American Indian Culture and Research Journal

I. INTRODUCTION The issue of Indian water rights is presently a vital issue in tribal, state and federal relations. Highly sensitive and controversial, this matter has often pitted the tribes and the federal government against the various western states in an attempt to resolve the competing interests of Indian and non-Indian water users. At the core of the issue is whether state or federal courts will provide the jurisdictional forum for the adjudication of Indian reserved water rights. The purpose of this paper is to examine the jurisdictional aspects of those competing interests in light of court decisions addressing the issue of Indian water rights. Beginning with a general historical overview of water rights, this presentation opens into an examination of Indian water rights as developed in case law. A discussion of Indian water rights in Montana follows, in which there is special emphasis on the problems of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation in light of recent Montana legislation and circuit court opinions. The remainder of expository materials include a consideration of tribal efforts to establish water codes despite political and bureaucratic barriers. The final section analyzes the problem of competing interests of Indian and non-Indian water users from a policy perspective. II. HISTORICAL BACKGROUND OF WATER RIGHTS To understand the disputes over Indian water rights and the legal principles applicable to them, it is necessary to examine the two major systems of water rights in the United States. The primary systems for allocating water are the riparian system of the water abundant eastern states and a few western states and the appropriative system employed in most of the arid western states.