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Federal ‘land grab’ advanced by Barrasso, Hageman angers tribes

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Wyoming’s congressional delegation did not consult Eastern Shoshone before advancing a bill that would give a non-tribal water district a derelict power plant within Wind River Indian Reservation.

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U.S. Domestic Sovereign Nations: Land Areas of Federally-Recognized Tribes Map

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U.S. Domestic Sovereign Nations: Land Areas of Federally-Recognized Tribes Map

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The U.S. Domestic Sovereign Nations: Land Areas of Federally-recognized Tribes map (commonly referred to as Indian lands) gives the user the ability to zoom, change base maps, and identify tribal lands with the BIA Land Area Representation (LAR). The LAR depicts the external extent of Federal Indian reservations, land held in "trust" by the United States, "restricted fee" or "mixed ownership" tracts for Federally-recognized tribes and individual Indians.

Land Area Representation Overview

The Office of Trust Services (OTS), Division of Land Titles and Records (DLTR), Branch of Geospatial Support (BOGS) provides Geographic Information Systems (GIS) support for the Bureau of Indian Affairs (BIA), tribes, and other agencies. BOGS is pleased to announce a new Land Area Representation (LAR) which is a new GIS dataset that illustrates land areas for Federally-recognized tribes. (Currently, there are 573 Federallyrecognized American Indian tribes and Alaska Native entities.) The BIA annually publishes a list of Federally-recognized tribes in the Federal Register. The BIA maintains the LAR dataset as part of the DLTR function. The LAR dataset is the BIA's official geospatial representation of Federal Indian land areas. It is used in its systems of records. The BIA LAR dataset's spatial accuracy and attribute information is continuously being updated, improved, and used as the single authoritative land area data for the BIA's mission. Since the LAR dataset was prepared for public release, it can be used by various organizations, agencies, units of government (i.e. Federal, state, county, and city), and other entities according to the restrictions on appropriate use which can be found in the metadata.

Where is the LAR dataset located?

The LAR dataset will be available to download from the following websites: biamaps.geoplatform.gov, www.bia.gov/bia/ots/dris/bogs, data.gov, and communities.geoplatform.gov/tribalnations/.

What is a tribe?

A Federally-recognized tribe is an American Indian or Alaska Native entity that is recognized as having a government-to-government relationship with the United States. Federallyrecognized tribes are recognized as possessing certain inherent rights of self-government (i.e., tribal sovereignty) and they are eligible to receive certain Federal benefits, services, and protections because of their special relationship with the United States.

LAR update information?

Future releases will include updates and additional LAR information available at the following weblink: www.bia.gov/bia/ots/dltr.

How do you use the LAR dataset?

BOGS staff recommends using the LAR dataset for the following uses: cartographic displays, planning analyses, statistical analyses, and natural resource management. There are also some examples of inappropriate uses listed here, but they are not limited to these. One inappropriate LAR dataset use includes equating the LAR to ownership. Another one is that it should not be used to address easements; it is not a substitute for a survey. Also, the LAR dataset is not for navigation purposes.

Where can a tribe or organization provide feedback about the data?

To provide feedback about the data, please e-mail the Branch of Geospatial Support Help Desk at geospatial@bia.gov.

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ArcGIS JS v4, U.S. Domestic Sovereign Nations: Land Areas of Federally-Recognized Tribes

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Mapping

We strive to map Indigenous territories, treaties, and languages across the world in a way that goes beyond colonial ways of thinking in order to better represent how Indigenous people want to see themselves.

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Native Land is a resource to learn more about Indigenous territories, languages, lands, and ways of life. We welcome you to our site.

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This resource offers a wide variety of topics focused on Indian Law. This is an excellent resource for government educators. Some of the topics include Tribal Recognition, Education, Repatriation, Water Rights and Indian Land, Indian Child Welfare, etc.

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Indian Law Research Guide, National Indian Law Library, Native American Rights Fund (NARF)

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Native American facts, Indian news and American Indian service, plus Native history and culture.

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Indianz.Com - Native American news, information & entertainment

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Native American news, information and entertainment.

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Tribal Government on the Wind River Reservation

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Tribal Government on the Wind River Reservation

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Tribal Government on the Wind River Reservation

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Law and order codes of the Shoshone and Arapaho Tribal Nations

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Tribal Codes-Law and Order Code | Wind River Tribal Court

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Native Water Rights and Resources: Managing the Trust Asset Wind River Indian Reservation

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Native Water Rights and Resources: Managing the Trust Asset Wind River Indian Reservation

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A case study in the management and protection of tribal water resource assets

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Montana Office of Public Instruction

This seven-part webinar series is for K-12 teachers and administrators looking for a content-rich professional development experience that builds background knowledge about tribal sovereignty in the United States.

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This seven-part webinar series is for Montana K-12 teachers and administrators looking for a content-rich professional development experience that builds bac…

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Tribal Government: Wind River Reservation

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Buy Tribal Government: Wind River Reservation by Ratliff, Scott, Flynn, Janet (ISBN: 9780965885522) from Amazon's Book Store. Everyday low prices and free delivery on eligible orders.

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Treaty Rights, Winters Doctrine and Federal Reserved Indian Water Rights

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Treaty Rights, Winters Doctrine and Federal Reserved Indian Water Rights

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To summarize my presentation, I focused on the history of the Wind River Reservation as an example of what colonization and failure to honor Treaties has done to Indigenous People, especially the Eastern Shoshone and Northern Arapaho. As you read on, I hope you will learn about the history of water in the United States and on reservations, as well as what we're doing now to make positive changes for the future of Indigenous People.

When our ancestors signed Treaties, they were trying to protect our way of life. The Eastern Shoshone Treaty of 1863 established the Wind River Reservation of 44,000,000 acres that took up parts of Wyoming, Idaho, Utah, and Colorado.

Five years later, the Treaty of 1868 reduced the size to just 2,500,000 acres. The reasoning by the United States at the time for reducing the size of the Wind River Reservation was to protect the Shoshone people from lawbreakers. Penalize the rightful landowners, reward the violators of the Treaty and the law! This is backward colonizer/Christian thinking that has been a curse on Indigenous People since 1492.

Over the past 100 years, many U.S. federal acts, policies, and projects-stemmed in racism-have attempted to oppress our people and limit access to land and water. These include:

The Dawes Allotment Act of 1887

The Reclamation Act of 1902

The Indian Reorganization Act of 1934

The Rogers C. B. Morton Moratorium of 1973

On the Wind River Reservation, we have experienced additional difficulties, including:

That said, we want to celebrate the positives of some efforts, including:

The United States vs. Winters was a win for Tribal Nations. Under western water law and west of the Mississippi, this court case established the Winters Doctrine, which recognizes and enforces prior appropriation; Tribes have senior Treaty rights to water. First in time, first in right. These aren't just any old state water rights, these are Treaty rights, Federal Reserved Indian Water Rights, with the Winters Doctrine, is paramount for the protection of an extremely valuable trust resource, Indian water.

We can also be grateful to Interior Secretary Deb Halaand for lifting the Morton Moratorium on April 6, 2022, which previously prohibited Tribes from adopting Water Codes. Finally, it took an Indian woman to recognize the importance of the federal government's role in protecting Federal Reserved Indian Water Rights.

More recently, the Greater Yellowstone Coalition has been supporting the Eastern Shoshone and Northern Arapaho in their quest to reclaim 111,000 acres of homesteaded land on the Wind River Reservation that the Bureau of Reclamation declared was in "excess" in 1994. According to the Bureau, this land is no longer needed to fulfill the purpose of the Reclamation Act of 1902. And, according to the Act, land is supposed to revert back to the Bureau of Indian Affairs in trust for the Tribes. Luckily, we have been in recent discussions with the Department of Interior to bring resolution to this decades-old matter.

The Greater Yellowstone Coalition is also asking the federal government to review the social, economic, and cultural injustice of Wyoming's Diversion Dam on the main stem of the Big Wind River and its related Wyoming Canal project. These irrigation systems have diverted water-life's most important natural resource-away from the Eastern Shoshone and Northern Arapaho people on the Wind River Reservation. It has been re-routing water to non-Indian people downstream for more than 100 years. We all deserve water. Water is a human right, and it is a Treaty right. Without access to water, the Eastern Shoshone and Northern Arapaho Tribes have suffered immeasurably as a result. We want to help restore the Big Wind River and all of its cultural, spiritual, and economic attributes to the Tribes of the Wind River Reservation and its surrounding neighbors.

Overall, it is my belief that the United States must understand its role in honoring and recognizing Treaties. We are hopeful we will finally see welcome changes to support Indigenous Peoples' way of life. Improved access and use to Wind River's water is just one of the ways we can begin to do better for Indigenous People.

Hahou (thank you).

- Wes Martel, Senior Wind River Conservation Associate (Eastern Shoshone)
The Greater Yellowstone Ecosystem is the land of 49+ Indigenous Tribes who maintain current and ancestral connections to the lands, waters, wildlife, plants, and more.

To summarize my presentation, I focused on the history of the Wind River Reservation as an example of what colonization and failure to honor Treaties has done to Indigenous People, especially the Eastern Shoshone and Northern Arapaho. As you read on, I hope you will learn about the history of water in the United States and on reservations, as well as what we're doing now to make positive changes for the future of Indigenous People.

When our ancestors signed Treaties, they were trying to protect our way of life. The Eastern Shoshone Treaty of 1863 established the Wind River Reservation of 44,000,000 acres that took up parts of Wyoming, Idaho, Utah, and Colorado.

Five years later, the Treaty of 1868 reduced the size to just 2,500,000 acres. The reasoning by the United States at the time for reducing the size of the Wind River Reservation was to protect the Shoshone people from lawbreakers. Penalize the rightful landowners, reward the violators of the Treaty and the law! This is backward colonizer/Christian thinking that has been a curse on Indigenous People since 1492.

Over the past 100 years, many U.S. federal acts, policies, and projects-stemmed in racism-have attempted to oppress our people and limit access to land and water. These include:

The Dawes Allotment Act of 1887

The Reclamation Act of 1902

The Indian Reorganization Act of 1934

The Rogers C. B. Morton Moratorium of 1973

On the Wind River Reservation, we have experienced additional difficulties, including:

That said, we want to celebrate the positives of some efforts, including:

The United States vs. Winters was a win for Tribal Nations. Under western water law and west of the Mississippi, this court case established the Winters Doctrine, which recognizes and enforces prior appropriation; Tribes have senior Treaty rights to water. First in time, first in right. These aren't just any old state water rights, these are Treaty rights, Federal Reserved Indian Water Rights, with the Winters Doctrine, is paramount for the protection of an extremely valuable trust resource, Indian water.

We can also be grateful to Interior Secretary Deb Halaand for lifting the Morton Moratorium on April 6, 2022, which previously prohibited Tribes from adopting Water Codes. Finally, it took an Indian woman to recognize the importance of the federal government's role in protecting Federal Reserved Indian Water Rights.

More recently, the Greater Yellowstone Coalition has been supporting the Eastern Shoshone and Northern Arapaho in their quest to reclaim 111,000 acres of homesteaded land on the Wind River Reservation that the Bureau of Reclamation declared was in "excess" in 1994. According to the Bureau, this land is no longer needed to fulfill the purpose of the Reclamation Act of 1902. And, according to the Act, land is supposed to revert back to the Bureau of Indian Affairs in trust for the Tribes. Luckily, we have been in recent discussions with the Department of Interior to bring resolution to this decades-old matter.

The Greater Yellowstone Coalition is also asking the federal government to review the social, economic, and cultural injustice of Wyoming's Diversion Dam on the main stem of the Big Wind River and its related Wyoming Canal project. These irrigation systems have diverted water-life's most important natural resource-away from the Eastern Shoshone and Northern Arapaho people on the Wind River Reservation. It has been re-routing water to non-Indian people downstream for more than 100 years. We all deserve water. Water is a human right, and it is a Treaty right. Without access to water, the Eastern Shoshone and Northern Arapaho Tribes have suffered immeasurably as a result. We want to help restore the Big Wind River and all of its cultural, spiritual, and economic attributes to the Tribes of the Wind River Reservation and its surrounding neighbors.

Overall, it is my belief that the United States must understand its role in honoring and recognizing Treaties. We are hopeful we will finally see welcome changes to support Indigenous Peoples' way of life. Improved access and use to Wind River's water is just one of the ways we can begin to do better for Indigenous People.

Hahou (thank you).

- Wes Martel, Senior Wind River Conservation Associate (Eastern Shoshone)
The Greater Yellowstone Ecosystem is the land of 49+ Indigenous Tribes who maintain current and ancestral connections to the lands, waters, wildlife, plants, and more.

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Treaty Rights, Winters Doctrine, and Federal Reserved Indian Water Rights - Greater Yellowstone Coalition

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GYC's Wes Martel speaks on Treaty and water rights efforts in Greater Yellowstone.

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This timeline summarizes federal policy towards tribal nations in the last 150 years and offers sources for further exploration.

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Holding on to Sovereignty:  The Tribes Mix Old Forms with New

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Holding on to Sovereignty:  The Tribes Mix Old Forms with New

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In the early decades of the 20th century, Eastern Shoshone and Northern Arapaho people in Wyoming found new ways to keep old traditions alive. At the same time they settled an old dispute by means of a long lawsuit, while always negotiating and re-negotiating their evolving relationship with the U.S. government.

The treaty the Arapaho had signed in 1868 promised them a reservation of their own, but with no place specified for it; after ten years on the move, the Arapaho were escorted to the Shoshone Reservation by the U.S. Army under an arrangement everyone had assumed to be temporary. The two tribal nations had been in open warfare just four years prior to that, and bad feelings lingered between them.

As decades passed, the Shoshone quite likely continued to resent Arapaho presence on the reservation. For their part, the Arapaho were uncertain about whether and to what extent they could count on the U.S. government to support their presence on Wind River.

By the turn of the last century, the notion that American Indians were a "vanishing race" was widespread in white America. Tribal people's best hope of survival, the notion ran, was assimilation-becoming more like white people and abandoning Indian ways. And that included adopting white people's forms of government.

In 1896, for $60,000 in cash and cattle, the tribes sold 64,000 acres of land around the Big Horn Hot Springs at the northeast corner of the Shoshone Reservation, as the reservation on Wind River was still called. In 1905, the tribes gave up 1.5 million more acres-the rest of the reservation land north of the Big Wind River-for a complicated series of present and future payments.

Officials in the U.S. Indian Bureau, the predecessor of today's Bureau of Indian Affairs, steadily pushed all tribes to move away from their consensus-based traditions of leadership toward forms of majority-rule, representative government more like ones white people used.
Changes in tribal government
In the first years of the 20th century, Indian Bureau superintendents appointed councils of six men from each tribe to conduct tribal business and act as liaisons with the bureau-a transition from older leadership traditions of chiefs and sub-chiefs. In subsequent decades, the bureau pressed for establishment of a joint business council, with six elected members from each tribe. Both tribes complied, and the joint business council then met regularly to deal with matters affecting both tribes.

Both tribes also resisted, however, the idea of representative government. They left ultimate sovereignty and authority with their general tribal councils, composed of all members of the tribe.

In the 1920s and early 1930s, Shoshone Agency Superintendent Ruben Haas worked hard to persuade the two tribes to adopt individual constitutions and bylaws based on United States representative forms of government. These systems would have given more power to the business councils, allowing them to proceed without input from the general councils. Haas tried in 1925, 1931 and 1934, each time presenting a draft constitution with more radical changes than the preceding one. The proposals also included moves toward more independence from the Indian Bureau. In the end, all three drafts failed to win approval from either the bureau or the tribes.

In 1934, a reform-minded U.S. Congress, during the second year of President Franklin D. Roosevelt's New Deal, passed the Indian Reorganization Act. The new law aimed at more autonomy and self-determination for all tribes in the nation. The law called for Indian lands and resources to be better preserved, established a credit system and vocational education for Indian people and provided for tribes to incorporate and form businesses.

Tribal lands were no longer to be allotted to individuals, as had been happening piecemeal since Congress passed the Dawes Act in 1887. Instead, all reservation lands would be held in trust by the government. All tribal constitutions required approval by the U.S. Department of Interior and its Indian Bureau. The new law allowed the tribes a year to choose by majority vote whether to accept these changes.

At that time, according to Shoshone historian John Washakie, the general councils of both tribes approved a proposal to divide the reservation in half along a north-south line running just west of Ethete. The area to the east and downstream would be a Northern Arapaho reservation. The area to the west would be an Eastern Shoshone reservation. But the Bureau of Indian Affairs denied the possibility, because its officials realized the Arapaho still had no legal status, Washakie says.[1]

Nationwide, 258 different tribes voted on the reorganization option. Of those, 181 voted to accept. Both tribes on Wind River were among the 77 tribes that rejected the changes, however. At least in part, according to historian Janet Flynn, their vote reflected a deep distrust of the U.S. government and its Indian Bureau.

Virtually all treaties and agreements with both tribes had been broken one way or another, the tribal members felt, and they were especially skeptical of placing large sums of tribal money in trust with the government, according to Flynn. Also, the so-called self-determination offered by the government did not seem genuine if every detail of any new tribal structure would require bureau approval.[2]

Given what had happened in the past, members of the Arapaho and Shoshone tribes must have seen little reason to trust the U.S. government to keep its promises in the future.
The Tunison lawsuit and settlement
Also during these years, the question of the legality of the Northern Arapaho presence on the Shoshone Reservation at Wind River finally came to a head.

In 1928, Congress passed a law allowing the Eastern Shoshone Tribe to sue the U.S. government for violating provisions of the The Fort Bridger Treaty of 1868, under which the Eastern Shoshone bands had given up a reservation of more than 44 million acres for exclusive rights to a 3-million-acre reservation on Wind River.

George Tunison, attorney for the tribe, argued that without Shoshone approval, the Indian Bureau had allowed the Arapaho to settle permanently at the Shoshone Agency in 1878. From that point on, the government treated both tribes-unofficially and, the Shoshones argued, illegally-as equal beneficiaries of resources, with Arapahos sharing in Shoshone payments from the land cessions of 1896 and 1905, and taking up individual land allotments under the Dawes-Act system.

The case took years to move through federal courts. In 1937, the U.S. Supreme Court finally ruled in the Shoshones' favor. Arapaho people, historian Loretta Fowler writes, were relieved. "They had long smarted under Shoshone accusations of trespass." Now, they could no longer be seen as intruders. Their presence on the reservation was affirmed by the court-and the Shoshones would be compensated for having shared their reservation for six decades.

As part of the settlement, the Shoshone now had to recognize the Arapaho right to live on Wind River. And the name of the reservation was officially changed to the Wind River Agency.

Congress approved details of the settlement in a separate law passed July 27, 1939, which included the following provisions:

After attorney fees were taken out and some funds added in for accrued interest, the Shoshone Tribe would receive about $4.2 million in compensation for 61 years of Arapaho presence on Wind River-nearly $75 million in 2019 dollars.

Of the $4.2 million, $1 million would be set aside to buy back land within reservation boundaries.

Each member of the Shoshone Tribe would receive $2,450. Of that amount, $100 would be paid in cash, and $1,350 would be available as credit toward buying land, housing, seed, livestock or support for the old and infirm. In addition, $1000 would go into an account kept for each Shoshone member, to be spent for purposes approved by the secretary of the U.S. Department of the Interior, which in practice meant the Indian Bureau, today's Bureau of Indian Affairs.

$125,000 would be placed in a fund that would be used to provide loans to tribal members.

The remainder would be placed in a capital reserve fund to be spent on projects or other purposes with the approval of the secretary of the Interior.[3]

For some Shoshone families, at least, the settlement payments changed their lives. Many years later, Angie Wagon remembered her parents' purchase of their first house in 1942 with money from the Tunison settlement. But the payments were always mixed with a sense of being patronized by the U.S. government:

When we got the Tunison money, I never saw so many things. You bought a new bedroom set, your dressers all were marked "G.I." [Government Issue] on the bottom. Everything was government issue and they had pencils and they marked your pencils "G.I." You had horses running around with your brand on them and an "ID" [Indian Department] on the bottom. I always thought that was funny. I said "Why do you need two brands?" And Dad said, "Well, that's so you won't take that horse and sell him, you know."

And I guess it was just to keep people-I said they treated us like we were babies. I'd sit and think about things like that and I thought that was so unnecessary for people to treat you like you couldn't count money and you don't know how to spend money...but I think if you come from a large family, a poor family you learn how to save and you care about how your money is spent.[4]

As for the Arapaho, it would be 25 more years before they were compensated with cash for the loss of vast lands they had been guaranteed by the Fort Laramie Treaty of 1851. Both tribes managed to survive congressional efforts in the 1950s to do away with reservations and tribal identities altogether. And not until the 1990s would there be a compromise settlement of water-rights questions on Wind River. The 20th century, that is, would see long years of difficult negotiations among the two tribes, the state of Wyoming and the U.S. government. Gradually, however, some aspects of tribal sovereignty would be regained.

Resources

Sources

"The Arapaho Arrive: Two Nations on One Reservation." WyoHistory.org, June 23, 2018. Accessed Jan. 22, 2019, at /encyclopedia/arapaho-arrive-two-nations-one-reservation.

"Coming to Wind River: The Eastern Shoshone Treaties of 1863 and 1868." WyoHistory.org, May 23, 2018. Accessed Jan. 30, 2019 at /encyclopedia/coming-wind-river-eastern-shoshone-treaties-1863-and-1868.

Flynn, Janet. Tribal Government: Wind River Reservation. 1991. Reprint, Lander, Wyo.: Mortimore Publishing, 2008. An extremely useful look at the history of government and leadership on the Wind River Reservation, with clear details on the treaties, agreements and lawsuits.

Fowler, Loretta. Arapaho Politics, 1851-1978: Symbols in Crises of Authority. Lincoln, Neb.: University of Nebraska Press, 1982. An excellent ethnohistory of the Northern Arapaho people, with emphasis on their constantly evolving leadership and governance structures over time.

"Fragmenting Tribal Lands: The Dawes Act of 1887." WyoHistory.org, June 23, 2018. Accessed Jan. 22, 2019, at /encyclopedia/fragmenting-tribal-lands-dawes-act-1887.

Jackson Hole Historical Society and Museum. "Through the Eyes of Tsutukwanah-Photo Exhibit," Accessed Jan. 30, 2019 at https://jacksonholehistory.org/through-the-eyes-of-tsutukwanah-photo-exhibit/.

____________________________________. "Wind River Reservation 1900-1920s," "Wind River Reservation 1927-1940." Accessed Jan. 30, 2019 at https://jacksonholehistory.org/an-introduction-to-the-wind-river-indian-reservation-of-wyoming/.

