Eyeing the Future on the Wind River
Eyeing the Future on the Wind River
Anne MacKinnon 0
0 Thi s Article is brought to you for free and open access by Wyoming Scholars Repository. It has been accepted for inclusion in Wyoming Law Review by an authorized editor of Wyoming Scholars Repository. For more information , please contact , USA
Part of the Law Commons Recommended Citation Anne MacKinnon, Eyeing the Future on the Wind River, 15 Wyo. L. Rev. (2015). Available at: https://repository.uwyo.edu/wlr/vol15/iss2/5
-
Article 5
Follow this and additional works at: https://repository.uwyo.edu/wlr
VOLUME 15
La W Rvie
2015
NUMBER 2
EYEING THE FUTURE ON THE WIND RIVER
Anne MacKinnon*
I. IoducIntrno
The key question for the future of the Wind-Big Horn is how the river can
be managed to its fullest potential, to serve all the uses desired by the people who
live in the basin. Currently the majority of the river’s flows available for use in
Wyoming are managed by the State of Wyoming and the federal government,
primarily for irrigation.1 Current and future state and federal water users in the
basin may or may not see their water needs satisfied by that management. Among
those non-Indian residents of the basin, some have voiced increased interest in
using water for non-irrigation purposes: recreation, fisheries, instream flows, and
aesthetic enhancement of residential areas along the Wind River in Riverton.
The Eastern Shoshone and Northern Arapaho tribes, meanwhile, have
clearly expressed interest in substantial non-irrigation uses of the river. Their
attempt to protect instream flows in the Wind River from diversion for
agricultural use led to the litigation decided in 1992 in In re the General Adjudication
of All Rights to Use Water in the Big Horn River System (Big Horn III ).2 The tribal
water code and tribal water planning efforts pay explicit attention not only to
familiar consumptive uses (agricultural, domestic, municipal and industrial),
but also to an array of non-consumptive uses, including cultural, religious,
recreational, and instream flow for fisheries, wildlife, pollution control, aesthetic,
and cultural purposes.3
* J.D. 1981, U.C. Berkeley Boalt Hall; Ph.D. 2014 Natural Resource Economics, Humboldt
University, Berlin; retired member, Wyoming State Bar.
1 Wyoming Water Development Commission, Executive Summary, Wind-Bighorn Basin
Plan Update (May 2010), available at http://waterplan.state.wy.us/plan/bighorn/2010/finalrept/
execsumm.pdf.
2 835 P.2d 273 (Wyo. 1992).
3 WInd r Iver Wtera c ode , t rIbal c ode § 11-8-I(E)(1)
(adopted by Shoshone and
Northern Arapaho tribes of the Wind River Reservation, Mar. 18, 1991)
; Northern Arapaho and
Though the two tribes had their right to a majority of the flows of the Wind
River confirmed in 1988 in In re the General Adjudication of All Rights to Use
Water in the Big Horn River System (Big Horn I ), those flows have not been put
to anything like the broad array of uses envisioned in the tribal water code.4 As
the previous articles in this issue have detailed, after more than thirty-five years of
litigation and decree implementation, a good half of the water rights in the Wind
River held by the tribes are still not “wet” water rights, but only paper rights.5
Accordingly, much of the question of the Wind-Big Horn’s future boils
down to whether the tribes can achieve their goals for the river, despite the limits
imposed by the suite of Wyoming Supreme Court Big Horn decisions. This is
a question that should concern not only the two tribes and the Wyoming State
Engineer’s office, but the overall population and the elected officials of Fremont
County and all of Wyoming.
Fremont County had an unemployment rate of 5.2% when the Big Horn
Symposium was held in Riverton in September 2014, the highest in the state and
more than a full percentage point above the statewide rate of 4.1%.6 The high
rate of unemployment has been a situation typical for the county in this century.7
Recent figures suggest the true unemployment rate for tribal people living on
the Wind River Indian Reservation or nearby trust lands is dramatically higher:
18.9%, from 2008 to 2012.8 Meanwhile, low family income has meant that all or
Eastern Shoshone Water Resources Control Board, Office of the Tribal Water Engineer, Our Water,
Our Future: The Wind River Water Plan, Eastern Shoshone & Northern Arapaho Tribes (Public Review
Draft, Aug. 2007).
4 In re the General Adjudication Of All Rights To Use Water In The Big Horn River System,
753 P.2d 76 (Wyo. 1988)
5 Justices Thomas and Cardine of the Wyoming Supreme Court used the term “paper water”
or “paper water rights” to describe the tribes’ futures award. Big Horn III, 835 P.2d at 284–85.
hte
Futre
nearly all the students in the three Fremont County school districts with primarily
Native American students qualified for free or reduced-price lunch, according to
the most recent figures, for 2007 through 2011.9 Also in the most recent years
documented, Fremont County (...truncated)