Visiting Scholar Works with Utton Center on E-Repository

Barbara CosensVisiting Scholar Barbara Cosens is joining forces this semester with Darcy Bushnell (`89) of the Utton Transboundary Resources Center to further develop a project Cosens conceived following a 2008 conference in Albuquerque.

The project, a Native American Water Rights Settlement e-repository, is designed to make Native American water rights settlement documents available online for those involved in or studying settlement negotiations and for those seeking ideas for creative solutions to water disputes. The repository will contain federal, state, tribal and court public documents that relate to Native American water rights settlements and will be accessed online through a traditional text search and through a web interface that includes a clickable map of the United States.

Cosens, a professor at the University of Idaho College of Law, helped organize and participated in the 2008 Winters Centennial Conference, put on by the UNM School of Law, the Utton Center and the American Indian Law Center (AILC) to mark the centennial of Winters v. United States. Winters  is a U.S. Supreme Court decision that first articulated the reserved water rights doctrine now broadly relied on by Indian tribes and federal agencies to establish and quantify rights to water. During the conference, attendees identified the need for a water rights settlement database; none currently exists.

When Cosens returned to Idaho, she began working on the project, enlisting the assistance of her students, who collected more than 600 documents. She later brought in Bushnell, director of the Utton Center’s Stell Water Ombudsman Program, which helps water right claimants understand the water adjudication process in New Mexico. They are working with Francine Hatch (`08) of the AILC and Karl Benedict with the UNM Centennial Library. Cosens is spending the spring semester at the Utton Center to work on the project.

Through a grant from the Bureau of Indian Affairs, the team is developing a map interface tool and developing and putting into place a culturally appropriate strategy for obtaining tribes’ approval for inclusion of settlement documents in the repository.

“My work is about building easy-to-use decision-support tools for people who don’t have the resources to travel and collect information,” says Bushnell. “This project will give people access to information needed to craft enduring water rights settlements. It should reduce the time required to work out the thorny Native American water questions by giving stakeholders and courts access to the challenges and opportunities that have been experienced by others.”

In the 1908 Winters case, the U.S. Supreme Court held that Native American tribes have reserved rights to water to fulfill the purposes of their reservations. Since the 1970s, the primary method of resolving disputes concerning the quantification, use and management of reserved rights has been through settlements. To date, 29 Native American water rights settlements have been achieved that affect water use and management on major river systems in the western United States and give tribal government a new voice in water management. Twenty-one more settlements are in progress and the water rights of many more tribes must still be addressed.

“These settlements, entered over the past four decades, are the products of the hard work, creative problem solving and dedication of representatives of tribal, federal and state governments, water user communities and environmental interests,” said Cosens. “The compilation of their work provides an invaluable historic record that should be available to future generations seeking to solve problems of water allocation. This collaboration among the University of Idaho Waters of the West Program, the University of New Mexico, the Utton Center and the American Indian Law Center is intended to preserve this information so that others may learn.”

March 30, 2012