Jost, Loren, former director of the Riverton Museum. Email to WyoHistory.org Editor Tom Rea, Jan. 9, 2019.

Rea, Tom. "Peace, War, Land and a Funeral: The Fort Laramie Treaty of 1868." WyoHistory.org, Nov. 8, 2014. Accessed Jan. 22, 2019, at /encyclopedia/peace-war-land-and-funeral-fort-laramie-treaty-1868. Article takes the funeral of Mni-Akuwin, Spotted Tail's daughter, as a place to begin telling the story of Lakota-white relationships surrounding the 1868 Fort Laramie Treaty.

Stamm, Henry E. IV. People of the Wind River: The Eastern Shoshones, 1825-1900. Norman, Okla.: University of Oklahoma Press, 1999. A useful, reliable source on the Eastern Shoshones of the 19thcentury, with emphasis too on their relations with their white and Arapaho neighbors.

"The Tribes Sell Off More Land: The 1905 Agreement," WyoHistory.org, Dec. 10, 2018. Accessed Jan. 22, 2019, at /encyclopedia/tribes-sell-more-land-1905-agree... /encyclopedia/tribes-sell-more-land-1905-agreement.

Washakie, John, historian and former Shoshone Business Council member. Telephone interview with WyoHistory.org Editor Tom Rea, Jan. 31, 2019.

For further reading and research

Hedgpeth, Dana. "'Jim Crow, Indian style': How Native Americans were denied the right to vote for decades." Washington Post, Nov. 1, 2020, accessed Jan. 27 , 2021 at https://www.washingtonpost.com/history/2020/11/01/native-americans-right-to-vote-history/

For many, many images of reservation life in Wyoming in the early years of the 20thcentury, browse the Jackson Hole Historical Society's pages on Native American History at https://jacksonholehistory.org/chittim-photo-collection/,https://jacksonholehistory.org/through-the-eyes-of-tsutukwanah-photo-exhibit/,https://jacksonholehistory.org/wind-river-photo-gallery/and https://jacksonholehistory.org/hultkrantz-photo-exhibit/.

Illustrations

The three photos of the tribal business councils are from the American Heritage Center at the University of Wyoming. Used with permission and thanks. Used with permission and thanks. Those photos are posted as well by the Jackson Hole Historical Society and Museum; thanks also to the JHHSM staff.

The two photos of the log council house and the Charles Sproul photo of the Arapaho Council House tipi are from the collections of the Riverton Museum. Used with permission and thanks, and special thanks also to Todd Guenther of Central Wyoming College for helping us locate these photos.

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Holding on to Sovereignty: The Tribes Mix Old Forms with New

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In the early decades of the 20th century, Eastern Shoshone and Northern Arapaho people in Wyoming found new ways to keep old traditions alive. At the same time they settled an old dispute by means of a long lawsuit, while always negotiating and re-negotiating their evolving relationship with the U.S.

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American Bar Association:  How the Native American Vote Continues to be Suppressed

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American Bar Association:  How the Native American Vote Continues to be Suppressed

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Despite the passage of the Indian Citizenship Act of 1924, many Native Americans living on reservations continued to be excluded from the democratic process. In 1948, Native Americans in New Mexico and Arizona successfully litigated their right to vote. Utah and North Dakota became the last states to afford on-reservation Native Americans the right to vote in 1957 and 1958, respectively. When the right to vote was finally secured, voter suppression laws kept Native Americans from voting and seeking elected office. In Arizona, for example, Native Americans could not fully participate in voting until 1970 when the Supreme Court upheld the ban against using literacy tests ( Oregon v. Mitchell, 400 U.S. 112 (1970)). Today, the right to vote continues to be challenged through the passage of new laws and practices that either fail to consider, disregard, or intentionally target Native American voters.

In order to understand the challenges faced by Native American voters, one must recognize the vast differences in experiences, opportunities, and realities facing on-reservation voters as compared to off-reservation voters.

I will never forget the Navajo grandmother who spoke only Navajo and could not vote after Arizona passed its voter ID law in 2004. She tried several times to obtain an Arizona ID on her own but was denied because she was born at home in a hogan, and the boarding schools changed her Navajo name to English. She lived in a modest home on the Navajo Reservation without electricity and running water, and lived a traditional lifestyle taking care of her sheep. She was embarrassed and devastated when she was turned away from the polls for not having an ID. Working with her, a team from the Indian Legal Clinic traveled five hours to meet her at multiple agency offices to obtain her delayed birth certificate; we then went to two separate Motor Vehicle Division Offices. The first one did not issue same-day photo IDs, and the other initially denied her request. The office rejected her delayed Navajo birth certificate, until I was able to intervene and demonstrate to them that it was an acceptable document. The system failed to consider her reality as a Navajo woman and failed to value her as a voter. Fortunately, she was persistent in exercising her right to vote, but not all voters are, nor should they have to be.

This example helps explain why voting can be difficulty for Native American voters. Turnout for Native Americans is the lowest in the country, as compared to other groups. While a number of issues contribute to the low voter turnout, a study conducted by the Native American Voting Rights Coalition found that low levels of trust in government, lack of information on how and where to register and to vote, long travel distances to register or to vote, low levels of access to the internet, hostility toward Native Americans, and intimidation are obstacles. Isolating conditions such as language barriers, socioeconomic disparities, lack of access to transportation, lack of residential addresses, lack of access to mail, and the digital divide limit Native American political participation. Changes to voting processes further frustrate the ability of Native Americans to vote.

As part of their socioeconomic reality, Native Americans face obstacles when making choices about feeding their families or expending resources that might affect their right to vote. This could include renewing their P.O. box, replacing an ID to update a residential address, or driving a considerable distance to register to vote or vote. Nationally, the poverty rate of Native Americans is 26.8 percent. Native Americans are more likely to work multiple jobs, lack reliable transportation, and lack adequate childcare resources, thus making voting pragmatically difficult.

An additional problem affecting many Native Americans is homelessness or near homelessness due to extreme poverty and lack of affordable housing on many reservations. A study by the Department of Housing and Urban Development found that between 42,000 and 85,000 people in tribal areas are couch surfers, staying with friends or relatives only because they have no place of their own. This lack of permanent housing impacts the ability of these tribal members to have a permanent physical address, yet this should not impede their ability to exercise their right to vote.

Nontraditional Addresses, Voter Registration, and Voter ID Laws

Something as simple as not having a residential address impacts all aspects of voting, including getting your mail, registering to vote, and complying with ever-increasing voter ID laws.

While 84 percent of the U.S. population lives in urban areas, many Native Americans and Alaska Natives live in rural communities that lack residential addresses. Homes are usually described in terms of landmarks, crossroads, and directions. Numerous roads on reservations are unimproved dirt or gravel roads in poor quality and are often unnamed. After storms, many roads are impassable. Due to these poor conditions, the U.S. Postal Service does not deliver mail to the majority of the reservation residents at their homes.

Due to the lack of residential addresses, most residents rely on P.O. boxes in a nearby town or get their mail through a trading post or other location. Some reservation residents have to travel up to 70 miles in one direction to receive mail. In Arizona, for example, only 18 percent of reservation voters outside of Maricopa and Pima Counties have residential addresses and receive mail at home. The Navajo Nation, the largest reservation in the United States-larger than West Virginia-does not have an addressing program, and most people live in remote communities. Similarly, many other reservations lack home mail delivery. On the Tohono O'odham Reservation, there are 1,900 P.O. boxes and some cluster mailboxes. Residents may check their mail every two weeks, and some only once per month.

Through no fault of the voter, the lack of a residential address can result in the political subdivision placing the voter in the wrong precinct, the voter's ID address not matching the voter rolls, and/or the voter not receiving election mail timely, if at all.

While many Americans can register to vote through the click of a button from the comfort of their homes, that is simply not the case for reservation residents. For reservation voters, there are few opportunities to register or update their voter registration due to location of voter registration services, the lack of residential addresses, and lack of broadband capability. Less than half of the homes on tribal lands have reliable broadband access. Even if a voter has access to broadband on the reservation, most online voter registration systems require a state ID to register to vote and do not accept tribal IDs. In Arizona, for example, an individual must have a state ID and a residential address on file with the Department of Motor Vehicles to register online, eliminating this option for most reservation residents.

Registering to vote online or driving somewhere to register to vote, or voting itself, can be logistically challenging if not economically infeasible. For example, in Arizona, the lack of residential addresses resulted in registered voters having their IDs rejected at the polls or being included on a suspense list, meaning the voter is not placed in a voting precinct. While county offices may offer in-person voter registration during normal business hours, this can be challenging for Native American voters who may live 100 miles or more from the county seat. Further, for some Native American and Alaska Natives, oral translations must be provided for voter registration and voting.

Voter ID laws further complicate this issue. Native Americans are less likely to have a form of ID compliant with voter ID laws requiring residential addresses because in addition to states failing to consider tribal IDs when passing these laws, there are also socioeconomic and institutional factors that keep reservation residents from obtaining IDs. Although many tribes issue IDs, not all tribal IDs include addresses. Even if a tribal member has an ID with an address, because reservation voters lack residential addresses, the ID may have a P.O. box or descriptive address. Nontraditional addresses do not fit into county database systems, resulting in counties reassigning addresses to voters. This may result in the ID being rejected due to insufficient poll worker training or because it does not match the residential address in the voter file. This has resulted in voters being denied a regular ballot because the address on their IDs did not match the addresses assigned by the counties for the voter registration database.

A voter ID law requiring a residential address went into effect in North Dakota right before the 2018 midterm elections that expressly excluded the use of P.O. boxes as residential addresses. Over 5,000 Native Americans lacked the requisite form of ID to vote, as no reservation had residential addresses. The tribes searched for solutions prior to Election Day. The North Dakota Secretary of State informed tribal leaders that voters could call the county 911 coordinator to receive an address. This was a meager solution given that most of the tribal reservations span multiple jurisdictions, creating inconsistencies and confusion for tribes. For Sioux County, where the Standing Rock Sioux Tribe is located, the 911 coordinator is the county sheriff, which posed a deterrent for community members wary of law enforcement. When a Standing Rock Sioux tribal member called to determine her residential address, the sheriff told her that he was transporting prisoners and could not assign addresses that day. Another voter was assigned a residential address corresponding to a nearby bar, exposing that tribal member to fraud if he voted based on that address.

As a result, North Dakota tribes had to create emergency plans to produce residential addresses and corresponding IDs for their members. They kept their offices open for extended hours and began providing free IDs to tribal members, to the point where the Turtle Mountain Band of Chippewa's ID machine overheated. Although the Secretary of State never explicitly endorsed the tribes' plan, the tribes were left with no other options and had to undertake the extraordinary effort in order to ensure that their tribal members could vote.

While tribes took actions to issue free tribal IDs meeting the new requirements, they expended resources they did not have in order to assist their tribal members. Tribal members in North Dakota have high unemployment and poverty rates. At Spirit Lake, almost 50 percent of the tribal members live below the poverty line; and at Turtle Mountain, the unemployment rate is almost 70 percent. Native American voters living on reservations have the same constitutional right to vote as any other citizen. In this instance, tribal governments had to expend their own resources to ensure that tribal members could vote in state and federal elections.

Access to In-Person Polling Locations and the Vote-By-Mail Movement

If a Native American or Alaska Native voter living in a rural community overcomes the inherent barriers of nonstandard addresses, voter registration barriers, and manages to have the correct ID, the voter may be further burdened by the vote-by-mail system or the lack of available polling places. Voting by mail is often unreliable and not as accessible for Native Americans living on reservations as it is for off-reservation voters. Native American voters are less likely to have mail delivered to their homes, especially when living on tribal lands. Many on-reservation voters live in rural areas where it is common for mail to arrive late or not at all. Non-Hispanic whites are 350 percent more likely to have mail delivered to their homes than Native Americans in Arizona. The difficulties accessing mail make voting by mail difficult because traveling to the P.O. box to pick up your ballot and then returning it can be an all-day task; without a car, it may be impossible. Similar concerns exist for Alaska Native voters in rural villages who rely on shared P.O. boxes, and at times, mail delivery may take up to three weeks due to weather. In addition, many Native American languages are oral; therefore, language assistance to Native American voters requires in-person translations, which cannot be done through mail.

Because of increased urbanization, many people and policymakers do not understand why it can be difficult for individuals to get to a polling location or to vote by mail. For some, voting by mail has given them more choices and made voting more convenient. However, we need to think about the effects on minority and language minority populations when we eliminate or move polling locations because a right as sacred as voting should not be lost for minority populations in search of convenience for other populations.

The following examples illustrate how decisions made by elected officials affect the ability of Native voters to participate in the democratic process. In 2008, the Alaskan government eliminated polling locations for Alaska Native villages as part of a "district realignment" that resulted in voters having to travel by plane in order to vote. In 2016, the Pyramid Lake and Walker River Paiute Tribes in Nevada filed a lawsuit prior to the 2016 general election in order to get polling locations on the reservation. In 2016, San Juan County, Utah, switched a mail-only voting system and offered in-person early voting only in the majority white part of the county; the Navajo Nation sued to ensure in-person locations and compliance with the language assistance requirements under Section 203 of the Voting Rights Act.

For the Kaibab Paiute Tribe in Arizona, voters had to travel 280 miles one way in 2016 and 2018 in order to vote early in person. When Pima County closed early voting on the Pascua Yaqui Reservation in 2018, Pascua Yaqui voters reported that it took over two hours to participate in early voting using public transportation. Recently, the closure of polling locations on the Mandan Hidatsa Reservation in North Dakota resulted in voters having to travel 80-100 miles in order to cast a ballot. These examples demonstrate the extreme distances voters must travel and obstacles they must overcome in order to vote. The prevalence of these barriers undermines our democracy and contributes to low voter participation among Native Americans.

Native American Voting Rights Act

Congress introduced the Native American Voting Rights Act of 2019 (H.R. 1694; S. 739) to remove voting barriers and improve access to voting for Native American and Alaska Native voters. The legislation would provide resources and oversight to ensure that Native Americans have equal access to the voting process. In furtherance of the trust responsibility, the bill would require the Department of Justice to consult annually with tribes on voting issues. Key elements of the bill include improving access to voter registration sites and polling locations, approving the use of tribal IDs for election purposes, and requiring jurisdictions to consult with tribes prior to closing voter registration or polling locations on Indian lands. The bill explicitly states that a tribal ID need not include a residential address or expiration date for voting purposes. The bill would also create a Native American Voting Task Force grant program to provide much needed funding for voter outreach, education, registration, and turnout in Native American communities.

Conclusion

Legislation suppressing the right to vote purports to be neutral; however, in many instances it undermines the most basic right to participate in our democracy. The loss of the right to vote is the loss of a voice in the democratic process. We should do more to ensure that all Americans, including Native Americans, can exercise this right easily and with undue hardship.

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How the Native American Vote Continues to be Suppressed

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Despite the passage of the Indian Citizenship Act of 1924, many Native Americans living on reservations continued to be excluded from the democratic process. In 1948, Native Americans in New Mexico and Arizona successfully litigated their right to vote. Utah and North Dakota became the last states to afford on-reservation Native Americans the right to vote in 1957 and 1958, respectively.

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Library of Congress:  Native American Voting Rights

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Library of Congress:  Native American Voting Rights

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Native American voting case, 1962

Navajo times. [volume] (Window Rock, Ariz.), 13 June 1962.

Almost forty years after the Indian Citizenship Act of 1924, access to vote in United States elections was still contested for many Native Americans. Some states used address requirements to try and limit Native voting in U.S. local, state, and national elections. For example, in 1960 the losing candidate for Arizona's Lt. Governor, Joseph Montoya, claimed that votes from the Navajo Nation should not be counted because those voters lived on the Navajo reservation, outside the state's boundaries. Montoya brought his argument before the state courts. Eighteen months after the election, the Arizona State Supreme Court rejected his claim and upheld Native voting rights in this case.

It wasn't however, until the 1965 Voting Rights Act that the question of Native voting rights was addressed at the federal level. Even more federal legislation was later passed to further reaffirm and strengthen access to U.S. elections for Native Americans.

The Navajo Times started in 1959 as a monthly newsletter. The publication suspended for a few months in 1960 before re-emerging in August of that year as the Navajo Times, a twice-monthly newspaper run by the Navajo Tribe, with "Voice of Scenic Navajoland" printed under its masthead. The paper reported news of interest to the Navajo community, with the slogan "Published for...owned by...The Navajo People" appearing for many years.

Source Analysis

Note the date of the publication. What else is happening at the time related to voting rights for other groups, not just Native Americans?

What clues can you learn from this article about the state of voting rights for Native Americans at the time of this article?

What is significant about having a Navajo-owned newspaper report on voting rights for Native Americans as opposed to a non-Native publication? Why might a Native news publication be important?

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Native American Voting Rights | Voters and Voting Rights | Presidential Elections and Voting in U.S. History | Classroom Materials at the Library of Congress | Library of Congress

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What challenges have Native Americans faced in exercising voting rights?

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Visit vote.narf.org to learn more about the Native American Voting Rights Project and its current activities.
Background:

A History of Native Voting Rights

The right to vote is considered a fundamental right within our democracy; however, for Native Americans, the fight to obtain voting rights is couched in a long history of racism and struggle. When the Fourteenth Amendment was passed in 1866, making all persons born in the United States citizens, Indians on reservations were specifically excluded. Michigan Senator Jacob Howard opined, "I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me..." (Congressional Globe. May 30, 1866). page 2895). There were pragmatic reasons, beyond racism, to keep Native Americans from voting; given their large numbers, votes by Native Americans at the time would have wielded significant political power.

It was more than half a century later that the Indian Citizenship Act of 1924 ensured all Native Americans born within the United States citizenship. However, the Act did not automatically enforce the right to vote. While the Fifteenth Amendment declared that a citizen's right to vote could not be denied on account of race, many states were able to find other reasons to deny Native peoples the vote-residing on a reservation, tribal enrollment, taxation, and incompetency were all used as reasons for denying Native citizens in some states the right to vote. One outcome being that, thousands of Native veterans, including American Indian Code Talkers returning from World War II, found themselves prohibited from participating in basic civil liberties in the nation that they fought to protect.

The Voting Rights Act of 1965 finally outlawed exclusionary practices that "deny or abridge the right of any citizen of the United States to vote on account of race or color." However, despite these protections and subsequent legislation, discriminatory practices continue to this day. Since its inception in 1970, NARF has worked on cases to ensure equal and fair access to voting for Native citizens. Repeatedly we have encountered voting rights abuses against Native Americans in Alaska, South Dakota, Montana, Arizona, New Mexico, and other states with significant Native American populations. In addition, in the wake of the U.S. Supreme Court's 2013 decision striking down parts of the Voting Rights Act, numerous state legislatures have passed new election laws that impose significant barriers to Native voters.

The Native American Voting Rights Coalition

In January 2015, NARF proposed an ambitious new project: gathering voting rights advocates, lawyers, civil rights experts, and tribal advocates into one room to discuss current problems with voting in Indian Country and begin to develop solutions to these problems. Previously, individuals and organizations working to protect Native voting rights did so independently, with no coordinated strategy in place. Often, the work was reactive-in response to an immediate threat-rather than proactive or planned in advance of an election. That is what NARF's project was meant to change. Thus, the Native American Voting Rights Coalition (NAVRC) was formed.

The NAVRC includes, among others: Native American Rights Fund (NARF); National Congress of American Indians (NCAI); American Civil Liberties Union, Voting Rights Project (ACLU); Lawyers Committee for Civil Rights (LCCR); Fair Elections Center; Western Native Voice; and Four Directions. NAVRC is organized into three working groups: legislation and policy issues (led by NCAI); litigation (led by NARF); and capacity building and education issues (led by LCCR).

The project's main goal is to remove barriers to Native American voter registration and voting, increase Native civic engagement, and foster a more informed and active Native electorate. With mounting evidence of voter suppression and violations of voting rights laws, NAVRC has accelerated its work.

Periodically, Native voting advocates in the coalition come together to discuss their ongoing fight for equitable voting access for Native communities. The meetings, which are organized by NARF, provide the group with the opportunity to talk about the challenges that they are facing and strategize on the most effective way to overcome those obstacles. Attendees share their frustrations, but more importantly, they gaine confidence through strategizing for success.

Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters

In 2017 and 2018, the Native American Voting Rights Coalition held nine public hearings to better understand how Native Americans are systemically and culturally kept from fully exercising their franchise. More than 120 witnesses testified from dozens of tribes across the country.

The final report, Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters, was released June 4, 2020, and provides detailed evidence that Native people face obstacles at every turn in the electoral process: from registering to vote, to casting votes, to having votes counted.

NARF released two updates to the Obstacles report in October 2021:

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Native American Voting Rights Project - Native American Rights Fund

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We fought for the Native American voting rights, and we will continue to fight until all Native citizens have equal opportunity to make their voices heard.

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Stop Crimes Against History on Tribal Lands

https://savehistory.org/?gad_source=1&gclid=Cj0KCQjwiuC2BhDSARIsALOVfBJG2yUvFzYbKQTFZbODzrq9NefVeOxZVDsDh8xKthadbNDKz64XVdQaAkWQEALw_wcB

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Our mission is to end archaeological resource crime on Tribal lands. Together, we can ensure that Native American history is preserved for future generations.

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Oregon State Government:  Understanding Tribal Sovereignty

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Oregon State Government:  Understanding Tribal Sovereignty

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What's Tribal Sovereignty and What Does It Mean for Native Americans?

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What's Tribal Sovereignty and What Does It Mean for Native Americans?

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This short explainer provides an introduction to tribal sovereignty and its importance to tribal nations and the daily lives of Native Americans in the U.S.

Tribal sovereignty, often viewed as a legal term, sits at the center of almost every issue affecting tribal nations existing within the United States' geographical borders.

In its most basic sense, tribal sovereignty - the inherent authority of tribes to govern themselves - allows tribes to honor and preserve their cultures and traditional ways of life. Tribal sovereignty also is a political status recognized by the federal government, protected by the U.S. Constitution and treaties made generations ago, and upheld by the U.S. Supreme Court.

Although the concept might seem relatively straightforward, there has been considerable disagreement between Indigenous groups and American government agencies over what tribal sovereignty actually entails, its implications and how tribes and states can or should work together to serve their constituents.

States and tribes continue to battle over land and jurisdiction in areas such as law enforcement. Government officials still are trying to understand all the ramifications of last summer's U.S. Supreme Court decision in the landmark tribal sovereignty case McGirt v. Oklahoma.

