American Indian reserved water rights: the federal obligation to protect tribal water resources and tribal autonomy.

I. INTRODUCTION 426 II. ORIGIN OF TRIAL WATER RIGHTS: THE WINTERS RESERVED RIGHTS

DOCTRINE, THE PIA STANDARD, AND THE ROOTS OF CONFLICT III. NORMATIVE ARGUMENTS For STRONG FEDERAL PROTECTION OF

INDIAN RESERVED RIGHTS

A. Historical Redress Based on Asymmetry in the

Development of Western Water Resources

B. Distributional Justice

C. Group Identity and American Indian Sovereignty

1. Communitarian or Group-Based Arguments

2. Tribal Sovereignty

3. Implications of Tribal Sovereignty for Reserved Water

Rights IV. IMPLICATIONS FOR LEGAL DOCTRINE

A. The Federal Responsibility to Promote Indian Autonomy.

Plenary Power, the Trust Relationship, and Sovereignty

1. The Federal Responsibility To Promote Indian Reserved

Water Rights

2. The Trust Doctrine and the Implications of Historical

Redress, Distributive Justice, and Indian Sovereignty

B. The Impact of Historical Equity, Distributive Justice, and

Indian Sovereignty on Disputes over the Scope of the

Winters Rights

1. Sensitivity Analysis

2. The Uses of Awarded Water V. CONCLUSION

I. INTRODUCTION

In the arid American West, the control of scarce water resources has been a long-standing source of conflict among water users.(1) While most private users appropriate water under state law, American Indian tribes(2) derive their water rights from federal laws. The rights are determined using the federal reserved rights doctrine, which the Supreme Court first enunciated in the 1908 case of Winters v. United States.(3) The incompatibility of these two legal systems has created enormous conflicts between tribal water users and state law appropriators.

This paper discusses the development of the Winters doctrine and argues that when properly interpreted, this doctrine directs the federal government to develop and protect American Indian water rights. Part II sets forth the basic contours of the Winters right and some of the current debates between tribal users and state law appropriators. Part III explores normative arguments that favor federal protection of Indian reserved water rights. These arguments rely on concepts of historical redress, distributive equity, and the values of maintaining community identity and tribal sovereignty. Part FV discusses the implications of these arguments for the federal role in the protection of Indian water rights and for the current doctrine of Indian reserved water rights. This part also describes the trust relationship between the federal government and the Indian tribes and argues that the federal government has a duty to support a broad interpretation of Indian reserved water rights. Once tribes receive their water rights, however, tribal sovereignty requires that tribes retain full control over the subsequent uses of their water. Part V concludes that proper recognition of American Indian water rights depends upon federal protection of these rights as well as federal recognition of tribal sovereignty.

II. ORIGIN OF TRIBAL WATER RIGHTS: THE WINTERS RESERVED RIGHTS DOCTRINE, THE PIA STANDARD, AND THE ROOTS OF CONFLICT

The Winters doctrine conflicts with many of the fundamental principles that govern water rights in the United States. Most private users appropriate water under state water law, using one of two legal doctrines. In the eastern states where water is plentiful, rights to use water are based on the riparian doctrine, which permits landowners whose property abuts a body of water to make reasonable use of the water as long as they do not interfere with the rights of other riparian users.(4) These rights are not lost by disuse and, in times of shortage, riparian water users share the available supply equitably.(5) In the arid western states, on the other hand, users obtain water under the doctrine of prior appropriation, developed by miners in the late 1840s and early 1850s to meet their off-stream water needs.(6) Under this doctrine, a person acquires an enforceable right to use water only upon actually diverting water from its natural source(7) and applying the water to beneficial use.(8) The right to use water is not necessarily appurtenant to the land, but the appropriator may lose the right with disuse.(9) The water use receives a legal priority date based on the date upon which the appropriator first put the water to beneficial use. In times of shortage, a senior right takes precedence over junior rights.(10)

The federal government holds federal reserved water rights under federal law. The reserved water rights doctrine is a judicial creation first articulated in the Winters case:(11) when the federal government reserves public lands for a particular purpose, it also implicitly reserves sufficient water to achieve that purpose.(12) These rights, like riparian rights, are appurtenant to the land and remain in existence through periods of nonuse.(13) But, like prior appropriation rights, these reserved rights have a priority date which marks when the federal government reserved the land.(14) In times of shortage, seniority allows the reserved water rights holder to take water while junior holders with later-acquired state rights take nothing. These characteristics create significant problems for prior appropriation states, since the date of many federal reservations is quite early, and the amount of the reserved right typically remains unquantified.(15) The federal government, as guardian of American Indian lands, is responsible for asserting the Indian reserved rights.(16)

The Winters doctrine languished for more than fifty years after its articulation in 1908.(17) This caused great uncertainty for state law appropriators because theoretical federal rights with early priority dates threatened to assert sertiority. In 1952, Congress eased this uncertainty by enacting the McCarran Amendment,(18) which allowed states to include the federal government in general stream adjudications by granting a limited waiver of federal immunity.(19) In 1976, the Supreme Court held that the McCarran Amendment also waived federal sovereignty for the adjudication of Indian reserved water rights.(20) In 1983, citing congressional intent and notions of efficiency, the Court held that state courts are the preferred forum in which to adjudicate Indian water rights.(21) Nonetheless, jurisdiction over the determination of federal and Indian reserved water rights remains a controversial and complex issue.(22)

In 1963, the Supreme Court, in Arizona v. California,(23) Made the issue of quantifying the Winters right the most important aspect of Indian water rights adjudication. The Court held that the purposes of the reservations determined the quantity of the Indian reserved water right.(24) For reservations with agricultural purposes, this standard is the amount of water needed to irrigate all the practicably irrigable acreage on a reservation (the PIA standard).(25) While the Court did not explain what it meant by PIA, at least one state used three factors to quantify the irrigable acres on a reservation: 1) arability of the land; 2) engineering feasibility of irrigation projects; and 3) economic feasibility of irrigation projects, which essentially consists of a cost-benefit analysis.(26)

Although seemingly a mechanical test, the PIA standard poses a challenge to courts attempting to implement it because it lacks a clear Supreme Court definition. One commentator points to three problems that courts face with the PIA standard: 1) although historical congressional intent implies that reserved rights assume a priority date at the time of the reservation, current technological capabilities to irrigate land determine the quantity of the right; 2) the economic feasibility analysis is not an objective inquiry, since factors such as a proper discount rate for tribal irrigation projects or the proper accounting of opportunity costs involve policy decisions; and 3) the PIA standard does not take into account the real needs of American Indians, since it merely awards water based on large-scale agricultural projects that may or may not be feasible on a given reservation.(27)

The uncertainty surrounding the PIA standard has created two major disputes over the scope of Indian reserved water rights: whether a "sensitivity" doctrine applies to the quantification of the Winters right,(28) and whether water users must devote water awarded under the PIA standard to agricultural uses.(29) The only case that has been argued before the Supreme Court on the scope of the PIA standard, Wyoming v. United States,(30) raised both of these issues. In Wyoming, the Supreme Court affirmed by an equally divided court a Wyoming Supreme Court decision(31) that applied the PIA standard to award approximately one-half million acre feet(32) of water for the Wind River Reservation.(33) The Supreme Court, however, did not publish an opinion, so controversy about these disputes remain.(34)

States asserted the first controversial issue by arguing that the PIA standard creates a windfall for Indian tribes, since the water right is determined by the amount of irrigable land a tribe has and not by how much water the tribe currently uses.(35) These critics propose to add a sensitivity analysis to the quantification of Indian reserved water rights, where courts should determine the award of water with sensitivity to the impact on prior appropriators.(36)

Largely relying upon two Supreme Court decisions, Cappaert v. United States(37) and United States v. New Mexico,(38) proponents of the sensitivity doctrine assert that because a federal reserved water right will frequently require a gallon-for-gallon(39) reduction in the amount of water available to junior private appropriators, reserved rights exist only to satisfy a federal reservation's minimal needs. The Wyoming Supreme Court provided limited support for this theory in Big Horn River I,(40) when it expressed uncertainty about whether the sensitivity doctrine applied in the case. The court held that even if it did, the district court had shown sufficient sensitivity to the water needs of non-Indian water users.(41)

State water users also argue that tribes must use water awarded under the PIA standard exclusively for agricultural purposes.(42) Tribal water users respond that the water right is a property right just like any other, available for whatever purposes the owner of the right deems appropriate, including water storage for instream flows and off-reservation sale or lease of water to appropriators with junior rights.(43) In addition, tribal water users assert that non-agricultural water use will benefit the tribes more in the long run than a requirement that water be used only for costly and environmentauy harmful federal irrigation projects.(44) In Big Horn River I, the Wyoming Supreme Court affirmed the state district court judgment that the sole purpose of the Wind River Reservation was agricultural, and it upheld the district court's denial of a reserved water right for instream fishery flows, mineral and industrial development, and wildlife and aesthetic uses.(45) The Wyoming Supreme Court also affirmed the district court's holding that the Shoshone and Northern Arapaho Tribes could sell or lease their water, but could not sell or lease the water for export off the Reservation.(46)

Because the state court holdings are only binding on the particular stream adjudications, and because the Supreme Court was silent on the issue, the disputes over the PIA standard and Indian reserved water rights remain relevant today. According to a 1984 study by the Western States Water Council, potential PIA-based claims in the fourteen western states involve over forty-five million acre feet of water per year.(47) In 1990, more than fifty major disputes involving Indian water rights claims were in progress or had reached tentative settlements.(48) The majority of the cases were in litigation, but by the late 1980s, parties increasingly had turned to negotiated settlements.(49)

Despite these settlements, in many cases tribal water rights remain uncertain. With the end of the era of large, costly irrigation and reclamation projects and the increasing difficulty of financing new storage and delivery projects, a settled water right does not facilitate the actual delivery of water.(50) Thus, even while state water users perceive the assertion of Indian water rights as causing gallon-for-gallon reductions in their own claims to water, Indian tribes that have obtained legal rights to water have faced significant difficulties in actually gaining access to "wet," and not just "paper" water.(51)

III. NORMATIVE ARGUMENTS FOR STRONG FEDERAL PROTECTION OF INDIAN RESERVED RIGHTS

In an environment where state water users and a skeptical Supreme Court have cast doubts upon some of the basic tenets of Indian reserved rights,(52) Various conceptions of justice can be used to argue for development of Indian reserved rights that merit examination. The following sections focus on three such arguments--historical redress, distributive justice, and tribal sovereignty--to support a broad interpretation of Indian reserved water rights.(53)

A. Historical Redress Based on Asymmetry in the Development of Western Water Resources

One argument that supports a broad interpretation of Indian water rights and improved access to water is simply that American Indian tribes deserve treatment equal to that of recipients of federal water subsidies. The history of western water development consists in large part of the history of the federal government's subsidies for non-Indians. Legislation such as the Homestead Act of 1862(54) and the Desert Land Act of 1877(55) provided the foundation for the federal subsidy program. These acts granted lands practically for free and encouraged masses of settlers to stream west. Although Congress attempted to promote private and state development of reclamation projects to help irrigate western lands, by the mid-1890s these efforts largely had failed.(56) In 1902, Congress passed the Reclamation Act,(57) Which created the Bureau of Reclamation and formed a special reclamation fund that channeled money from the sale of public lands into government-built irrigation projects.58 The Reclamation Act, while providing for federal development of irrigation projects, allowed water distribution to operate under state prior appropriation laws.59 The Act marked the beginning of an era of federal subsidies of non-Indian western water development.

