Book Review: American Indian Water Rights and the Limits of Law by Lloyd Burton

American Indian Law Review Volume 17 Number 2 1-1-1992 Book Review: American Indian Water Rights and the Limits of Law by Lloyd Burton Edward Janecek III Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indigenous, Indian, and Aboriginal Law Commons Recommended Citation Edward Janecek III, Book Review: American Indian Water Rights and the Limits of Law by Lloyd Burton, 17 AM. INDIAN L. REV. 677 (1992), https://digitalcommons.law.ou.edu/ailr/vol17/iss2/8 This Book Review is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . SPECIAL FEATURES Book Review: American Indian Water Rights and the Limits of Law by Lloyd Burton (University Press of Kansas 1991) Of all the elements necessary to sustain human existence, water is by far the most crucial. While we often take this precious resource for granted, its importance to all aspects of the human experience is reinforced when its availability is threatened. This notion is illustrated by the abundance of water rights disputes that have arisen in parts of the country that normally possess an excess supply of water and have experienced droughts and atypical weather patterns in recent years. While disputes over water rights may fluctuate with climactic conditions in certain parts of the country, controversies of this nature are not novel or sporadic in the arid states of the west. This should not come as a surprise, as much of the American Southwest is classified as desert. In addition, rapid population growth in the "Sunbelt" in the latter half of this century has compounded the problem and put a tremendous strain on the water supply in an area that is simply not naturally suited to support the growing population, as well as the growing number of commercial and agricultural entities that now inhibit the Southwest. The western states are also home to a large number of American Indians, and contain a large number of Indian reservations. Thus, the stage has been set. The attraction is certainly not a premiere of an original script. It is merely a rerun of a portion of American history of the last 250 years. Specifically, it is the evolution of a conflict between Indian and non-Indian interests when non-Indian interests voraciously desire a resource that is possessed by Indian interests. Due to the abundance of the conflicts described supra, and the fact that tremendous amounts of money and the livelihood of entire communities are at stake, attorneys, and laymen alike may find the need to construct a foundation of knowledge in water law as it applies to American Indians.1 American Indian Water Rights and the Limits of Law2 is an excellent resource for accomplishing this task. Lloyd Burton's book does an excellent job of explaining the legal intricacies of water rights as applied to American Indian interests. In addition, his work is taken to an even higher level by a discussion of the political 1. This statement is particularly true for individuals in the southwestern region of the country. 2. LLoYD BURTON, AMERICAN INDIAN WATER Ric= AND THE Lmwrs oF LAW (1991). Published by University of Oklahoma College of Law Digital Commons, 1992 678 AMERICAN INDIAN LA W REVIEW [Vol. 17 and social factors that play mammoth roles in resolving water rights disputes. He also discusses the practicality and enforceability of a decision or agreement once it is finalized. By including these factors, Burton gives the reader a much stronger tactical and analytical base in evaluating a client's, or perhaps his own position in a water rights conflict. While American Indian Water Rights and the Limits of Law contains six chapters, it basically breaks down into four sections. 3 The first of these sections consists of chapters 1 and 2, which provide a social and legal. perspective on the evolution of relations between Euro-Americans and American Indians from the time the first Europeans set foot on the North American continent. The historical events and case law described in the first two chapters take one a long way down the path of developing an understanding of how many lawsuits between American Indians and the federal government, state governments, and individual citizens concerning water rights have developed. One of the most enlightening pieces of this first "section" is the analogy comparing the treaty-making process between the federal government and different Indian tribes in the nineteenth century, which created Indian reservations, and contemporary water rights agreements between Indian tribes and the federal government. History tells us that the result of many treaties which created Indian reservations was a future compromise between a particular tribe and the federal government, where a tribe would acquiesce its paper right to vast amounts of land in exchange for money and the federal government's promise that the tribe would have complete sovereignty over a much smaller amount of land. In addition, these agreements often contained provisions that assured the tribes that they would receive federal assistance in endeavors such as creating stable economies. History also tells us that these promises were often unfulfilled. The analogy between treaties which created Indian reservations and water rights compacts can be drawn in that to date, some water rights treaties have taken the same path. Specifically, in certain instances, tribes have agreed to give up paper rights in vast amounts of water in return for the federal government's guarantee that a lesser amount of actual "wet water" will be delivered to the tribe. Reflecting the theme of reservation treaties, the water guaranteed often times has not been delivered. Whether this pattern will continue remains to be seen. Another extremely valuable portion of the first section is Burton's explanation of key case law on the subject of water rights as applied to American Indian interests. One of the most important cases dis3. These "sections" are not designated by Burton; they instead represent the way in which the author of this review chose to break down the book for pedagogical purposes. https://digitalcommons.law.ou.edu/ailr/vol17/iss2/8 No. 2] SPECIAL FEATURES cussed is Winters v. United States.4 Winters established the idea that when the Indians entered into treaties with the United States, they reserved the right to the use of the waters on the reservation, at least to an extent reasonably necessary to irrigate their lands.- In addition, for purposes of applying the water law of a particular state, the Indians were to be assigned as an appropriation date the day the treaty became effective (or, due to the fact that Congress unilaterally abolished treaty making in 1871, the date Congress enacted reservation cr (...truncated)