Ethical Issues in Resource Economics: Discussion

Burness has touched on a very vexing problem, one that has the potential for disrupting property rights in water, water use, and efficient allocation of water over large areas of the West. The reason is that Indian claims being made for water are massive in many areas, and the courts and water administrators have just begun to take the first tentative steps in dealing with this issue. First we should ask: What is equity? To or for whom? Rawls' Theory of Justice outlines several criteria for attaining equity and social justice. He believes basic rights should be distributed equally to all citizens, but social and economic inequalities are to be skewed in favor of the least advantaged. In our study of irrigation communities we found that farmers preferred merit or hard work as a basis for economic inequality (Maass and Anderson, p. 394). The U.S. government is supposed to have a trust relationship with the Indians, but is it to act vigorously on the part of Indians against other citizens of the United States? I am not sure the Indians can expect this. When one examines any of the Indian claims for water, one finds the statement that Indian water rights were implied at the time of the treaty or establishment of the reservation, but nowhere is there an explicit statement claiming water rights. Irrigation was not generally practiced in the West at that time, and there is no evidence that the treaty makers had water development in mind. During and after this period, the federal government began to admit western states into the Union. All seventeen arid and semiarid states adopted the Appropriation Doctrine of water rights. The constitutions of these states make explicit statements such as: "The waters of the streams belong to the State" (Wyoming doctrine), or "The waters of the streams belong to the public" (Colorado doctrine) (Huffman, pp. 44-45). Webb (p. 432) noted that more efficient use of resources could have been made if the federal government had retained control of water as it had land, but administration and control of water rights passed by default to the states. Under this system many streams in the West have long been overappropriated. Only the Colorado River, the Yampa River, and the White River have unappropriated water in Colorado. Now in the 1970s and 1980s the federal government is trying to reestablish control that it let go by default a century ago. Indian water rights claims have been raised seriously only in the recent past. The Winters decision granted Indian water rights on a small stream in Montana in 1907. Under this decision the Indians were seemingly granted some unspecified quantity of water for irrigation of reservation lands. Over fifty years passed with no ripple of Indian rights on the western water scene. Then, in the Arizona v. California lawsuit over division of the water of the lower Colorado River, the special master brought Indian water claims to the forefront by granting unprecedented amounts of water to desert lands within reservation boundaries. Since that time, tribes all over the West have been encouraged to get into the act of claiming "their" water. The great bulk of the claims are based on implied rights to water based on Indian treaties or establishment of reservations. The treaties, however, say nothing about water, water rights, or irrigation. The treaties were made with nomadic, pastoral, and hunting aboriginal tribes that had little or no governmental structure. The creative attorneys who are pushing Indian water right claims have elevated these claims to encompass large quantities of water on some streams and have orchestrated uses such as irrigation, industrial uses, power generation, instream flow maintenance, and the right to sell water to industries off the reservations. Hutchins wrote a threevolume work containing 1,950 pages in which Raymond L. Anderson is with the Department of Agricultural and Natural Resource Economics, Colorado State University. The views expressed in this paper are those of the discussant and do not represent the views of any agency or institution.