A few miles north of Fort Washakie, Wyoming, the Wind River cuts a muddy red path through the hills, plains and sagebrush of the Wind River Reservation. It’s one of many tentacles that make up the Wind River System that provides water for farmers and ranchers in the central part of the state. But for those agricultural producers, whoever arrives to claim the water first, gets to use it first—creating a pecking order that can leave downstream users high and dry.
At the top of this pecking order sits the Northern Arapaho and Eastern Shoshone tribes, both occupying the Wind River Reservation. “As of [May 9, 2010] on the Wind River, we were not able to supply everyone with direct-flow water that was being requested,” says Loren Smith, a superintendent with the state engineer’s office.
Smith is responsible for managing and administering water rights in the Wind River and Bighorn River basins, and situations like this are what often worry water users in the state. Since the early 1900s, farmers and ranchers have been tapping into this water source to fuel the local economy, but in 1988, litigation between the Wind River tribes and the state of Wyoming established the tribes as the senior water-rights holders in the Wind River Basin, putting them ahead of everyone, including the state, says Larry MacDonnell, a water law professor at the University of Wyoming. “The interpretation that the courts have made over what that means [is that] in the 1860s, if the tribes agreed to settle on one particular area of land, there must be water necessary for agricultural development of those lands,” says MacDonnell.
And this is where things start getting murky. Historically, the water allocated to the tribe was viewed as strictly for agricultural use. When the Shoshone and Arapaho were forced onto the Wind River Reservation, the intention of the federal government was that their relocation and confinement would help facilitate their assimilation through farming. To farm, they needed water. “Today, that’s no longer likely to be the best way that you could build an economy on the Wind River Reservation,” says MacDonnell. “But water can still be an important mechanism for earning an income.”
According to the Shoshone and Arapaho tribal water code, there are 17 beneficial uses for water on the reservation. Shoshone Business Councilman Orville St. Clair says some of those uses include bottling water and leasing water rights, hydroelectric power or even building water storage on the reservation for household or agricultural use, all to benefit residents and develop the economy of the tribes. However, state engineer Patrick Tyrrell worries about how using water in those ways will affect others. “There’s more than just the economy of the tribe that needs to be considered here,” he says. “As that tribal water use grows, it’s part of a larger hydrographic system, and because of that it doesn’t happen without impacts, and it doesn’t happen without effects; and the state of Wyoming as a whole needs to evaluate what the effects of those broader uses might be and are they deemed to be acceptable by, for example, the legislature.”
And that is what is at issue right now—the Wind River tribes are poised to make a lot of downstream water users angry as they consider using that water for something other than agriculture. “Everybody junior to those rights is existing as much as they can on run-off and storage,” says Tyrrell. “All of the irrigators on the main stem of the Bighorn down to Yellowtail would essentially be junior to the tribal rights and because they’re on the same source of supply, the Bighorn River system, any additional water used on the reservation over and above the rights they have now, would possibly come at the risk of regulating some of those other users.”
The tribes’ water rights exist outside state water law due to the sovereign status of the tribes and their standing with the federal government. But according to a Wyoming Supreme Court ruling establishing the tribes’ rights, water could only be used on the reservation and according to Wyoming water law. “So if there are to be new uses made of the water or changes of existing uses of the water, those have to go through the state process,” says MacDonnell, meaning the tribes would need to develop a policy to keep more water, and they would have to follow state rules and work with the state engineer, which would be a red-tape nightmare for the tribes.
The 1988 State Supreme Court awards were for some 54,000 acres of land estimated to require 290,000 acre-feet of water, per year, to irrigate. At the same time, the Wind River tribes were awarded future lands, which allowed for another 210,000 acre feet to be used on another 54,000 acres of land, when those lands were developed for agriculture. To date, those lands have not been developed—and with both tribes interested in using water for other purposes, they’re not likely to be developed soon. Tyrrell says tribes will have to obey that interpretation of the law first, before using water for anything else. “As long as you play by those rules and you want to develop those future lands, you can use your future water awards on them,” says Tyrrell. “To say, ‘I was given a football to play football with,’ and then wonder why it isn’t a basketball is kind of the question here.”
The Wind River tribes disagree. “State water law does not apply here,” says St. Clair. “When you’re on the reservation, tribal law prevails, and there’s not too much more to be said about that.”
The tribes maintain that the state has no jurisdiction over their use of the water and that when their needs have been determined, the tribes will administer the water as needed based on tribal water law. “We have a process,” says St. Clair. “There’s a permitting system that goes through the tribal water engineer’s office. The tribes can dedicate that water any way they deem advisable, and that water remains under the ownership of the tribes until it leaves the reservation boundaries.”
The issue of tribal water rights is an ongoing and growing challenge in the West with more than a dozen tribes securing rights to natural resources over the past decade, and in Wyoming, both state and tribal officials have indicated an interest to talk about the issue, and both hope to avoid future litigation.
In other states, similar problems have arisen, with tribes asserting water-rights claims and winning: In Montana, a settlement to adjudicate the Chippewa Cree Tribe’s water rights on the Rocky Boy’s Reservation was ratified by Congress, and in Idaho, the Nez Perce achieved their water-rights claims through an act of Congress after the state approved a settlement with the tribes in 2005. The same goes for the Zuni in Arizona, Lummi Nation in Washington state and the Confederated Tribes of the Warm Springs Reservation in Oregon.
Water is a limited resource, and demand on water upstream often becomes a constraint downstream. Water, it’s said, always flows downhill. Unless it doesn’t flow at all.