The Glacier reporter. [volume] (Browning, Mont.) 1953-current, 1961-12-21
Reuort Of Task Force On Indian Affairs
OFFICIAL REPORT

III NAAC . y = ~
States where beneficial use Is
the basis of water flow, the In
dams are a minority which has
been overwhelmed by stronger,
more chronological advanced and
more politically influential pop
ulations which have taken and
used waters desired and claimed
by the Indians. Since this has
been permitted by States and
most of the available water thus
appropriated by non-Indians, II
is too late for Indians to obtain
water under State law.
In the light of the above, it Is
not surprising that Indians rely
on doctrines of Federal law and
litigation which has been car
ried repeatedly TO the Supreme
Court, Il has been established
that in creating Indian reserva-
tons, the United States intended
for the Indians an amount OF
water sufficient TO supply all the
irrigable land within the reser-
walton boundary. as well as to
provide for associated domestic,
stock, and related water uses.
Reservation of this amount OF
water is implied and need not
be expressly stated by treaty.
statute, or executive order. II Is
vested property appurtenant to
the Indian land. The priority of
the right is the date the reserva-
ton was established. The exist
ence Of and the continuation OF
such right is not dependent upon
actual use of the water at any
given time; and il continues even
though others may have taken
and used the water after the res
ervation was created.
This view of Indian water
rights, which has repeatedly been
asserted by the Federal courts,
is in conflict with the doctrine of
water law in the Western States
and with the prevailing mood In
water-short areas, particularly in
times of severe drouth like the
present. II is also clear that most
of the Indian water rights are
based on Federal court interpre-
tations which do not have much
statutory augmentation.
One example of the strategic
Importance Of prevailing Indian
water rights is the Navajo Irriga-
ton Project. Now rapidly APP
preaching the development stage,
this project would have been i'm
possible If Section o of the Nava-
jo-Hopi Rehabilitation Bill had
been adopted in 1850. The intent
of this section was to extend
State civil and criminal jurisdic-
ton TO the Navajo Reservation.
In spite of urgent Navajo needs
and the Importance of the total
Navajo program, President Tru-
man vetoed the bill. His principle
reason was the fact that the At
torney General was unable to
assure him that in the event of
litigation over water rights, he
would be successful In removing
the case to the Federal courts
where the doctrine of paramount
Indian water rights would pre-
vail. The Congress wisely remov-
ed the Objectionable section and
re-passed the Navajo-hopi Bill,
thus paving the way for the Nav.
ajo Irrigation Project, and incl
dentally, for other greatly en-
larged Navajo programs which
were unforeseen eleven years
ago.
II has been asserted from time
TO time that Indian fears about
the loss of water rights under
State jurisdiction are groundless
in view Of the language in Pub
lie Law 1920. This statute, which
grants to the States the option
Of extending civil and criminal
jurisdiction TO Indian reserva-
tons, provides that nothing In
the act shall ALLEVIATE" existing
Indian water rights. The amount
of protection which this statute
provides Is uncertain, since II
does not specify what the exist
ing Indian water rights are. In
dians fear that If disputes over
these rights were litigated In
State courts, the doctrine of ben
eficial use would decide the Is
sue. In such cases their only re-
course would be prolonged and
costly litigation in the Federal
courts.
II is not suggested that Indian
land should remain undeveloped.
On the contrary. Indians should
use their water rights TO the full
est extent To do so would pro-
vide a source of income and. at
the same time, would be a prac-
teal protection Of their rights.
In the opinion Of the Task
Force II would be improvident
to remove Federal jurisdiction
over Indian water rights until
the irrigable acreage of a given
reservation has been determined;
until the quantity of water need