Supreme Court justices affirmed that a giant swath of land in eastern Oklahoma the U.S. gave the Muscogee (Creek) Nation through treaties in the 1800s is, in fact, an "Indian reservation" and that the state of Oklahoma lacked jurisdiction to prosecute Jimcy McGirt, an enrolled member of the Seminole Nation, for serious crimes that occurred on Muscogee (Creek) Nation land.

Attorneys and policymakers across the country predict the ruling's impact will extend well beyond Oklahoma and criminal prosecutorial matters.

Journalists planning to cover those impacts and tribal nations in general should have a basic understanding of tribal sovereignty and its significance to Indigenous people living in the U.S. Below, we provide important context.

We do not intend for this explainer to be exhaustive, but it is a starting point - and the first in a series of tip sheets, explainers and research roundups we'll publish over the coming year to help journalists improve their coverage of Native Americans. In our next piece, we'll take a much closer look at McGirt v. Oklahoma.

It's worth noting that while federal government officials and documents often refer to Indigenous people in the U.S. as "Indians" or "American Indians," the Native American Journalists Association has created a guide on Indigenous terminology.

Toward the bottom of this piece, we've gathered a variety of resources we think will help journalists, including links to academic papers on tribal sovereignty and a new website created by the Harvard Project on American Indian Economic Development and the Native Nations Center at the University of Oklahoma.

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Some key things journalists should know about tribal sovereignty:

There are 574 federally-recognized American Indian and Alaska Native nations in the U.S., according to the federal Bureau of Indian Affairs. Each is a government entity with its own policies, processes and system of governance.

"Sovereignty for tribes includes the right to establish their own form of government, determine membership requirements, enact legislation and establish law enforcement and court systems," according to the National Conference of State Legislatures.

Tribes set their own rules for who can join, so enrollment criteria vary from tribe to tribe. "Tribal enrollment criteria are set forth in tribal constitutions, articles of incorporation or ordinances," according to the U.S. Department of the Interior.

Tribes often require evidence of tribal lineage. For example, a tribe might require documentation demonstrating that the person seeking to enroll is related to a tribal member who descended from someone named on the tribe's base roll, or original list of members. Tribes may also require evidence of blood quantum. The federal Bureau of Indian Affairs issues what's known as a Certificate Degree of Indian Blood, computed based on family lineage.

Knowledge of treaties is important to tribal coverage. The U.S. Constitution calls treaties "the supreme Law of the Land." Although they were negotiated generations ago - Congress stopped making treaties with tribes in the late 1800s - they remain relevant because they, among other things, outline the property rights and federal protections the U.S. agreed to give tribes in exchange for ceding millions of acres of their homeland.

The U.S. acquired much of its land through treaties, which "rest at the heart of both Native history and contemporary tribal life and identity," Kevin Gover, director of the Smithsonian's National Museum of the American Indian, writes in 2014 in the museum magazine. "Approximately 368 treaties were negotiated and signed by U.S. commissioners and tribal leaders (and subsequently approved by the U.S. Senate) from 1777 to 1868. They enshrine promises our government made to Indian Nations."

The U.S. Constitution outlines the federal government's relationship with tribes. "The Constitution gives authority in Indian affairs to the federal government, not to the state governments," according to the National Conference of State Legislatures. "Just as the United States deals with states as governments, it also deals with Indian tribes as governments, not as special interest groups, individuals or some other type of non-governmental entity."

Attorneys commonly cite three historic court cases in legal challenges and legal analyses related to tribal sovereignty. In the 1832 case Worcester v. Georgia, the U.S. Supreme Court affirmed that the Cherokee Nation was not subject to state regulation. Chief Justice John Marshall, writing for the court, explains that the Cherokee Nation "is a distinct community occupying its own territory ... in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves ..."

Today, states have no authority over tribes unless Congress gives it to them. In 1953, for example, Congress enacted Public Law 280, allowing six states - Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin - to begin prosecuting most crimes occurring on tribal land. The federal law let other states decide whether they also wanted to make the change.

Additional resources

McGirt and Rebuilding of Tribal Nations Toolbox:This website, created by the Harvard Project on American Indian Economic Development and University of Oklahoma Native Nations Center, provides a broad array of resources, including a series of briefing papers examining the ramifications of the McGirt decision in areas such as taxation, criminal justice and child welfare.

Indigenous Data Sovereignty: This explainer, created by the Global Investigative Journalism Network and Native American Journalists Association, "explores what investigative opportunities exist for journalists regarding the bundle of issues known as 'Indigenous data sovereignty.'"

Shaawano Chad Uran, an enrolled member of the White Earth Nation and former professor of American Indian studies at the University of Washington, explains sovereignty and its importance in Indian Country Today, September 2018.

Law journal articles, academic papers worth reading

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What's tribal sovereignty and what does it mean for Native Americans?

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This short explainer provides an introduction to tribal sovereignty and its importance to tribal nations and the daily lives of Native Americans in the U.S. Tribal sovereignty, often viewed as a legal term, sits at the center of almost every issue affecting tribal nations existing within the United States' geographical borders.

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US Department of the Interior Indian Affairs

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US Department of the Interior Indian Affairs

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Official websites use .gov
A.gov website belongs to an official government organization in the United States.

Secure .gov websites use HTTPS
A lock ( ) or https:// means you've safely connected to the .gov website. Share sensitive information only on official, secure websites.

We maintain government-to-government relationships with Indian tribes, and facilitate support for tribal people and tribal governments. We promote safe and quality living environments, strong communities, self sufficient and individual rights, while enhancing protection of the lives, prosperity and well being of American Indians and Alaska Natives.

Indian Affairs provides services directly or through contracts, grants, or compacts to 574 Federally recognized tribes with a service population of approximately 2.5 million American Indian and Alaska Natives. While the role of Indian Affairs has changed significantly in the last three decades in response to a greater emphasis on Indian self-governance and self-determination, Tribes still look to Indian Affairs for a broad spectrum of services.

This announcement follows the decision to designate the college as a voter registration agency under the National Voter Registration Act.

Resources will support Tribal fishing rights and economic development

Funding will provide Indigenous youth with opportunities to engage in meaningful public service projects on federal and Tribal lands.

Looking for U.S. government information and services?

Visit USA.gov

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Official websites use .gov A.gov website belongs to an official government organization in the United States. Secure .gov websites use HTTPS A lock (Lock A locked padlock ) or https:// means you've safely connected to the .gov website. Share sensitive information only on official, secure websites.

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Tribal Nations & the United States: An Introduction | NCAI

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We are excited to announce the updated report is now published as of February, 2020. Questions? Email NCAIPress@ncai.org.

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Stand Strong

Protect Native American rights, resources, and lifeways.

"We ask for nothing more, and will accept nothing less, than the U.S. government keeping the promises made to Native Americans." -NARF Executive Director John Echohawk

Featured:

At any given time, NARF staff are working with tribes on dozens of legal issues across Indian Country. For example:

Our Mission

The Native American Rights Fund (NARF) holds governments accountable. We fight to protect Native American rights, resources, and lifeways through litigation, legal advocacy, and legal expertise.

Learn More About NARF

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Protect Native American rights, resources, and lifeways. "We ask for nothing more, and will accept nothing less, than the U.S. government keeping the promises made to Native Americans." -NARF Executive Director John Echohawk At any given time, NARF staff are working with tribes on dozens of legal issues across Indian Country.

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Food Sovereignty: Northern Arapaho Tribe 

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Food Sovereignty: Northern Arapaho Tribe 

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This is a research paper produced by a Northern Arapaho member and student at the University of Wyoming. It goes in depth about how food has evolved for the tribe before colonization and to now. There is great explanation in the causes of why the tribe's food system changed and how the Northern Arapaho people adapted and our now trying to relearn their own food sovereignty from the past. Be sure to take a glance at the references at the end of the paper as they are great resources as well! Enjoy!

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View of Restorying Northern Arapaho Food Sovereignty

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JAFSCD: Journal of Agriculture, Food Systems, and Community Development. Publication of the Thomas A. Lyson Center for Civic Agriculture and Food Systems

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Gather documents the growing movement among Native Americans to reclaim their spiritual, political and cultural identities through food sovereignty.

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NICOA - National Indian Council on Aging

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Indigenous ways of life and traditions are highly connected to the environment and the foods it provides. Long before their contact with Europeans, Indigenous Peoples populated the Americas and were successful stewards and managers of the land.

Indigenous Andeans, for example, developed more than a thousand different species of potato, each of which thrived in its own distinct growing conditions. Along with potatoes, many other foods-including corn, beans, squash, pumpkins, peppers, tomatoes, yams, peanuts, wild rice, chocolate, pineapples, avocados, papayas, pecans, strawberries, cranberries, and blueberries, to name a few, are indigenous to the Americas. More than half of the crops grown worldwide today were first cultivated successfully and scientifically in the Americas by Indigenous People. Crops and other foods were exchanged along vast, distinct, and complex trade routes. American Indians traded, exchanged, gifted, and negotiated the purchase of goods, foods, technologies, domestic animals, ideas, and cultural practices with one another.

Many Native food systems were disrupted due to European settlement and the displacement of Native peoples from their lands. Then, for over a hundred years, the U.S. government issued foodstuffs to Native Americans. The food was unhealthy and substantially different from traditional diets. Unhealthy food, combined with uneven quality of and access to medical care, continues to leave many American Indians fighting an uphill battle for their health. Still, American Indians are working to restore their environments and original food sources through 2010 to promote a return to traditional foods and food practices. This is an example of food sovereignty, which means that a community chooses those foods they will use to sustain themselves and their cultures. Traditional foods support physical, mental, and spiritual health.

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Native Knowledge 360°-Native Life and Food: Food Is More Than Just What We Eat

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NK360° Helpful Handouts: Guidance on Common Questions provide a brief introduction to teachers about important topics regarding Native American life, cultures, and communities. Native Life and Food: Food Is More Than Just What We Eat explores Indigenous relationships with food. #NK360

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North American Traditional Indigenous Food Systems

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North American Traditional Indigenous Food Systems

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North American Traditional Indigenous Food Systems (NĀTIFS), founded by James Beard award winners The Sioux Chef, is dedicated to addressing the economic and health crises affecting Native communities by re-establishing Native foodways. We imagine a new North American food system that generates wealth and improves health in Native communities through food-related enterprises.

NĀTIFS has opened The Indigenous Food Labin the Midtown Global Marketon historic Lake Street in Minneapolis. The Indigenous Food Lab is a professional Indigenous kitchen and training center covering all aspects of food service; research and development; Indigenous food identification, gathering, cultivation, and preparation; and all components of starting and running a successful culinary business based around Native traditions and Indigenous foods.

Reclamation of ancestral education is a critical part of reversing the damage of colonialism and forced assimilation, and food is at the heart of this reclamation. NĀTIFS will drive sustainable economic empowerment and prosperity into tribal areas through a reimagined North American food system that also addresses the health impacts of injustice.

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North American Traditional Indigenous Food Systems

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NĀTIFS, founded by The Sioux Chef Sean Sherman, addresses the economic and health crises affecting Native communities by re-establishing Native foodways.

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Contact information for various organizations and programs

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Shoshone and Arapaho Fish and Game | Fort Washakie WY

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Shoshone and Arapaho Fish and Game, Fort Washakie, Wyoming. 3,509 likes · 362 talking about this · 4 were here. Shoshone & Arapaho Fish & Game works towards the preservation of the Wind River…

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Millions of Buffalo once roamed the Great Plains of America. They were integral to the ecosystem of prairies and the Native peoples who long called them home.

Buffalo provided food, clothing, and shelter, and were essential in the spiritual ceremonies of Tribes. Nearly every part of the animal was used, including horns, meat, and tail hairs.

As we work to restore the Buffalo, a process of renewal and healing begins that balances human, animal, and environmental health.

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Restoring connection with the Buffalo. Our mission is land rematriation and youth education through Buffalo restoration.

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Bringing Tribal Foods and Traditions into Cafeterias, Classrooms and Gardens

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Bringing Tribal Foods and Traditions into Cafeterias, Classrooms and Gardens

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Here is a website that presents multiple treaties the Eastern Shoshone tribe took part in. Enjoy!

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Jackson Hole Historical Society & Museum

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TREATIES AND AGREEMENTS BETWEEN THE EASTERN SHOSHONES AND THE UNITED STATES

Introduction

The Eastern Shoshones, who live on the Wind River Indian Reservation in Wyoming, have a long history of treaties and agreements with the United States government. In this section, you will learn about the history of treaties and agreements between Indian people and the Europeans who settled in North America., It is important to learn about the history of treaties and agreements to understand the treaties and agreements between the Eastern Shoshones and the U. S. government.

Even before the creation of the United States in 1776, European settlers/colonists in North America found themselves in need of trading partners and allies with American Indians. The colonists realized that the Indians vastly outnumbered them. In order to survive in a land that was the New World to the Europeans and an Old World to the Indians, the Europeans needed partners. They also wanted land if they were to establish their own communities. Even though all of the land in North America belonged to its original inhabitants, often Europeans did not understand this and European monarchs and governments made proclamations granting land to colonists. To resolve the issue of the land ownership, there were many negotiated agreements, or treaties, between colonial and Indian leaders. For example, in 1621 the leaders of Plymouth Colony (the colonial home of the Pilgrims and founded in 1620) agreed to live in peace with the local Wampanoag Indians. The Indians agreed to allow the Pilgrims to reside on former Indian lands. As they did with each other, European countries acknowledged Indian nations as sovereign nations and negotiated treaties with the Indian nations as sovereign nations. This is a very important facet in understanding treaties between Indians and colonists, and later, between Indians and the United States.

Over the next two centuries of European colonial expansion in North America, French, English, Swedish, Dutch, and other European colonies forged a variety of pacts with Indians. These pacts, or treaties as they are better known, generally established trade, friendship, and land transfer policies between the newcomers and the Indians. In more than a few cases, these treaties successfully established relatively long-lasting good relations between Indians and the settlers. Some treaties were long lasting. The treaty of 1621 between the Wampanoag Indians and the Plymouth Colony stood in place over 40 years and helped maintain peace. William Penn's treaties with the Delaware Indians helped keep good relations intact from the 1680s through the 1720s.

Of course, not all treaties were effective. As colonial immigration increased throughout the 17th and 18th centuries, many settlers ignored the treaties signed by their colonial leaders. They trespassed on Indian land-establishing farms and villages in territory reserved by the treaties for the specific use of Indians. Sometimes young Indian warriors ignored their tribal leaders and elders attacking these colonial farms and settlements. Overall, there are more cases of conflicts and warfare between Indians and settlers than mutual respect for land boundaries, open trade, and strong alliances.

Despite the relatively bleak experience of using treaties to maintain peaceful and beneficial relations, after its formation, the United States continued to try to forge treaties with Indian people. In some cases treaties emerged following warfare and conquest; in others, negotiation took place in order to prevent outbreaks of violence. Beginning with the Treaty of Greenville (Ohio) in 1795, most treaties accepted by the U.S. government contained the following: (1) The establishment of boundaries designating Indian land that was off-limits for settler expansion; (2) Trade agreements that said manufactured goods would be delivered by authorized dealers (often know as factors or traders) as a sign of friendship with Indians; (3) Mutual defense pacts, or alliances, to guard against hostile Indians or European nations; and (4) Laws to deal with criminal offenses committed by both Indians against U.S. citizens or citizens against Indians. Not every treaty contained all of these specific provisions, but most included at least two or three of them.

During the 1800s, land boundaries took on new meanings in treaties. In previous centuries, treaties acknowledged Indian ownership of lands that countries wanted to buy for their immigrant populations. In the 1800s, however, the United States instituted two new interpretations of land boundaries and ownership. First, from 1810 through the 1840s, the U.S. forced Indians to sell lands desired by its citizens and required Indians to move to other areas. The most famous examples of this policy were the treaties made with Indians of the southeastern areas of the United States where Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles gave up their lands under threat of force and moved to what is now Oklahoma-the infamous "Trail of Tears" in the 1830s.

The second policy shift regarding land boundaries emerged in the 1850s. This is when the U.S. used treaties to set up specified land reserved for Indians-the reservation system. These boundaries restricted Indians to their allotted geographical space, banned settlers from moving on to Indian lands, and set up new terms for trade and commerce. At the same time, the treaties tried to create corridors for westward migration of citizens, first by claiming the right of travel along the Overland Trail to Oregon and California, and later for the construction of the Union Pacific and Central Pacific railroads.

It is very important to remember that the initial need for treaties was because the Indians outnumbered settlers in many parts of North America. This was also true even when the United States expanded to become a continental nation in the 1850s and 1860s. Although the U.S. claimed territories spanning from the Atlantic to the Pacific oceans, Indians still outnumbered settlers in many parts of the country, especially in the Great Plains located between the Mississippi River and the Rocky Mountains. The U.S. meet with little success with treaties that attempted to regulate or restrict Indian movements and confine tribes to specific regions. For years, well into the 1870s and 1880s, many Indian people of the Great Plains continued to try to live their lives without interference from the U.S.

But a flurry of treaties signed in 1855 with most of the tribes of Oregon and Washington set the stage for reservation creation. They also led to further negotiation over the next decade with Indians of Idaho, Wyoming, Montana, and the other lands abutting the Great Plains. In each of these treaties, no matter how restrictive they were for Indian peoples, the principle of sovereignty and government-to-government relations remained in the treaty language.

In 1872, the United States ended the practice of making treaties with Indians. What followed was known as agreements. For the most part, the agreements dealt with land cessions, or sales. Essentially, Indians sold much of their land in return for governmental support. Trade deals gave way to bargains struck for long-term promises for goods and services as well as for food. The U.S. was to provide Indians with cloth, farm implements, schools and teachers, and foodstuffs like beef, flour, and coffee. Sometimes the promises were kept; more often, they were not.

SHOSHONE TREATIES AND AGREEMENTS ON THE SITE

The treaties and agreements on this site are some of the most important documents in Eastern Shoshone history, and clearly establish the tribe as a sovereign entity. The first treaty of Fort Bridger, in 1863, created this legal status in terms of United States law, while the second, in 1868, clarified the terms of sovereignty. In 1878, the U.S. federal government violated Eastern Shoshone sovereignty when officials placed the Northern Arapahos on the Wind River Reservation, promising that it was to be temporary when it was not, and without compensating the Shoshones under the terms of the 1868 treaty. In two subsequent land cession agreements, in 1896 and again in 1904, the government illegally included the Arapahos in the negotiations. Finally, in 1937, the Supreme Court ruled that the U.S. federal government owed compensation to the Shoshones for the lands occupied by the Arapahos that re-established the sovereignty of the Eastern Shoshones.

Here are some questions to think about as you read the legal language of each treaty or agreement. Take the time to think about what is actually said.

Are there specified land boundaries or areas designated as Shoshone land?

Are there words suggesting peace?

What did the U.S. promise to do in each of the documents?

What promises did the Shoshones make?

How long were these promises in effect?

Resources for Teachers

Indian Land Tenure Foundation. Lessons of Our Land: Native American Pre-K through 12 Curriculum. 2015. Found online at http://www.lessonsofourland.org.

Jeneau, Denise. Social Studies Model Lessons: The Treaty Period - American Indian Perspectives. Montana Office of Public Instruction, n.d., found online at http://opi.mt.gov/PDF/IndianEd/Search/Social%20Studies/HS%20Treaty%20Period.pdf.

National Museum of the American Indian. Nation to Nation: Treaties Between the United States and American Indian Nations. Exhibition September 21, 2014-Fall 2018, Washington, DC. Found online at http://www.nmai.si.edu/explore/exhibitions/item/?id=934.

Oklahoma State University Library. Indian Affairs: Laws and Treaties. Compiled and edited by Charles K. Kappler. Found online at http://digital.library.okstate.edu/kappler.

A United League Of Indigenous Nations Treaty - Draft. Found online at http://nwindian.evergreen.edu/pdf/papers/United%20League%20of%20Indigenous%20Nations%20Treaty.oct12.pdf.

