And now:Ish <[EMAIL PROTECTED]> writes:
Subj: [ULRP-ENVIRONMENTAL] ABSTRACTS: Environmental Law
Date: 99-06-18 21:44:28 EDT
From: [EMAIL PROTECTED] (www.lawreview.org)
Reply-to: [EMAIL PROTECTED] (www.lawreview.org)
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University Law Review Project
http://www.lawreview.org/
Environmental Law
AREA 13
June 18, 1999
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* ARTICLE ABSTRACTS IN THIS ISSUE *
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4. Wet Water vs. Paper Rights: Indian and Non-Indian
Negotiated Settlements and Their Effects
Susan D. Brienza
Stanford Envirn. L. Jnl.
Undated
REF: ULRP9900009
Abstract is on these Lists: 13, 20
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LAW JOURNAL ARTICLE ABSTRACTS AND SUMMARIES
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4. Wet Water vs. Paper Rights: Indian and Non-Indian
Negotiated Settlements and Their Effects
Susan D. Brienza
Stanford Envirn. L. Jnl.
Stanford University
Undated
http://www.stanford.edu/group/ELJ/v11-brienza.html
REF: ULRP9900009
ABSTRACT:
A recently revised casebook on Water Law3 begins with an 1892 Colorado case
in which one man murders another in a dispute over an irrigation ditch. The
judge cautions at the end of his opinion that "[h]uman blood is more
precious than water, even in this thirsty land."4 Yet the history of the
American West proves that almost the reverse is true. Indians and
non-Indians have fought against each other in both literally and judically
bloody disputes over water rights for the last century.5 These fights are
emotionally and politically charged, as well as legally complex. Not merely
ownership of a few thousand acre feet6 of a river, but instead the
sovereignty and very survival of Native American tribes is at stake. The
continued growth of large Western cities is in direct competition with
Indian water rights.7 Conflicts over the water have become especially acute
in the last ten years, as water tables and aquifers have lowered, and
rivers have been polluted and depleted. Indian tribes have renewed their
assertion of primary federal reserve rights against non-Indian irrigators,
developers, and city dwellers. The Indians assert that the non-Indians have
exploited water for decades often preemptively and illegally-that
rightfully belonged to Indian tribes.
Currently, Native American tribes seek wet water while non-Indian users
seek secured rights to future water. This potential conflict raises several
questions: What method of dispute resolution is better suited to water
conflicts-litigation or negotiation? What solutions can legislation
provide? Should some combination of these methods be employed? What role
can mediation play?8 After analyzing the relative merits of these dispute
resolution alternatives, I will argue that negotiation provides the best
mechanism for resolving Indian/non-Indian water disputes.
Part I presents a brief history of the legal issues involved in Indian
water rights disputes, and includes the major cases on point. Part II
analyzes the weaknesses of litigation, and Part III the advantages of
negotiation in resolving these conflicts. Part IV examines several
processes that successfully combine negotiation with other methods. Part V
explores concerns from the tribes' point of view, including those concerns
arising before and during the negotiating process, and offers suggestions
and guidelines for dealing with these concerns. Part VI examines the
aftermath of a negotiated settlement, which generally includes residual
legal issues, political and economic ramifications, and social concerns.
Part VII concentrates on the environmental consequences of settling Indian
water disputes, with an emphasis on leasing rights. Part VIII presents a
detailed case study of a long and complex dispute in Nevada, and shows
exactly how it was resolved to benefit all the interested parties. This
article focuses throughout on Western water rights, but includes some
discussion of related fishing rights and shoreland rights in the Pacific
Northwest.
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Copyright 1998 University Law Review Project Have a great day!
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