In the decades that followed until the 1960s, the federal government built hundreds of large dam and irrigation projects, using the revenues from the sale of hydroelectric power to offset construction and development costs of irrigation projects, which were never economically self-supporting.60 Until the 1970s, irrigators received ample funding for federal water projects(61) as well as a number of additional benefits: repeated extensions of payback periods that averaged fifty years, interest free loans, and direct donations from the federal treasury.(62) The total subsidies to non-Indian irrigation projects were staggering--a 1978 study concluded that irrigators would repay only 3.3% of the $3.62 billion that the Bureau of Reclamation had spent on irrigation construction,(63) and a 1980 study by the Interior Department's Office of Policy Analysis found that per-acre subsidies ranged from 57% to 97%.(64)

Throughout the first half of the twentieth century, while non-Indian water projects flourished with the assistance of federal subsidies, the federal government did little to promote Indian water rights. Even though the Supreme Court had implied a broad right to water in Winters, congressional and executive interpretations of the doctrine resulted in little protection of the reserved rights. Congress never pressed for the development of Indian water projects. In the years following the Winters decision, the Bureau of Indian Affairs (BIA) interpreted the Winters decision narrowly, mostly deferring to state prior appropriation laws and attempting to secure Indian water rights through beneficial use.65 Accordingly, the federal government leased large quantities of Indian lands to non-Indian farmers in order to put the water to beneficial use, and by 1974, non-Indians farmed seventy-one percent of all irrigated Indian land.66 The few irrigation projects that the BIA commenced remain largely unfinished due to insufficient funds.67 For example, the BIA broke ground on an irrigation project on the Fort Belknap Indian Reservation in 1903, and still had not completed it as of March 1995.68

Negotiations establishing river-wide interstate water compacts also largely ignored Indian interests.69 The 1973 National Water Commission summed up the historic disparity in the development of water resources in a report to the President and Congress:

Following Winters, more than 50 years elapsed before the Supreme Court

again discussed significant aspects of Indian water rights. During most of this

50-year period, the United States was pursuing a policy of encouraging the settlement

of the West and the creation of family-sized farms on its arid lands. In

retrospect, it can be seen that this policy was pursued with little or no regard

for Indian water rights and the Winters doctrine. With the encouragement, or

at least the cooperation, of the Secretary of the Interior--the very office entrusted

with protection of all Indian rights--many large irrigation projects

were constructed on streams that flowed through or bordered Indian Reservations,

sometimes above and more often below the Reservations. With few exceptions

the projects were planned and built by the Federal Government

without any attempt to define, let alone protect, prior rights that Indian tribes

might have had in the waters used for the projects.70

Despite the 1963 decision of Arizona v. California setting forth the PIA standard(71) and federal policy which encouraged Indian economic self-sufficiency and self-determination in the 1960s and 1970s,72 broad federal recognition and protection of Indian water rights did not materialize. Two factors led to the federal government's failure to protect Indian water rights. First, in response to growing public concern with the inefficient and ecologically destructive nature of federal water po]icy,(73) Congress increasingly was reluctant to fund costly new reclamation projects and attempted to reduce federal subsidies to all irrigators.74 Second, due to the extensiveness of general stream adjudications and the complexity of the PIA standard,(75) cases move slowly through the courts, so Indian tribes obtain relatively little 'wet' water.76

Thus, the federal government's continued subsidization of both land and water for non-Indians from the late 1800s through the mid-twentieth century contrasted sharply with the level of federal aid given for the same purposes to the Indian tribes. Just as the government's policies shifted towards favoring broader protection of Indian water rights in the 1960s, decreasing support for costly, environmentally harmful irrigation projects resulted in the continued neglect of Indian water resource development.

Unlike a general affirmative action argument that rests on the claim that "because the federal government stole land and sovereignty from Indians in the past, the federal government today owes land and sovereignty to contemporary Indians"(77) the historical redress argument relies on the specific relative disparity between the development of water resources of Indian tribes and non-Indian water users. This argument for equal treatment does not require that the federal government specifically fund and build more expensive and inefficient irrigation projects for Indian tribes. Instead, it compels the government to work towards providing Indian tribes with the contemporary equivalent support and opportunities for water resource development. One way to do so, for example, would be to allow Indian tribes to sell or export their water for off-reservation use.78

B. Distributional Justice

A second approach supporting broad interpretation of Indian reserved rights considers traditional arguments of distributional justice. Indian reservations continue to rank among the most economically depressed sectors of the nation. Reservation residents suffer from chronically high unemployment rates, lack of basic services, and serious health and social problems.79 Thus, state water users' complaints about the windfall' that reserved water rights give to Indian tribes ignore the American Indians' true situation. In reality, current and historical levels of water have not met even the basic needs of tribes, much less enriched them. Nevertheless, these criticisms raise legitimate questions about whether distributive theories can justify the Indian reserved rights doctrine, which treats Indian tribes more favorably than other water users. Even though the doctrine's theoretically broader entitlements to water have not been borne out in reality,(80) theories of distributive justice undermine criticism that reserved water rights unfairly benefit Indian water users.

The distributive theories that follow do not reach distributive equity by regarding American Indian water rights as unique property rights.(81) Rather, they regard American Indian water users as unique among water users. Among the various distributive justice theories,(82) three most effectively justify differential treatment of Indian tribes: utilitarianism,(83) the contractarian perspective associated with Rawls,(84) and a need-based theory.(85)

Rawls' contractarian position may justify a broad interpretation of Indian reserved water rights.(86) This position relies on the concept that society should achieve equal distribution of social goods, unless an unequal distribution would be to everyone's advantage, or to the advantage of the least favored group.87 The "difference principle' requires society to identify the least favored group in terms of their possession of primary goods, or "things that every rational man is presumed to want," such as "rights and liberties, powers and opportunities, [and] income and wealth.'88 This theory supports a broad interpretation of the Winters doctrine. Using Rawls' own terms to interpret Winters, the doctrine grants to American Indians, one of the least advantaged groups in our society,(89) access to a primary good: sufficient water to fulfill the purposes of the reservation.

The utilitarian argument, or the principle of maximizing overall social welfare, also supports a broad interpretation of the Winters right. Although critics of utilitarianism point out that the doctrine falls to 'take seriously the distinction between persons,"(90) its emphasis on aggregate welfare is helpful in analyzing an aggregate right like the Indian reserved water right. An interpretation of the PIA standard that does not restrict the use of water to agricultural projects is an example of a rule that can benefit all water users by increasing the size of the 'social pie," and that does not directly hurt non-Indian water users. Instead of being obliged to use the water for wasteful and inefficient irrigation projects,(91) tribal water users either can sell or lease the water to other users or they can use the water more efficiently, such as for maintaining instream flows for fisheries. Not only do the Indian tribes receive economic benefits from their reserved rights, but water remains for the use of non-Indians.

Empirical reality bears this out. In cases where court decrees or congressionally ratified settlements have quantified Indian water rights, gallon-for-gallon reductions have not occurred, largely because the increased use of water by Indian tribes resulted from new storage, improved water management, or exchanges and marketing mechanisms.92 For the most part, the expansion of Indian water use has not curtailed existing uses by non-Indians and has resulted in an increase in the aggregate welfare.

In addition to Rawls' focus on the least advantaged groups and the utilitarian calculus, another theoretical justification for Indian reserved water rights is an approach that takes into account the needs of individuals. Jeremy Waldron argues that the point of view of those who suffer deprivation should guide evaluations of property arrangements.(93) Similarly, Robert Kaufman proposes that an individual's effective exercise of rights must link to a minimum standard of living, in order to guarantee the equality of what he calls 'citizenship entitlements," or the irreducible minimum claims to state obligations that each citizen enjoys.(94) In the American Indian context, a needs-based theory would grant American Indian tribes enough water to ensure their full participation in society, which arguably entails both economic self-sufficiency and political self-determination.(95)

This type of needs-based justification is particularly suited to the Indian reserved water rights doctrine because the PIA standard is explicitly based on satisfying the "future as well as the present needs"(96) of the American Indians. Determining how much Indian tribes need has become the focus of much debate. Proponents of the sensitivity doctrine argue that the PIA standard entails quantifying sufficient water only to satisfy the minimal needs of Indian tribes, or to provide Indians with a moderate living standard.97 These proponents reason that tribes merit a water right sufficient to sustain historically irrigated lands because this amount reflects the historic and minimal needs of Indian tribes.

Widespread tribal poverty(98) indicates that a narrow construction of the PIA standard falls far short of satisfying the needs of Indian tribes. A broad interpretation of the PIA standard that would allow tribes to use their water for purposes other than for agriculture and that does not depend on the minimal needs of Indian tribes would best help Indian tribes achieve some measure of economic self-sufficiency.

C. Group Identity and American Indian Sovereignty

One of the criticisms of the distributive arguments made above is that they give too little credit to the notion of "the good,"(99) or what American Indians have identified and the federal government has recognized as integral elements to tribal welfare. These elements include tribalism, sovereignty, and self-determination. This Part offers a three part analysis of how tribal sovereignty can justify differential treatment for tribes in the context of reserved water rights. The analysis begins with a discussion of communitarian arguments for group rights for ethnic or minority communities, and details how these arguments fail to reflect adequately the experience and claims of Indian tribes. The analysis proceeds by setting forth arguments which apply more specifically to tribes. Finally, this Part concludes that the promotion of Indian self-determination offers the strongest justification for a broad interpretation of the reserved rights doctrine.

1. Communitarian or Group-based Arguments

As ethnic conflicts continue to dominate world news and inequalities among ethnic and racial groups remain entrenched in the United States, theorists have attempted to conceptualize the rights of ethnic groups, and of groups in general, in an effort to protect the interests of minority groups and to promote their active participation in plural or multi-ethnic societies. Anthropologists long have recognized the plural nature of social rights and obligations and the multiple affiliations people have in any society.100 Legal theorists have attempted to translate these complex ties into legal rights that protect the groups to which individuals belong. The idea of group rights follows two basic paths. The dominant mode derives group rights from premises of individual rights and autonomy. The alternative approach argues that groups rights involve social goods intrinsic to groups themselves apart from any claim to individual values.101 American Indian claims have relied upon both of these group-based arguments, with varying degrees of success.(102)

Those who base group rights on individual rights essentially see social groups as collections of individuals and argue that promoting certain group rights will best enhance the opportunities and interests of individuals within the group.103 This individualist perspective provides the dominant justification for group-based rights and appears in national documents that attempt to address the issue of ethnic minorities. In the United States, for example, the Equal Protection Clause offers a version of a group right, by protecting individuals based on their affiliation with certain groups.(104) Individuals are the focus of the right to equal protection but are only protected if they belong to certain suspect classifications; groups are not eligible for protection simply because of their group status.(105) First Amendment associational and free exercise rights also protect individuals' participation in a broader political or religious community.

Similarly, in the international arena, almost all of the human rights instruments that attempt to protect members of groups emphasize individual rights.(106) The Universal Declaration of Human Rights, for instance, provides that "[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."(107) The closest reference to group or minority rights appears in Article 27 of the International Covenant on Civil and Political Rights, but even Article 27 provides for the right of individual persons belonging to ethnic, religious, or linguistic minorities to enjoy their own culture, religion, or language.108 Ultimately, the protections given to individuals based on ethnic group affiliations are viewed as temporary. As soon as society eliminates conditions of inequality, groups will no longer need to rely upon rights such as affirmative action.(109)

American Indians have used these individual-oriented rights based on group membership to challenge governmental action, but not altogether successfully. The Supreme Court has rejected several recent challenges to actions that allegedly infringed upon the rights of American Indians to practice their native religions.110 The constitutional protections extended to American Indians focus on the rights of individual Indians, not of the tribal groups."(111) Also, Indian-specific legislation is subject only to limited judicial scrutiny, because the United States officially treats Indian tribes as political rather than racial groups, so distinctions between Indians and non-Indians are not subject to the special equal protection inquiry applied to classifications based on race.(112)

The second set of theories of group rights attempts to find values intrinsic to groups that give rise to a justification for protecting ethnic groups as separate entities. Communitarian scholars have attempted to establish that collective social entities, rather than autonomous individuals, are the main sources of obligation and value in society, primarily because individuals draw part of their identity from their connections to discrete groups.(113) To these theorists, community, both as a concept and as a social practice, is a network of social relationships marked by mutuality and reciprocity,(114) that helps Constitute an individual's sense of identity.(115) The existence of these groups gives rise to distinct values, such as a right to "communality"(116) or a right to culture.(117) Thus, groups have a claim to a social good that falls somewhere between the continuum of an individual's autonomy and a society's aggregate welfare in the form of cultural self-determination.(118)