TREATIES

Treaty with the Eastern Shoshoni
Treaty of 1863 Commentary by Hank Stamm
The 1863 Fort Bridger Treaty with the Eastern Shoshones represented part of a process to clear a corridor for safe travel for whites emigrating to the west and for railway and communication routes. This treaty came on the heels of two important events: first, the Homestead Act of 1862 created a mechanism to encourage white settlement in the western territories of the United States. Second, and more important to the Shoshones, the Bear River Massacre in early 1863 made it quite clear that the United States was prepared to go to great lengths to compel Shoshones west of Wyoming to comply with demands for passage.Nearly 400 Shoshones lost their lives at this encounter, including some members of the bands that adhered to the leadership of Chief Washakie. The treaty essentially sets the boundaries of the Eastern Shoshones to reflect their traditional base since the early 1800s, namely from the upper Snake River on the north, east to the Wind River Mountains, South into northern Colorado and Utah, and no further west than Salt Lake. It did not include the present-day boundaries of the Wind River Reservation, which lie east of the Wind River Mountains. The ratified 1863 treaty added one article and one amendment to the original document, as well as a new preamble. The additions are noted with brackets.View/Download the Treaty of 1863 in PDF format (14K)

Treaty with the Shoshone and Bannacks
Treaty of 1868 Commentary by Hank Stamm
Above all political documents, this one is the most important for the Eastern Shoshones. The Treaty of Fort Bridger, 1868, established the boundaries of the Wind River Reservation and guaranteed to the tribe a lasting relationship with the United States. Unlike the earlier Treaty of Fort Bridger, 1863, which merely described the outline of Shoshone Country, a territory that lay west of the Wind River Mountains, the 1868 Treaty gave the tribe the right to occupy what had been their hunting grounds and winter camps, but never their home. In effect, this document denied any claims to the Wind River valley made by competing tribes such as the Arapahos, Crow, or Oglala Sioux. There are a few interesting mistakes in spelling in this treaty, most notably the clerk recorded the words "Camas Prairie" as "Kansas Prairie" and agent Luther Mann gets recorded as Luther Manpa. Like most treaties with Indian peoples, this 1868 document clearly makes the point that the government wants the Indians to give up any sort of tribal allegiance and transform themselves into independent citizen farmers. Almost all the articles of the treaty are written with this objective in mind.View/Downloadthe Treaty of 1868 in PDF Format (18K)

The Brunot Cession Agreement
Brunot Land Cession of 1874
In part, due to the onset of the severe nation-wide depression of the Panic of 1873, it took the Congress of the United States over two years to ratify the cession agreement reached by Felix Brunot and the Shoshones. The agreement diminished the original reservation by nearly one-third and opened the ceded southern portion to white settlement. The delays in implementation, however, led to confusion concerning the delivery of the stock cattle over the specified five-year period, and of course, the government did very little to honor its part to prevent settlers from moving onto the ceded lands. Note that Chief Washakie was a direct beneficiary of this agreement, but in the context of Shoshone customs, it provided him a discretionary fund that allowed him to meet his obligations as a headman.CHAP. 2-An act to confirm and agreement made with the Shoshone Indians (eastern band for the purchase of the south part of their reservation in Wyoming Territory.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the agreement entered into on the twenty-sixth day of September, in the year of our Lord, eighteen hundred and seventy-two, between Felix R. Brunot, commissioner on the part of the United States and the chief, head-men, and men of the eastern band of Shoshone Indians, in the words and figures following, be, and the same is hereby, confirmed, satisfied, and approved by the Congress and President of the United States; Provided; That the cattle furnished under this agreement shall be good, young American cattle, suitable for breeding purposes.Articles of a convention made and concluded at the Shoshone and Bannock Indian agency in Wyoming Territory, this twenty-sixth day of September, in the year of our Lord, eighteen hundred and seventy-two, by and between Felix R. Brunot, commissioner on the part of the United States, and the chief, head-men, and men of the eastern band of Shoshone Indians, constituting a majority of all the adult male Indians of said band on tribe of Indians, and duly authorized to act on the premises, witnesseth:That whereas by article eleven of a treaty with the Shoshone (eastern band) and Bannock tribes of Indians, made the third day of July, eighteen hundred and sixty-eight, at Fort Bridger, Utah Territory, a reservation was set apart for the use and occupancy of said tribes of Indians in the following words: "The United States further agrees that the following district of country, to wit, 'commencing at the mouth of the Owl Creek and running, due south, to the crest of the divided between the Sweetwater and the Papo-Agie Rivers; thence along the crest of said divide and the summit of Wind River Mountains to the longitude of North Fork of Wind River; thence due north, to mouth of said North Fork, and up its channel to a point twenty miles above its mouth; thence in a straight line to head-waters of Owl Creek, and, along middle of channel of Owl Creek, to place of beginning,' shall be, and the same is, set apart for the absolute and undisturbed use and occupation of the Shoshone Indians herein named;"And whereas, previous to and since the date of said treaty, mines have been discovered, and citizens of the United States have made improvements within the limits of said reservation, and it deemed advisable for the settlement of all difficulty between the parties, arising in consequence of said occupancy, to change the southern limit of said reservation:
I. The Shoshone band or tribe of Indians (eastern band) hereby cede to the United States of America that portion of their reservation in Wyoming Territory which is situated south of a line beginning at a point on the eastern boundary of the Shoshone and Bannock reservation, due east to the mouth of the Little Papo-Agie, at its junction with the Papo-Agie, and running from said point west to the mouth of the Little Papo-Agie; thence up the Papo-Agie to the North Fork, and up the North Fork to the mouth of the canyon; thence west to the western boundary of the reservation.

II. The United States agree to pay to the Shoshone (eastern band) or tribe the sum of twenty-five thousand dollars; said sum to be expended under the direction of the President for the benefit and use by said Indians in the following manner, viz: On or before the tenth day of August of each year, for the term of five years after the ratification of this agreement, five thousand dollars shall be expended for the purchase of stock-cattle, and said cattle delivered to the Shoshones on their reservation. Second. The salary of five hundred dollars per annum shall be paid by the United States for the term of five years to Wash-a-kie, chief of the Shoshones.

III. Within the term of six months, and as soon as practicable after the ratification of this agreement, the United States shall cause the southern line of the Shoshone reservation, as herein designated, to be surveyed, and marked at suitable points on the ground, and until said line has been so surveyed and marked, the United States binds itself not to permit the intrusion of any white persons upon any of the agricultural or other lands within the limit of the district proposed to be ceded.

IV. This convention or agreement is made subject to the approval of the President and the ratification or rejection of the Congress of the United States.

Approved, December 15, 1874.
View/Download the Brunot Cession Agreement in PDF Format (12K)

1896 Big Horn Hot Springs Land Cession
Land Cession of 1896 Commentary by Hank Stamm
The 1890s saw three separate efforts to reduce the size of the Wind River Reservation. The only successful agreement was reached in 1896, when the United States acquired a section of land that contained the Big Horn Hot Springs, a series of naturally occurring springs of geothermal waters, at the northeast corner of the reservation. The total amount of land ceded was an area of 10 miles square (100 square miles). In 1897, the agreement was ratified, with an amendment that ceded 1 square mile immediately surrounding the springs to the State of Wyoming. The basis for this land transfer ostensibly came about from the efforts to control the development around the springs, which were rapidly attracting a tourist clientele.The Shoshones and Northern Arapahos were willing to concede the land primarily because the prime buffalo hunting grounds in the Big Horn Basin (north of the springs and west of the Big Horn Mountains) had been destroyed by a huge influx of cattle and sheep ranches beginning in 1879. Thus, they no longer travelled off-reservation to hunt in the Big Horn Basin. The most important feature of the agreement, however, is that the government made the Arapahos equal partners to the Shoshones in the rights to claim the reservation.The Arapahos originally were moved to the reservation in 1878, but only with the consent of the Shoshones, and up until the 1896, agreement they were never considered partners with the Shoshones concerning reservation ownership. This all changed because of this agreement. In the 1930s, the Shoshones eventually reached a settlement with the United States that compensated them for the loss of lands that were, in essence, given to the Arapahos. The negotiations over the 1896 agreement took an interesting twist, in that the government was forced to make concessions independently to both tribes in order to win their acceptance, as detailed in Article III. The record of the negotiations is found in the National Archives in Washington, DC.View/Download the Land Cession of 1896 Agreement in PDF Format (12K)

Land Cession of 1904
Land Cessation of 1904 Commentary by Hank Stamm
In 1904, local interests around the Wind River Reservation succeeded in getting what they had tried to do for years, beginning as early as the Brunot cession of 1872: to cut significantly the size of the reservation. Throughout the 1890s, first in 1891 and 1893, commissions met with the Shoshones and Arapahos and tried to convince them to slice the reservation in half. However, even when agreements were reached, for some reason the Senate did not approve them, so the deals collapsed. In 1897, a 10-mile square area had been lopped off the northeast corner to create the boundaries of the Big Horn Hot Springs, but the 1904 agreement literally cut the reservation in two, with a boundary line that ran roughly from the former northwest corner to the southeast corner. This was a hotly debated agreement among both the Indian tribes, and later, the principal signer for the Shoshones, George Terry, was murdered.The agreement was terribly lopsided it its provisions. Rather than paying the tribes outright for the cession, the United States planned on selling the ceded lands under the existing homestead, town-site, coal, and mineral laws, then compensating the tribes from the funds so derived from these sales. Moreover, the tribes had no control over the use of this fund: proceeds were to be used to build a reservation irrigation system, to fund a one-time only $50 per capita cash payment, to build and maintain various bridges, to build schools (thus shirking the responsibilities called for under the terms of the Treat of Fort Bridger, 1868), and to provide for a reservation welfare system.The agreement took place against a backdrop of renewed efforts to carry out the plans of the General Allotment Act of 1887 (the Dawes Act), which intended to place every Indian on individual plots of land. Then the unassigned portions could be freed from tribal control and opened up to white settlement. To a large extent, this is what happened, and within a few years, the towns of Riverton and Shoshoni emerged, especially when the U.S. government poured huge sums of money to create the Boysen Reservoir and the irrigation system that was necessary to allow farming in the arid lands of the Wind River Valley. Eventually, however, after non-Indian settlers claimed all the best land near the irrigable area, the tribes were able to re-claim most of the acreage lost in the 1904 cession.View/Downloadthe Land Cession of 1904 Agreement in PDF Format (22K)

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Jackson Hole Historical Society and Museum Web Administrator

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Wind River Treaty Documents - Jackson Hole Historical Society & Museum

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TREATIES AND AGREEMENTS BETWEEN THE EASTERN SHOSHONES AND THE UNITED STATES Introduction The Eastern Shoshones, who live on the Wind River Indian Reservation in Wyoming, have a long history of treaties and agreements with the United States government. In this section, you will learn about the history of treaties and agreements between Indian people and [...]

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Northern Arapahoe Tribe, WY | Official Website

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The Northern Arapaho Tribe of Wyoming is one of four groups of Arapaho who originally occupied the headwaters of the Arkansas and Platte Rivers. They speak a variation of the Algonquin language, and are that people's most southwest extension. Culturally, they are Plains Indians, but socially and historically distinct.

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Tribal Government and Water Rights with Wes Martel (Tribal Sovereignty, 11/29/2022)

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This Montana Indian Law website was originally proposed to Judy Meadows, State Law Librarian, by Denise Juneau, who at the time was director of the Office of Public Instruction’s Indian Education Division. Identifying and acquiring Montana’s tribal legal documents had always been a challenge for the State Law Library, and being offered funding to do this and mount the information on a website provided the resources and momentum needed.

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Act of June 2, 1924, Public Law 68-175, 43 STAT 253, to Authorize the Secretary of the Interior to Issue Certificates of Citizenship to Indians

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The online portal to the records held at the National Archives, and information about those records.

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EnlargeDownload Link Citation: An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations (General Allotment Act or Dawes Act), Statutes at Large 24, 388-91, NADP Document A1887. View All Pages in the National Archives Catalog View Transcript Approved on February 8, 1887, “An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations,” known as the Dawes Act, emphasized severalty – the treatment of Native Americans as individuals rather than as members of tribes.

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Treaties-solemn agreements between sovereign nations-lie at the heart of the relationship between Indian Nations and the United States. Native Nations made treaties with one another long before Europeans came to the Western Hemisphere. The United States began making treaties with Native Peoples because they were independent nations. Often broken, sometimes coerced, treaties still define mutual obligations between the United States and Indian Nations. The treaties featured in Nation to Nation: Treaties Between the United States and American Indian Nations, on loan from the National Archives and Records Administration, are representative of the approximately 374 that were ratified between the United States and Native Nations.

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Nation to Nation | Treaties Between the United States and American Indian Nations

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Nation to Nation: Treaties between the United States and American Indian Nations exhibition at the Smithsonian National Museum of the American Indian in Washington, DC. Treaties-solemn agreements between sovereign nations-lie at the heart of the relationship between Indian Nations and the United States.

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The National Archives and Records Administration (NARA) houses original treaties made between the United States and American Indian nations. NARA also houses instructions issued to treaty commissioners, minutes of treaty councils, and other records related to American Indian treaties.

Historical Background

From 1774 until about 1832, treaties between individual sovereign American Indian nations and the United States were negotiated to establish borders and prescribe conditions of behavior between the parties.

The form of these agreements was nearly identical to the Treaty of Paris ending the Revolutionary War between the U.S. and Great Britain. The negotiations ended in a mutually signed pact that had to be approved by the U.S. Congress. Non-tribal citizens were required to have a passport to cross sovereign Indian lands.

From 1832 until 1871, American Indian nations were considered to be domestic, dependent tribes. Negotiated treaties between tribes and the U.S. had to be approved by the U.S. Congress.

In 1871, the House of Representatives ceased recognition of individual tribes within the U.S. as independent nations with whom the U.S. could contract by treaty. This ended the nearly 100-year-old practice of treaty-making between the U.S. and American Indian tribes.

The online exhibit " Rights of Native Americans" includes a visual timeline of the history of American Indian treaties and of Native American activism to defend tribal sovereignty.

Additional Resources

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American Indian Treaties The National Archives and Records Administration (NARA) houses original treaties made between the United States and American Indian nations. NARA also houses instructions issued to treaty commissioners, minutes of treaty councils, and other records related to American Indian treaties.

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The Devil in the White City: Murder, Magic, and Madness at the Fair That Changed America [Erik Larson] on Amazon.com. *FREE* shipping on qualifying offers. The Devil in the White City: Murder, Magic, and Madness at the Fair That Changed America

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The Indian Reorganization Act of 1934 was the US government's attempt to define who "Indians" were. Among the criteria the act set was a blood quantum, which declared that "Indians" were "all other persons of one-half or more Indian blood". Today, many tribes wrestle with the legacy of blood quantum and "Indian" identity, as they work to manage tribal enrollment and social services. As the bloodlines grow increasingly diluted, within a few generation, recognized tribes might legally disappear. Through essays, personal stories, case studies, satire, and poetry, The Great Vanishing Act brings together writers from around the world to explore the biological and cultural metaphor of blood quantum, the most critical issue facing Indigenous populations in the twenty-first century.

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The Great Vanishing Act: Blood Quantum and the Future of Native Nations

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The Indian Reorganization Act of 1934 was the US government's attempt to define who "Indians" were. Among the criteria the act set was a blood quantum, which declared that "Indians" were "all other persons of one-half or more Indian blood". Today, many tribes wrestle with the legacy of blood quan...

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Becoming Little Shell | Milkweed Editions

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Winner of the Pacific Northwest Book AwardA People Magazine Best Non-Celebrity Memoir of 2024A People Magazine “Best New Book of the Month”A Kirkus Reviews Best Nonfiction of the Year SelectionA Book Riot “Best Memoirs, Nonfiction Science, and Food Writing of the Last Year”

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An Indigenous Peoples' History of the United States for Young People

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An Indigenous Peoples' History of the United States for Young People

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"An important corrective to conventional narratives of our nation's history . . . . An accessible, engaging, and necessary addition to school libraries and classrooms. An excellent read, dismantling American mythologies and fostering critical reasoning about history and current events."
- Kirkus Reviews, Starred Review

"This adaptation of An Indigenous Peoples' History of the United States (2014) should be required reading for all middle and high schoolers-and their teachers . . . . There is much to commend here: the lack of sugar-coating, the debunking of origin stories, the linking between ideology and actions, the well-placed connections between events past and present, the quotes from British colonizers and American presidents that leave no doubt as to their violent intentions . . . . The resistance continues, and this book urges all readers to consider their own roles, whether as bystanders or upstanders."
- Booklist, Starred Review

"Dunbar-Ortiz's narrative history is clear, and the adapters give readers ample evidence and perspective to help them to engage with the text. A highly informative book for libraries serving high school students."
- School Library Journal, Starred Review

"Gripping, tightly written, and packed with facts traditional textbooks and historical accounts neglect to cover."
- Shelf Awareness

"Wide-ranging and politically engaged . . . a valuable resource."
- The Horn Book

"This is a desperately needed corrective to existing histories for young people, and its combination of breadth and passion will spur both reflection and emotion."
- The Bulletin of the Center for Children's Books

"This is the book I wish I'd had when I started teaching. An Indigenous Peoples' History of the United States for Young People represents a fundamental challenge to the textbooks that celebrate 'liberty,' 'freedom,' and the 'rise of the American nation' but fail to recognize the humanity-or often even the existence-of the Indigenous peoples who were here first, and are still here. Our students will see the history of this country much more clearly when we put Indigenous people's lives at the center."
-Bill Bigelow, curriculum editor, Rethinking Schools, and codirector, Zinn Education Project

A Note to Readers

INTRODUCTION
This Land

CHAPTER ONE
Follow the Corn

CHAPTER TWO
Culture of Conquest

CHAPTER THREE
Cult of the Covenant

CHAPTER FOUR
Bloody Footprints

CHAPTER FIVE
The Birth of a Nation

CHAPTER SIX
Jefferson, Jackson, and the Pursuit of Indigenous Homelands

CHAPTER SEVEN
Sea to Shining Sea

CHAPTER EIGHT
Indigenous Lands Become "Indian Country"

CHAPTER NINE
The Persistence of Sovereignty

CHAPTER TEN
Indigenous Action, Indigenous Rights

CONCLUSION
"Water Is Life": Indigenous Resistance in the Twenty-First Century

For Further Reading
Some Books We Recommend
Notes
Image Credits
Index

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An Indigenous Peoples' History of the United States for Young People by Roxanne Dunbar-Ortiz: 9780807049396 | PenguinRandomHouse.com: Books

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2020 American Indian Youth Literature Young Adult Honor Book 2020 Notable Social Studies Trade Books for Young People,selected by National Council for the Social Studies (NCSS) and the Children's...

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Baffled by the stereotypes presented by Hollywood and much historical fiction, many other Americans find the contemporary American Indian an enigma. Compounding their confusion is the highly publicized struggle of the contemporary Indian for self-determination, lost land, cultural preservation, and fundamental human rights-a struggle dramatized both by public acts of protest and by precedent-setting legal actions. More and more, the battles of American Indians are fought-and won-in the political arena and the courts.

American Indians, American Justice explores the complexities of the present Indian situation, particularly with regard to legal and political rights. It is the first book to present an overview of federal Indian law in language readably accessible to the layperson. Remarkably comprehensive, it is destined to become a standard sourcebook for all concerned with the plight of the contemporary Indian.

Beginning with an examination of the historical relationship of Indians and the courts, the authors describe how tribal courts developed and operate today, and how they relate to federal and state governments. They define such key legal concepts as tribal sovereignty and Indian Country. By comparing and contrasting the workings of Indian and non-Indian legal institutions, the authors illustrate how Indian tribes have adapted their customs, values, and institutions to the demands of the modern world. Describing the activities of attorneys and Indian advocates in asserting and defending Indian rights, they identify the difficulties typically faced by Indians in the criminal and civil legal arenas and explore the public policy and legal rights of Indians as regards citizenship, voting rights, religious freedom, and basic governmental services.

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American Indians, American Justice [Deloria Jr., Vine, Lytle, Clifford M.] on Amazon.com. *FREE* shipping on qualifying offers. American Indians, American Justice

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Montana OPI:  Indian Education for All Resources

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Montana OPI:  Indian Education for All Resources

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Use this form to request hard copy OPI Indian Education for All materials and curriculum.

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montana office of public instruction website

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Use this form to request hard copy OPI Indian Education for All materials and curriculum. Please type the name of the resource from the Publications Available list you wish to be sent.

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TREC Reports – People of the Sacred Land

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This final reports present the comprehensive findings of the Truth, Restoration, and Education Commission (TREC) of Colorado, which, over the last two years, in collaboration with the People of the Sacred Land (PSL), has diligently examined the widely untold history of Colorado in order to uncover the causes of widespread land displacement and the genocide of Native peoples in the state. The TREC’s primary focus is on restoring the status of Tribal Nations in modern-day Colorado, and establishing an environment where Native communities in the state can grow and succeed. In the wake of irreparable harms, this work is dedicated to the restoration of Indigeneity, relationality, and wellness for the next seven generations.

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EnlargeDownload Link Citation: An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations (General Allotment Act or Dawes Act), Statutes at Large 24, 388-91, NADP Document A1887. View All Pages in the National Archives Catalog View Transcript Approved on February 8, 1887, “An Act to Provide for the Allotment of Lands in Severalty to Indians on the Various Reservations,” known as the Dawes Act, emphasized severalty – the treatment of Native Americans as individuals rather than as members of tribes.

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In re General Adjudication of All Rights to Use Water in Big Horn River System
1992 WY 66
835 P.2d 273
Case Number: 91-83, 91-84, 91-91, 91-92, 91
Decided: 06/05/1992
Supreme Court of Wyoming

RE: THE GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE BIG HORN RIVER SYSTEM AND ALL OTHER SOURCES, STATE OF WYOMING.

STATE OF WYOMING; MIDVALE IRRIGATION DISTRICT; G.A. BROWN TESTAMENTARY TRUST through Langford Keith, Co-Trustee; LECLAIR IRRIGATION DISTRICT; RIVERTON VALLEY IRRIGATION DISTRICT; AND JAMES R. ALLEN, et al., Appellants (Plaintiffs).

Appeal from the DistrictCourtofWashakieCounty, the Honorable Gary P. Hartman, Judge, presiding.

Joseph B. Meyer, Attorney General; Mary B. Guthrie, Senior Assistant Attorney General; and Michael D. White, David F. Jankowski, and Thomas J. Davidson, Special Assistant Attorneys General, of White & Jankowski, Denver, Colorado, for the State.

Jay E. Vincent of Vincent & Vincent, Riverton; and Richard A. Simms and Jay F. Stein of Simms & Stein, P.A., Santa Fe, New Mexico, for Midvale Irrigation Dist.

Michael S. Messenger of Messenger & Jurovich, Thermopolis, for G.A. Brown Testamentary Trust.

Norman E. Young of Hill, Young & Barton, P.C., Riverton, for LeClair Irrigation Dist.

Donald P. White of White, White & Roberts, P.C., Riverton, for Riverton Valley Irrigation Dist.

Sky D Phifer of Phifer Law Office, Lander, for James R. Allen, et al.

Richard B. Stewart, Assistant Attorney General; and Judith Rabinowitz and James J. Clear, Attorneys, Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the U.S.

William J. Thomson, III of Dray, Madison & Thomson, Cheyenne; and Susan M. Williams and Jane Marx of Gover, Stetson & Williams, P.C., Albuquerque, New Mexico, for Shoshone Indian Tribe.

Andrew Baldwin and Robert F. Thompson, Ethete, for Northern Arapho Tribe.

Don W. Riske of Riske & Arnold, Cheyenne; and Thomas D. Lustig of the National Wildlife Federation, Boulder, Colorado, for amicus curiae Wyoming Wildlife Federation and National Wildlife Federation.

Before THOMAS, CARDINE, MACY, and GOLDEN, JJ.; and BROWN, J. (Retired.)

MACY, Justice.

[¶1.] The State of Wyoming and non-Indian water users appeal from a judgment entered by the district court which (1) decreed that the Shoshone and Northern Arapaho Tribes on the Wind River Indian Reservation may change the use of their reserved water right as they deem advisable without regard to Wyoming water law; and (2) substituted the tribal water agency for the state engineer as the administrator of both reserved and state-permitted water rights within the Wind River Indian Reservation.

[¶2.] We reverse.

[¶3.] The core issues stated in various ways by the several appellants are:

[¶4.] 1. Whether the Tribes may change their right to divert future project water for agricultural purposes to a right to maintain an instream flow for fishery purposes without regard to Wyoming water law; and

[¶5.] 2. Whether the Tribes have the right to administer all the water rights within the reservation to the exclusion of the Wyoming state engineer.

