Tuesday, August 23, 2005

Indian Treaty Water Rights - tribes win one skirmish

In the most recent ABA Water Resources Committee newsletter, Judith Royster of Tulsa contributed a nice analysis of the 9th Circuit's en banc decision in Skokomish Indian Tribe v. United States, 410 F.3d 506 (2005).  The 9th Circuit eliminated the panel's discussion of reserved indian water rights, which had applied the primary/secondary use analysis of New Mexico in the federal reserved water rights context to indian reserved water rights and had indicated that fishing was not a primary purpose of the reservation.  See Skokomish panel decision, 401 F.3d 979 (9th Cir. 2005).  However, otherwise, the panel's decision remained intact.  The panel's decision had been a loss for tribes on treaty, state law, and § 1983 claims against defendant municipalities and on Federal Power Act claims against the US.  The tribe's damage claim based on its treaty rights was transferred to the U.S. Court of Federal Claims by the panel, which held that it did not arise under the Federal Tort Claims Act, but instead under the Tucker Act and the Indian Tucker Act.  http://www.abanet.org/environ/committees/waterresources/newsletter/aug05/waterres0805.pdf

http://lawprofessors.typepad.com/environmental_law/2005/08/indian_treaty_w_1.html

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