The communitarian or cultural self-determination arguments have promoted American Indian interests more successfully. Since the passage of the Indian Civil Rights Act of 1968 (ICRA),(119) congressional actions have promoted the rights of Indian tribes to maintain cultural distinctiveness and tribal self-government. The Indian Self-determination and Education Act,(120) for example, affirmatively declares tribal self-government to be a continuing national policy, and the American Indian Religious Freedom Act,(121) recognizes and protects the distinctive native religions. In the case of Santa Clara Pueblo v. Martinez,(122) the Supreme Court relied on the values of tribal sovereignty and self-determination in holding that the Indian Civil Rights Act of 1968, while creating individual rights against tribal governments, did not provide a federal forum for direct review of tribal legislation concerning tribal membership.(123) These instances of support for the ability of Indian tribes to determine their own cultural identities, even at the expense of their individual members' rights (as in Santa Clara), reflect the acceptance of at least some separate group rights inherent in American Indian tribes.(124)

2. Tribal Sovereignty

Besides simply claiming group rights in the form of affirmative action or cultural rights of self-determination, American Indian tribes primarily are concerned about preserving their sovereignty in all senses-political, economic, territorial, religious, and cultural. To most American Indian tribes, sovereignty, including political, territorial, and cultural autonomy,(125) is the "key to Indian social justice."(126)

These tribes argue that they retain the inherent sovereignty of a political community with the power of self-government and the ability to assert a collective will against outsiders.(127) The power of political self-government rests on the tribes' prior occupation of North American lands and their original status as full sovereign states in the international sense.(128) Although a history of federal policies of assimilation and plenary power(129) and continuing powers of federal regulation of tribes and guardianship of Indian property(130) long have overshadowed the concept of Indian tribes as separate nations, proponents of Indian political autonomy emphasize that tribal sovereignty pre-existed the United States and that it continues to exist today.(131) Instead of viewing the federal-Indian relationship as one involving the regulation of a disadvantaged minority group, commentators urge courts to treat the relationship as one between full sovereign powers.(132) Although the federal government has not recognized the full sovereignty of Indian tribes in this sense,(133) in 1970 President Nixon formally announced the current federal policy of tribal self-determination,(134) which means both self-government and economic development through self-government.(135) In 1983, President Reagan voiced his own support for this policy by characterizing the federal-Indian relationship as "government-to-government."(136)

A related argument for American Indian sovereignty relies upon claims to land and territory. Since property is a source of political power(137) and a source of bargaining power,(138) American Indian tribes view the retention of tribal lands as crucial to their continued survival and to their economic and cultural independence. In the history of federal-Indian relations, the policies that most threatened American Indian tribal integrity were the policies of removal, allotment, and assimilation-policies that resulted in the loss of millions of acres of lands and the accompanying breakup of traditional nomadic and communal living patterns.(139) Beginning in the 1970s, the federal government acknowledged the importance of tribal lands to Indian self-determination in several ways: by enacting legislation to restore possession of former tribal lands;(140) by allowing American Indians to pursue actual recovery of tribal lands though the federal Courts;(141) and by settling claims involving title to aboriginal lands, such as the 1971 Alaska Native Claims Settlement Act, which extinguished all aboriginal claims to land in return for over forty million acres of land and nearly $1 billion.(142) Not only is the tribal land base a source of economic power, but it is also the source of control and preservation of tribal culture and the locus of tribal spiritual and religious practices.(143) Like land, water also holds deep spiritual and cultural meanings.(144) The centrality of land and water in American Indian cultures(145) irrevocably links the retention of tribal territory with the notion of Indian sovereignty.

A final argument in favor of Indian sovereignty relates to cultural and religious self-determination.(146) The process of forming and reforming group identities, of producing "a self-conscious peoplehood,"(147) is central to American Indian tribal identity.(148) The attributes of this type of sovereignty include the right to determine membership(149) and the right to maintain and develop cultural, religious, educational, and linguistic traditions. In the 1970s, Congress enacted two major pieces of legislation to protect the cultural and social integrity of Indian people--a joint resolution on American Indian Religious Freedom(150) and the Indian Child Welfare Act of 1978 (ICWA).(151) To proponents of American Indian sovereignty, however, the definition of cultural, religious, and linguistic traditions and identities must spring ultimately from the tribal communities themselves.

American Indian tribes seek to retain autonomy over their communities without the interference of non-Indian controls. Many proponents of Indian sovereignty argue that tribes should retain the full political sovereign powers associated with states in the international sense,(152) but the federal government only has recognized a lesser form of sovereignty in its self-determination policies.(153) These policies have recognized to various degrees the Indian tribes' claims to self-government, to economic development, to territory, and to cultural and religious autonomy.

3. Implications of Tribal Sovereignty for Reserved Water Rights

Courts should interpret the Winters right and the PIA standard consistently with the tribal goals of self-determination and sovereignty, policies that the government putatively has followed. Allowing off-reservation water transfers is one way to support the right of Indian tribes to determine their own economic needs and priorities.(154) Another way to support Indian tribal sovereignty is to encourage the development of tribal water codes and other regulatory program for water administration and water quality protection.(155) These are examples of ways in which the interpretation of the Winters right achieves consistency with the different aspects of tribal sovereignty--the tribes' inherent police powers, their claims to natural resources, and their ability to determine their own economic development.

Arguments favoring preservation of tribal identities, however, may undermine the argument favoring off-reservation water marketing. Some American Indians assert that water marketing would convert a natural resource associated with tribal heritage into cash and alter traditional ways of life.(156) The same argument arises in the context of the much more publicized foray of Indian tribes into the gaming business.(157) The case of the Connecticut Pequots, however, shows that an influx of cash does not necessarily undermine Indian sovereignty. Precisely because of the increased income from operation of the Western Hemisphere's most profitable casino, the tribe has been able to rediscover its lost traditions and culture.(158) The argument that tribes should not have the opportunity to earn income in nontraditional ways plays into the arguments made by state water users that Indian reserved water should be limited for agricultural purposes and represents paternalism.

A more serious drawback of a broad interpretation of tribal water rights may be the practical implications of off-reservation water marketing on Indian sovereignty. By allowing leases of water rights, non-Indian users could acquire vested economic interests that may make it difficult for Indians to recapture their rights to use water after the expiration of a lease.(159) Also, off-reservation water leases potentially could create a disincentive for reservation water resource investments by alleviating the need for federally-funded irrigation projects.(160) Ultimately, however, American Indian sovereignty dictates that each Indian tribe should decide for itself whether to allow marketing of its water. Instead of perpetuating the paternalistic policies of protecting Indian tribes for their own good, the federal government should provide tribes with access to real wealth and sovereignty.

IV. Implications for Legal Doctrine

The normative arguments based on historical redress, distributive equity, and tribal sovereignty suggest several implications for the development of the Indian reserved rights doctrine. This Part explores the implications of these arguments for the role of the federal government in the protection of Indian water rights. The first section discusses the trust relationship between the United States and the American Indian tribes, and the federal duty to protect Indian reserved rights. The second section explores the implications of the normative arguments on the debate over the scope of the PIA standard and the Winters doctrine.

A. The Federal Responsibility to Promote Indian Autonomy: Plenary Power, the Trust Relationship, and Sovereignty

Although Indian tribes claim broad sovereign powers and the United States currently promotes tribal self-determination, the federal government nonetheless wields broad regulatory powers over Indian tribes. Historically, the plenary power doctrine(161) justified these intrusions on Indian sovereignty. Today, the federal-Indian trust relationship(162) justifies these powers. This section discusses the federal obligation to protect Indian water rights in the context of its trust responsibility and the normative arguments made previously. In order to reconcile the trust obligation with Indian sovereignty, this section argues that courts should interpret the trust relationship to require the federal government to promote Indian autonomy. Accordingly, the federal government should promote the maximum quantification of Indian water rights. Once the court awards the right, however, Indian tribes should regulate and control the use of their water.

1. The Federal Responsibility To Promote Indian Reserved Water Rights

Although the Constitution does not grant the federal government a general power to regulate Indian affairs,(163) the Supreme Court has cited both the plenary power of the United States and its trust responsibility to justify broad federal power over Indians, including extensive federal ownership and control of tribal property.(164) At the same time, however, the Court has recognized the sovereignty of Indian tribes, mostly in the context of preventing states from regulating tribal activities.(165) The federal government's continued exercise of broad regulatory controls over tribal property, tempered by the fiduciary obligations imposed by the trust relationship, creates the current obligation to protect Indian water rights.

The notions of plenary power, the trust relationship, and Indian sovereignty are rooted in three opinions known as the "Marshall trilogy," where the Supreme Court laid much of the foundation for federal Indian law.(166) In these opinions, Chief Justice Marshall attempted to reconcile tribal sovereignty with the Indians' "dependent" relationship with the United States. In the first of the trilogy, Johnson v. McIntosk,(167) the Supreme Court recognized the Indians' right to use and occupy land but held that discovery gave the United States the exclusive right to extinguish the original tribal right of possession "by purchase or by conquest."(168) Subsequent cases characterized the government's interest in Indian property as an ownership interest in order to justify the government's power to govern American Indians generally.(169) In Cherokee Nation v. Georgia,(170) the first description of the federal trust responsibility emerged, when the Supreme Court described Indian tribes as "domestic dependent nations ... in a state of pupilage" and their relation to the United States as that "of a ward to his guardian."(171) In Worcester v. Georgia,(172) however, the Supreme Court made clear that Indian tribes were "distinct, independent political communities, retaining their original natural rights."(173) Despite these statements in Worcester, the Cherokee Nation references to "dependency" and "wardship" continued to influence the federal-tribal relationship. This relationship served to insulate Indian tribes from intrusions from foreign governments, the states, and non-Indians,(174) but also justified broad federal authority over Indian tribes.

As the federal government embarked on assimilation policies in the late nineteenth century, the Supreme Court bolstered these policies with a series of cases that abrogated rights of Indian nations to self-government and that defined federal power over Indian affairs as plenary.(175) The term "plenary power" has held various meanings throughout the history of American Indian law.(176) Today, "plenary" no longer means 'absolute' power,(177) but courts continue to refer to Congress' power over Indian affairs as plenary,(178) or to refer to tribal sovereignty as existing "only at the sufferance of Congress."(179) The extensive control that Congress holds over Indian property includes such things as "the power to reduce boundaries of a reservation without tribal consent or compensation"(180) and the power "to extend, modify, or remove restrictions on the alienation of Indian lands."(181)

The trust doctrine also justified federal intrusion in the name of protecting Indian tribes.(182) For instance, during the height of the plenary power doctrine, the Supreme Court specifically relied on the guardianship relationship to justify the government's power to legislate on behalf of Indian tribes or to manage Indian property.(183) The federal government also relied on the trust responsibility when it required specific congressional approval for the alienation of tribal property.(184) Congress originally created this law to protect the tribal land base, but it currently restricts the ability of Indian tribes to sell their property, including their water, absent congressional approval.

Beginning in the 1930s courts began to use the trust doctrine to require the government to manage American Indian land responsibly, in accordance with standards similar to fiduciary duties. American Indians increasingly brought breach of trust cases, and by the 1970s, many were successful in obtaining specific relief or money damages against the federal government for a trustee's breach of the duties of care and loyalty.(185) Under modem law, the trust responsibility limits both congressional and executive power, but only the trust responsibility of executive officials appears to be judicially enforceable.(186) While the trust doctrine would seem to suggest that legislation regulating Indians must relate to Congress' "unique obligation" to Indians,(187) Congressional discretion to determine whether a statute is an appropriate protection of Indians' interests is very broad.(188) The trust responsibility seems to impose strict restrictions on the federal executive's actions with respect to Indian property, requiring the federal government strictly to fulfill fiduciary duties.(189) Sometimes, however, it imposes only a good faith standard, which perpetuates inequitable protections for Indian lands.(190)

Commentators have argued that even though the United States may convey away its own federal reserved water rights, it may not diminish the reserved water rights of Indians in favor of state or other private water users without potentially violating its trust responsibility towards the Indians.(191) Because the Interior Department encompasses both the Bureau of Reclamation, which encourages "the rapid appropriation and development of water by non-Indian users,"(192) and the Bureau of Indian Affairs, which protects Indian reserved rights in the federal courts,(193) conflict of interest may weaken Interior's defense of tribal water rights.