[¶6.] This is another appeal of an ongoing general adjudication of all water rights in the Big Horn River System, involving over 20,000 claimants. Because of its size and complexity, the adjudication is being conducted in phases. The dispute presently before this court relates to the interpretation of the amended judgment and decree entered on May 24, 1985, by Judge Alan B. Johnson (the 1985 decree) involving Phase I, wherein the Tribes were granted the right to divert water for agricultural purposes on reservation land historically irrigated, as well as on reservation land included within certain future projects. In Big Horn I,1 this court affirmed the 1985 decree, granting the Tribes the right to divert water from the Big Horn River System for agricultural purposes and subsuming livestock, municipal, domestic, and commerce uses within those purposes. This court also affirmed the district court's finding that an instream flow right for fisheries was not a subsuming use. The United States Supreme Court affirmed the Big Horn I decision in 1989.2 After the United States Supreme Court affirmed the Wyoming Supreme Court's decision, the Tribes announced their intent to dedicate a portion of their reserved water right, which had been awarded for future projects, to instream flow for fisheries and other nonsubsumed uses in the Wind River. To that end, the Tribes adopted a Wind River Interim Water Code, created the Wind River Water Resources Control Board, and, on April 12, 1990, granted themselves Instream Flow Permit No. 90-001, which authorized the dedication for the 1990 irrigation season of up to 252 cfs of water in the Wind River for "fisheries restoration and enhancement, recreational uses, ground water recharge downstream benefits to irrigators and other water users."

[¶7.] Shortly after the issuance of Permit No. 90-001, the Tribes complained to the state engineer that the diversion of water by holders of state-awarded water rights caused the Wind River flows to be less than that amount authorized by the permit. The state engineer informed the Tribes that their permit was unenforceable because the Tribes had been awarded only the right to divert water and that any change in the use of future project water covered by their reserved water right must be made following a diversion. The Tribes nevertheless thereafter requested that the state-awarded water rights of Midvale Irrigation District be curtailed so that the instream flows could be maintained. The state engineer refused to honor this request, which he viewed as being an unlawful selective call.

[¶8.] On July 30, 1990, the Tribes filed a motion in the district court for an order to show cause why the state engineer should not be held in contempt, why he should not be relieved of his duties, and why a special master should not be appointed to enforce the Tribes' reserved water right. The State filed its own motion for a determination of certain administrative matters. The district court referred the motions to a special master for a report. The special master agreed to hear all the issues raised except for the contempt issue involving the state engineer.

[¶9.] The specific issues which the Tribes presented to the special master were: (1) Whether the Tribes were permitted to convert their water right reserved for future agricultural projects to an instream flow; (2) whether the Tribes properly accomplished the allocation of future project water to instream flow use pursuant to the Wind River Interim Water Code and Permit No. 90-001; and (3) whether the state engineer had an obligation to enforce the tribal instream flow permit. A partial list of the State's issues presented to the special master included: (1) Whether the state engineer had the authority to administer the Tribes' reserved water right; (2) whether, if the Tribes' future project water may be changed to instream uses, the change must be made in accordance with Wyoming water law; and (3) whether a change in use of future project water may be made without consideration of injury to junior appropriators.

[¶10.] After hearing oral arguments on exceptions to the special master's report, the district court entered its judgment and decree on March 11, 1991, declaring that the Tribes were entitled to use their reserved water right on the reservation as they deemed advisable, including instream flow use, without regard to Wyoming water law. The district court did not distinguish that portion of the Tribes reserved water right quantified on the basis of historical use from that portion quantified on the basis of future practicably irrigable acres when it issued its judgment and decree. The only issue properly before the district court was whether the Tribes could dedicate their future project water to instream flow for the purposes of maintaining fisheries, et cetera, without regard to Wyoming water law. We limit the scope of review on appeal accordingly. The court also ordered the substitution of the Tribes for the state engineer as the administrator of Indian and non-Indian water rights within the Wind River Indian Reservation. On May 3, 1991, this court stayed the judgment and decree from which this appeal is taken.

[¶11.] The Tribes interpret the findings of fact, conclusions of law, and judgment entered on May 10, 1983, by Judge Harold Joffe (the 1983 decision), approving the master's report which awarded them a reserved water right to irrigate practicably irrigable acres within the Wind River Indian Reservation, as not restricting the Tribes' use of their future project water so long as consumptive use was not increased and the use was confined to the reservation. The Tribes contend that the agricultural purposes relied upon to quantify their water right do not limit their uses of the water. They reason that Judge Joffe made it clear in his 1983 decision that the methodology used to quantify the Tribes' reserved water right, whether by historical use or by practicably irrigable acreage, in no way limited their use of the water by stating:

This Court, thus, calculates the Tribes['] entitlement to a reserved water right, with a priority date of 1868, based on the purpose of agriculture (which term includes livestock use and domestic use) and denies such reserved water right for other multi-purpose uses as claimed by the Tribes. The Court by such finding does not intend to dictate to the Tribes that they are restricted as to the use of said reserved water only for the purpose of agriculture, inasmuch as it recognizes that it cannot tell the Tribes how they must use water that comes under a reserved water permit. If the Tribes desire to use so much of their water for other purposes, they may do so.

1983 decision at 20.

The Court states again the premise that the determination of "historic" acreage and "practicably irrigable acreage" is used only as a measuring device to calculate the Tribes['] present and future needs. . . . When the Tribes determine where and how they wish to use the water granted in this decree, they will inform the proper authorities who will then be able to make the specific determinations which are necessary for administration of a water right.

1983 decision at 36.

8. The Tribes are entitled to make such use of the water covered by their reserved water rights [as] they deem advisable but the use is confined to the reservation and in no event shall the consumptive use be increased.

1983 decision at 70. The Tribes also support their reasoning by pointing out that the order ruling on motions to alter or amend the 1983 decision entered on June 8, 1984, by Judge Johnson, denying the Tribes' motion for an additional quantity of reserved water for instream flow, stated:

The reserved water right quantified by Judge Joffe does not deny the Tribes the ability to regulate in-stream flows in order to maintain what may be considered necessary water for optimum fish habitat, nor does the opinion limit any such power that may exist on the part of the Tribes. The Tribes may seek to dedicate their stream flows for fish habitat by using water reserved to them by the decision.

[¶12.] The State counters by declaring that the Tribes' reliance upon the 1983 decision as being authority to permit them to use their future project water to maintain instream flows is remarkably misplaced. The State contends that the 1985 decree, which amended the 1983 decision, contained no possibility that the Tribes' reserved water right was other than to actually divert water from the stream. The State buttresses this contention by reasoning that Judge Johnson discarded his previous views on instream flows when he entered his 1985 decree or he would have provided for such and that the Tribes were not awarded water rights which might or could have been included in the 1985 decree.

[¶13.] The parties' reliances upon the 1983 decision or upon the 1985 decree to support their contentions are not justified. The issue of whether or not the Tribes have unlimited discretionary use of their quantified reserved water right was decided in Big Horn I. We qualified the Tribes' use of their water right by stating:

The government may reserve water from appropriation under state law for use on the lands set aside for an Indian reservation. . . .

. . . .

. . . Considering the well-established principles of treaty interpretation, the treaty itself, the ample evidence and testimony addressed, and the findings of the district court, we have no difficulty affirming the finding that it was the intent at the time to create a reservation with a sole agricultural purpose. . . .

. . . .

. . . The evidence is not sufficient to imply a fishery flow right absent a treaty provision.

Big Horn I, 753 P.2d at 94-98 (emphasis added).

[¶14.] Our opinion clearly and unequivocally stated that the Tribes had the right to use a quantified amount of water on their reservation solely for agricultural and subsumed purposes and not for instream purposes. If we had intended to specify what the water could be used for merely as a methodology to determine the amount of water the Tribes could use for any purpose, we would have said so. The contrary is unmistakable. See the dissenting opinions of Justice Thomas and Judge Hanscum in Big Horn I, wherein they stated that they would have allowed the Tribes to use the water for any purpose appropriate to the progress and development of the reservation rather than limiting the uses to those mentioned in the majority opinion. It is not necessary for us to discuss the Tribes' alternative contention that principles of federal law do not limit the uses to which they may put their water or the State's contention that the 1983 decision and the 1985 decree are not final orders. Big Horn I, having been affirmed by the United States Supreme Court, is final and controlling. The Tribes do not have the unfettered right to use their quantified amount of future project water for any purpose they desire.

[¶15.] We must now consider whether the district court erred when it decreed that the Tribes may change the use of their reserved future project water right from agriculture to any other purpose, including instream flows, without regard to Wyoming water law. The Tribes' first contention is that judgment and decree no. 8 in the 1983 decision gave them the right to change the "use of the water covered by their reserved water rights" in any manner in which they deemed advisable. This position is simply not tenable. Our decision in Big Horn I is controlling. As we previously stated, the Tribes' reliance upon the 1983 decision for this proposition is not justified. It makes no sense whatsoever for this court to limit the use of the water for agricultural purposes and then to permit the Tribes to unilaterally change that use.

[¶16.] The Tribes also contend that this court held that federal and not state law applied when we stated in Big Horn I, "The decree entered in the instant case does not require application of state water law to the Indian reservation." 753 P.2d at 115. We do not disagree with this statement; however, the statement cannot be taken out of context. We made this statement in acknowledgment that the Tribes had a reserved right by treaty to the use of Wyoming water for agricultural purposes which was not dependent upon state law or procedures and which did not need to be adjudicated pursuant to our statutory scheme. We clearly stated, "Federal law has not preempted state oversight of reserved water rights." Id. at 114.

[¶17.] The Tribes further contend that an unbroken chain of decisions exists in the United States determining that the Tribes' water rights are governed by federal law. The Tribes, however, fail to direct us to any of these decisions. The Tribes' additional reasoning that historical federal and tribal regulation of Indian water use is strong evidence that state control is federally preempted is not persuasive. We are persuaded by United States v. New Mexico, 438 U.S. 696, 98 S. Ct. 3012, 57 L. Ed. 2d 1052 (1978), wherein the United States Supreme Court held that water is impliedly reserved only to the extent necessary to meet the primary purposes for which a reservation is made and that, where water is valuable for a secondary purpose, the inference arises that Congress intended for water to be acquired in the same manner as is employed by any other private or public appropriator. In United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984), the United States attempted to convert Indian reserved water rights to forest ad wildlife programs. The Ninth Circuit Court of Appeals rejected the attempt and stated:

The purpose of a federal reservation of land defines the scope and nature of impliedly reserved water rights. Because the reserved rights doctrine is a exception to Congress's explicit deference to state water law in other areas, the Supreme Court has emphasized the importance of the limitation of such rights to only so much water as is essential to accomplish the purpose for which the land was reserved. We conclude that it would be inconsistent with the principles expressed in United States v. New Mexico to hold that the Government may "tack" a currently claimed Winters right to a prior one by asserting that it has merely changed the purpose of its previously reserved water right.

723 F.2d at 1419 (citations omitted). We see no reason why this rationale should not apply to a change of use of the future project water acquired by the Tribes solely for agricultural purposes. We hold that the Tribes, like any other appropriator, must comply with Wyoming water law to change the use of their reserved future project water from agricultural purposes to any other beneficial use. We leave for another day the question of whether the Tribes may dedicate their historically used water to instream flow, as that issue is not directly presented for our review by the facts of this case.

[¶18.] The State contends that, even if the Tribes were to petition for a change of use, our statutory and case law would not permit them to change the use of their water right for instream flow purposes. The State reasons that the Tribes have been awarded only the right to make an actual physical diversion of water and that any change would be limited to a beneficial use which can be made of the water after such diversion is made. The district court stated unequivocally that the term "divert" was used generally to describe water use and was never used as a word of limitation.

[¶19.] Although our statutory scheme regulating the appropriation of water has contemplated an actual physical diversion of water, we have never said that a requirement to do so existed. This is understandable if we give consideration to the fact that, until passage of our instream flows act,3 it was necessary to actually divert water to put it to a beneficial use permitted by law in Wyoming. "Beneficial use" is, however, an evolving concept and can be expanded to reflect changes in society's recognition of the value of new uses of our resources.4 Actual diversion is neither constitutionally required nor an essential element of our appropriation doctrine. Beneficial use is the key element. Wyo. Stat. § 41-3-101 (Supp. 1991) provides in relevant part: "Beneficial use shall be the basis, the measure and limit of the right to use water." We join the Idaho Supreme Court5 and hold that an actual diversion of water is not necessary to appropriate water for a beneficial use. This holding, however, is of no comfort to the Tribes or to the national and Wyoming wildlife federations which have filed an amicus curiae brief, as the appropriation of water for instream flow is not a beneficial use which is presently available to the Tribes. Wyo. Stat. § 41-3-1002(e) (Supp. 1991) clearly provides: "No person other than the state of Wyoming shall own any instream flow water right."

[¶20.] The Wyoming legislature has for good reason precluded water right holders from unilaterally dedicating water to maintain instream flows. Water is the lifeblood of Wyoming. It is a scarce resource which must be effectively managed and efficiently used to meet the various demands of society. Wyoming's founding fathers also recognized the necessity of having state control over this vital resource. The convention journals reflect that a preliminary draft of Article 8, § 1 of the Wyoming Constitution provided for state ownership of all waters "not heretofore appropriated." Mr. Brown, a prominent member of the convention, objected by stating:

As this bill reads as originally presented, it leaves the people who have appropriated a portion of the water as the absolute owners of it, and the state will declare that they have no ownership whatever to any of the waters that have been heretofore appropriated. If they so declare, it would be utterly impossible for the legislature, or ay power of the state, to control, regulate, or in any manner interfere with its use. It is only by the declaration that we are to be the absolute owners of all the water that we may be enabled to control unreservedly the uses to which it may be put.

JOURNALS AND DEBATES OF THE CONSTITUTIONAL CONVENTION, STATE OF WYOMING 289 (1889). Article 8, § 1 of the Wyoming Constitution was amended accordingly.6 Our decision today recognizes only that which has been the traditional wisdom relating to Wyoming water: Water is simply too precious to the well being of society to permit water right holders unfettered control over its use.7

[¶21.] We turn now to the State's contentions regarding that portion of the district court's March 11, 1991, judgment and decree which provided:

The Tribal agency which regulates reserved water matters shall have the authority to administer all water rights within the stipulated boundaries of the reservation. Non-Indian rights will be administered according to state water law by the Tribal agency, with appropriate judicial review in state district court pursuant to Title 41 of the Wyoming statutes.

The State argues, among other things, that the district court violated the Wyoming Constitution by removing the state engineer from being the administrator of state water within the reservation. The Tribes counter by contending that the constitutional issue should not be entertained on appeal as it was not raised before the trial court.

[¶22.] Regarding the Tribes' contention, we have often stated that this court will not consider issues for the first time on appeal which have been neither raised in nor argued to the trial court, unless they go to jurisdiction or are otherwise of such a fundamental nature that we must take cognizance of them. E.g., Oatts v. Jorgenson, 821 P.2d 108 (Wyo. 1991). We have previously recognized, however, that constitutional issues regarding possible violations of the separation of powers doctrine can be of such a fundamental nature as to require consideration and resolution by this court for the first time on appeal. White v. Fisher, 689 P.2d 102 (Wyo. 1984); but see Nickelson v. People, 607 P.2d 904 (Wyo. 1980). In the instant case, the State raises the issue of whether the district court's removal and replacement of the state engineer constituted an unlawful infringement by the judiciary on the rights, powers, and privileges reserved to the executive branch of government by the Wyoming Constitution. We believe that, in light of the ongoing nature of this case and of the need for certainty in future proceedings, it is necessary that we address the State's constitutional issue at this juncture to further define the respective roles of the various branches of state government as they relate to this dispute.

[¶23.] Article 2, § 1 of the Wyoming Constitution establishes the separation of powers doctrine:

The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.

[¶24.] In Billis v. State, 800 P.2d 401 (1990), we rejected the "air tight compartment" view of the separation of powers doctrine and determined instead that our state's framers intended to integrate dispersed powers into a balanced, workable government. 800 P.2d at 415. The Tribes argue that, under a "balanced, workable government" approach to the separation of powers doctrine, the district court was not foreclosed from assigning the duties of administering state water within the reservation to the tribal water agency. They contend that the remedial action undertaken in the instant case was within the district court's broad equitable authority to see that its judgments and decrees are respected. We disagree.

[¶25.] Article 1, § 31 of the Wyoming Constitution recognizes that state control of water is essential to the development and prosperity of Wyoming.8 To this end, the constitution declares that "the water of all natural streams, springs, lakes or other collections of still water" within the boundaries of Wyoming is the property of the state. Wyo. Const. art. 8, § 1.9 The constitution provides for the administration of state water as follows:

There shall be constituted a board of control, to be composed of the state engineer and superintendents of the water divisions; which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion, and of the various officers connected therewith. Its decisions to be subject to review by the courts of the state.

Wyo. Const. art. 8, § 2.

There shall be a state engineer who shall be appointed by the governor of the state and confirmed by the senate; he shall hold his office for the term of six (6) years, or until his successor shall have been appointed and shall have qualified. He shall be president of the board of control, and shall have general supervision of the waters of the state and of the officers connected with its distribution. No Person shall be appointed to this position who has not such theoretical knowledge and such practical experience and skill as shall fit him for the position.

Wyo. Const. art 8, § 5.

[¶26.] As is apparent from the text of the constitution, the state engineer is a constitutionally designated officer of the executive branch of government. He is appointed by the governor and must be approved by the senate as an individual who is qualified to fulfill the position's requirements. The state engineer is responsible for generally supervising both the use of state water and such subordinate officers as are associated with its distribution.10

[¶27.] The constitution also addresses the removal of executive officers:

Except as hereafter provided, all officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office as provided by law. Any person appointed by the governor to serve as head of a state agency, or division thereof, or to serve as a member of a state board or commission, may be removed by the governor as provided by law.

Wyo. Const. art. 3, § 19. The state engineer is not subject to impeachment. State ex rel. Hamilton v. Grant, 14 Wyo. 41, 81 P. 795 (1905). The law which has been provided by the Wyoming legislature relating to the removal of the state engineer and other governor appointees reads in pertinent part:

(a) Notwithstanding any other provision of law, any person may be removed by the governor, at the governor's pleasure, if appointed by the governor to serve as head of a state agency, department or division, or as a member of a state board or commission.

. . . .

(c) Reason for removal of appointed officers or commissioners shall be mailed or delivered to the person to be removed.

Wyo. Stat. § 9-1-202 (1991).

[¶28.] Neither the constitution nor the statutes contemplate that a district court should have the authority to remove or replace the state engineer as the administrator of Wyoming water. Cf. Wyo. Const. art. 5, § 10 (powers of district court). The state engineer is an executive officer appointed by and subject to removal by only the governor of Wyoming. See People ex rel. Emerson v. Shawver, 30 Wyo. 366, 222 P. 11 (1924). The district court's primary role in the instant case was to adjudicate the nature, extent, and relative priority of competing water interests in the Big Horn River System. See Wyo. Stat. § 1-37-106 (1988). We hold that the district court had no "inherent equitable enforcement authority," as argued by the Tribes, to effectuate a de facto removal and replacement of the state engineer as the administrator of state water within the reservation. A contrary position would result in a most unbalanced and unworkable form of government. The district court's action violated not only the separation of powers doctrine embodied in the Wyoming Constitution, but also the constitutional charge that the state engineer shall have "general supervision of the waters of the state." Wyo. Const. art. 8, § 5.

[¶29.] As to the Tribes' concern that the separation of powers doctrine should not be applied in such a manner as to make the state engineer immune from judicial enforcement of the 1985 decree, we agree. The state engineer is obligated by the Wyoming Constitution to "equally guard all the various interests" in the water of the State of Wyoming. Wyo. Const. art. 1, § 31; Big Horn I, 753 P.2d at 115. Of the various interests to be protected is the Tribes' reserved water right. Big Horn I, 753 P.2d at 115. If the district court were to find in a future proceeding that the state engineer had shunned this constitutional mandate, then appropriate enforcement action should be undertaken. Our objection to the district court's action in the instant case goes only to the method employed, not to the underlying principle that the court should have authority to compel compliance with its lawful judgments and decrees.

[¶30.] In addition to the constitutional arguments addressed above, the State contends that the district court's action constituted an abuse of discretion, that it was contrary to the spirit of the McCarran Amendment,11 and that it violated the law of the case. While we find merit in each argument, we decline to address the arguments in detail in light of our determination that the district court's action violated the Wyoming Constitution. Suffice it to say that it has been repeatedly recognized during the course of this adjudication that unified administration by the state engineer of both reserved and state-permitted rights to Wyoming water is essential to effective water management within the Big Horn River System. See Big Horn I, 753 P.2d at 114-15, the 1985 decree, and the 1983 decision.

[¶31.] This court addressed the role of the state engineer as the administrator of the Tribes' reserved water right in Big Horn I. We limited the state engineer's authority as the administrator in two respects. We initially acknowledged that the Indian reserved water right existed independent of state law and procedure regarding the perfection of usufructuary rights to Wyoming water. We then determined that the state engineer, as the monitor of the Indian reserved water right, could not shut down tribal headgates once he believed that the Tribes had exceeded either the nature or the extent of their decreed right. We explained that, assuming cooperative efforts were of no avail, the state engineer would have to seek judicial enforcement of the decree against the United States and the Tribes. Big Horn I, 753 P.2d at 114-15.

[¶32.] Our present decision is consistent with the duties and limitations imposed upon the state engineer in Big Horn I. The state engineer remains responsible to distribute the water within the Big Horn River System according to the nature, extent, and priority of right. When the nature, extent, and priority of the Indian reserved water right are clear and not respected by state appropriators, the state engineer must exercise his authority over the state appropriators to see that the tribal right is observed. When, on the other hand, it is impossible to determine if the tribal right is being violated because the right itself is in some respect ill-defined, the state engineer should promptly seek clarification from the district court so that appropriate remedial action, if needed, may be undertaken. See Wyo. Stat. §§ 1-37-106 & 1-37-110 (1988). Should the state engineer determine that the Tribes violated the decree, he should execute an enforcement action as outlined in Big Horn I and summarized in the preceding paragraph.

[¶33.] Reversed.

FOOTNOTES

1State v. Owl Creek Irrigation District Members (General Adjudication of All Rights to Use Water in the Big Horn River System), 753 P.2d 76 (Wyo. 1988), cert. granted in part, 488 U.S. 1040, cert. denied in part, 492 U.S. 926 (1989).

2Wyoming v. United States, 492 U.S. 406, 109 S. Ct. 2994, 106 L. Ed. 2d 342 (1989).

3Wyo. Stat. §§ 41-3-1001 to -1014 (Supp. 1991).

4Rick A. Thompson, Comment, Statutory Recognition of Instream Flow Preservation: A Proposed Solution for Wyoming, 17 LAND & WATER L. REV. 139, 143 (1982).

5State Department of Parks v. Idaho Department of Water Administration, 530 P.2d 924 (Idaho 1974).

6Article 8, § 1 of the Wyoming Constitution reads:

The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declare to be the property of the state.

