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December 02, 2022
The Unfulfilled
Promise of
Indian Water
Rights
Settlements
Heather J. Tanana and Elisabeth Paxton Parker
Share:
When the Ute Bands signed the
treaty establishing the Ute
Reservation in 1868, the United
States promised the Ute people
that the Reservation would be a
permanent home that would
support our people forever. The
key to carrying out that promise is
water—a fact that the Tribal
leadership has always known but
which the United States has
sometimes forgotten. —Clement
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Frost, Chairman, Southern Ute
Indian Tribe
Water is critical to all aspects of individual and
community health. And yet, an estimated 48% of
Native American homes in the United States lack
safe drinking water, reliable water sources, or
basic sanitation. U.S. House of Representatives,
Nat. Res. Comm., Water Delayed Is Water Denied
(2017). Conversely, less than 1% of the population
in the United States lacks access to safe water.
Indian Water Rights: Promoting the Negotiation
and Implementation of Water Settlements in
Indian Country, Sen. Hearing 112-634, at 11 (2012).
The pervasiveness of water insecurity across
tribal communities gained national attention
during the COVID-19 pandemic. Native
Americans experienced disproportionate rates of
COVID-19, and this elevated incidence rate was
partly attributed to the lack of clean water access.
Desi Rodriguez-Lonebear et al., American Indian
Reservations and COVID-19: Correlates of Early
Infection Rates in the Pandemic, 26 J. Pub. Health
Mgmt. Prac. 371 (2020).
While recent legislative action, such as the
Infrastructure Investment and Jobs Act, has
provided much-needed financial resources to
support tribal water infrastructure projects,
protected and secured tribal rights to water
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remain somewhat elusive. Tribes throughout the
West have significant water rights through treaty
and trust claims, many of which have yet to be
quantified. This article provides background on
federal Indian reserved water rights, explores the
promise and limits of Indian water rights
settlements, and provides recommendations for
how such settlements can be used as a tool to
further tribal interests in water.
Water Is Life
Water is necessary to obtain the highest
attainable standard of physical and mental
health. As a result, the United Nations and several
countries have recognized the right to water as a
fundamental human right. Beyond the physical
health implications, water also carries spiritual
and cultural significance for many tribes. Some
tribal beneficial uses reflect cultural and
traditional uses of water, which often are not
covered by existing beneficial uses. The state of
California has engaged with California tribes in
order to include tribal beneficial uses (e.g., the
consumption of noncommercial fish or shellfish)
in their basin-planning process. To date, the State
Water Board has established the following
beneficial use definitions to protect activities
specific to tribes and their use of Californian
waters: Tribal Tradition and Culture, Tribal
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Subsistence Fishing, and Subsistence Fishing.
However, California’s actions are the exception.
Today, water security remains a challenge on
tribal lands. The lack of water access in tribal
communities is tied to past federal policies and
reflects historical and persisting racial inequities.
“Race is the strongest predictor of water and
sanitation access,” and Native Americans are
more likely than any other racial group to face
water access issues. U.S. Water Alliance &
DigDeep, Closing the Water Access Gap in the
United States: A National Action Plan, at 22 (2019).
The federal government has special treaty and
trust responsibilities to tribes. In a series of cases
known as the Marshall trilogy, the U.S. Supreme
Court recognized tribal sovereignty—the ability
of tribes to govern their land and people—but
established a special relationship between the
federal government and tribes, similar to that of a
guardian and ward, or trustee and beneficiary.
See, e.g., Cherokee Nation v. Georgia, 30 U.S. 1, 4
(1831).
Over the course of several decades, the federal
government pushed Native Americans westward
to open up land to white settlers. In exchange for
the cessation of millions of acres of land, the
federal government typically entered into treaties
and made certain promises to tribes. Many of
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these treaties included the establishment of
reservations as a permanent homeland for the
tribes and included provisions requiring
Congress to pass laws conducive to the
permanent prosperity and happiness of the tribe.
See, e.g., Treaty with the Navajo, art. IX (Sept. 9,
1849). In Winters v. United States, 207 U.S. 564
(1908), the U.S. Supreme Court found that
establishment of a reservation also included
sufficient tribal water rights to fulfill the purpose
of the reservation, including the residential,
economic development, and governmental
needs of the tribe. Access to a clean, reliable
supply of water is necessary for any homeland to
be habitable and for any community to thrive.