Federal courts have done little to clarify the federal trust responsibility. In 1972 a district court held that the trust responsibility imposed a requirement on the Secretary of the Interior, as trustee for a tribe, to administer reclamation statutes in a way that does not interfere with Indian water rights.(194) In 1983, however, the Supreme Court in Nevada v. United States(195) rejected reopening a 1944 decree adjudicating water claims and quantifying Indian reserved water rights along the Truckee River in Nevada and California.(196) In Nevada, the Court noted that the Secretary of the Interior, as a trustee facing conflicting trust obligations to Indians and non-Indians, need not follow "the fastidious standards of a private fiduciary,"(197) since "the Government is simply not in the position of a private litigant or a private party under traditional rules of common law or statute."(198) This case seems to suggest that the trust responsibility applies as long as no inconsistent congressional mandate exists, which leaves much of the protection of Indian water rights up to Congress.(199)

2. The Trust Doctrine and the Implications of Historical Redress, Distributive Justice, and Indian Sovereignty

Although the federal government exercises considerable power over Indian water rights through its trust relationship, the normative arguments of historical redress, distributive justice, and Indian sovereignty can help delineate the scope of the federal protective power over Indian water rights. The history of uneven support for Indian water rights development and the arguments based on contractarian, utilitarian, and need-based distributive justice reinforce the arguments for broad federal protection of the Winters right for remedial and welfare purposes. Tribal sovereignty, however, seems to conflict with the idea of the federal government exercising its fiduciary duties to protect Indian tribes, since the exercise of the trust responsibility entails an element of paternalism.(200)

One way to reconcile this conflict is by characterizing the federal duty as a duty to protect the ability of Indian tribes to exercise their autonomy.(201) In the water rights context, this means that the federal government has the duty to represent Indian tribes in water rights adjudications and negotiations, and to advocate broad rights to water, such as early priority dates and expansive quantification.(202) Once the water is quantified, tribes should retain complete control over the use and regulation of these waters. The federal government should allow Indian tribes, in the exercise of their powers of self-government, to decide whether to lease or sell their waters off-reservation and whether to use water for agricultural or other uses.(203) Indian tribes also should retain regulatory control over water use on the reservation, through water codes or other regulations.

B. The Impact of Historical Equity, Distributive Justice, and Indian Sovereignty on Disputes over the Scope of the Winters Rights

The normative arguments discussed in Part III also affect the doctrinal debates over the PIA standard and the Winters right. Specifically, these arguments conclude that the sensitivity doctrine, which requires reserved water right quantification to account for the impact of the right on other appropriators, has no application to tribal water rights. In addition, the arguments indicate that tribal water rights should serve more than a single, inflexible purpose.

1. Sensitivity Analysis

State water users rely on two cases dealing with non-Indian federal reserved water rights, Cappaert v. United States(204) and United States v. New Mexico,(205) to argue that courts should consider the impacts of quantifying Indian water rights on non-Indian water users. They point out that the Supreme Court in Cappaert tailored its quantification of water for the preservation of an underground pool reserved as a national monument to "minimal need,"(206) and that the Court in New Mexico held that the government reserved water in setting aside a national forest, but only enough to fulfill the relatively narrow purposes of the forest.(207)

Conversely, tribal water users argue that these assertions misinterpret cases dealing with federal reserved water rights,(208) and that these cases simply are inapplicable to the Indian reserved water rights context.(209)

The need for historical redress supports the position that a sensitivity analysis is inappropriate for the quantification of the Winters rights. Allowing courts to quantify Indian water rights by balancing the interests of non-Indian water users would only exacerbate the historical disparity between federal support of Indian and non-Indian water development. Not only would the courts fail to remedy the historical inequities, but they would further undermine the tenuous Winters protections. The nature of the Winters right is an historically remedial one, where courts imply from a reservation of tribal land a congressional intent to have reserved enough water to benefit the tribes and to allow them to develop fully.(210) Given this historical context, and in light of the troubled history of federal Indian policy, an approach that defers to the needs of non-Indian water users in quantifying a water right for Indian tribes would repeat historical inequities.

Similarly, the distributive arguments preclude the application of the sensitivity analysis. According to the sensitivity doctrine, tribal water rights are contingent on the needs and rights of the state water users. This approach would pervert the Rawlsian difference principle and the need-based argument set forth earlier. Instead of taking into account the impact of a policy or law on the least advantaged group, a sensitivity analysis would consider the impact of the quantification from the perspective of the more advantaged groups. Although the sensitivity doctrine appears to treat each group's claims equitably, the approach favors non-Indian water users by limiting water rights to the service of minimal needs and defining minimal needs according to historical irrigation methods.(211)

Finally, the sensitivity doctrine is inconsistent with Indian sovereignty. Requiring courts to quantify only enough water to meet the minimal needs of Indian tribes disregards the purposes of the reservations, which included economic self-sufficiency and self-determination. It also ignores the fact that the Indian tribes consistently have rejected the sensitivity doctrine and the limitations it implies. Ignoring the tribes' position would undermine their autonomy.

2. The Uses of Awarded Water

The normative arguments also provide justification for the unlimited use of awarded water. State water users argue that the specific purposes for which land was reserved should dictate the use of water awarded under the Winters doctrine.(212) For many reservations, this would restrict water use to irrigation. Tribal water users argue that the reserved water must satisfy the broader purposes of reservations, which include providing a homeland for the survival arid growth of Indian tribes.(213)

From the perspective of historical redress, allowing tribes to apply their reserved water to uses other than for agriculture is one way to remedy the historical disparity in water development while accounting for the unlikeliness of federal funding for new irrigation projects. From the perspective of distributive justice, a multi-purpose water right would result in favorable treatment for Indian tribes without necessarily jeopardizing non-Indian water rights.(214) From the perspective of Indian sovereignty, allowing the tribes to decide what to do with their water clearly supports their quest for self-sufficiency and self-determination.

V. CONCLUSION

This paper has explored three normative perspectives from which to analyze the disputes over the Indian reserved water rights doctrine: the need to redress the historical inequality between Indian and non-Indian water development, the impact of distributive arguments of fairness and need, and the promotion of American Indian sovereignty. These arguments require the federal government to advocate for broad reserved water rights while allowing American Indian tribes to exercise their own sovereignty in determining what to do with their reserved water. In terms of the debates over the scope of the Winters right, the federal obligation to protect Indian autonomy leads to a rejection of the sensitivity doctrine and to allowing unrestricted uses of awarded water.

