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

American Indian Water Rights and the Limits of Law, Lloyd Burton, (Kansas: University Press of Kansas, 1991), 165pp.

American Indian Water Rights and the Limits of Law has been required reading in multiple courses at the CU Boulder Law School. This work will be of interest to those who seek an understanding of water policy as it relates Native American claims to water rights. Burton begins with an introduction to the history of transactions (forced and consensual) of natural resources on the North American continent between Native Americans and European settlers. The author then examines the development of Native American water rights. Toward this end he discusses; the probable timetable of the arrival of the indigenous people to this continent and their first contact with Europeans and US/Indian relations in the nineteenth century. The bulk of this chapter, however, is devoted to an examination of water rights and American Indian policy in the twentieth century. This is divided into two sections. The first concerns justice, politics and planning in the Western United States before the New Deal. The second addresses federalism and American Indian sovereignty as it evolved through the New Deal, the Eisenhower years and the civil rights era. The evolution of both sovereignty and Native American's rights to water were made evident in the early sixties with litigation and finally Congressional action which formalized an agreement reached between the Navajo Tribe and the state of New Mexico. The author examines other negotiated settlements, which like the New Mexico agreement, involved the Winters doctrine.

In a chapter devoted to legal issues and dispute-managing methods, Burton considers: jurisdiction to adjudicate Indian water rights, quantity of water issues, and uses and sale of reserved waters. Further, he examines tribal sovereignty, water resource management and water quality, and representation of Indian interests in those areas. Burton concludes this chapter with a survey of dispute- management methods in contemporary cases and the desirability (for non-tribal interests) of non-litigated settlements. The desirability lies in the avoidance of invoking the precedent set by Winters v. United States (Winters Doctrine). The section devoted to dispute-management techniques is accompanied by a table which presents contemporary American Indian water rights disputes and the method with which they were managed.

Chapter four examines the difficulties and potential benefits of negotiated v. litigated resolution of disputes by examination of several decrees, compacts and settlements of this century. Chapter five examines contemporary planning and bargaining in South-central Arizona involving groundwater rights. The final chapter proposes ways in which the prospects for negotiated settlements could be improved.

American Indian Water Rights and the Limits of Law is a well annotated examination of the issues surrounding the development of Native American water rights and the litigation and legislative remedies which have supported these rights.