831:, results largely from these local districts or other entities. Drainage in the United States occurred in two primary developmental periods, during 1870-1920 and during 1945-1960. By 1920, more than 53 million acres (210,000 km) out of a total of 956 million acres (3,870,000 km) of US farmland had received some form of drainage. The United States Department of Agriculture (USDA), 1982 Natural Resources Inventory (NRI) inventory identified about 107 million acres (430,000 km) of wet soils as being prime or adequately drained, of which 72 percent was then cropland. (Economic Research Service, 1987.) Often, state projects are constructed under the mantle of local water project authorities, using special federal funds appropriated for these purposes. Often the local entity must agree in return for the original federal funds to maintain the project indefinitely with local funds, derived either from taxes or special assessments.
121:
847:, but under special statutory authority. Statutes governing these districts govern the authority to levy assessments, charges, or taxes. They determine the obligation of the authority to maintain. In some cases, establishment of the project, or the district, affords benefited landowners statutory rights to insist on continued maintenance of the project if statutory criteria are met. For example, a certain number of landowners might be required to petition, and make a showing that the conditions for maintenance have been met. The statutes typically provide a method of seeking
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federal legislation which says that the State
Constitution shall not limit the rights held by the Indians of Oklahoma. The Oklahoma State Constitution, as adopted in 1907,further provides that non-Indian inhabitants of the State do not have rights to Indian lands. The Five Tribes doctrine emphasizes that under federal legislation treating the Five Tribes differently from other tribes on reservations, the Choctaw and Chickasaw Tribes in southeastern Oklahoma would own all the water on their lands, and would not be subject to state authority as to its use or non-use.
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controlled by government agencies and case laws. Who has domain over water is typically based on who owns the underlying soils, but Local, State and
Federal regulations often limit the amount and type of uses to which water can be used in order to protect downstream users rights. At some point, before the water reaches the ocean it amasses sufficient size that the underlying lands become owned by the Nation or State in which they are situated. At this point (defined as the upper limits of navigation) individual rights give way to the superior rights of the public.
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reasonable and does not unduly interfere with the exercise of similar rights on the part of other abutting owners. Johnson v. Siefert, 100 N.W.2d 689, 697 (1960). Riparian rights include the right to build and maintain, for private or public use, wharves, piers, and landings on the riparian land and extending into the water. State v. Korrer, 148 N.W. 617, 622 (1914). They also include such rights as
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riparian system does not permit water to be reduced to possession so as to become property which may be carried away from the stream for commercial or nonriparian purposes. In working out details of this egalitarian concept, the several states made many variations, each seeking to provide incentives for development of its natural advantages.
488:; however, In other states surface and ground water are managed conjunctively. For example, in New Mexico, surface and ground water have been managed together since the 1950s. This trend comes from a growing scientific understanding of the formerly mysterious behavior of underground water systems. For instance, gradual
740:. The Cherokee Nation also has an interest in recovering remedies for any injuries, in regulating and taxing things concerning the environment of the Cherokee Nation. Furthermore, the Cherokee Nation claims their water rights derived from federal law and treaties were unaffected by statehood. In entering into
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doctrine. In addition, the
Supreme Court has held in past decisions that the federal government conveyed specific lands directly to Indian tribes, and that a state that later enveloped tribal land did not inherit rights to the water on that land. The Tribes also point to Oklahoma's 1906 Enabling Act,
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Southeast
Oklahoma is unique from other tribal reservation areas because of the Five Tribes doctrine. The federal government removed the Five Civilized Tribes to specific unsettled lands within the Indian Territory. At that time it also granted federal land patents to the Five Tribes and the Tribes
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The third context for water law arises from disputes regarding flooding or other invasions of private property by water. In these cases, the private party claims that private or public actions have damaged its private property, and the court must decide the nature of the respective rights of public
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upstream seeks to cut off the flow of surface water downstream and appropriate these surface waters for its exclusive use. The downstream owner claims that the upstream landowner has appropriated water that belongs to its property. A downstream owner seeks to stop the flow of excess water that will
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principles which have developed over centuries, and which evolve as the nature of disputes presented to courts change. For example, the judicial approach to landowner rights to divert surface waters has changed significantly in the last century as public attitudes about land and water have evolved.