Ultimately, the dispute over Indian water rights must occur in the broader context of current western water use. Water for irrigation continues to constitute the largest single water use in the United States, averaging 85%, and often reaching 90%, of the total consumptive use of water in western states.(215) Irrigation water waste approaches twenty-four million acre feet per year, an amount that nearly doubles the annual flow of the Colorado River and that exceeds the total volume of water consumed annually by all municipalities and industries in the United States.(216) Given these figures, one of the most promising directions for alleviating the tensions between states and Indian tribes is the conservation of water. Allowing Indian tribes to seek more efficient uses of their water will help achieve both this goal and the Indian tribes' own goals of economic self-sufficiency and control over their resources. (1) See generally Norris Hundley, Jr., Water and the West: The Colorado River Compact and the Politics of Water in the American West (1975) (detailing the multiple interests that influence appropriation of Colorado River waters); Daniel McCool, Command of the Waters: Iron Triangles, Federal Water Development, and Indian Water (1987) (explaining how federal water policy historically has treated Indians inequitably); Marc Reisner, Cadillac Desert: The American West and its Disappearing Water (1986) (tracing western water policy and analyzing its economic and environmental consequences). (2) Even though the term "Indian" has been criticized as a historical misnomer, eg., Robert F. Berkhofer, Jr., Cultural Pluralism Versus Ethnocentrism in the New Indian History, in The American Indian and the Problem of History 38 (Calvin Martin ed., 1987), courts and commentators consistently use the term in this area of the law. Some commentators prefer the use of "American Indian tribes," because it is the term of choice among many indigenous peoples, and it is more accurate than the broader term "Native American," which suggests a homogenous experience among different tribal peoples. See, eg., Lloyd Burton, American Indian Water Rights and the Limits of Law 4 (1991); Judith Resnik, Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 U. Chi. L. Rev. 671, 679 (1989). Although no "Indians" existed when Columbus first designated the people he encountered "los Indios," an "American Indian" identity does exist today, a contemporary phenomenon of supratribal" political and social consciousness. Stephen Cornell, The Return of the Native: American Indian Political Resurgence 106-08 (1988). In this paper, I use the terms American Indian tribes" and "American Indians" when describing the people, and I use the term "Indian" to modify the legal doctrine of reserved water rights as applied to the Indian tribes. (3) 207 U.S. 564 (1908). (4) Joseph L. Sax et al., Legal Control of Water Resources: Cases and Materials 37-48 (2d ed. 1991). (5) See id. at 44. (6) Id. at 321-24. The miners could not use the riparian doctrine, since most were trespassers who did not own the land that they mined. At first, the appropriation doctrine applied only to disputes between miners, but as the amount of unclaimed riparian property dwindled, pressures to adopt the appropriation doctrine more widely prevailed by the 1870s. Id. (7) While the prior appropriation doctrine historically has failed to acknowledge water rights based on instream uses, modem conservation and environmental trends have led to recognition of instream water rights established for the benefit of fish and wildlife habitat and recreational uses. D. Craig Bell & Norman K Johnson, State Water Laws and Federal Water Uses: The History of Conflict, the Prospects for Accommodation, 21 Envt'l. L. 1, 6-23 (1991). Some courts have used the public trust doctrine to limit appropriative uses. Walter Rusinek, A Preview of Coming Attractions? Wyoming v. United States and the Reserved Rights Doctrine, 17 Ecology L.Q. 355, 357 n.8 (1990) (citing National Audubon Soc'y v. Superior Court of Alpine County, 658 P.2d 709 (Cal.), cert. denied, 464 U.S. 977 (1983)). (8) Id. at 137. This aspect of the prior appropriation doctrine resonates with the Lockean theory that the mixture of labor with an unowned object from the commons gives rise to a natural property right in that object. See John Locke, Two Treatises of Government 288-89 (Peter Laslett ed., student ed. 1988) (3d ed. 1698). Locke's theory, however, only speaks to the origin of the property right and does not require the continuing use of the land (or water) in order to retain the property right. Professor Williams argues that the Lockean theory of the origin of private property rights contributes to the racist narrative tradition of tribalism's inferior rights that has served to justify both historical and current attempts to constrain tribal sovereignty rights. See Robert A. Williams, Jr., Documents of tribalism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law, 31 Ariz. L. Rev. 237, 250-53 (1989). For a critical view of the prior appropriation doctrine, see Charles F. Wilkinson, Aldo Leopold and Western Water Law: Thinking Perpendicular to the Prior Appropriation Doctime, 24 Land & Water L. Rev. 1 (1989). For a critical review of both classical riparian and prior appropriation doctrines, see Eric T. Freyfogle, Water Justice, 1986 U. Ill. Rev. 481 (proposing a new system of "socially responsible water rights" that respects the need for clear water use entitlements but attaches to these entitlements certain social duties). (9) For this reason, prior appropriation is often referred to as the "use ft or lose it" doctrine. Sax et al., supra note 4, at 138. (10) This aspect of the prior appropriation doctrine is often explained as "first in time, first in right." Id. (11) In Winters, the Supreme Court unanimously held that the United States, in establishing the Fort Belknap Indian Reservation in Montana, reserved sufficient appurtenant water from the Milk River to fullfill the purposes of the reservation. Winters v. United States, 207 U.S. 564, 577 (1908). According to the Court, the purpose of the reservation was to convert the Fort Belknap Indians into a "pastoral and civilized people." Id. at 576. The Court affirmed the lower court award of water to meet the then-current needs of the tribe, even though this amount effectively gave the Fort Belknap Indians all the water available during that irrigation season. Id. at 578; Norris Hundley, Jr., The "Winters" Decision and Indian Water Rights: A Mystery Reexamined, W. Hisr. Q., Jan. 1982, at 17, 36. (12) Winters, 207 U.S. at 576-77. Historian Norris Hundley notes that scholars studying the Winters decision have differed as to whether the federal government or the Indians had the authority to reserve water. Hundley argues that the Supreme Court located the authority to reserve water in both the Indians and in the United States, because it had affirmed the appellate court, which had explicitly held that the both the United States and the Indians had `rights' to set aside water. Hundley, supra note 11, at 33-34; see also Robert N. Clinton et al., American Indian Law: Cases and Materials 863-64 (3d ed. 1991). (13) Felix S. Cohen, Handbook of Federal Indian Law 578 (Rennard Strickland & Charles F. Wilkinson eds., 1982) [hereinafter Cohen's Handbook]. (14) Id. (15) See Sax et al., supra note 4, at 806; Rusinek, supra note 7, at 358-59. (16) Cohen's Handbook, Supra note 13, at 596. Water, like other forms of tribal property, is a form of "ownership in common," where individual members have no alienable or inheritable interest in the communal property. Id. at 472. Given the federal government's broad powers over Indian property, it is the government that historically has asserted (or not asserted, see infra part III.A) the Indian reserved rights. See Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252 (D.D.C. 1973) (discussing the idea that Indians legally are incapable of protecting their own rights, so the federal government, as trustee of Indian reserved water rights, is obligated to protect and enforce those rights), rev'd on other grounds, 499 F.2d 1095 (D.C. Cir. 1974). (17) For a scathing criticism of the federal government's lack of support of tribal water rights, see National Water Commission, Water Policies For the Future 474-75 (1973). (18) Departments of State, Justice, Commerce, and the Judiciary Appropriation Act of 1953, 43 U.S.C. [sections] 666 (1988). (19) Dugan v. Rank, 372 U.S. 609, 617-19 (1963); Sax et al., supra note 4, at 827. (20) Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 809-13 (1976). (21) Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 567-70 (1983). (22) For various discussions of the issues, see Stephen Feldman, The Supreme Court's New Sovereign Immunity Doctrine and the McCarran Amendment: Toward Ending State Adjudication of Indian Water Rights, 18 Harv. Envt'l. L. Rev. 433 (1994) (arguing that the Supreme Court has improperly extended state court jurisdiction to include Indian water rights); Thomas H. Pacheco, How Big is Big? The Scope of Water Rights Suits Under the McCarran Ameadment, 15 Ecology L.Q. 627 (1988) (asserting that the McCarran Amendment's waiver of federal sovereign immunity in stream adjudications depends upon the inclusion of all affected appropriators in the proceeding); Michael Lieder, Note, Adjudication of Indian Water Rights Under the McCarran Amendment: Two Courts are Better Than One, 71 Geo. L.J. 1023 (1983) (arguing that federal courts should determine tribal water rights while state court adjudicates non-Indian water rights in the same river system); Mary Wallace, The Supreme Country and Indian Water Rights, in American Indian Policy in the Twentieth Century 197 (Vine Deloria, Jr. ed., 1985). (23) 373 U.S. 546 (1963). (24) Id. at 601. (25) Id. at 600. (26) Eg., In re The General Adjudication of All Rights to Use Water in the Big Horn River Sys. (Bighorn River 1), 753 P.2d 76, 101-04 (Wyo. 1988), aff'd by equally divided court sub nom. Wyoming v. United States, 492 U.S. 406 (1989) (per curiam, no opinion issued) (27) Martha C. Franks, The Uses of the Practicably Irrigable Acreage Standard in the Quantification of Reserved Water Rights, 31 Nat. Resources J. 549, 562-83 (199 1). The PIA standard, for example, "may work to the advantage of tribes inhabiting alluvial plains or other relatively flat lands adjacent to a water course." Burton, supra note 2, at 40. Tribes inhabiting mountainous or other agriculturally marginal lands are at a severe disadvantage in attempting to demonstrate that their lands are practicably irrigable. In New Mexico ex rel. Martinez v. Lewis, for example, the New Mexico Court of Appeals affirmed a state trial court's rejection of the Mescalero Tribe's claims to water to the extent they relied on PIA, ruling that the two irrigation projects were not economically feasible. 861 P.2d 235, 246-51 (N.M. Ct. App. 1993). The Mescalero Tribe had argued before the trial court that the use of a low discount rate would make projects economically feasible. Id. at 250. (28) See infra text accompanying notes 3541. (29) See infra text accompanying notes 4246. (30) 492 U.S. 406 (1989) (per curiam). (31) Big Horn River I, 753 P.2d 76 (Wyo. 1988). (32) An acre foot of water is the amount of water which will cover an acre of ground to a depth of one foot. It is equivalent to 43,560 cubic feet or 325,851 gallons. 1 Water AND Water Rights [sections] 1.02, at 5 tbl. 1-1 (R.E. Clark ed., 1967). While farmers annually apply approximately two acre feet to each acre of irrigated crops, municipal water suppliers allocate an average of one acre foot of water per year to every five municipal residents. Sax et al., supra note 4, at 36. (33) Wyoming v. United States, 492 U.S. 406 (1989) (per curiam). (34) During oral arguments, several Justices expressed hostility to the PIA doctrine. See Official Transcript: Proceedings Before the Supreme Court of the United States, at 23-24, 36-37, 39, Wyoming v. United States, 492 U.S. 406 (1989) (No. 88-309) [hereinafter Official Transcript]; Rusinek, supra note 7, at 398-404 (summarizing the oral arguments and questioning). Recent research into the files of Justice Thurgood Marshall reveals that the Court had planned to issue an opinion authored by Justice Sandra Day O'Connor, which would have reversed the Wyoming Supreme Court 5-4, adding a sensitivity analysis urged by the State of Wyoming. Wyoming v. United States, Opinion, 2nd Draft (recirculated June 12, 1989) (J. O'Connor), at 15 (on file with author). On June 22, 1989, however, Justice O'Connor disqualified herself from the case, because she had learned that her family's ranching corporation was a party to a stream adjudication involving Indian water rights. Justice O'Connor, Memorandum to the Conference, June 22, 1989 (on file with author). (35) See, eg., Brief for Petitioner at 28-39, Wyoming v. United States, 492 U.S. 406 (1989) (No. 88-309) (on Me with author); Brief for Amici Curiae States of Arizona, Idaho, Montana, Nevada, Utah, and Washington in Support of Petitioner at 6-10, Wyoming v. United States, 492 U.S. 406 (1989) (No. 88-309) (on file with author). (36) See, e.g., Brief for Petitioner at 36-39, 4749, Wyoming v. United States, 492 U.S. 406 (1989) (No. 88-309) (on Me with author). (37) 426 U.S. 128, 141 (1976) (holding that when the United States established a deep, partially underwater cavern on federal land as a national monument, it reserved appurtenant, unappropriated water necessary to fulfill the purpose of the reservation, which included preservation of the pool and its fish). (38) 438 U.S. 696 (1978) (holding that the United States, in creating the Gila National Forest in New Mexico, reserved enough water to fulfill the relatively narrow purpose of the national forest, which included conservation of water flows and maintenance of a continuous supply of timber, but did not include aesthetic, recreational, wildlife preservation, or stock watering purposes). (39) Id. at 705. (40) 753 P.2d 76 (Wyo. 1988). (41) Id. at 111-12. (42) See, e.g., Brief for Petitioner at 48-49, Wyoming v. United States, 492 U.S. 406 (1989) (No. 88-309) (on file with author). (43) See, e.g., Lee H. Storey, Comment, Leasing Indian Water Off the Reservation: A Use Consistent With the Reservation's Purpose, 76 Cal. L. Rev. 179 (1988). An important difference exists between the sale of water rights and the sale of water for a fixed period of time (the lease of water). Stephen J. Shupe, Indian Tribes in the Water Marketing Arena, 15 Am. Indian L. Rev. 185, 187 (1990). Under the Indian Nonintercourse Acts, 25 U.S.C. [sections] 177 (1988), which prohibit the transfer of land by Indian nations and tribes in the absence of Congressional approval, marketing of water off the reservations would require explicit Congressional approval. Shupe, supra, at 197-98. Leases of water currently are allowed under a 1955 federal statute, 25 U.S.C. [sections] 415 (1988), which delegates to the Secretary of the Interior the authority to approve leases of Indian land and fulfill the congressional consent requirement of the Nonintercourse Act. Shupe, supra, at 198. Not all American Indians favor the marketing of water off reservations, for cultural and other reasons. See infra text accompanying notes 156-60. (44) See Storey, supra note 43, at 216. (45) Big Horn River I, 753 P.2d at 98-99. (46) Id. at 100. (47) Western States Water Council, Indian Water Rights in the West: A Study Prepared for the Western Governors' Association 83 (1984); John Riley, 7he Water Wars, Nat'l L.J., Feb. 18, 1985, at 48-51, reprinted in Sax et al., supra note 4, at 861-63. (48) See Burton, supra note 2, at 48-61. (49) Id. Although nearly everyone--the states, the United States government, some conservation groups, and academic advocates--supported negotiated settlements, many tribal governments continued to prefer litigating their Winters rights. The Supreme Court's narrow construction of Indian water rights, however, persuaded some Native American advocates to participate in negotiations. Id. at 60. (50) See infra text accompanying notes 72-76. (51) See Cohen's Handbook, supra note 13, at 598; Burton, supra note 2, at 30-31 (describing in one instance how, after a series of negotiations, lack of Congressional appropriation, and a legal opinion from the Department of the Interior, the federal government reduced the Navajo tribe's claim from about 787,000 acre feet of water to 370,000 acre feet of water. The actual irrigation project remained only 17% completed eight years after initial authorization). (52) Oral arguments in Wyoming v. United States illustrated Supreme Court skepticism. For example, in one exchange between a Justice and Mr. Jeffrey Minear, the assistant solicitor for the United States, after Mr. Minear argued that "it is in the very nature of a reserved water right" that it should not be subject to diminution for nonuse, the Justice replied, "Well, it doesn't have to be," and went on to state that the entire doctrine of reserved water rights "is just an implication to Congress.... That's just what this Court said Congress must have intended. So, Congress has never even spoken." Official Transcript, supra note 34, at 3940. (53) Although broad, normative arguments may ignore specific water disputes and the practical problem of allocating scarce and contested water resources, these theories enrich debates between state and tribal water users. Several commentators emphasize the need for pragmatism in solving Indian water rights disputes. See generally David H. Getches, Management and Marketing of Indian Water: From Conflict to Pragmatism, 58 Colo. L. Rev. 515 (1988) (urging cooperative rather than combative theoretical frameworks), or for contextual analysis in resolving federal Indian law disputes in general, e.g., Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1 137, 1219-39 (1990) (arguing that traditional foundationalist canons are inapplicable to Indian law, and that the best way to promote tribal sovereignty is through case-by-case, contextual reasoning consistent with Indian tradition and contemporary circumstances). (54) Act of May 20, 1862, ch. 75, [sections] 2, 12 Stat. 392 (1862) (repealed by Federal Land Policy and Management Act of 1976, 42 U.S.C. [subsections] 1701-84 (1988)). Eager to develop the nation's resources and to create a country of self-sufficient small farmers, Congress carved millions of 160 acre parcels out of the public domain to be allotted to settlers in exchange for residence on the property for five years, some improvements, and payment of modest fees. Reisner, Supra note 1, at 43; Monique C. Shay, Promises of a Viable Homeland: Reality of Selective Reclamation: A Study of the Relationship Between the Winters Doctrine and Federal Water Development in the Western United States, 19 Ecology L.Q. 547, 550 (1992); Donald J. Pisani, To Reclamation a Divided West: Water, Law, and Public Policy, 1848-1902, at 87-88 (1992). For a discussion of Thomas Jefferson's ideal of a nation based on economically independent, politically autonomous, and morally virtuous farmers, see Cornell, Supra note 2, at 36-37; Henry N. Smith, Virgin Land: The American West as Symbol and Myth (1950). 55 Act of Mar. 3, 1877, ch. 107, 19 Stat. 377 (1877) (current version at 43 U.S.C. [subsections] 321-29 (1988)). The Homestead Act of 1862 gave out land with little understanding of the harsh conditions of the West. Unlike its counterpart in the water-rich East, 160 acres of western land could not sustain an average farmer without irrigation. Reisner, Supra note 1, at 4345; MichaelL C. Robinson, Water for the West: The Bureau of Reclamation 1902-1977, at 5-6 (1979). Acknowledging this difficulty and prompted by increasing calls for federal aid, Congress passed the Desert Land Act of 1877, creating the first major act specifically geared towards the reclamation of and lands. The Desert Land Act authorized the sale of 640 acres at $1.25 per acre to any person who would reclaim the tract within a two-year period and show proof of irrigation. 43 U.S.C. [sections] 321; Robinson, Supra, at 7-8. This act, although intended to benefit small settlers, promoted land monopoly and corruption, resulting in a estimate that 95% of the final proofs made under the Desert Act were fraudulent Reisner, supra note 1, at 46; see also Pisani, supra note 54, at 89-90. (56) These efforts failed in part due to insufficient understanding of western watersheds and to insufficient funds. See Robinson, Supra note 55, at 9-10; Pisani, supra note 54, at 104-08; Burton, supra note 2, at 22; Reisner, supra note 1, at 111-12. (57) Ch. 1093, 32 Stat. 388 (1902) (repealed in part, codified in part at 43 U.S.C. [section] 1457 (1988)). (58) 43 U.S.C. [subsections] 371-600me (1988). (59) 43 U.S.C. [section] 383. This was a result of lobbying by a wide coalition of western interests, which supported the idea of a national federal reclamation program, as long as it did not cede state control of water development to the federal government. Pisani, supra note 54, at 273-325. (60) Reisner, supra note 1, at 140-42 (describing the river-basin "accounting" system: 'a lot of bad projects-economically infeasible ones-created a rationale for building more, not fewer dams"). This situation resulted in 'a blanket death sentence for the free-flowing rivers in sixteen states." Id. at 142. (61) Shupe, supra note 43, at 187 n.3. (62) Burton, supra note 2, at 22-23; McCool, supra note 1, at 68-70. According to a 1968 report of the Public Land Law Review Commission, congressional statutes providing relief for irrigation projects up until 1939 resulted in the following: Under these ... extension acts the average contract life for the repayment of construction charges became 50 years, with payments on 12 projects to extend over 50 to 64 years, on six projects over 65 to 79 years, on four projects from 80 to 99 years and on three projects from 100 to 150 years. McCool, supra note 1, at 70 (quoting Paul Gates, Public LAND Law Review Commission, History of Public LAND Law Development 688 (1968)). (63) McCool, Supra note 1, at 71 (referring to E. Phillip Leveen, Reclamation Policy at a Crossroads, Public Aff. Rep. (Oct. 1978)). (64) Id. at 71. (65) Id. at 118. (66) Id. at 121. (67) Id. at 125 (describing how funds were so inadequate that the BIA could not even maintain unfinished irrigation projects, much less complete them or start new ones); Shay, supra note 54, at 557 & nn.76, 77. (68) McCool, supra note 1, at 256. (69) BURTON, Supra note 2, at 23-24; Cohen's Handbook, supra note 13, at 599-600. Many of the compacts expressly preserved 'the obligations of the United States of America to the Indians, tribes, bands or communities of Indians, and their reservations." Eg., Act of Aug. 30, 1957, Pub. L No. 85-222, sec. 1, 71 Stat. 497, 505 (not codified) (approving Klamath River Basin Compact). (70) National Water Commission, Supra note 17, at 474-75 (footnote omitted). (71) 373 U.S. 546, 600 (1963). (72) After a period of "termination" of the reservation system between 1943 and 1961, the federal government returned to the philosophies of the Indian reorganization period by promoting tribal self-determination. See Cohen's Handbook, supra note 13, at 180. (73) Not only does irrigation constitute the greatest use of water in the West, comprising 85% of western water, but it also causes increased salinity, which reduces soil productivity and eventually results in the loss of land for agriculture altogether. Norris Hundley, Jr., The Great American Desert Transformed: Aridity, Exploitation, and Imperialism in the Making of the Modern American West, in Water and Arid Lands of the Western United States 21 (Mohamed T. El-Ashry & Diana C. Gibbons eds., 1988). Salinity also harms downstream urban and industrial users, as well as wildlife. Id. at 67-68. Agricultural drainage water also contains toxic chemicals such as selenium and residues from pesticides and fertilizers, resulting in contaminated fish and other wildlife and threats to human health. Id.; see also Doris O. Dawdy, Congress in Its Wisdom: The Bureau of Reclamation and the Public Interest 113-50 (1989) (discussing irrigation-induced problems in the West). (74) See Mohamed T. El-Ashry & Diana C. Gibbons, New Water Policies for the West, in WATER AND Arid LANDS OF THE Western United States, supra note 73, at 377, 385. The Reclamation Reform Act of 1982, for example, increased to 960 acres the limit on acreage elligible for federally subsidized water, but subsequent rules and regulations require individual districts that wish to take advantage of the higher limit to agree to pay full operation and maintenance costs on all water received. Id.; see also Shupe, supra note 43, at 187. (75) All water users on a given stream system must be parties to general stream adjudications, which contributes to their length. All parties are adverse to aU other parties. The adjudication aims to quantify the rights of each party-including priority date, quantity of use, place of use, and purpose of use. For Indian reservations, this requires an assessment of each acre to prove its irrigability, even if a reservation has hundreds of thousands, or even millions, of acres. Reid P. Chamber, Indian Water Rights After the Wyoming Decision, 1989 Harv. Indian L. Symp 153, 155 (1989). (76) See supra note 51. (77) David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38 UCLA L. Rev. 759, 818 (199 1). (78) Congress has already approved the right to market water in a few instances. Reid P. Chambers & John E. Echohawk, Implementing the Winters Doctrine of Indian Reserved Water Rights: Producing Indian Water and Economic Development without Injuring Non-Indian Water Users? 27 Gonz. L. Rev. 447, 464-66 (1991/92) (describing the 1982 Papago Act, Pub. L. No. 97-293, [section] 303(c)(1), 96 Stat, 1261 (1982), and a marketing provision in the Colorado Ute Act, Pub. L. No. 100-585, [section] 5(c), 102 Stat. 2973 (1988)). Both federal and state governments have promoted water marketing as a more efficient use of water in the West. Joseph R. Membrino, Indian Reserved Water Rights, Federalism and the Trust Responsibility, 27 LAND & WATER L. Rev. 1, 25-26 (1992). The Western Governors' Association issued a report recommending that the Department of the Interior "prepare a policy statement to facilitate the voluntary transfer of water," but emphasized that state law should have primacy in any water marketing policy. Id. (citing Western Governors' Ass'n, Water Efficiency: Opportunities for Action App. A (1987)). (79) See Ward Churchill & Winona LaDuke, Native North America: The Political Economy of Radioactive Colonialism, in The State of Native America, Genocide, Colonization, and Resistance 246 (M. Annette Jaimes ed., 1992). "Despite the obvious and abundant wealth of land and resources they nominally retain ... North American Indian populations suffer virtually the full range of conditions observable in the most depressed of Third World areas. Theirs is the highest rate of infant mortality on the continent, the shortest life expectancy, the greatest incidence of malnutrition, the highest rate of death by exposure, the highest unemployment, the lowest per capita income, the highest rate of communicable or plague diseases, the lowest level of formal educational attainment, and so on."). For more figures on unemployment and general living conditions on reservations, see Business Opportunities Enhancement Act (Draft Legislation to Amend the Buy Indian Act): Healing Before the Select Comm. on Indian Affairs U.S. Senate, 102d Cong., 2d Sess. 3242 (1992) (testimony of Steven L.A. Stallings, President, National Center for American Indian Enterprise Development); Department of Health and Human Services Office of Inspector General, Indian Alcohol and Substance Abuse: Legislative Intent and Reality (May 1992), reprinted in BLA and IHS Inspector General Reports on Indian Alcohol and Drug Abuse Programs: Hearing before the Select Committee on Indian Affairs U.S. Senate, 102d Cong., 2d Sess. 101 (1992); see, e.g., 'WINDS' Project: Wind River Indian Needs Determination Survey, Executive Summary of Final Report, reprinted in Brief for Tribal Respondents on Writ of Certiorari, 22a-27a, Wyoming v. United States, 492 U.S. 406 (1989) (No. 88-309) (on file with author) (describing a 71% unemployment rate, an average family income of $6,277, and 75% of families on the Wind River Reservation classified as "low-income" or "poverty" based on federal Office of Management and Budget guidelines). For an excellent description of the complex experience of modem Indian reservation life, which contains grinding poverty and despair, but also hope and a promise for physical, human, legal, and spiritual fulfillment for Indian communities, see Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. REV. 246 (1989). (80) See supra part III.A. (81) One possible approach to justifying the Indian reserved rights doctrine would be to trace the theoretical bases of the right. The prior appropriation's "use it or lose it" doctrine, for instance, has been justified by the Lockean view of labor-entitlement. See generally supra note 7. This form of justification, while intellectually stimulating, is not compatible with Indian reserved rights due to the very historical and atheoretical way most courts have treated the doctrine. (82) Professor William Fisher has identified five principal distributive justice arguments which assert that in certain circumstances, an individual merits different or better treatment than others: 1) a labor-entitlement theory, 2) an equity theory, 3) unequal effort, 4) inequality that "pays for itself," and 5) utilitarianism. See William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. REV. 1659, 1756-61 (1988) (applying the distributive justice theories to copyright law). (83) The principle of utilitarianism relies on the notion of 'the greatest good for the greatest number" as the ultimate appeal in arguments about equality. See generally John Stuart Mill, Utilitarianism (Samuel Goravitz ed., 1971). (84) Inequality that "pays for itself" is a variant on the contractarian perspective associated with Rawls. In this view, inequality that brings advantages to some without decreasing the advantages of any one person is justified. Nicholas Rescher, Distributive Justice: A Constructive Critique of the Utilitarian Theory of Distribution 93 (1966); Fisher, supra note 82, at 1759-60. (85) See generally Jeremy Waldron, Property, Justification and Need, 6 Canadian J. L. JURISPRUDENCE 185 (1993). (86) Rawls argues that the test for any principle of justice is whether free and rational persons in the "original position" of equality in a "veil of ignorance" would choose such principles. John Rawls, A THEORY OF Justice (1971). The "original position" refers to the state of nature in the traditional theory of social contract found in Locke's 7he Second Treatise of Government, Rousseau's Social Contract, and Kant's ethical works beginning with The Foundations of the Metaphysics. Id. at 1 1 n.4. Kant, for instance, claims that the civil state ought to be founded on an original contract satisfying the requirements of freedom (the freedom to seek happiness in whatever way one sees fit as long as one does not infringe on the freedom of others to pursue a similar end), equality (the equal right of each person to coerce others to use their freedom in a way that harmonizes with one's own freedom) and independence (that is necessarily presupposed by the free agreement of the original contract). See Immanuel Kant, Kant's Political Writings 73-81 (Hans Reiss ed. & H.B. Nisbet trans., 1970). The "veil of ignorance' refers to the hypothetical situation where no one knows her place in society, her original endowments, or her conception of the good. Rawls, supra, at 19. (87) Rawls, supra note 86, at 75-83. (88) Id. at 62. (89) See Churchill & LaDuke, supra note 79 and accompanying text. (90) Rawls, supra note 86, at 27. (91) See Hundley, supra note 73. (92) Chambers & Echohawk, supra note 78, at 466-68. (93) See Waldron, supra note 85, at 210-11. By subjective, Waldron does not mean mere preferences, but the felt or experienced aspect of "life-threatening lacks," which should have a stronger moral significance in our political philosophy than it currently does. Id. (94) Robert M. Kaufman, Rights, NEEDS, AND Groups: Towards a Reconstruction of Philosophic, Jurisprudential, and Constitutional Frameworks 43, 151, 174-80 (1983). Kaufman's theory of needs is based on pursuing policies of group entitlement and recognition. For further discussion of group-based theories, see infra part III.C.1. (95) For a discussion of the American Indian claims to sovereignty, which actually do not stem from a theory of need, see infra part III.C.2. (96) Arizona v. California, 373 U.S. 546, 600 (1963). (97) See, e.g., Brief of Petitioner on Writ of Certiorari at 18, Wyoming v. United States, 492 U.S. 406 (1989) (No. 88-309) (on file with author). The "moderate living" standard language comes from a Supreme Court case which announced that "Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by "he Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood--that is to say, a moderate living." Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 686 (1979). (98) See supra note 79. (99) See, e.g., Thomas Nagel, Rawls on Justice, in What is Justice?, Classic and Contemporary Readings 329-34 (Robert C. Solomon & Mark C. Murphy eds., 1990); Charles Taylor, Distributive Justice, in WHAT is Justice?, Supra, at 335-39. (100) See, e.g., Leopold Pospisil, Anthropology of Law: A Comparative theory (1971); M.G. Smith, Corporations AND SOCIETY (1974). (101) See Gregory S. Alexander, Dilemmas of Group Autonomy: Residential Associations and Community, 75 CORNELL L. Rev. 1, 19-24 (describing two theories of groups: public choice/pluralist theory," which argues that forms of social organization are simply collections of individuals, and "communitarian theory," which argues that collective social entities, and not autonomous individuals, serve as the main sources of obligation and value); Ronald R. Garet, Communality and Existence: The Rights of Groups, 56 S. Cal. L. REV. 1001 (1983) (presenting an approach that treats groups equally with individuals and society, the two traditional right holders, based not on notions of individual moral worth, but on fundamental values of 'existence' . (102) See infra text accompanying notes 110-112. (103) Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 Notre Dame L. Rev. 615, 630-35 (1991); Alexander, supra note 101, at 19-21; Garet, supra note 101, at 1036-43. (104) See U.S. Const. amend. XIV, [section] 1; Garet, supra note 101, at 1023-28. Similarly, freedom of association is a group-based value with roots in individualistic premises--the rights of individuals to promote their own interests through voluntary associational contracts. Garet, supra note 101, at 1037-38. (105) Garet, supra note 101, at 1023-24. (106) Addis, supra note 103, at 636-40. One reason the post-World War II international human Tights regime shied away from discourse of minority rights was the failure of the Minority Treaties," which the League of Nations imposed upon the defeated Eastern European and Balkan States after World War 1. Peace treaties or other bilateral treaties generally guaranteed to members of racial, religious, or linguistic minorities 'the same treatment and security in law and in fact" as other nationals in those states. See, e.g., Minority Schools in Albania, 1935 P.I.C.J. (ser. A/B) No. 64 (Apr. 6) (citing Albanian Declaration) (advisory ruling stating that Albanian abolition of private schools could not prevent Albanian minorities from establishing private schools, since the purpose of the Albanian Declaration was "to ensure a genuine and effective equality, not merely a formal equality" . The noble purposes of the minorities regime, however, were distorted by Hitler's invocation of minority protection for ethnic Germans as a justification for invading countries like Poland. (107) G.A. Res. 217A(III), U.N. GAOR, 3d Sess., at 72, U.N. Doc. A/810 (1948) (emphasis added). (108) Addis, supra note 103, at 638. G.A. Res. 2200(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), provides: In those States in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to erjoy their own culture, to profess and practice their own religion, or to use their own language. (109) See Addis, supra note 103, at 636. (110) See, eg., Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 451-52 (1988) (holding that free exercise clause does not prohibit government from permitting timber harvesting and road construction in area of national forest traditionally used for religious purposes by members of three tribes in Northwestern California); Employment Div., Dep't of Human Resources of Or. v. Smith, 494 U.S. 872, 890 (1990) (holding that free exercise clause did not prohibit application of Oregon drug laws to ceremonial ingestion of peyote and upholding denial of unemployment compensation for work-related misconduct based on use of drug). (111) See Native Am. Council of Tribes v. Solem, 691 F.2d 382,385 (8th Cir. 1982) (upholding Free Exercise and Equal Protection claims for family members allegedly probibited from attending religious ceremonies with Indian inmates when same privilege granted to other inmates); Teterud v. Bums, 522 F.2d 357, 362-63 (8th Cir. 1975) (striking down, on free exercise of religion grounds, prison rule requiring Indian inmate to cut his hair); Reinert v. Haas, 585 F. Supp. 477, 481 (S.D. Iowa 1984) (granting preliminary injunction to prevent prison officials from violating Indian inmates' free exercise of religion right to wear religious headbands); see also Kevin J. Worthen, Sword or Shield: 7he Past and Future Impact of Western Legal Thought on American Indian Sovereignty, 104 Harv. L. Rev. 1372, 1384-85 (1991) book review). (112) United States v. Antelope, 430 U.S. 641, 645-47 (1977); see also Morton v. Mancari, 417 U.S. 535, 551-55, 553 n.24 (1974) (holding that category of "Indian" is political not racial, and that classifications involving Indians are valid if they "can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians"). State Indian legislation, on the other hand, is treated like racial legislation and receives special scrutiny, unless Congress has authorized the state to enact it. See Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 499-501 (1979); Carole Goldberg-Ambrose, Not "Strictly" Racial: A Response to (Indians as Peoples, " 39 UCLA L. Rev. 169, 169 n.1 (1991). The political nature of American Indian tribes is something of a fiction, because Indians historically have been and continue to be treated differently, often specifically on the basis of race. Title 25 of the United States Code, for example, which regulates Indian tribes, rests on racial blood quantum requirements. Williams, supra note 77, at 810. Courts have upheld laws and regulations based on degrees of "Indian blood," even though these laws define "Indians" on the basis of racial characteristics, rather than on the basis of tribal membership. Cohen's HANDBOOK, supra note 13, at 655-56; see also Sharon O'Brien, Tribes and Indians: With Whom Does the United States Maintain a Relationship?, 66 Notre DAME L. Rev. 1461, 1484-86 (1991) (listing acts that provide services to recognized Indians and to those with one-half blood quantum or more, as well as other programs that define one-quarter blood quantum as the sole eligibility criteria for receiving