7Even if the Tribes were to petition to change the use of their reserved water right from agricultural purposes to another beneficial use permitted by law, they would have to overcome the difficulty of complying with Wyo. Stat. § 41-3-104 (1977). Section 41-3-104 provides that changes in the use or place of use of water may be allowed if the water transferred does not (1) exceed the amount of water historically diverted under an existing use; (2) exceed the historic rate of diversion under a existing use; (3) increase the historic amount consumptively used under a existing use; (4) decrease the historic amount of return flow under an existing use; or (5) injure in any manner other lawful appropriators. See also Green River Development Company v. FMC Corporation, 660 P.2d 339 (Wyo. 1983), and Basin Electric Power Cooperative v. State Board of Control, 578 P.2d 557 (Wyo. 1978) (only transferable interest in water is that which has been put to beneficial use).

8Article 1, § 31 of the Wyoming Constitution provides:

Water being essential to industrial prosperity, of limited amount, and easy of diversion from its natural channels, its control must be in the state, which, in providing for its use, shall equally guard all the various interests involved.

9Because Congress, in admitting Wyoming to the Union, 26 Stat. 222, ch. 664, ratified the Wyoming Constitution, it clearly contemplated that whatever superior rights it might temporarily or permanently hold in the waters of this state, the underlying ownership and control would remain with the State.

Big Horn I, 753 P.2d at 114.

10The governor also appoints the superintendents of Wyoming's four water divisions and the commissioners of the various water districts. Wyo. Stat. §§ 41-3-503 (1977) & 41-3-603 (Supp. 1991).

1143 U.S.C. § (1988).

THOMAS and CARDINE, JJ., join on the first issue.

THOMAS and BROWN (Retired), JJ., join on the second issue.

THOMAS, J., files a specially concurring opinion.

CARDINE, J., files an opinion concurring on the first issue and dissenting on the second issue.

BROWN, J. (Retired), files an opinion dissenting on the first issue and concurring on the second issue, GOLDEN, J., joins in the part dissenting on the first issue.

THOMAS, Justice, concurring specially.

[¶34.] I agree with the decision reflected in the opinion of the Court. I would invoke a different rationale for reaching the same result. The essence of that rationale is set forth in the dissenting opinion that I filed in In Re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo. 1988), cert. granted 488 U.S. 1040, 109 S. Ct. 863, 102 L. Ed. 2d 987 (1989), aff'd sub nom. Wyoming v. United States, 492 U.S. 406, 109 S. Ct. 2994, 106 L. Ed. 2d 342, reh'g denied 492 U.S. 938, 110 S. Ct. 28, 106 L. Ed. 2d 639 (1989) (by an equally divided court) (Big Horn I). I am persuaded that the real battle in this case is now over sovereignty, not over water.

[¶35.] If the issue to be addressed is sovereignty, I am satisfied that the thrust of the opinions of this court in State v. Moss, 471 P.2d 333 (Wyo. 1970), appeal after remand 492 P.2d 1329 (1972), and Blackburn v. State, 357 P.2d 174, reh'g denied 357 P.2d 1111 (Wyo. 1960), is that the part of the Wind River Indian Reservation, which was included in the Act of March 3, 1905, was disestablished as an Indian reservation. Even though the title to the land was in major part returned to the Indian tribes, the return of title only did not have the effect of again establishing the reservation. According to our decision in Big Horn I, there was no effect upon the reserved water rights, but that result is attributable to the stipulation of the parties with respect to the geographic area and the legal concept that property right was created at an earlier time when the Wind River Indian Reservation was created initially. We did not consider the doctrine of sovereignty in Big Horn I.

[¶36.] The paramount issue, as I view this case, is the question of who is to regulate water rights on the Wind River Indian Reservation. In my earlier dissent in Big Horn I, I set forth the reasons for concluding that the ceded portion of the Wind River Indian Reservation was disestablished as a reservation and that the efficacy of the constitution and law of the State of Wyoming within the ceded portion must be recognized. On the basis of that conclusion, I am satisfied that only the State Engineer can regulate on the ceded portion of the reservation. While it is possible to debate the significance of the language used, I hold the view that it is the law of this case that the right to regulate the use of the recognized water rights is vested in the State Engineer. In the absence of any sovereign rights in the Tribes in the ceded portion of the reservation, he must regulate the use of water there. Since the State Engineer is the exclusive regulatory authority for the use of water on the ceded portion of the Wind River Indian Reservation, he should also regulate on the diminished portion. Pragmatically, it does not make sense to have two regulatory authorities.

[¶37.] Even if I concede the authority of the trial court to nominate a different regulatory authority during the pendency of the litigation, I still must agree to reverse the appointment of the Tribal Water Board. If the manager is not to be the State Engineer, it must not be one of the antagonists in this litigation. I am of the view, however, that, even though there remain to be adjudicated the non-Indian rights, those rights now are represented by either permits or adjudicated rights under the law of the State of Wyoming. I am not certain that the pending litigation can interfere with the duty of the State Engineer to regulate the use of water under such rights or permits until they are adjusted by court decree in this litigation.

[¶38.] The water issue with respect to the reserved rights of the Indian peoples and individuals already has been resolved. Reserved water in favor of federal reservations, however, is a matter of property law. It has nothing to do with sovereignty. I find nothing set forth in the case of Winters v. United States, 207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340 (1908), to suggest that it addresses anything beyond a concept of property law. As federal courts have recognized, such a property right is subject to state regulation. E.g. United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), cert. denied sub nom. Oregon v. United States, 467 U.S. 1252, 104 S. Ct. 3536, 82 L. Ed. 2d 841 (1984). This must be particularly true when the geographical area in which the rights attach is not subject to the sovereignty of the Indian tribe.

[¶39.] I have to concede that logic would demand that the sovereignty of the Indian tribes be recognized as to the diminished portion of the reservation. My compromise with that logic is limited to the resolution of this case. In this instance, however, pragmatism must control over logic. In the long view, it would make little sense to divide the regulatory function because of the clear interrelationship of the water courses and systems on the ceded and diminished portions of the Wind River Indian Reservation. I am satisfied that, after the conclusion of this litigation, the Shoshone and Northern Arapaho tribes could not constitutionally regulate the waters on the ceded portion and, consequently, the appropriate order for the court to enter with respect to administration of the water in the context of continuity over the long range is to order the State Engineer to assume that function.

[¶40.] When I reach the conclusion that the water in the BigHornRiver must be subject to the administration of the State Engineer, that resolves the question of instream flow. The State Engineer has no authority to manage the waters of the state other than in consonance with the constitution and law of the State of Wyoming. Consequently, while instream flow might not be foreclosed, it must be recognized as a permissible utilization of the water in accordance with Wyoming law, if it is to be accomplished at all. Certainly, any effort on the part the Shoshone and Northern Arapaho tribes to create a right to an instream flow use out of what is now only paper water, as a matter of self help, must be a nullity.

[¶41.] I would reverse the order of the district court with instructions to appoint the State Engineer to manage the use of water on the Wind River Indian Reservation, both the rights subject to adjudication and other rights and permits. I would then require that state law be invoked with respect to any change of use or the implementation of any right to instream flow.

CARDINE, Justice, concurring in part and dissenting in part.

[¶42.] Water is too scarce, too precious a commodity in the arid west to do other than assure that it is the subject of highest and best use by all. The time for accommodation, mutual respect and reasonableness has arrived.

[¶43.] On the first issue, I would hold that a paper water right, one that has never been applied to practicable irrigable acreage or subsumed uses, may not be transferred to instream flow. This holding would prevent the transfer of future water to instream flow as applied for and before us in this appeal.

[¶44.] The majority has held that Wyoming law governs future tribal water. It is hard to imagine that when the question of historical water is before us, that it would be governed by different law than that governing future water. Therefore, I disagree with the majority's implicit holding that change of use of any tribal water right (whether future, historical or a future right later applied to practicable irrigable acreage or subsumed uses) may not be to instream flow simply because Wyoming law allows only the state of Wyoming to own an instream flow right. Instead, I would hold that any historical water right or future water right applied to practicable irrigable acreage may be transferred to instream flow under federal law or rules and regulations adopted by the Tribes that may, within reasonable limits, be more liberal than Wyoming law.

[¶45.] On the administration issue, I do not agree that Wyoming law governs the administration of Indian water rights. Nor do I agree that the State Engineer should administer the tribal water rights to the exclusion of the Tribes. I would hold that they jointly administer the water rights on the reservation and, in the event of disagreement, must turn to the court for resolution of their dispute.

[¶46.] My opinion here rests primarily on what I believe ought to be done, rather than on what has been said and done in the past. Therefore I cite little established precedent. I do explain how basic principles of Western water law, common sense, and comity support my proposals.

[¶47.] I believe each side in the current controversy errs by leaning too far toward either state or federal law and control. Administration of Indian water rights is accomplished through a delicate and cooperative interplay between state and federal law. When the balance between these laws is tilted too far in either direction, it results in harm to the orderly system of management and fairness for all water users.

Use of Future Project Water for Instream Flow

[¶48.] The majority opinion purports to address only "future project water," that is, water that is quantified and included in the reserved right but not yet put to beneficial use. However, its holding that W.S. 41-3-1002(e) precludes a private instream flow right for the Tribes can be read as precluding dedication of existing irrigation rights as well. In addition, the majority notes in dicta that if the Tribes sought to change the use of a reserved water right to another use "permitted by law," they would have to comply with our change of use statute, W.S. 41-3-104. Since I believe that the Tribes are free to promulgate their own standards for instream flow rights and for change of use which may, within reasonable limits, be more liberal than Wyoming law, I must dissent from these portions of the majority opinion.

[¶49.] I would hold, however, that future water may not be transferred to instream flow without first being put to beneficial use for irrigation purposes. My conclusion is bolstered both by the beneficial use concept and by the rule that reserved water rights are reserved only to fulfill the purposes of the reservation. United States v. New Mexico, 438 U.S. 696, 700, 98 S. Ct. 3012, 3014 (1978).

[¶50.] The danger in the absolutist position that federal law governs all aspects of reserved rights is that carefully developed policies of state water law relating to particular conditions of water use may be ignored. One such policy in Wyoming and other Western states is the beneficial use concept. Beneficial use is the foundation of Western water law. It is incorporated into our constitution, which states that "priority of appropriation for beneficial uses shall give the better right." Wyo. Const. Art. 8, § 3.

[¶51.] It is true that the Tribes have a federal water right which is reserved and exempted from appropriation by others under State law. Winters v. United States, 207 U.S. 564, 577, 28 S. Ct. 207, 212 (1908). Furthermore, "Federal water rights are not dependent upon state law or state procedures and they need not be adjudicated only in state courts." In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76, 114 (Wyo. 1988) (quoting Cappaert v. United States, 426 U.S. 128, 145, 96 S. Ct. 2062, 2073 (1976)), aff'd sub nom. Wyoming v. United States, 491 U.S. 406, 109 S. Ct. 2294 (1989), reh'g denied 492 U.S. 938, 110 S. Ct. 28 (1989) (Bighorn I). However, state concepts such as "beneficial use" may supply guidance in determining the scope of reserved rights. Colville Confederated Tribes v. Walton (Colville III), 752 F.2d 397, 400 (9th Cir. 1985). I would hold that a "paper" reserved right must be put to beneficial use before it can be allowed to interfere with the rights of state appropriators.

[¶52.] This is only consistent with making the highest and best use of the water for all. Indian reserved rights are subject to this principle. Cf. P. Maxfield, M.F. Dietrich & F. Trelease, Natural Resources Law on American Indian Lands 213 (1977): "[Indian water rights] cannot be claimed on a dog-in-the-manger basis; when the Indian right is not in use, the water may be taken and used by others having inferior rights." (emphasis added) It is simply unjust to require appropriators who must put their water to beneficial use to stand by and watch the Tribes waste water at their expense.

[¶53.] This leads us to the crux of the matter, which is whether instream flow is a beneficial use. In responding to this question, we must carefully consider the special qualities of reserved rights. The 500,000 acre feet reserved water right here is set aside for the Tribes and available forever for application to the land. The right to acquire a water right from the 500,000 acre feet awarded is owned by the Tribes and the federal government and is not subject to loss through abandonment or otherwise. The reserved right looks backward for priority purposes to the establishment date of the reservation. Thus, reserved rights escape many of the limitations imposed by the prior appropriation system. Since they are in derogation of this system, by which all other appropriators must live, their scope should be carefully limited to avoid undue prejudice to those who receive their rights under state law. I propose that one such limitation is that reserved rights cannot be considered beneficially used until they are used for the purposes for which the were reserved. In the case of the Bighorn reserved rights, that purpose was irrigation.

[¶54.] We said in Bighorn I, 753 P.2d at 96:

We have no difficulty affirming the finding that it was the intent at the time to create a reservation with a sole agricultural purpose[;]

and at page 99:

The district court did not err in finding a sole agricultural purpose in the creation of the Wind River Indian Reservation. The Treaty itself evidences no other purpose, and none of the extraneous evidence cited is sufficient to attribute a broader purpose[;]

and at page 112:

In the case at bar, the purpose of the reservation for which water is reserved is narrow--agricultural only.

Therefore, I would hold that the Tribes' rights, to be initially defined as beneficially used, must first be put to use for agricultural purposes.

[¶55.] Having said this, I do recognize that Indian water rights must be interpreted with sufficient flexibility to allow for change in use which may be needed when the needs of the Tribes also change. See e.g. Colville Confederated Tribes v. Walton (Colville II), 647 F.2d 42, 47 (9th Cir. 1981). Therefore, once a paper right has been converted to beneficial use by actually being applied to the practicably irrigable acreage, I would allow the Tribes to apply to change their use of the water. I would make this change subject to a reasonable set of procedures, which may be more liberal than those contained in Wyoming law.

[¶56.] I disagree with the majority that a change of use must be hamstrung by compliance with Wyoming statutes defining acceptable uses and procedures for change of use. I also disagree with the majority's position that Wyoming law now applies to prevent the Tribes from obtaining any instream flow right. Although Wyomingstatutes prohibit any but the State from obtaining an instream flow, within the broad ambit of the constitutional beneficial use concept, an instream flow may be a permissible use by the Tribes. The federal water right owned by the Tribes is subject only to the beneficial use concept in its broadest sense, not as it has been interpreted in a particular statute. Therefore, I would allow the Tribes to develop an instream flow right.

[¶57.] My primary concern is that the change of use must be orderly and gradual so as to me the devastating effect of an enormous dedication to instream flow of water that has never before, and is not now, being used for beneficial purposes. Although the "sensitivity doctrine" contained in United States v. New Mexico, 438 U.S. at 718, 98 S. Ct. at 3023 (Powell J., dissenting in part), was rejected in the particular context of Bighorn I, at 111-12, this is an ideal stage for its application. The rights of appropriators under state water law, and the congressional policy of deference to state water law, must be respected.

[¶58.] The benefits that result from my proposed disposition are many. First, those farmers and ranchers who, for generations, had an adequate, reliable source of irrigation water will not be ruined, bankrupted over night by their neighbor and now new senior appropriator, the Tribes, who profess their firm intention to keep approximately 200,000 acre feet of reserved paper water never before beneficially used in the river, leaving little or no water for diversion for irrigation. Second, these farmers and ranchers know that as time passes the Tribes will probably apply their reserved water right to the practicable irrigable acreage, the effect of which will be to gradually diminish the water available to the now junior rights of these farmers and ranchers. This water may also eventually be applied to instream flows. But the irrigators who share the water with the Tribes will have time to adjust their operations, return some land to dry farming, range land, or some other use. Each of the parties will have time to adjust to the new realities of their situation with time for study and adjustment. All of the water will more likely be applied to its highest, best and most beneficial use benefitting all who reside in Wyoming.

Joint Administration of the River System

[¶59.] I do not agree that Wyoming law governs the administration of Indian water rights. As we stated in Bighorn I, "the role of the state engineer is * * * not to apply state law, but to enforce the reserved rights as decreed under principles of federal law." 753 P.2d at 115. The scope of the McCarran Amendment, 43 U.S.C.§ 666 et seq., does not change the fact that federal law governs Indian reserved rights. Although suit for administration of water rights in a river system, including reserved rights, may be brought in state court, disputes concerning reserved rights are federal questions which may be reviewed by the United States Supreme Court. United States v. District Court, In and For Eagle County, Colorado, 401 U.S. 520, 526, 91 S. Ct. 998, 1003 (1971).

[¶60.] Nor do I agree that the State Engineer should administer the tribal water rights to the exclusion of the Tribes. The Indian reserved water is not "state water" as the majority claims. I would hold that the Indians and the State Engineer jointly administer the water rights on the reservation and, in the event of disagreement, must turn to the court for resolution of their dispute. We may find that ultimately it will be necessary for the court to administer the division and application of this water much as the courts have overseen and affected integration of schools. The parties must adopt a new spirit of cooperation with each other. They must stop this wasteful, expensive, useless litigation and move toward this common goal. The resolution of the administration and use of water urged in this concurring and dissenting opinion charts a reasonable middle ground rather than the win-all and lose-all extremes advocated by the parties in their repeated adversarial confrontations. For the reasons stated, I concur in part and dissent in part.

BROWN, Justice (Retired), concurring in part and dissenting in part, with whom GOLDEN, Justice, joins on the part dissenting to the first issue.

[¶61.] I agree with Justice Golden and join in his dissent on the first issue of this case.

[¶62.] My principal concern with the proposed majority opinion is that it does not give proper effect to the 1868 Treaty of Ft. Bridger, July 3, 1868, 15 Stat. 673. It must be remembered that the Tribes' water rights flow from the Treaty of 1868 and not from an appropriation under Wyoming law. The majority opinion treats the Tribes' reserved water right substantially the same as an appropriation under Wyoming statutes. The effect of the majority determination is to make marginal farmers out of the Tribes forever. This defeats the purposes for which the Reservation was created.

[¶63.] The court's opinion in In re General Adjudication of All Rights to Use Water in the Big Horn River System, 753 P.2d 76 (Wyo. 1988), cert. granted in part 488 U.S. 1040, 109 S. Ct. 863, 102 L. Ed. 2d 987, judgment aff'd 492 U.S. 406, 109 S. Ct. 2994, 106 L. Ed. 2d 342, reh'g denied 492 U.S. 938, 110 S. Ct. 28, 106 L. Ed. 2d 639 (1989) (Big Horn I) was fashioned by a committee and organized by an editor. It does not state what issues were being decided. It is hard to determine exactly what portion of the district court judgment was reversed and what portions of the 1983 decision and the 1985 decree were left intact. It is not clearly stated in the opinion how the Tribes' request for additional water for fisheries, minerals, industrial, wildlife and aesthetics was resolved. In examining the 1988 opinion of this court, a reader cannot find where a change of use issue was ever considered. The majority, however, quotes portions of Big Horn I out of context and bootstraps the case to support its determination in the case before us.

[¶64.] The special master awarded the Tribes approximately 500 cubic feet per second (cfs) as a reserved water right for agricultural and subsumed purposes. In the adjudication proceeding, the Tribes had also asked for a declaration of a reserved water right for fisheries, mineral, industrial, wildlife and aesthetics. The special master recommended an award for these purposes. The district court, however, disallowed a reserved water right for fisheries, minerals, industrial, wildlife and aesthetics. The Tribes appealed the denial of these reserved water rights. The Wyoming Supreme Court affirmed the district court in denying a reserved water right for fisheries, mineral, industrial, wildlife and aesthetics. 753 P.2d at 98-99.

[¶65.] The majority pumps air into its Big Horn I decision, then cites the enhanced opinion for its determination that the Tribes cannot change their right to divert water for agricultural purposes to an instream flow for fisheries. There were numerous issues in Big Horn I, all parties having appealed some part of the district court's judgment. However, there was no issue regarding changing part of the reserved right for agricultural purposes to a right to instream flow for fishery purposes. The majority cites Big Horn I for a proposition that was never an issue in that case; nor was it even discussed. If the majority is determined to hold that the Tribes cannot effect a change in use to an instream flow, it should find some authority other than Big Horn I. The trouble, of course, is it cannot find any such authority. All authority is to the contrary. See Arizona v. California, 439 U.S. 419, 99 S. Ct. 995, 58 L. Ed. 2d 627 (1979).

[¶66.] The majority opinion holds that the Tribes are subject to Wyoming law with respect to the use of their reserved water right. This determination flies in the face of a large body of law. The majority opinion makes no distinction between the Tribes' reserved water right and an appropriation under Wyoming law. As aforesaid, such determination cannot be supported by what the court said in Big Horn I.

[¶67.] In the Joffe and Johnson decrees, it was stated several times and in several ways that the Tribes are entitled to make such use of the water covered by their reserved water right as they deem advisable. In his Amended Judgment and Decree dated May 15, 1985, Judge Johnson held in paragraphs 8 and 9 at page 17:

8. The Tribes are entitled to make such use of the water covered by their reserved water rights they deem advisable but the use is confined to the reservation and in no event shall the consumptive use be increased.

9. The Tribes can sell or lease any part of the water covered by their reserved water rights but the said sale or lease cannot be for exportation off of the reservation and in no event shall the consumptive use be increased.

[¶68.] In his Decision dated May 10, 1983, Judge Joffe had made an identical determination at paragraphs 8 and 9 of the section entitled Judgment and Decree, at page 70. Judge Joffe additionally stated in the discussion section of his Decision:

The Court states again the premise that the determination of "historic" acreage and "practicably irrigable acreage" is used only as a measuring device to calculate the Tribes present and future needs. The requirements of an adjudication of a reserved right are different than those of a state awarded water right. The granting of a reserved right does not limit the usage of the water nor does it compel the Tribes to use the water on any particular tract of land. When the Tribes determine where and how they wish to use the water granted in this decree, they will inform the proper authorities who will then be able to make the specific determinations which are necessary for administration of a water right.

Id. at 36.

[¶69.] It is difficult to see how the majority can dance around the clear holdings of two district judges. This determination by Judges Joffe and Johnson was not reversed by this court in Big Horn I and is therefore the law of the case.1 The majority opinion summarily disposes of the Joffe and Johnson decrees by saying that reliance upon the 1983 decision or upon the 1985 decree is not justified. Then the majority quotes out of context statements from Big Horn I that had nothing to do with the Tribes' reserved water right for agricultural purposes or a change in use.

[¶70.] After this court entered its decision in Big Horn I, affirming the Tribes' right to use their water as they deem advisable, Wyoming filed a Petition for Rehearing or, in the Alternative, for Reconsideration and Clarification, in which it admitted the broad range of uses to which the Tribes could put their water pursuant to this Court's decision:

Under the rationale suggested by Judge Johnson, once the reserved water right is quantified for irrigation it arguably may be used for virtually any purpose on the Reservation. . . . The Tribes are entitled to make such use of the water covered by their reserved water rights as they deem advisable but the use is confined to the Reservation and in no event shall consumptive use be increased.

