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22 Ariz. J. Int'l & Comp. L. 691 (2005)
Doctrinal Anachronism: Revisiting the Practicably Irrigable Acreage Standard in Light of International Law for the Rights of Indigenous Peoples

handle is hein.journals/ajicl22 and id is 707 raw text is: DOCTRINAL ANACHRONISM?: REVISITING THE PRACTICABLY
IRRIGABLE ACREAGE STANDARD IN LIGHT OF INTERNATIONAL
LAW FOR THE RIGHTS OF INDIGENOUS PEOPLES
Dana Smith*
If one may mark the turn of the 20th century by the massive expropriation of
Indian lands, then the turn of the 21st century is the era when the Indian tribes risk
the same fate for their water resources.'
I. INTRODUCTION
The year 2008 will mark the 100th anniversary of the Winters v. United
States2 decision and its implicit promise to protect the water resource needs of
Native Americans infinitely into the future. While Winters reserved sufficient
water to fulfill the current and future needs of Indians, since 1908 precious little
water has actually reached tribes.3 Instead, the federal government has invested
billions of dollars in water resource projects that benefit non-Indians and
essentially use water reserved for Native Americans.4 For Indian reserved water
rights, the problem of water scarcity is exacerbated by the water allocation system
used in the western United States, which awards a high priority date to those who
first put the water to use. Because the priority date for Indian reserved water
rights is the date the reservation was created, and because most reservations were
established before non-Indian settlers began using water, Indians tend to have
superior water rights to most users under the prior appropriation system.6 Thus,
*   Candidate for J.D., University of Arizona James E. Rogers College of Law, 2006;
B.A. in Economics and Spanish, Colgate University, 2000. Thanks to my parents and
friends for their unwavering support. Thanks to Vicki Marcus, Andy Flagg, and Jared
Stewart for their editorial skills. Finally, thanks to Professor Robert Williams for reviewing
a previous draft of this Note.
1. In re the Gen. Adjudication of All Rights to Use Water in the Big Horn River
Sys., 835 P.2d 273, 303-04 (Wyo. 1992) (Golden, J., dissenting) (quoting Joseph R.
Membrino, Indian Reserved Water Rights, Federalism and the Trust Responsibility, 27
LAND & WATER L. REv. 1, 14 (1992)).
2. 207 U.S. 564 (1908).
3. See Lee Harold Storey, Leasing Indian Water off the Reservation: A Use
Consistent With the Reservation's Purpose, 76 CAL. L. REV. 179, 181 (1988); DAvID H.
GETCHES, WATER LAW IN A NUTSHELL 310 (3d ed. 1997).
4. Storey, supra note 3, at 181; GETCHES, supra note 3, at 310.
5. GETCHES, supra note 3, at 7-8.
6. Id. at316.

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