Professor David Williams has attempted to resolve the dilemma of the special treatment of Indians by proposing that Indians are a categorical exception to the requirements of the Equal Protection Clause. See generally Williams, supra note 77. Professor William argues that the Constitution bars Indian-specific legislation, except where Congress singles Indians out to support their "peoplehood" or their unique status outside of the domestic norms of the Constitution. See David Williams, Sometimes Suspect: A Response to Professor Goldberg-Ambrose, 39 UCLA L. Rev. 191, 192 (1991). (113) Alexander, supra note 101, at 23; see also Michael Sandel, Liberalism and the Limits of Justice 179 (1982) ("To imagine a person incapable of constitutive attachments ... is not to conceive an ideally free and rational agent, but to imagine a person wholly without character, without moral depth."); Michael Walzer, The Communitarian Critique of Liberalism, 18 Pol. Theory 6 (1990). (114) Alexander, supra note 101, at 25 (citing Thomas Bender, Community AND SOCIAL Change in America 122-28, 14349 (1978) and Drucilla L Cornell, Two Lectures on the Normative Dimensions of Community in the Law, 54 Tenn. L. Rev. 327, 330-32, 34041 (1987)). (115) Addis, supra note 103, at 642. The very definition of cultural or ethnic identity is complex. After a period of debate over whether ethnicity is an innate or circumstantial characteristic, most people now recognize that ethnicity involves both involuntary, physical or inherited traits, and circumstances that create voluntary, cognitive processes of self-image and identity. David Maybury-Lewis, Professor of Anthropology at Harvard, Faculty of Arts and Sciences, Class Lecture on Ethnicity in the Americas: The Indian Question (February 17, 1994); Kaufman, supra note 94, at 86. (116) See Garet, supra note 101, at 1065-73, 1075 ("Communality is not the location of the material group (the class interests, the kinship structures, the roles of domination and dependence) or the location of the symbolic group (the 'invisible church,' the `sisterhood,' or the `matriliny'), but instead, communality is the process of celebration and dynamic ritual activity that brings material and symbolic group together in a common experience of groupness."). (117) See Addis, supra note 103, at 658-61 (arguing that ethnic minorities have a moral right to the necessary resources and institutional structures for making choices about their own culture). (118) This group right does not replace individual rights, nor does it assume that differences among groups are immutable; rather, it provides a more textured approach to individual and cultural identity, while allowing for the inevitable instability and transformations that occur in groups. See id. at 648; see also Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke L.J. 705, 705 ("We need to conceptualize groups in a `post-modern' way, recognizing their reality in our lives without losing sight of the partial, unstable, contradictory character of group existence."). (119) 25 U.S.C. [subsections] 1301-1341 (1988). (120) 25 U.S.C. [subsections] 450-450n (1988). (121) 42 U.S.C. [sections] 1996 (1988). (122) 436 U.S. 49 (1978). (123) Id. at 62-65. Thus, in Santa Clara, the federal courts did not have jurisdiction to decide whether a gender-discriminatory tribal membership rule violated the equal protection clause of ICRA. The Pueblo ordinance denied tribal membership to the children of female members who married outside the tribe, but not to similarly situated children of men of that tribe. Id. at 51-52. (124) See Garet, supra note 101, at 1035 ("[T]he central drama of Santa Clara is whether a group, long subjected to laws and social practices ... erosive of tribal groupness, can attempt to halt this sort of erosion by applying an internal control. Once again, the Court's group-protective decision can be justified only by reference to the intrinsic group good, which is groupness or communality. The internal control upheld by the Court in Santa Clara cannot plausibly be explained by references to individual rights, personhood, social welfare, or a social right grounded in sociality." (footnote omitted)). (125) The traditional American Indian view of sovereignty does not separate the legal from the political or the secular from the religious, but unifies all aspects of life. See Sharon O'Brien, The Concept of Sovereignty: The Key to Indian Social Justice, in American Indians: Social Justice and Public Policy 46 (Donald E. Green & Thomas V. Tonnesen eds., 1991). This Section, however, discusses several aspects of American Indian sovereignty. (126) See Sharon O'Brien, The Concept of Sovereignty, supra note 125, at 44. These aspects of tribal sovereignty roughly correspond with the emerging international consensus on the minimal rights of indigenous peoples: the right of self-determination; the right "not to be deprived of their rights or claims to land, property or natural resources without their free and informed consent"; and "the right to freely and independently practice, develop and perpetuate their own religions, languages, cultures, traditions, social systems, and ways of life." Sharon O'Brien, Federal Indian Policies and the International Protection of Human Rights, in American Indian Policy in the Twentieth Century, supra note 22, at 35, 41-42. Of course, it is extremely difficult to generalize about what most American Indian tribes want, since the diversity of goals is tremendous. One common theme among almost all Indians, however, is the objection to the presence of non-Indian controls over Indian communities and decisions. Cornell, Supra note 2, at 151-52. (127) See O'Brien, The Concept of Sovereignty, supra note 125, at 46; see also Joseph W. Singer, Sovereignty and Property, 86 N.W. L. Rfv. 1, 35 (1991). (128) See O'Brien, The Concept of Sovereignty, supra note 125, at 46-47. The Indian nations possessed the traditional requisites of a sovereign state: territory, population, governing structure, and the ability to govern, id. at 47, and the United States fully recognized this by treating Indian tribes as sovereign nations capable of executing treaties. The early federal policy towards Indians responded to attempts by individual colonies and some states under the Articles of Confederation to assert power over Indian tribes. Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 200 n.21 (1984); Rebeeca L. Robbins, Self-determination and Subordination. The Past, Present, and Future of American Indian Governance, in The State of Nature America: Genocide, Colonization, And Resistance 89 (M. Annette Jaimes ed., 1992). In 1871, Congress formally abandoned the policy of treaty-making, stating that henceforth "[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." 25 U.S.C. [sections] 71 (1988). (129) See infra text accompanying notes 175-181. (130) See infra text accompanying notes 182-190. (131) See, e.g., Jessie D. Green & Susan Work, Comment, Inherent Indian Sovereignty, 4 Am. Indian L. Rev. 311 (1976); Robert N. Clinton, Isolated In Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-government, 33 Stan. L. Rev. 979, 990 (1981). Courts have recognized several powers of inherent sovereignty: the right to determine a form of government, the power to determine membership, the application of Indian customs, laws, and tribal jurisdiction to domestic relations and descent and distribution of property, power of taxation, exclusion of nonmembers from tribal territory, power over tribal property, rights of occupancy in tribal lands; jurisdiction over property of members, and administration of justice. Green & Work, supra, at 311. Other fundamental powers include the police power, power to charter business corporations, and sovereign immunity. American Indian Resources Institute Selected Readings on Tribal Governance 41 (1990). (132) See, e.g., Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381, 428-32 (1993). Courts have not accepted fully this perspective of Indian sovereignty, however, especially in light of the broad regulatory powers the federal government wields over Indian tribes. See infra part RV.A.1. Several commentators point out that the current position of Indian tribes is a condition of "internal colonization," where a foreign power has usurped their rights to self-government. These commentators frame the struggle to gain Indian sovereignty in terms of a decolonization struggle. See, eg., Robbins, supra note 128, at 90; Churchill & Laduke, supra note 79; Ward Churchill, The Earth is Our Mother. Struggles for American Indian Land and Liberation in the Contemporary United States, in The State of Native America, supra note 128, at 174; Williams, supra note 8, at 238. (133) Because the federal government wields broad regulatory powers over Indian tribes and their property, the relationship between the United States and the Indian tribes is not properly one between sovereign nations. (134) Message From the President of the United States, Transmitting Recommendations for Indian Policy, H.R. Doc. No. 363, 91st Cong., 2d Sess. (1970), reprinted in 6 Weekly Comp. Pres. Doc. 894 (July 8, 1970). Much of the federal funding that resulted in the 1960s and 1970s was linked with the national war on poverty, so self-determination really meant that American Indians were treated as a racial minority. Vine Deloria, Jr. & Clifford Lytle, The Nations Within: The Past and Future of American Indian Sovereignty 216 (1984). (135) Emma R. Gross, Contemporary Federal Policy Toward American Indians 31 (1989). (136) Ronald Reagan, Statement on Indian Policy, 1983 Pub. Papers 96. The extensive control which the federal government continues to exert over tribal governments, however, contradicts this characterization. Deloria & Lytle, supra note 134, at 260. See also infra part IV.A.1 (discussing the federal trust relationship and plenary power over American Indian resources). (137) Singer, supra note 127, at 7; Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 89 (1927). (138) See Cornell, supra note 2, at 169-71. Cornell points out that relying on the control of land and water as a source of sovereignty is problematic, because these are bargaining resources tied to legal claims or nonrenewable natural resources which do not last; which depend on other hard-to-get resources, like legal sides, access to information, professional expertise, and money; which are unequally distributed; and which depend on forces outside of Indian control. Id. at 171-72. (139) See id. at 40-50 (describing the process of dispossession of Indian lands through removal and later allotment as the colonists' solution to the "Indian problem" of how to gain access to Indian land and resources). (140) See, e.g., Cohen's Handbook, supra note 13, at 197 (citing the return of Blue Lake and 48,000 acres of land in New Mexico to the Pueblo in 1970; the return of approximately 61,000 acres to the Warm Springs Tribe of Oregon in 1972; and numerous other restorations of tribal lands to the Payson Community of Yavapai-Apache Indians of Arizona, the Havasupai Tribe of Arizona, the Yakama Tribe of Washington, the Paiute and Shoshone Tribes of the Fallon Reservation in Nevada, the Pueblos of Zia and Santa Ana in New Mexico, and the Siletz Tribe of Oregon). (141) Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 661 (1974) (holding that a cause of action existed for claim of federal right of possession of six million acres of land in New York). (142) 42 U.S.C. [subsections] 1605,1608,1613(a)-(b) (1988); see also Cohen's Handbook, supra note 13, at 198-99. (143) Interview with Katherine McHale, member of the Mescalero-Apache Tribe (Feb. 28, 1994); Worthen, supra note 111, at 1388-89; see also Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 459-63 (1988) (Brennan, J, dissenting) (discussing the pervasive nature of American Indian religions and the centrality of land and location for spiritual practices and rituals). See generally Pommersheim, supra note 79 (explaining the role of the reservation in tribal identity and in the relationship between Indians and non-Indians). (144) See Marianna Guerrero, American Indian Water Rights: 7he Blood of Life in Native North America, in The State of Native America, supra note 128, at 208. (145) See, eg., Pommersheim, supra note 79, at 250 "Land is inherent to Indian people; they often cannot conceive of life without it. They are part of it and it is part of them; it is their Mother. Nor is this just a romantic commonplace."); Deloria & Lytle, supra note 134, at 12 ("[A]s land is alienated, all other forms of social cohesion also begin to erode, land having been the context in which other forms have been created."). (146) This aspect of American Indian sovereignty meshes with the communitarian/cultural identity arguments made above. Supra part III.C.1. (147) Cornell, supra note 2, at 75. (148) See Deloria & Lytle, supra note 134, at 250 (describing culture as the "single factor that distinguishes Indians from Non-Indians"). (149) The right to determine membership is also an attribute of political sovereignty. The Supreme Court has recognized the right of Indian tribes to determine membership rules which are not reviewable in federal courts. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); see supra text accompanying notes 122-24. The federal government, however, has undermined this sovereignty by imposing "Indian identification standards," typically centered upon a notion of "blood quantum" as a basis for regulating and providing benefits "for American Indians. See generally M. Annette Jaimes, Federal Indian Identification Policy: A Usurpation of Indigenous Sovereignty in North America, in The State of Native America, supra note 128, at 123. Blood quantum policies will eventually define Indians out of existence, due to intermarriage. Id. at 132. (150) 42 U.S.C. [sections] 1996 (1988). (151) The ICWA gave the Indian tribes, rather than state governments, exclusive jurisdiction in child custody proceedings in order prevent the unwarranted removal of Indian children from their tribal environment and to protect Indian cultural and tribal identity. Indian Child Welfare Act of 1978, 25 U.S.C. [sections] 1911(a) (1988). The Supreme Court, however, has been less sympathetic towards the practice of American Indian religions in several recent cases. See supra note 110. (152) See supra text accompanying notes 127-31. (153) Id. (154) Recently, for example, as part of congressionally-approved settlements, Indian tribes have received funds for economic development and increased water allocations not necessarily tied to irrigation uses. Chambers & Echohawk, supra note 78, at 457-64. (155) Indian tribes have begun to take steps to control the waters on their reservations through regulations and water codes. Christine L. Micklas & Steven J. Shupe, Introduction, in Indian Water 1985: Collected Essays ix-xi (Christine L. Micklas & Steven J. Shupe eds., 1986). The extent of tribal jurisdiction over non-Indians living on reservations is an extremely contested and controversial area of law. In Montana v. United States, the Supreme Court set forth the general rule that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." 450 U.S. 544, 565 (1981). The Court, however, recognized that two exceptions exist: tribal governments retain the "inherent power to exercise civil authority" over non-Indians on reservations, where nonmembers have entered into "consensual relationships" with the tribe or its members through "commercial dealings, contracts, leases, or other arrangements;" or where the conduct of the non-Indians "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Id. at 565-66. In a subsequent case, Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, the Supreme Court issued a plurality opinion that did little to clarify the extent of the "tribal welfare" exception, but ended up sustaining tribal regulation over a "closed area" of the reservation, where the tribe maintains the power to determine the character of the land. 492 U.S. 408, 438-47 (1989) (Stevens, J. .