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of the tribes. Therefore, the Court held the water rights were effectively reserved at the time of the reservation's creation. Arizona v. California also concerned the quantity of water reserved. The
Supreme Court ruled that the tribes were entitled to enough water to irrigate all the "practicable
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which requires that the corpus of flowing water become no one's property and that, aside from rather limited use for domestic and agricultural purposes by those above, each riparian owner has the right to have the water flow down to him in its natural volume and channels unimpaired in quality. The
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It is important to recognize that there are both private and public 'rights' associated with the water, but that ownership of the water under common law is likened to claiming to "own" sunlight. Water must be legally appropriated before it is 'owned', and regulations on appropriation are typically
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basin in a typical year, contributing to a severe water shortage and causing states to reach a conservation and resource-sharing agreement with the federal government. Most of the
Colorado River basin water used by humans is used to grow feed for livestock—more than four times the amount used for
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Riparian rights are generally described as the rights to use and enjoy the profits and advantages of the water. See78 Am.Jur.2d Waters § 263 (1975). The riparian owner has a right to make such use of the lake over its entire surface, in common with all other abutting owners, provided such use is
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The Court, in order to determine if case could proceed without the involvement of the
Cherokee Nation, applied Rule 19. The first step in this process determined if the Cherokee Nation was a required party, meaning that complete relief could not be offered, their absence would impede a person's
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Although there are unique state law features to water project instrumentalities, there are many features in common. Many of these districts are special improvement districts endowed by state law with the ability to collect revenues from lands that are benefited by the improvement. Often these
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in the river that interfered with the tribe's agricultural use of the water. The settlers claimed appropriative rights after the reservation had been established, but before the tribe began to use the water. The
Supreme Court held that the water rights were automatically reserved by the 1888
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watershed from poultry waste. The defendant, Tyson Foods, Inc., moved to dismiss the case because the
Cherokee Nation was not involved, though they were a required party. The ruling on this motion helped determine the standing of the Cherokee Nation concerning water rights in their region.
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At common law any rights to water must be claimed based on a claim against the land over which water flows or rests. A downstream landowner can bring an action against an upstream owner for excessively diminishing the quantity and quality of water arriving at a downstream location.
823:, irrigation, flood control, navigation and other projects. Some of these projects are constructed and managed by state and local government. But many are constructed and managed by special local improvement districts, which are special political subdivisions of state government.
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Some districts are governed by a board of elected officials. Voting rights may be based upon population within the district or in some cases based on the ownership of benefited lands. In some states, some districts are governed by existing local government entities, such as
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Indian tribes have sole rights to water only after they have determined practicable irrigable acreage (PIA). According to legal scholar Bruce Duthu, tribes must prove that the requested amount of water is needed for their land and construct facilities to save it.
449:. Colorado, where the prior appropriation doctrine first developed, was generally looked to as the model by other Western states that adopted the prior appropriation doctrine. Water law in the western United States is defined by state constitutions (e.g.,
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In addition to these rights, riparian rights may include the right to access the water, the right to use or consume, the right to use the ground of non-public waters, and the right to use land that is added to the extent of the adjoining property by
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could occur due to the interest. In this court ruling, it was determined that the
Cherokee Nation has substantial interests, such as seen in their Environmental Quality Code which shows interest in protecting the Illinois River and vindicating any
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1. The Governor is authorized, as well as any other named designee, and is allowed to enter into cooperative agreements on behalf of the state with federally recognized tribes within that state if an issue of mutual interest is being addressed.
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were authorized to issue tribal patents in the case of a transfer of their tribal land. The doctrine holds that this "permanent homeland" includes rights to all the water within it, not just enough to fulfill the land's purpose, as under the
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3. Any cooperative agreement specified and authorized by paragraph 1 that involves the surface/groundwater resources of the states or which in whole or in part apportions the ownership of those resources, shall become effective if the
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assessments are in the form of special assessments which are proportional to the increase in value afforded the benefited land by the project. Or, the local improvement district may be afforded the power to levy special
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Water project law has had, and continues to have, a significant role in the management of important water resources. For example, agricultural drainage, much of which is now responsible for maintaining a significant
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was land, and the run-off in streams or rivers was incidental. Since access to flowing waters was possible only over private lands, access became a right annexed to the shore. The law followed the principle of
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with tribes, which would be necessary to resolve the issue of water rights (especially in the case of the Cherokee Nation and Tyson Foods) the state of Oklahoma must meet explicit requirements.