. . . the Tribes may decide that their "future" projects may never be built or may be significantly delayed and if so, the Tribes may decide to unilaterally convert their reserved right for future projects into the fisheries flows denied by this Court.

Petition for Rehearing at 44 (emphasis added); see also Brief of Appellee State of Wyoming in Response to the Appellants' Briefs of the United States and Tribes (Type 2 claims) at 86-87 (since Tribes may use their reserved water right for other non-agricultural purposes, Tribes not entitled to an additional and separate water award). Wyoming, therefore, explicitly asked that this Court amend its ruling insofar as it authorized the Tribes to dedicate their water to uses other than irrigation, including instream flows. Petition for Rehearing at 45. This court denied that request.

[¶71.] Wyoming adopted the same position before the United States Supreme Court in support of its argument that the "practicably irrigable acreage" quantification standard created a windfall for the Tribes. In its brief before the United States Supreme Court, Wyoming argued:

The rights received are no longer subject to the limitations of state law regarding continued use (without which they would be subject to abandonment) or transfer to different uses (for which there may be no injury to other water users).

Brief of Petitioners, In the Supreme Court of the United States, Wyoming v. United States, Case No. 88-309 at 33-34 (emphasis added and footnote omitted). That argument was rejected. Wyoming v. United States, 492 U.S. 406, 109 S. Ct. 2994, 106 L. Ed. 2d 342 (1989).

[¶72.] The State of Wyoming had no trouble understanding the court's opinion in Big Horn I when it petitioned for a rehearing and in its appeal to the United States Supreme Court. The law of this case and its ramifications have been clear throughout this litigation. The district court, this court, and the United States Supreme Court recognized that the Tribes are entitled to dedicate their decreed water to instream flows. Apparently the district court disallowed the special master's recommendation for a reserved water right for fisheries, mineral, industrial, wildlife, and aesthetics because the Tribes already had a substantial amount of reserved water (500 cfs) quantified for agriculture. According to the district court, this reserved water right could be used for any purpose. All parties understood how the Tribes could use their reserved water until this appeal. The State should be estopped from changing the position it took in its petition and argument for rehearing in Big Horn I and the position it took in its appeal of Big Horn I to the United States Supreme Court.

[¶73.] I agree with appellants that the State Engineer should control and manage the water, the subject matter of this litigation. I am influenced in my vote because the majority has determined that the Tribes' future water right cannot, at this time, be transferred to instream flow. A provision for dual management would be unworkable, exacerbate a power struggle, and invite continued litigation. Despite the posturing reflected in the five separate opinions, the court's holding is very narrow: a majority of the court has determined that the State Engineer manages the water. A different majority has determined that the Tribes' future water right cannot, at this time, be transferred to instream flow. Considering the two narrow issues decided in our opinion, the State Engineer should not experience the difficulty with "gray areas" that he experienced in interpreting Big Horn I.

[¶74.] I would affirm the district court on Issue Number 1, and reverse on Issue Number 2.

FOOTNOTES

1In fact, the only portions of the district court decrees that the Wyoming Supreme Court reversed were (1) an adverse ruling on the Walton claims, and (2) the award of water to the Tribes should be reduced overall by ten percent.

GOLDEN, Justice, dissenting, in which BROWN, Justice (Retired), joins, on the first issue.

[¶75.] In this appeal we review issues relating to enforcement of a portion of the district court's decree adjudicating waters in the BigHornRiver system, which we have already reviewed on two prior occasions, though in two entirely different contexts. See In Re Rights to Use Water in the BigHornRiver (Big Horn I), 753 P.2d 76 (Wyo. 1988), aff'd mem. sub nom. Wyoming v. United States, 492 U.S 406 (1989); In Re Rights to Use Water in the BigHornRiver System (Big Horn II), 803 P.2d 61 (Wyo. 1990).

INTRODUCTION

[¶76.] For ease of reference, the parties are identified:

Appellants: State of Wyoming, the G.A. Brown Testamentary Trust, the LeClair Irrigation District, the Midvale Irrigation District, the Riverton Valley Irrigation District, and a group of individual and business entities who are irrigators affected by the adjudication (hereinafter referred to collectively as appellants or by individual name, as circumstances require).

Appellees: United States, in its role as trustee for the Indian Tribes and as holder of various reserved water rights for national forest lands and other purposes, and the Shoshone and Arapaho Tribes (hereinafter referred to as the United States and the Tribes).

The Wyoming Wildlife Federation and the National Wildlife Federation appeared as amici with the Tribes.

[¶77.] Based upon the original decrees, the Indian Tribes sought to commit a portion of their reserved water rights to an instream flow on three critical stretches of the Big Wind River for the purposes of fishery enhancement, groundwater recharge, benefit to downstream irrigators and other benefits. The Tribes continued to commit their historic water for the agricultural and domestic purposes for which it had been traditionally used. They requested use of future water for instream flow purposes. The Tribes presented their Tribal Permit to the state engineer for enforcement in April of 1990, but the state engineer considered the Tribes' "right" to commit any portion of their waters to instream flow a "gray" area and, rather than enforcing the permit to the letter, he attempted to balance the rights of the appellants with the request for the instream flow. The state engineer was able to provide all irrigators with sufficient water during the pertinent time period, but was not able to fulfill the Tribes' instream flow demand. However, at least a portion of the instream flow was achieved at all times and, after the middle of July 1990, it was maintained at approximately the levels requested by the Tribes.

[¶78.] Because the state engineer did not strictly enforce their instream flow permit or recognize their right to commit a portion of their adjudicated water to an instream flow, the Tribes petitioned the district court for enforcement. As we made clear in Big Horn I, the district court is the proper source of their remedy as provided by the decree itself. A special master was appointed to hear all evidence and he reported to the district court. The district court essentially adopted the special master's report and decreed that the Tribes "may change their reserved water right to instream flow without regard to Wyoming state water law." The Tribes had also requested that the state engineer be replaced as the water master on the reservation and the district court granted that relief by appointing the Tribes' Water Resources Agency as the administrator of all surface waters on the reservation, both Indian and non-Indian alike. The appellants challenge both rulings.

ISSUES

[¶79.] Appellants offer two issues for this court's review. Although the phraseology used varies somewhat from appellant to appellant, it suffices to repeat here the statement of issues provided by the State of Wyoming:

I. Whether the Tribes may convert a federal reserved right to divert in the future into a present instream flow.

II. Whether the District Court erred in substituting the Tribal Water Resources Agency for the state engineer as administrator of all water rights within the reservation.

[¶80.] The Tribes and the United States perceive the issues similarly. The Tribes' statement of the issues follows:

A. Whether the district court correctly confirmed that the Shoshone and Northern Arapahoe Tribes may use their reserved water right for instream flows to restore and enhance fisheries without first obtaining the state engineer's approval.

B. Whether the district court's appointment of the Tribes' water agency as water master to regulate state-law water rights on the Wind River Indian Reservation was clearly erroneous.

THE TRIBES' RIGHT TO AN INSTREAM FLOW

[¶81.] The Tribes rely on the language of the district court decrees which manifest that they may use the reserved water rights, whether waters they have used historically or waters which were adjudicated to them for future needs, as they determine best fit their needs:

This court, thus, calculates the Tribes' entitlement to a reserved water right, with a priority date of 1868, based on the purpose of agriculture (which term includes livestock use and domestic use) and denies such reserved water right for other multi-purpose uses as claimed by the Tribes. The Court by such finding does not intend to dictate to the Tribes that they are restricted as to the use of said reserved water only for the purpose of agriculture, inasmuch as it recognizes that it cannot tell the Tribes how they must use the water that comes under a reserved water permit. If the Tribes desire to use so much of their water for other purposes, they may do so.

Judge Joffe, Decree at 20 (May 10, 1983).

The Court states again the premise that the determination of "historic" acreage and "practicable irrigable acreage" is used only as a measuring device to calculate the Tribes' present and future needs. * * * When the Tribes determine where and how they wish to use the water granted in this decree, they will inform the proper authorities who will then be able to make the specific determinations which are necessary for administration of a water right.

Id., at 36.

The tribes are entitled to make such use of the water covered by their reserved water rights as they deem advisable but the use is confined to the reservation and in no event shall the consumptive use be increased.

Judge Johnson, Amended Decree at 17, [P] 8 (May 15, 1985).

The reserved water right quantified by Judge Joffe does not deny the Tribes the ability to regulate in-stream flows in order to maintain what may be considered necessary water for optimum fish habitat, nor does the opinion limit any such power that may exist on the part of the Tribes. The Tribes may seek to dedicate their stream flows for fish habitat by using water reserved to them by this decision.

Judge Hartman, Order at 7 (March 11, 1991), quoted from June 4, 1984 Order.

[¶82.] The appellants discern a "gray" area based on the interaction of paragraphs 2 and 8 of the conclusions of law in the original decrees. Paragraph 2 describes the reserved water right in terms of a right to divert water. The appellants then go on to reason that, although the right is reserved and may be dedicated to instream flows, the water must first have been diverted to some other use. An instream flow does not require a diversion. I simply cannot accede to such a reading of the decree. At best it is obtuse and insensitive to the Tribes' property right in the adjudicated water. At worst it is duplicitous. In order to adopt this line of argument, we would be required to hold, as Justice Cardine postulates, that the Tribes were adjudicated the ownership of the water, but they may not use it unless first diverted to an agricultural use. Nothing in the decree or any subsequent rulings of the district court, or of this court, or of the United States Supreme Court,1 serves to support such a conjuration.

[¶83.] Whether the Tribes could utilize their water rights, whether historic or future, for other purposes was not raised as an issue in Big Horn I. It is so abundantly clear that if the issue had been raised, this court could only have held that the Tribes may put their water to uses consistent with their needs without regard to the traditional water law of Wyoming and, harsh as it may sound, the needs of other water users who are subordinate to the Tribes. The primary issue in Big Horn I was quantification, and we simply were not presented with the issue of other uses nor did we respond to that issue in the majority opinion.

[¶84.] Justice Macy would now have us believe that Big Horn I "clearly and unequivocally" determined the question of other uses and that "if we had intended to specify what the water could be used for merely as a methodology to determine the amount of water the Tribes could use for any purpose, we would have said so." Justice Macy, at 5. If the court had intended to hold in Big Horn I that use of water could never be changed to instream flow, the court could have clearly said so, but it did not. Justice Macy places great weight on what he perceives as evidence of prior discussion of "other uses" limitation by relying on the dissents in Big Horn I. But the dissenters do little more than state their disagreement with the majority's narrow view in affirming agricultural purpose as the sole method of quantification of rights. See Big Horn I, 753 P.2d at 117 (Thomas, J., dissenting; Hanscum, D.J., dissenting). If there is language from the majority in Big Horn I which purports to resolve the "other uses" issue, it has not been cited in the present opinion and, indeed, from our careful reading of the opinion we can find none. To suggest otherwise is absolute sophistry.2

[¶85.] In addition to the language of the decree itself, there are substantial precedents which mandate recognition that the Tribes may use their water for instream flows. 4 Waters and Water Rights § 37.02(e) (Robert E. Beck, ed., Michie 1991).

[¶86.] The Tribes do not appear to be asking for an "unfettered" right to use their water for any purpose they desire. Big Horn I can only be read to hold that the Tribes may use their water in a manner which is consistent with their best interests so long as the "public right" is not extinguished.3 4 Id. § 31.03. There simply is no question but that an instream flow is a beneficial use, whether studied under the federal law which must govern in this instance, or studied under traditional Wyoming state water law, which may have some application here as persuasive authority. The Tribes may call for their water for any use to which water may be beneficially put, and if the appellants are aggrieved, then they may take action, consistent with due process of law and in recognition of the Tribes' property rights, to question that use before the district court. The burden of proof in such an instance must be on the appellants, not the Tribes. Thus, if the only injury to other users comes about because the Tribes are actually using their water for instream flow, and that same injury would exist if the water was used to irrigate corn, then there is no injury for which the appellants or the State of Wyoming may seek a remedy. The rights which the Tribes received through Big Horn I are property rights. The Tribes may not be deprived of their rights absent due process of law. Wyo. Const. art. 1, § 6; U.S. Const. amend. V, XIV; 16A Am. Jur. 2d Constitutional Law §§ 598, 804-857 (1979). The process that is due the Tribes is, as stated above, that they first receive the water adjudicated to them -- nothing more, nothing less. If the water is within the quantity adjudicated and its use will take place on the reservation, then the state engineer is bound to make that water available as requested.

[¶87.] The Tribes' adjudicated water is not subject to the usual sort of administration by the state engineer as discussed more fully in the second part of this dissent. I would hold that the Tribes may use their water for an instream flow. This is consistent with prior court decisions and the decree as it currently stands affirmed by this court and the Supreme Court of the United States. Colville Confederated Tribes v. Walton, 647 F.2d 42, 48 (9th Cir. 1981), cert. denied, 454 U.S. 1092; and see 4 Waters and Water Rights, supra § 37.02(e).

[¶88.] In Winters v. United States, 207 U.S. 564, 576, 28 S. Ct. 207, 211, 52 L. Ed. 340, 346 (1908), the United States Supreme Court was clearly of the view that the Indians retained "command of the lands and the waters--command of all their beneficial use, whether kept for hunting, 'and grazing roving herds of stock,' or turned to agriculture and the arts of civilization." This broad language does not allow a crabbed interpretation of the proper uses of the reserved water by the Tribes. In Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963), the special master shared this view, as has the Solicitor of the Department of the Interior. This demonstrates the agency's conviction to support multiple uses of Indian reserved water rights. See Harold A. Ranquist, The Effect of Changes in Place and Nature of Use of Indian Rights to Water Reserved Under the "Winters Doctrine," 5 Natural Resources Lawyer 34, 35 n.3 and 36 (1972) (referring to Simon H. Rifkind, Report of the Special Master in Arizona v. California; Memorandum for the Secretary of the Interior, dated February 1, 1964; and Memorandum to the Regional Solicitor at Los Angeles, dated January 21, 1971). See also Membrino, supra, note 1, at 24 n.84, which refers to Solicitor's opinion, February 1, 1964 (Volume II Op. Sol. on Indian Affairs 1930 (U.S. D. I. 1979)).

[¶89.] In summary, I would hold the Tribes may use their water, whether it falls into the category of historic water or future water, for any purpose they deem to be to their benefit. In this specific instance, there is no question but that an instream flow is a benefit to the Tribes as well as the public in general. If the appellants, including the State of Wyoming, feel aggrieved by the Tribes' use of their water, they must go to the district court and prove their case and get an order from that court before the flow of the water may be stopped. It is as simple as that. I would earnestly hope that the district court will always perceive the simplicity of the meaning of the Tribes' right to their adjudicated water and shun conjurations, as it did here, which seek to deny implementation of the adjudication. In some instances, such as the implementation of the Brown4 school desegregation case, "time -- and time again --" may be made available by the courts to provide transition. Considerable time has already elapsed in this case. There will, no doubt, be additional refinements to be made in the decree in the future. But the status of the law is now clear in this matter. The Tribes have a property right in their adjudicated water and the law securing and protecting it, and those charged with its enforcement must give that property right and that law effect now.

ADMINISTRATION OF WATER RIGHTS ON THE RESERVATION

[¶90.] Concerning administration of water rights on the reservation the district court determined:

The Tribal agency which regulates reserved water matters shall have the authority to administer all water rights within the stipulated boundaries of the reservation. Non-Indian rights will be administered according to state water law by the Tribal agency, with appropriate judicial review in state district court pursuant to Title 41 of the Wyoming statutes.

Judge Hartman, Judgment and Decree (March 11, 1991).

[¶91.] Appellants allege error by the district court in substituting the Tribal Water Resources Agency in place of the state engineer to administer all water rights within the reservation. The state claims, inter alia, violations of the Wyoming Constitution and the law of this case and that the United States Constitution and federal law convey no such authority to the Tribes.

[¶92.] It is helpful to review the appellants' claims on appeal and the district court's disposition of the several issues:

(1) whether the district court's decision "removed" the state engineer from his administrative duties under Wyo. Const. art. 8, § 5;

(2) whether removal of the state engineer was an abuse of discretion;

(3) whether the district court's decision is consistent with this court's decision in Big Horn I regarding administration;

(4) whether the Tribes may administer state water rights on the reservation in light of recent United States Supreme Court decisions.

A. Removal of the State Engineer: Abuse of Discretion

[¶93.] The duties of the state engineer are prescribed by the Wyoming Constitution, which states in part:

There shall be a state engineer who shall be appointed by the governor * * *. He shall be president of the board of control, and shall have general supervision of the waters of the state * * *.

Wyo. Const. art. 8, § 5 (emphasis added).

[¶94.] The general supervisory powers granted the state engineer under Wyo. Const. art. 8, § 5, were not intended to give unlimited and uncontrolled authority. State By and Through Christopolus v. Husky Oil, 575 P.2d 262, 264 n.6 (Wyo. 1978).

[¶95.] Justice Macy argues that to allow the Tribal Water Resources Agency to administer water useage on the reservation violates the Wyoming Constitution:

The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state.

Wyo. Const. art. 8, § 1 (emphasis added). However, in Big Horn I, this court stated:

The decree does not violate state law. The provision in the Amended Judgment and Decree does not purport to give full ownership of the reserved water to the State.

Big Horn I, 753 P.2d at 114 (emphasis added).

[¶96.] Justice Macy cites the following sentence, providing his own emphasis, to lend support to his argument for restriction of the Tribes' reserved water right in Big Horn I:

The government may reserve water from appropriation under state law for use on the lands set aside for an Indian reservation.

Big Horn I, 753 P.2d at 94 (emphasis added by Justice Macy). The Big Horn court, however, provided no such emphasis in this cite which was originally taken from Winters. The Winters' Court specifically stated:

The power of the Government to reserve the waters and exempt them from appropriation under the state laws is not denied, and could not be.

Winters, 207 U.S. at 577, 28 S. Ct. at 212, 52 L. Ed. at 346-47 (citing United States v. Rio Grande Ditch & Irrigation Co., 174 U.S. 690, 702, 19 S. Ct. 770, 43 L. Ed. 1141 (1899); United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 L. Ed. 1089 (1905)). Justice Macy chooses not only to conveniently ignore the clear intent of the United States Supreme Court in Winters from which these words are taken, but to portend an interpretation from Big Horn I that is clearly in error and did not exist.

[¶97.] I reject the argument that the reserved water is the property of the state and the state engineer thus must have control. The reserved water rights of the Tribes are not within the boundaries of the state but are within the boundaries of the reservation. The characteristics and nature of Indian reserved water rights are different from state water rights. The determination of the priority date of Indian reserved water is not based on actual use by the Indians. Montana ex rel. Greely v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 219 Mont. 76, 712 P.2d 754, 767 (1985). Nor can these rights be abandoned for non-use. Id., 712 P.2d at 768. The right to reserved water by the Tribes vested at the time of creation of the reservation and title to the right is held in trust by the federal government for the benefit of the Indians. Joseph R. Membrino, Indian Reserved Water Rights, Federalism and the Trust Responsibility, 27 Land & Water L. Rev. 1, 2 (1992). Indian ownership of the reserved water rights is supported by the Wyoming Constitution:

Ownership of certain lands disclaimed; restriction on taxation of nonresidents. The people inhabitating this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands laying within said limits owned or held by any Indian or Indian tribes, and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States and that said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States * * *.

Wyo. Const. art. 21, § 26 (emphasis added).

[¶98.] These Indian reserved waters are not state property. The state does not claim ownership of the federal reserved waters of Yellowstone which lay within the boundaries of Wyoming, nor can it assert such ownership to the reserved waters of the reservation. Despite Justice Macy's assertion, this claim is not supported by the Wyoming Constitution:

Water being essential to industrial prosperity, of limited amount, and easy of diversion from its natural channels, its control must be in the state, which, in providing for its use, shall equally guard all the various interests involved.

Wyo. Const. art. 1, § 31 (emphasis added).

[¶99.] This section was intended to confer control over those waters in which the state has a role in "providing for its use." The state does not provide for the use of reserved water rights on the reservation; thus, the application of this constitutional provision to the Indian reserved rights is inapposite.

[¶100.] In Big Horn I, we looked to the state engineer to provide "incidental monitoring" of Indian reserved water rights on the reservation and cautioned against reference to this conduct as constituting "administration." Big Horn I, 753 P.2d at 115. The clear intent of Big Horn I was to permit the state engineer to monitor the use of water on the reservation, not to administer state law to the use of reserved rights by the Indians. Big Horn I, at 115. We stated:

The decree entered in the instant case does not require application of state water law to the Indian reservation. The decree recognizes reserved water rights based on federal law. The role of the state engineer is thus not to apply state law, but to enforce the reserved rights as decreed under principles of federal law.

Big Horn I, 753 P.2d at 115 (emphasis added).

[¶101.] It is unequivocal from this earlier discussion that the state engineer is not to act in his constitutionally appointed role as the "state engineer" but to provide monitoring or oversight of the reserved rights awarded by decree. We stated that

an independent water master might properly be appointed at this time to administer the decree and in light of the state engineer's limited authority. The Treaty of 1868 prohibits only unauthorized persons from entering the reservation, but the state engineer would be an authorized person upon his appointment to monitor the decree and could properly enter the reservation.

Big Horn I, 753 P.2d at 115 (emphasis added).

[¶102.] The district court appointed the state engineer as an officer of the court to act, in essence, as a "water master" to monitor the reserved rights decree. "The prerogative of the district court to appoint a master is not only established in general law, but is expressly provided by W.R.C.P. 53." Palm v. Palm, 784 P.2d 1365, 1369 (Wyo. 1989) A "master" by definition is "a person very skilled and able in some work, profession, science, etc; expert." A "master" in the legal context becomes "any of several court officers appointed to assist the judge by hearing evidence, reporting on certain matters, etc." Webster's New World Dictionary 873 (2d College ed. 1978).