At least one court has upheld the tribal right to exercise civil authority over nonmember conduct that involves a tribe's water rights. Colville Confederated Tribes v. Walton, 647 F.2d 42, 52 (9th Cir.), cert. denied, 454 U.S. 1092 (1981). (156) Interview with Katherine McHale, supra note 143. (157) See Erik Eckholm, The Native--and Not So Native--American Way: The Apaches, The N.Y. Times Mag., Feb. 27, 1994, at 45. (158) See Francis X. Clines, 7he Native--and Not So Native--American Way: The Pequots, The N.Y. Times Mag., Feb. 27, 1994, at 49-52. The Tribe, for instance, has hired an archeologist to disinter its history and stock a new museum. Id. at 51. In September 1993, the Pequot Tribe held the Feast of Green Corn and Dance--the largest recent gathering of American Indian tribes to showcase Native American dances through competition and to celebrate different tribal cultures. Part of the reason for sponsoring the event was to learn more about traditional dances and practices that the Pequots had lost and were trying to relearn. Craig W. Baggott, Indians Celebrate their Culture at Feast of Green Corn and Dance, The Hartford Courant, Sept. 17, 1993, at C1. (159) Clinton et al, supra note 12, at 912. (160) Id.; Storey, supra note 43, at 218. (161) The term plenary power refers to the broad power that the federal government wields over Indian tribes. For a more thorough discussion, see infra text accompanying notes 175-181. (162) The trust relationship between the federal government and the Indian tribes is "one of the primary comerstones of Indian law." Cohen's Handbook, supra note 13, at 221. For a more thorough discussion, see infra notes 182-190 and accompanying text. (163) Newton, supra note 128, at 196. The Constitution expressly mentions Indians three times. Article I and the Fourteenth Amendment exclude Indians from the count for apportioning taxes and representatives to Congress. U.S. Const. art. I, [sections] 2, cl. 3; U.S. Const. amend. XIV, [sections] 2. The Indian Commerce Clause authorizes Congress to "regulate Commerce ... with the Indian Tribes." U.S. Const. art. 1, [sections] 8, cl. 3. Courts have construed other sources of federal power over Indians from the Treaty Clause, U.S. Const. art. II, [sections] 2, cl. 2; the Property Clause, U.S. Const. art. IV, [sections] 3; the Necessary and Proper Clause, U.S. Const. art. 1, [sections] 8, cl. 18; and the Supremacy Clause, U.S. Const. art. 1, [sections] 8, cl. 18. Cohen's Handbook, supra note 13, at 207-12.

