Goals for State-Federal Action

In a growing number of states, tribes have begun to claim water and fishing rights after these resources have been appropriated for other uses under state law or federal reclamation projects. Because access to water and the fishery resource is vitally important in these states, policy and procedures for determining how to allocate these resources among the competing claims is crucial.

The National Conference of State Legislatures feels the following principles should guide any policy or actions regarding Native American water and fishing rights:

• Disputes over Native American water and fishing rights should be settled through negotiation.
• Resolution of disputes between tribal and non-tribal users should be as fair and equitable as possible. The terms of settlement should consider the legitimate claims and the economic hardships that will be imposed on those who have obtained their rights legally, and also on those who have been denied their rights.
• Procedures should be flexible, to account for the variety of local needs, resources, claims, and relationships among users and claimants.
• Clarification of the extent of Native American rights to water and the fishery resource is necessary for sound water management, for allocation of these resources among competing uses, and for planning future growth and development.
• Procedures for resolving Native American water and fishing rights disputes should encourage communication and cooperation among various users and seek to avoid further destructive confrontations.

Therefore, NCSL recommends that:

• Appropriate agencies and officials should quantify the extent and nature of Native American water and fishing rights.  Only after such quantification can effective resolution of competing claims proceed.
• Where conflicting claims to these resources occur because Native Americans’ claim prior rights to water or fish already appropriated, tribes, states and non-Native American users should seek to resolve the dispute through mediation, and with federal participation as necessary to ensure that states and tribes arrive at an enforceable agreement. Procedures should be implemented, however, to coordinate the process of obtaining approval from Congress of such agreements.
• Congress should enact legislation to provide compensation by the federal government to all owners of legally established water or fishing rights, if those rights are later altered or taken by the United States or Native American tribes, or if the exercise of those rights is precluded by action of the United States courts.
• Tribal governments, which have unabrogated treaty rights to water and fishing resources, should be directly represented on national, state, regional, and interstate water and fishing planning and regulation bodies such as the Interstate Compact Commissions, Interbasin Commissions, River Basin Commissions, and others.
• The federal government should immediately and fully fund authorized projects, where negotiated settlements have been signed among Native Americans, state, local and federal governments.