[¶103.] As water master of the water rights on the reservation, the state engineer is to monitor the reserved rights and "contemplate neither the application of state law nor the authority to deprive the Tribes of water without the assistance of the courts in a suit for the administration of the decree." Big Horn I, 753 P.2d at 115. The state's response to the Tribes' Motion For Order to Show Cause Why Further Relief Should Not Be Granted attached an affidavit of the state engineer which concluded that the Tribes' instream flow permit could not be recognized for failure of the Tribes to request approval of the state engineer for a change of use. Report and Recommendation of the Special Master, October 4, 1990, at 3. The special master noted in his Conclusions of Law, as did the district court in its Findings of Fact, that the role of the state engineer was to enforce the Tribes' reserved water rights under principles of federal law. Id. at 20; Judge Hartman, Judgment and Decree at 15 (March 11, 1991). Though finding that the state engineer's acts were not contemptuous, the district court's act authorizing the Tribes to administer the water rights on the reservation effectively removed the state engineer from those duties. Judge Hartman, Judgement and Decree at 17 (March 11, 1991).

[¶104.] The district court's decision to replace the state engineer in his role as water master with the Tribal Water Resources Agency removed him not from his constitutionally protected duties to apply state law as a state engineer, but from his duties as a water master to monitor the decree. The broad discretion granted the district court to appoint a master under Wyo. R. Civ. P. 53 must confer discretion to remove the master if the law is not applied as decreed.

[¶105.] I would hold that the state engineer did not act as instructed by Big Horn I and that removal was appropriate exercise of the district court's discretion. I find it difficult to fathom how the state engineer could have sufficiently executed the role of impartial water master while acting as the state's chief negotiator in talks with the Tribes over water issues and at the same time retaining the constitutional duty to protect the waters of the state.

B. Administration of Water Rights Under Big Horn I

[¶106.] The district court granted the Tribal Water Resources Agency the authority to "administer all water rights within the stipulated boundaries of the reservation" specifying that non-Indian rights were to be administered "according to state water law by the Tribal agency, with appropriate judicial review in state district court pursuant to Title 41 of the Wyoming statutes. Judge Hartman, Judgement and Decree, March 11, 1991 (emphasis added). This decision implicates two distinct concerns: the issue of administration of water rights under Big Horn I and regulation of the water rights of non-Indians on the reservation in light of recent decisions in this area.

[¶107.] As mentioned above, in Big Horn I we were careful to distinguish "monitoring" of the decree from "administration." Big Horn I, 753 P.2d at 115. It is not merely a question of semantics to make this distinction. To "administer" is to manage or direct as opposed to "monitor," which means to watch or check on. Webster's, supra, at 18. It is no accident that this court meant to affirm only the lesser powers of monitoring to the state engineer in Big Horn I. That authority permitted the state engineer to enforce the reserved rights under federal law principles by turning to the court for enforcement against the Tribes if violations were noted. We said:

The role of the state engineer is thus not to apply state law, but to enforce the reserved rights as decreed under principles of federal law. * * * Should the state engineer find that it is the Tribes who are violating the decree, it is clear that he must then turn to the courts for enforcement of the decree against the United States and the Tribes and that he cannot simply close the headgates.

Big Horn I, 753 P.2d at 115.

[¶108.] Under the decree, the Tribes were required to first seek protection against state water users from the state engineer before pursuing court assistance. We stated:

The decree only requires the United States and the Tribes first to turn to the state engineer to exercise his authority over the state users to protect their reserved water rights before they seek court assistance to enforce their rights; it does not preclude access to the courts.

Big Horn I, 753 P.2d at 115.

[¶109.] In the instant case, the Tribes, following the guidelines of Big Horn I, requested that the state engineer enforce their federal reserved water rights by ensuring that their instream flow dedication was fulfilled. Report and Recommendation of the Special Master, October 4, 1990, at 2. The state engineer failed to apply federal reserved water right principles and insisted on applying state water law to the Tribes' request. As a result, the Tribes received no relief and no protection from the state engineer in his role as water master. Their relief came only after bringing suit in district court.

[¶110.] The reluctance of the state engineer to enforce the federal reserved water rights has placed an unnecessary burden on the Tribes. I see no reason to continue to insist that the Tribes request relief from the state engineer before pursuing a remedy in district court. The Tribes, in monitoring their reserved rights and all water rights on the reservation, must turn to the court for enforcement against violations by state water users and protection of their federal reserved rights.

C. Monitoring Non-Indian Water Rights on the Reservation

[¶111.] The very earliest case considering jurisdiction on Indian reservations recognized the rights of Indian tribes based on their inherent sovereign authority. Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L. Ed. 483 (1832). Subsequent cases have characterized this inherent sovereignty as so deeply engrained in our jurisprudence as to create a backdrop on which to hang the rights acquired by treaties and against which "vague or ambiguous federal enactments must always be measured." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S. Ct. 2578, 2583, 65 L. Ed. 2d 665, 672 (1980) (citing McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172, 93 S. Ct. 1257, 36 L. Ed. 2d 129 (1973)). "Ambiguities in federal law have been construed generously in order to comport with these traditional notions of sovereignty and with the federal policy of encouraging tribal independence." White Mountain, 448 U.S. at 144, 100 S. Ct. at 2578, 65 L. Ed. 2d at 673.

[¶112.] The conflict over whether state law could be applied to activities on the reservation has evolved from the initial consideration of infringement on the right of Indians to govern themselves, Williams v. Lee, 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959), and progressed to include preemption by federal law by way of a comprehensive federal scheme that would be frustrated by state regulation. Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 85 S. Ct. 1242, 14 L. Ed. 2d 165 (1965). "The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law." White Mountain, 448 U.S. at 143, 100 S. Ct. at 2583, 65 L. Ed. 2d at 672 (citing Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 475, 96 S. Ct. 1634, 48 L. Ed. 2d 96 (1976)). "Tribal rights are abrogated only if Congress 'has clearly expressed its intent to do so,' keeping in mind that 'doubtful expressions of intent must be resolved in favor of the Indians.'" State of S. D. v. Bourland, 949 F.2d 984, 990 (8th Cir. 1991) (quoting Lower Brule Sioux Tribe v. South Dakota, 711 F.2d 809, 827 (8th Cir. 1983), cert. denied, 464 U.S. 1042)).

[¶113.] In White Mountain the Court considered the barriers to assertion of state regulatory powers over an Indian tribe to include the Williams v. Lee infringement test, preemption analysis under Warren and whether the resultant regulation would burden the tribe. The Court recognized the firm federal policy of promoting tribal self-sufficiency and economic development, noting that no express congressional statement is needed to find a particular state law to have been preempted. White Mountain, 448 U.S. at 144, 100 S. Ct. at 2584, 65 L. Ed. 2d at 673.

[¶114.] The district court has authorized the Tribal Water Resources Agency to administer all water rights on the reservation, including those of non-Indians holding land in fee with state water permits. "Administration" of water rights does not comport with this court's previous decision in Big Horn I. However, the question now becomes whether the Tribes may engage in the lesser regulatory activity of "monitoring" the use of water on the entire reservation. Big Horn I did not address the issue of tribal regulation or the regulation of non-Indian water rights on the reservation. We stated only that "this court is also cognizant of the fact that exercise of the reserved water rights are [sic] intimately bound up with the state water rights of off-reservation users." Big Horn I, 753 P.2d at 115. It is obvious to any observer that exercise of reserved rights must also be intimately bound up with the state water rights of non-Indians on the reservation as well.

[¶115.] The Tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory" and as such have the authority to monitor reserved water rights on the reservation. United States v. Mazurie, 419 U.S. 544, 557, 95 S. Ct. 710, 717, 42 L. Ed. 2d 706, 716 (1975). Recognizing this inherent authority, I turn now to the issue of Indians regulating use by non-Indians on the reservation.

[¶116.] In Montana v. United States, 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 (1981), the Supreme Court considered whether the Crow Tribe could regulate hunting and fishing by non-Indians on fee owned land within the reservation. The Court held that inherent tribal sovereignty was not in itself enough to support regulation in this instance and the exercise of tribal power beyond that necessary to protect tribal self-government or control internal affairs needed congressional delegation to survive. However, the Court also stated that

a tribe may * * * retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

Montana v. United States, 450 U.S. at 565-66, 101 S. Ct. at 1258, 67 L. Ed. 2d at 511.

[¶117.] In Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 109 S. Ct. 2994, 106 L. Ed. 2d 343 (1989), the Court considered a conflict between the Yakima tribe and the county over which entity had the power to regulate Zoning on two distinct types of lands within the reservation: areas closed to non-Indians and areas open to the general public. The open area included fee owned lands held by non-Indians as a result of the General Allotment Act of 1887. Though the Court discussed the tribe's power to exclude non-Indians from the reservation, it concluded that the Allotment Act took away the exclusive power to exclude those with fee title, leaving a lesser power to regulate. However, the Court was reluctant to find that the tribe had retained its inherent sovereignty in this area by refusing to employ the principles of Montana, without a showing by the tribe that the circumstances constituted a "demonstrably serious impact by the challenged uses that imperils tribal political integrity, economic security, or health and welfare."

[¶118.] Following Brendale, the Court considered tribal jurisdiction over a non-member criminal defendant and acknowledged that

our decisions recognize broader retained tribal powers outside the criminal context. * * * As distinct from criminal prosecution, this civil authority typically involves situations arising from property ownership within the reservation or "consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." Montana v. United States, [450 U.S.] at 565 * * * The exercise of criminal jurisdiction subjects a person not only to the adjudicatory power of the tribunal, but also to the prosecuting power of the tribe, and involves a far more direct intrusion on personal liberties.

Duro v. Reina, 495 U.S. 676, 688, 110 S. Ct. 2053, 2061, 109 L. Ed. 2d 693, 705 (1990).

[¶119.] I would hold, as the court did in Colville Confederated Tribes, that regulation of water on the reservation is critical to the lifestyle of its residents and development of its resources. "The cultural vitality of tribes is tied to the application of tribal values to guide the use of reservation resources." David H. Getches, Management and Marketing of Indian Water: From Conflict to Pragmatism, 58 Colo. L. Rev. 515, 527 (1988). Water regulation is an important sovereign power. Colville, 647 F.2d at 52. It is hard to imagine a resource more critical to the economic security or health and welfare of the Wind River Reservation Tribes.

[¶120.] In light of the unwillingness of the state engineer to date to protect these important reserved right interests of the Tribes, it is imperative that the Tribes have the authority to do so. By avoiding multiple jurisdiction of water rights on the reservation, I would hope to avert needless duplication, expense and continued conflict. Getches, supra, at 530.

[¶121.] I would hold "monitoring" to be a lesser intrusive oversight and not as restrictive or controlling as the regulation of water rights proposed by the tribe in United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984) or the Zoning regulations in Brendale. (The Anderson court limited the state's regulatory authority over non-Indian fee owners to the use of excess water.) Competing interests between the state and Tribes over this limited grant of control need not be weighed. Safeguards are in place to ensure that the result of tribal monitoring of non-Indian water rights will not subject non-Indians to the jurisdiction of the Tribal Water Resources Agency but will be referred to district court for resolution.

A GUIDE TO THE COURT'S PRESENT OPTION

[¶122.] If one looks closely at the fragmented opinions of my four brethern, it is not unlikely that bewilderment will ensue. It is unfortunate that clarity of vision and voice have eluded the court in this most important opinion. The Tribes' application of future waters to instream flow is denied, though no clear majority opinion exists to determine why. Justices Macy and Thomas conclude that state law precludes this dedication, and Justice Cardine views the Treaty as preventing it, though also concluding that state law does not govern its use.

[¶123.] At least three Justices (Macy, Thomas and Brown) conclude that the state engineer should regulate the water on the entire reservation, but the law that should be applied is federal, not state law, according to Justices Cardine, Golden, and Brown.

[¶124.] The result of the court is fragmented, providing no clear guidance to the parties. Pragmatically, it is difficult to imagine how this opinion can be implemented. The court has stated that two different types of law apply to two inter-related issues. A coherent opinion would have at least determined a consistent answer to the question of what law applies to Indian water rights on the reservation. All that is really clear from this narrow opinion is that the parties will continue to litigate their conflicts.

[¶125.] I submit the following outline as a road map to the court's splintered offering to demonstrate point by point the position of each justice and to illustrate the confused interpretations and misapplication of prior precedent in this case:

I. INSTREAM FLOW

A. Scope of Discussion

1. Limits discussion to future project waters - Justice Macy; Justice Thomas generally agrees

2. Distinguishes between future project waters which have never been applied to irrigation and waters historically applied to irrigation - Justice Cardine

3. Discusses both future and historic waters or does not distinguish between them - Justices Golden and Brown

B. Interpretation of Big Horn I

1. Big Horn I gave right to use water only for agricultural purposes, not for an instream flow - Justice Macy; Justice Thomas generally agrees

2. Sees real issue now as sovereignty though this was not addressed in Big Horn I - Justice Thomas

3. Big Horn I never discussed change of use or other uses - Justices Golden and Brown

C. What Law Applies to Change of Use

1. Tribes must seek change of use for future project waters under state law - Justices Macy and Thomas

2. Change of use is not subject to state law; Federal or Tribal law applies; but also states that federal policy of deference to state water law must be respected - Justice Cardine

3. State law does not apply to change of use and not supported by Big Horn I; federal law applies; following Big Horn I, state acknowledged various water uses permitted by Tribes and should now be estopped from changing its position - Justices Golden and Brown

D. Diversion

1. Diversion not necessary - Justice Macy; Justice Thomas generally agrees; Justices Golden and Brown also agree

2. Future water must first be applied to land before change of use allowed under federal or tribal law - Justice Cardine

E. Beneficial Use

1. Beneficial use is key and is seen as an evolving concept - Justice Macy; Justice Thomas generally agrees

2. Future "paper right" must be applied to beneficial use before allowed to interfere with state appropriators and beneficial use is defined only as irrigation; but determines that beneficial use should be broadly applied to the federal reserved right and therefore allow for instream flow development; disagrees with Justice Macy that "change of use must be hamstrung by compliance with Wyoming statutes defining acceptable uses"; states that when Indian rights are not in use they may be taken by junior appropriators - Justice Cardine

3. Earlier district court decisions in this case by Judges Joffe and Johnson held that Tribes may use water in any manner they deem advisable or to their benefit; this was not reversed by Big Horn I and is now the law of the case; - Justices Golden and Brown

F. Inconsistencies in opinions

Justice Thomas - Though he states that instream flow must be accomplished under state law, he intimates that an instream flow right may not be foreclosed to the Tribes. This seems inconsistent with Justice Macy's opinion with which he generally agrees. Justice Macy states that only the state of Wyoming shall own an instream flow right; consequently, the Tribes would not be able to have a dedication even if they went through the state application process.

Justice Cardine - Reads Justice Macy's opinion as precluding dedication of existing irrigation rights to instream flow by virtue of the application of Wyo. Stat. § 41-3-1002(e) (1977), though Justice Macy explicitly states that that discussion is left for another day.

Justice Cardine defines beneficial use in this context as only meaning irrigation and goes so far as to intimate that instream flow may be wasting water. He takes issue with Justice Macy's conclusion that Wyoming statutes must define acceptable (beneficial) uses and procedures for change of use and states that beneficial use concept must be more broadly construed when applied to federal reserved water rights. However, he creates a condition on any change of use of future rights by concluding they must first be diverted, which is more restrictive than state law and has no support under federal reserved rights law. Justice Macy notes that beneficial use does not require a diversion but is an evolving concept that can be expanded to "reflect changes in society's recognition of the value of new uses of our resources." Though Justice Cardine states that change of use is not subject to state law, he also contends that federal deference to state law must be respected, contrary to Colville Confederated Tribes v. Walton, recognizing that congress did not intend for the states to have this power on federal reservations.

Justice Cardine's opinion is apparently based on what he feels ought to be done at this time and advocates the "sensitivity doctrine," which was rejected in Big Horn I, believing it unfair to appropriators to stand by and watch the Tribes "waste" water. He notes that Indian rights not in use may be taken by others with junior rights. The authority cited for this proposition is taken from a treatise published in 1977. However, absent any authority by the authors themselves, this premise appears to be conjecture or speculation.

II. ADMINISTRATION OF WATER RIGHTS

A. Who Owns the Water

1. All water within the boundaries of the state belongs to the state - Justice Macy

2. Indian reserved water rights are merely property rights; concedes that Tribes have sovereignty over the diminished portion of the reservation, but unclear whether this also means ownership of the water - Justice Thomas

3. Indian reserved water right is not state water - Justices Cardine, Golden and Brown

B. Who Should Manage Water Rights

1. State engineer should administer all water rights on the reservation, turning to the courts for enforcement authority - Justices Macy and Brown; Justice Thomas generally agrees

2. Joint administration between the state and the Tribes, turning to the courts for resolution of disputes - Justice Cardine

3. Tribes should monitor both Tribal rights and non-Indian rights on the reservation, turning to the courts for resolution of disputes - Justice Golden

C. Why They Should Manage

1. State engineer has constitutional mandate to administer the waters of the state; removal by district court is violation of separation of powers and state engineer's constitutional duty - Justice Macy; Justice Thomas generally agrees

2. Right of state engineer to regulate water rights is vested as the law of the case - Justice Thomas

3. Joint administration seen as way to adopt new spirit of cooperation between the parties - Justice Cardine

4. Dual administration would create more problems than it would solve - Justice Brown

5. State engineer, in his role as water master under Big Horn I, did not protect Indian reserved rights; removal by district court was not removal in his constitutional capacity as state engineer but as water master - Justice Golden

D. Level of Management

1. Discusses "administration" by state engineer and then cites "monitoring" language from Big Horn I and concludes that current opinion is consistent with Big Horn I - Justice Macy; Justice Thomas generally agrees

2. Discusses in terms of regulation and management - Justice Thomas

3. Discusses joint administration - Justice Cardine

4. Discusses in terms of management - Justice Brown

5. Specifically distinguishes between administration and monitoring; Tribes should monitor water rights in similar fashion as the right to monitor given to the state engineer in Big Horn I - Justice Golden

E. What Law Applies

1. Relies on the application of state law to determine the instream flow issue andconcludes the present decision is consistent with the duties and limitations imposed in Big Horn I, though Big Horn I did not authorize application of state law - Justice Macy

2. Reserved water right is property right subject to state regulation - Justice Thomas

3. Federal law applies - Justices Cardine, Golden and Brown

F. What Should Be Administered

1. Entire reservation by state engineer - Justices Macy and Brown

2. Distinguishes between ceded and diminished portions of reservation; state engineer must regulate on ceded portion as it was disestablished as reservation; pragmatic to have state engineer regulate on diminished portion as well, though he recognizes Tribal sovereignty on diminished portion - Justice Thomas

3. Entire reservation through joint administration - Justice Cardine

4. Distinguishes between Indian and non-Indian water rights on the reservation but concludes that monitoring is a lesser infringement than administration and should be conducted by the Tribes on the entire reservation - Justice Golden

G. Inconsistencies in opinions

Justice Macy - Discusses the opinion in terms of "administration" but concludes that presentopinion is consistent with Big Horn I; discusses instream flow in terms of state law application but concludes that current decision on administration is consistent with the duties and limitations imposed by Big Horn I which did not recognize application of state law to monitoring by the State Engineer.

Justice Thomas - Concedes that Tribal sovereignty exists over the diminished portion of the reservation, but concludes that pragmatic solution is for state engineer to regulate over this area, too.

CONCLUSION

[¶126.] If one may mark the turn of the 20th century by the massive expropriation of Indian lands, then the turn of the 21st century is the era when the Indian tribes risk the same fate for their water resources.

Membrino, supra, at 14.

[¶127.] Today some members of the court sound a warning to the Tribes that they are determined to complete the agenda initiated over one hundred years ago and are willing to pervert prior decisions to advance that aim. I cannot be a party to deliberate and transparent efforts to eliminate the political and economic base of the Indian peoples under the distorted guise of state water law superiority.

FOOTNOTES

1Following the Wyoming Supreme Court's decision, the State of Wyoming sought review on a petition for a writ of certiorari in the United States Supreme Court. The state asked that Court to review three aspects of the controversy: (1) whether reserved rights existed in light of the 1905 second McLaughlin Agreement; (2) if they did, then whether the practicably irrigable acreage standard should he used to measure these reserved rights; and (3) what priority date should attach to ceded lands restored to the reservation. See Joseph R. Membrino, Indian Reserved Water Rights, Federalism and the Test Responsibility, 27 Land & Water L. Rev. 1, 8 (1992); and Walter Rusinek, A Preview of Coming Attractions? Wyoming v. United States and the Reserved Rights Doctrine, 17 Ecology L.Q. 355, 393-94 (1990). The Tribes filed a cross-petition in which they raised six additional issues. See Rusinek, supra at 394. Other non-Indian litigants also filed a cross-petition raising yet additional issues. Id.

"Of all the questions raised in petitions and cross-petitions for review by the parties, the United States Supreme Court accepted only Wyoming's challenge to the use of that Court's own measure of practicably irrigable acreage." Membrino, supra, at 8; see also, Rusinek, supra, at 394. On the sole issue reviewed, the Court split four-four, thus affirming the Wyoming Supreme Court's use of the practicably irrigable acreage standard to measure the Indians' reserved rights. Membrino, supra at 9. The Court wrote no opinion. Id.

2Seeing something that is not there reminds me of an incident involving Alice:

"I see nobody on the road," said Alice.

"I only wish I had such eyes," the king remarked in a fretful tone. "To be able to see Nobody! And at that distance too! Why, it's as much as I can do to see real people in this light!"

Lewis Carroll, Through the Looking Glass and What Alice Found There, at 136 (1872).

3As described in the cited material, the "public right" is something like the commonweal. That is, if the change in use is injurious to the commonweal, as opposed to injury to certain individuals such as some irrigators, there may be an issue to be resolved. The thrust of the cited article is not much different from what the United States has argued here, i.e., if the injury would occur if the Indians put their water to use, that is not enough; the injury must he because of something beyond the mere use of the adjudicated water.

4Brown v. Bd. of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).

# data[].attributes.attachment_link.title
In re General Adjudication of All Rights to Use Water in Big Horn River System

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In re General Adjudication of All Rights to Use Water in Big Horn River System - 1992 WY 66, 835 P.2d 273

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Until the late nineteenth century, tribal nations across the United States owned their reservation lands as a community: families could settle, plant their crops, and own any improvements they built, but the land itself belonged to the entire nation for future generations’ use. The 1887 passage of the Dawes Act upended this system of communal land ownership and, in doing so, struck a historic blow at Native Americans’ political rights, economic sufficiency, and cultural heritage.

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A Spotlight on a Primary Source by Pope Alexander VI

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The Doctrine of Discovery, 1493 | Gilder Lehrman Institute of American History

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The Doctrine of Discovery, 1493 |

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Who We Are People of the Sacred Land (PSL) is 501(c)(3) nonprofit organization comprised of Native leaders, elders, and concerned citizens who want to learn the truth about the dispossession of their land and why Native people in Colorado were forced from their homelands. How and why did the genoci…