Colorado River ruling gives tribe a rare victory on water rights

Matt Kelley

Monday, June 19, 2000 | 3:06 a.m.

WASHINGTON - American Indians won a rare victory in the U.S. Supreme Court on Monday as the justices allowed the Quechan tribe to pursue its claim to about 25.6 billion gallons of Colorado River water each year.

Arizona and California had asked the high court to block the Quechan's water claim, saying the tribe gave up any rights to that water in 1983. Lawyers for both states had warned that a victory for the tribe could aggravate potential water shortages as the desert region continues to outgrow its limited water supply.

By a 6-3 vote, the high court ruled that the Quechan tribe should get a chance to prove that it owns 25,000 acres on the Fort Yuma Reservation straddling the river in California and Arizona. If the tribe owns the land, it would be entitled to enough water to irrigate the tract - roughly enough to serve the residential water needs of a city the size of Tucson, Ariz.

The amount of water involved is actually very small - less than 1 percent of the river's annual flow, said David Harding Getches, a law professor at the University of Colorado who specializes in water and Indian issues.

"It won't lead to any thirsty people or even any brown golf courses in Southern California," Getches said Monday. "This is not a lot of water."

But the ruling is a big victory for the tribe, given the fact that Indians lose about 80 percent of the time at the Supreme Court, Getches said.

"For the tribe, it could be a significant addition to its water rights and the usability of its land," Getches said.

Arizona and California argued the Quechans gave up any rights to additional water when they accepted a $15 million land claim settlement in 1983.

Writing for the court, Justice Ruth Bader Ginsburg said it was not clear whether the payment was for the land itself or just to compensate the tribe for not being able to use the land since the late 1800s. Monday's ruling sends the issue back to court-appointed "special master" Frank McGarr, who will decide whether the tribe owns the land and should have rights to more water.

"We're pleased that ... the Quechan tribe will be able to present their case," said John Leshy, a top Interior Department lawyer. The department had sided with the tribe in the case.

Southwestern states have feuded for decades over the use of lower Colorado River water, which supplies cities and farms in California, Arizona and Nevada. Under a 1922 agreement, the three states split a yearly allocation of 7.5 million acre-feet of water - 4.4 million to California, 2.8 million to Arizona and 300,000 to Nevada.

But California has been using around 5.2 million acre-feet a year, siphoning off previously unused portions of Arizona's and Nevada's allotments. As the entire region grows, that surplus water will disappear.

Just last month, California and the other Colorado River states appeared on the verge of a new agreement that would require California to live within its allotment. Besides increased conservation measures, that deal relies on Southern California farmers giving some of their water to cities, as well as trading and water storage by Arizona and Nevada.

Ginsburg's opinion was joined by Justices John Paul Stevens, Antonin Scalia, Anthony M. Kennedy, David H. Souter and Stephen G. Breyer.

Dissenting were Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Clarence Thomas.

Writing for the three, Rehnquist said the federal government and the tribe were barred from raising the claim now because it could have been decided in an earlier phase of the case.

The case is Arizona vs. California, 8 Original.