Abstract

Excerpted From: Ada Montague Stepleton and Sapphire Carter, Strange Bedfellows: States, Tribes, and Water Rights, 47 Public Land & Resources Law Review 77 (2024) (183Footnotes) (Full Document)

Every human requires water to survive. The United Nations recognizes water as a fundamental human right. Water is also fundamental to sovereignty. Yet, in the United States, access to water for tribes is complicated by the country's origin. Through treaties, congressionally ratified agreements, and executive orders, tribes ceded claims to vast amounts of land and water. These cessions allowed settler colonialists to form a federation of states, but not all tribal claims were relinquished; some were reserved. Today, processes to recognize, quantify, and enforce the water rights reserved by tribes in those original treaties, agreements, and orders remain tenuous and complex - particularly as compared to state water right adjudications. That said, when processes succeed in recognizing federal reserved Indian water rights, they can create net benefits for both tribal and state interests, such as drought management, infrastructure improvements, and equitable apportionment between jurisdictions.

Unfortunately, state administrations generally do not address federally reserved Indian water rights, also called Winters rights. This omission stands in sharp contrast to the fact that Winters rights often formed the legal fabric from which a state's water resources were able to be cut. States without processes to recognize and enforce Winters rights risk over-appropriating their water resources. By doing so, they may open themselves up to legal claims to water by tribes under state, as well as federal, law and may perpetuate a cloud on the title of later-created state-based water rights that could impact the durability and value of those rights. This article offers insights on how states have, or have not, recognized and accounted for Winters rights. It concludes that despite strained histories, tribal-state relations may hold underappreciated potential for collaborative solutions to water access in a time of extreme climate change.

Part II of this article explains the research methods used to survey the existing status of state recognition of federal reserved Indian water rights. Part III provides an overview of the legal foundations for Winters rights and describes how state administration systems generally account for them. Part IV describes our findings based on researching what specifically states have done to recognize Winters rights. Part V concludes that collaborative processes between tribes and states to address water access may allow for some unusual optimism regarding today's growing water management challenges. Collaborative processes used to address competing claims to water have already increased water conservation, improved water delivery infrastructure, and cultivated effective ways to mitigate the effects of rapid climate change on water resources. However, there remain huge differences between states and tribes that may prevent forward progress in a collaborative setting. Ultimately, this article calls for greater appreciation of these differences in hopes of improving water access for all.

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Tribal access to water in the United States has a complicated history based on this country's origins of dispossessing tribes of their land and waters. Winters rights have proven difficult to assert, impacting tribal sovereignty by muddling tribal control of water access, and the related ability to promote tribal health, wellbeing, and economic development. Climate change greatly exacerbates access issues with increased hydrologic uncertainty, compounding the legal ambiguities of asserting and enforcing Winters rights. Today, states and tribes are both experiencing unprecedented pressure to address their various water issues due to increased demand and a more variable supply.

This article asserts that collaborative processes to account for federally reserved Indian water rights offer unique potential in today's growing water management challenges. The human right and biological need for water imposes ethical and legal obligations on all sovereigns. Tribes can benefit from the important features of Winters rights, such as non-abandonment, seniority, and entitlement to all the water needed to fulfill the purposes of the reservation. States can also benefit from recognizing Winters rights by clearing any clouds on state-based water right titles, preventing decades of litigation, and exploring creative problem solving by working with tribal neighbors to address issues like drought response, irrigation system management, and infrastructure repair.

However, Winters rights are only as good as the state and federal processes by which they can be asserted. To date, solutions have been achieved through settlements and adjudications resolving some water access issues, but many remain. States with identifiable processes to quantify, adjudicate, and settle Winters rights provide needed certainty for all water rights holders during climate change. Other states have created government-to-government relation structures with tribes around water management that may also offer a new way to approach equitable access by including tribes in water management decision-making. Better listening to, learning from, and empowering Indigenous leadership on water use and management appears to be an important and underappreciated aspect of grappling with our shared future and, ultimately, a shared responsibility to ensure access to water for all. The question remains - how best to do so? This article attempted to answer that question by surveying what states have done, but more research is needed, particularly through an Indigenous lens.

Ada Montague Stepleton is a staff attorney at the Native American Rights Fund.

Sapphire Carter is a Chippewa-Cree Tribal Citizen from the Rocky Boy's Reservation and a second-year law student at the University of Montana Alexander Blewett III School of Law.