In 1973, the Supreme Court observed: "The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making." McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973). (164) See Cohen's Handbook, supra, note 13, at 214-15; Newton, supra note 128, at 197. (165) The Court has held that federal authority over Indian affairs preempts inconsistent state laws, and that when federal law establishes an Indian reservation, it preempts the state from regulating any tribal activities on the reservation. For the first modern statement on tribal-state relations, see Williams v. Lee, 358 U.S. 217, 220 (1959) (holding that state court had no jurisdiction over suit by non-Indian against Indian defendant over actions arising on an Indian reservation). See also McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 181 (1973) (declaring unlawful state income taxes on Indians' reservation-derived income). For a discussion of the Indian preemption doctrine, see Clinton, supra note 131, at 1005-09. (166) David H. Getches & Charles F. Wilkinson, Cases and Materials on Federal Indian Law 37 (1986); see Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). See generally Frickey, supra note 132 (providing an excellent discussion of the Marshall trilogy). Professor Frickey argues that the three cases represent Chief Justice Marshall's attempt to mediate the tensions between colonialism and constitutionalism by treating Indian treaties and other documents affecting the federal-tribal relationship as quasi-constitutional texts. Professor Frickey suggests that a return to this constitutive interpretative approach would help clarify federal Indian law today. See id. at 385. (167) 21 U.S. (8 Wheat.) 543 (1823). (168) Id. at 587. (169) Newton, supra note 128, at 209 (citing United States v. Rogers, 45 U.S. (4 How.) 567 (1846); Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955)). (170) Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) (ruling that Supreme Court lacked original jurisdiction over the Cherokee Nation because the tribe was not a "foreign nation" within the meaning of art. 111, [sections] 2). The Cherokee Nation cases arose when Georgia, Tennessee, Alabama, and Mississippi unilaterally extended their political authority over tribes located within their boundaries, precipitating what has been described as "one of the greatest constitutional crises in the history of the nation." Getches & Wilkinson, supra note 166, at 43. For a brief discussion of the historical background of the cases, see id. at 4345. (171) Cherokee Nation, 30 U.S. (5 Pet.) at 17. (172) Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (upholding the supremacy of federal power regarding Indian tribes). (173) Id. at 559. (174) Clinton, supra note 131, at 1001. (175) The plenary power doctrine reached the height of its expression in two cases. In United States v. Kagama, the Supreme Court, in holding that Congress had the power to enact criminal laws governing the conduct of Indians within Indian reservations, relied on the dependent status of Indian tribes and their need for protection as the source of the federal regulatory power. United States v. Kagama, 118 U.S. 375, 383-84 (1886). The Court recognized that no constitutional provision granted Congress the right to govern Indian affairs, but upheld federal power over Indians for practical and historical reasons. Newton, supra note 128, at 214-15.

Seventeen years later, in the 1903 case of Lone Wolf v. Hitcheock, the Supreme Court sustained an allotment act's abrogation of a treaty by ruling that the last-in-time rule permitted congressional abrogation of treaties, and that no due process violation had occurred because "[p]lenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government." Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). (176) Newton, supra note 128, at 196 n.3. (177) Cohen's Handbook, supra, note 13, at 217-19. (178) See, eg., Santa Clara Pueblo v. Martinez, 43