212:. Some derives from the original public grants of land to the states and from the documents of their origination. Some derives from state, federal, and local regulation of waters through
271:, the value of that property is significantly affected by its water rights. And, properties located along public waters are quite common, because of the importance of public waters to
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and in Spanish law. This conception passed into the common law. From these sources, but largely from civil-law sources, the inquisitive and powerful minds of Chancellor Kent and Mr.
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Water project law: the highly developed law regarding the formation, operation, and finance of public and quasi-public entities which operate local public works of flood control,
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agreement that created the reservation. The Court assumed the Indians would not reserve lands for farming without also reserving the water that would make such farming possible.
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This court case defined the place of Native American tribes in the modern court. It involved water rights in the case of the Cherokee nation. Winters Rights do not apply to the
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has been explained with the knowledge that drawing water from a well creates a gradual seepage into the well area, potentially contaminating it and surrounding areas with
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or statute creating a reservation are property to which title is recognized. When a reservation is created by an executive order, "the tribal title is unrecognized for
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damage on the upstream owner. Each party claims that the other's conduct interferes with the rights associated with their respective ownership of the property.
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2. Approval of the Secretary of the Interior is required if the cooperative agreement dealing with issues of mutual interest involves trust responsibilities.
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from a nearby coast. Such knowledge is useful for understanding the effects of human activity on water supplies but can also create new sources of conflict.
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A number of rights may be listed as riparian rights. One court, in McLafferty v. St. Aubiin, 500 N.W.2d 165 (Minn. App. 1993), has listed the following:
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A second context for the development of water law arises from disputes among private parties over the extent of their respective water rights; e.g., a
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The ruling in this motion determined that the state did not have proper standing to proceed with this case without the Cherokee Nation's involvement.
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In re Application of Central Baptist Theological Seminary, 370 N.W.2d 642, 646 (Minn.App.1985), pet. for rev. denied (Minn. Sept. 19, 1985).
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2. When a Native American sells their allotment to a non-Native American, the purchaser acquires the allotment's reserved water rights.
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ruling also applied to this case, because a ruling in 2007 determined that water rights were reserved even in riparian jurisdictions.
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A variety of federal, state, and local laws govern water rights. One issue unique to America is the law of water with respect to
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on a body of water to use water from it. These states were the first settled by Europeans (and therefore most influenced by
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Estimated use of water in the United States in 1995 Circular By: Wayne B. Solley, Robert R. Pierce, and Howard A. Perlman
457:), statutes, and case law. Each state exhibits variations upon the basic principles of the prior appropriation doctrine.
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because there is no actual Cherokee reservation. During this July 2009 proceeding, the state of Oklahoma sought
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included a body of water doctrine known as riparian rights. As long ago as the Institutes of Justinian,
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Richter, Brian D.; Bartak, Dominique; Cladwell, Peter; Davis, Kyle Frankel; et al. (April 2020).
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of a state. This doctrine, known as the Five Tribes Doctrine, according to scholar Jennifer Pelfrey:
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Quantity of water reserved is the amount sufficient to irrigate all irrigable land on the reservation
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507:. Tribal water rights are a special case because they fall under neither the riparian system nor the
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allotee is entitled to the share of the reservation's water that is needed to irrigate their land.
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has explained the evolution of riparian principles in United States v. Gerlach Livestock (1950)
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includes an implied reservation of water rights in sources within or bordering the reservation
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Pelphrey, Jennifer. "Oklahoma's State/Tribal Water Compact: Three Cheers for Compromise. 29
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that their lands would not be included without their consent in the territorial limits or
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3. The priority date of those rights remains the date when the reservation was created.
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developed through the resolution of specific disputes is the great engine of water law.
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The law governing these topics derives from all layers of US law. Some derives from
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forms the framework within which these disputes are resolved, to some extent, but
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decision. Indian water rights do not apply to non-federally recognized tribes.
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The interplay of public and private rights in water, which draws on aspects of
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355:-- things common to all and property of none. Such was the doctrine spread by
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Water project law is the branch of state and federal law that deals with the
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4. Non-Native American allottees can lose their water rights to non-use.
