisms to determine the proper balance between public resources and private property, between collective interests and individual water rights – in short, to determine its own culture.
Indian tribes, too, have individual property in their territories and subject to their jurisdictions. Tribes also must balance the relationship between collective and individual, between the tribe and private property owners, and between the respective rights and responsibilities of each. Like Wisconsin, tribes may have a public trust doctrine or a police power doctrine to strike the balance between collective interests and individual private property in their territories. The challenge will be whether stakeholders will recognize this basic right of self-determination in the tribes as well.
Contextualized by federal Indian law, itself a thicket, the relationship between water quantity and quality brings an exquisite complexity to Indian tribes’ water rights. If this discussion centers on Wisconsin, which is obviously the more developed regulator as well as the greater polluter in this relationship, the state-tribe relationship will tend to focus on water quality. However, from their own point of view, tribes will also have a right to polluted water, as well as a right to pollute water, as well as the right to clean water, as well as a right to clean polluted water. Only if the tribes are treated by Wisconsin as a separate collective will tribes be able to determine the proper relationships and balance – in short, to determine their own cultures.
1 Cherokee Nation v. Georgia, 30 U.S. 1 (1931).
2 198 U.S. 371 (1905).
3 207 U.S. 564 (1908).
4 66 Stat. 560 (1952), codified at 43 U.S.C. § 666.
5 Arizona v. California, 373 U.S. 546 (1973).
6 Seepassim, Colorado v. New Mexico, 459 U.S. 176 (1982); South Carolina v. North Carolina, 558 U.S. 256 (2010); Nebraska v. Wyoming, 515 U.S. 1 (1995).
7 Public Law 280 (Pub. L. No. 83-280, Aug. 15, 1953, codified at 18 U.S.C. § 1162, 28 U.S.C. §§ 1321-1326, and 25 U.S.C. §§ 1321-1326) is a federal law of the United States establishing “a method whereby States may assume jurisdiction over reservation Indians ….” McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 177 (1973).
8 Despite that PL-280 commandeers state government, delegates a federal function to non-federal actors, and is more vague than many statutes declared void for vagueness, federal courts have yet to declare PL-280 unconstitutional.
9 Rock-Koshkonong Lake Dist. v. State Dep’t of Nat. Res., 2013 WI 74, 350 Wis. 2d 45, 833 N.W.2d 800.
10 Stacy Vogel, Public, Private Interests Collide in Koshkonong Case, GazetteXtra (Feb. 20, 2008), http://perma.cc/N4LW-AFZD.
» Cite this article: 95 Wis. Law. 10-14 (October 2022).