Jesse H. Alderman has posted his paper, “Winters and Water Conservation: A Proposal to Halt ‘Water Laundering’ in Tribal Negotiated Settlements in Favor of Monetary Compensation,” on SSRN. The final version of the paper appears in the Virginia Environmental Law Journal. Here is the abstract:
In the century since the U.S. Supreme Court, in Winters v. United States, granted Indian tribes reserved water rights, few tribes have received the promised delivery of water, while at the same time, the Department of Interior — the same agency tasked with a fiduciary duty to hold all tribal assets in trust — constructed massive, multibillion-dollar water projects without cognizance of senior Indian rights. The water transformed much of the West from arid desert to a green expanse of farmland and steel-and-mirrored urban centers with populations rivaling cities in the water-rich East. However, the pace of development has placed unsustainable strain on the groundwater aquifers and surface waters of the parched Interior West, all while untold millions of acre-feet of water are still owed to Indian tribes under Winters. As state courts and the U.S. Supreme Court have proven hostile to Indians, tribes have increasingly settled their Winters claims through negotiation with states, cities, and other junior appropriators. The benefits of these negotiated settlements have proven illusory. While tribes turn their “paper rights” into “wet water,” they are often shortchanged, and bound by agreement to market water to competing municipal economies off-reservation. The linchpin of most negotiated settlements is federal investment in otherwise politically unpalatable water delivery projects, made possible by the purported necessity of settling senior Indian claims. This form of exchange might critically be called “water laundering.” This Article argues that negotiated settlements are bad public and environmental policy. As an alternative to those negotiated settlements, this Article proposes that tribes should instead seek financial compensation for their inchoate Winters rights by suing the federal government for a century of abject breach of its fiduciary duty to hold water in trust for the benefit of tribes. This suit should be modeled on the recent Cobell class action litigation, where Congress ratified a $3.4 billion settlement with the Departments of Interior and Treasury for similar mismanagement of Indian allotment lands. A class action approach would allow the tribes to receive the maximum financial value, and vindicate rights long neglected by the federal fiduciary, all while averting further overconsumption of the West’s perilously scarce water resources.