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1008:"A Breakthrough Deal to Keep the Colorado River From Going Dry, for Now"
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Water Disputes arise in a number of contexts. When the state, local, or
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629:(1963), the Court had to determine water rights of tribes along the
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379:. United States v. Gerlach, supra. The Court's decision continues:
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The Arkansas River flows through the northeastern part of Oklahoma
961:"The Colorado River Is Shrinking. See What's Using All the Water"
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977:"Water scarcity and fish imperilment driven by beef production"
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made in the context of disputes between parties. Statutory and
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The riparian concept developed fully in those portions of the
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Reserved Native American water rights are commonly known as '
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drew in generating the basic doctrines of American water law.
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About 1.9 trillion gallons of water are consumed within the
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Colorado River Water Conservation District v. United States
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480:, lakes, rivers, and springs, are treated differently from
445:, which gives a water right to whoever first puts water to
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Most western states, naturally drier, generally follow the
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Based on date, users with prior appropriation dates under
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grants consent to authorize such cooperative agreement.
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whose reservations were established by both statute and
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Drinking water quality legislation of the United States
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and private parties arising from the alteration of the
1041:, p. 431-432. West, a Thompson business., Minnesota.
851:of the decisions made by the district in question.
465:states, and Mississippi have a mixture of systems.
48:. Unsourced material may be challenged and removed.
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414:, sailing, irrigating, and growing and harvesting
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1096:, p. 440. West, a Thompson business., Minnesota.
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519:Federally recognized Indian tribes and water law
484:underground water that is extracted by drilling
1083:. St. Paul: West Publishing Co., 2004. Pg. 429.
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240:system which develops legal principles through
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762:The United States historically promised the
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287:otherwise flood its land thereby increasing
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140:laws regulating water as a resource in the
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731:ability to protect the interest, or more
461:and the states directly north of it; the
343:In the middle of the Eighteenth Century,
335:) and have the most available water. The
108:Learn how and when to remove this message
1062:, p. 106-107. Viking Penguin, New York,
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701:
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855:Major legal cases in American water law
642:irrigable acreage" on the reservation.
148:Public regulation of waters, including
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1006:Flavelle, Christopher (May 22, 2023).
722:Corporation, due to the injury to the
646:Non-Native American purchaser's rights
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327:, which permits anyone whose land has
315:The Eastern states (all those east of
267:that has water rights associated with
226:non-federally recognized Indian tribes
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1131:University of Denver Water Law Review
1028:Blackstone Commentries Vol II pg. 18
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469:uses a form of riparian rights, and
46:adding citations to reliable sources
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129:crops for direct human consumption.
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578:Rights are not lost due to non-use
375:where lands were amply watered by
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1094:American Indian Law in a Nutshell
1081:American Indian Law in a Nutshell
1039:American Indian Law in a Nutshell
473:uses appropriation-based rights.
359:commentators and embodied in the
351:, like the air and the sea, were
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608:off the reservation constructed
236:The United States inherited the
57:"Water law in the United States"
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928:History of California water law
598:Fort Belknap Indian Reservation
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933:United States groundwater law
160:regulation and regulation of
1060:American Indians and the Law
959:Shao, Elena (May 22, 2023).
492:of some water supplies with
443:prior appropriation doctrine
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888:(Georgia, Alabama, Florida)
882:v. Canada NAFTA Arbitration
224:may have water rights, but
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1092:Canby, William C (2004).
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993:10.1038/s41893-020-0483-z
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220:, and other regulation. (
187:environmental degradation
1201:Law of the United States
1145:The Journal of Water Law
1058:Duthu, N. Bruce (2008).
893:Winters v. United States
594:Winters v. United States
588:Winters v. United States
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618:Arizona v. California
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757:Oklahoma Legislature
596:(1908) involved the
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383:The primary natural
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42:improve this article
1317:International Trade
900:Wyoming v. Colorado
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553:Establishment of a
437:Prior appropriation
228:generally do not.)
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138:Water resources law
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1403:Administrative law
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1209:Constitutional law
1151:2019-09-03 at the
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321:Mississippi
1362:Law school
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1222:Federalism
944:References
805:management
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463:West Coast
455:New Mexico
277:recreation
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183:irrigation
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68:newspapers
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