Notwithstanding its duty to provide clean water
access for tribes, the federal government often
has failed to protect tribal water rights while
encouraging and supporting nontribal water
development. “[I]n the water-short West, billions
of dollars have been invested, much of it by the
Federal Government, in water resource projects
benefiting non-Indians but using water in which
the Indians have a priority of right if they choose
to develop water projects of their own in the
future.” Nat’l Water Comm’n, Water Policies for the
Future 476 (1973). However, the federal
government’s failure to fulfill its responsibilities in
the past does not absolve it of the duty to act in
the present. The U.S. Supreme Court has affirmed
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the federal government’s obligation to uphold its
treaty promises with tribes, notwithstanding its
prior failure to do so. “Unlawful acts, performed
long enough and with sufficient vigor, are never
enough to amend the law. To hold otherwise
would be to elevate the most brazen and
longstanding injustices over the law, both
rewarding wrong and failing those in the right.”
McGirt v. Oklahoma, 140 S. Ct. 2452, 2482 (2020).
Given the public health, economic, and cultural
implications, water security must be recognized
as both a human right and a treaty right,
necessary for the continued prosperity of tribes
and their members.
The fulfillment of the human and treaty right to
water should not be conditioned upon the
quantification of water rights. Indeed, can you
imagine if your water was shut off pending
resolution of all water rights in the region?
However, as discussed below, tribal water rights
settlements can be used as a tool to facilitate
clean water access for tribal communities.
An Introduction to Indian
Water Rights Settlements
The Western Water Policy Review Advisory
Commission—tasked by Congress with
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developing recommendations for western water
management for the first two decades of the 21st
century—acknowledged that “tribal water needs
often have been neglected, despite the legal and
moral obligations that underpin them.” U.S. W.
Water Pol’y Rev. Advisory Comm’n, Water in the
West: Challenge for the Next Century, at i (1998).
The Commission found that water is likely the
most valuable asset for tribes with the potential
to drive the most change, and that the extensive
size of tribal water rights “should not be
underestimated.” Nevertheless, the quantification
and development of tribal water rights pursuant
to the Winters doctrine presents challenges for
tribes, as a significant portion of tribal water
rights remain unquantified. Even for quantified
claims, lack of funding for water projects often
results in the inability to put such claims to
beneficial use. In other instances, water necessary
to satisfy tribal rights under Winters has been
fully appropriated prior to quantification of tribal
reserved water rights, and states have been
recalcitrant in refusing to reduce junior
appropriators in favor of senior tribal rights.
Tribes may pursue quantification of their water
rights in one of two ways: through litigation
(adjudication) or negotiated settlements. In 1973,
the National Water Commission recommended
that the Secretary of the Interior define and
quantify Indian water rights, and when
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warranted, recommended that litigation be
initiated by the United States on behalf of tribes
to adjudicate tribal water rights.
Litigation of tribal water rights requires
enormous expenditures of time and money to
embark on an uncertain adjudication, often in
state courts. See Colo. River Water Conservation
Dist. v. United States, 424 U.S. 800 (1976). In
general, water rights litigation is not a quick
process, and tribal water rights litigation is even
slower. Even a positive outcome in adjudication
often results in a resource unusable for many
tribes due to lack of funding to develop the water
resources. As a result, litigation has not resulted in
“wet” water for many tribes.
In the late 1970s, tribes and the federal
government explored alternative methods of
quantifying tribal water rights, leading to the
development of Indian water rights settlements.
Indian water rights settlements, also known as
tribal water rights settlements or negotiated
settlements, involve negotiations between tribes,
the federal government, states, water districts,
and private water users to quantify a tribe’s water
rights. Because quantification alone often results
in a lack of access to wet water, negotiated
settlements often include funding authorization
for infrastructure and related expenses necessary
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for tribes to facilitate access and development of
their water resources. Some negotiated
settlements have incorporated other benefits,
such as provisions relating to environmental
protection and restoration.
The federal government is involved in the
settlement process pursuant to its trust
responsibilities. The federal government
established the Secretary’s Indian Water Rights
Office (SIWRO) to “manage, negotiate, and
oversee implementation of settlements of Indian
water rights claims.” U.S. Dep’t of the Int.,
Secretary’s Indian Water Rights Office. SIWRO
encourages participation of tribes, states, and
local water users in order to facilitate
negotiations and implement settlements. Federal
projects associated with approved Indian water
rights settlements are generally implemented by
the Bureau of Reclamation or Bureau of Indian
Affairs (BIA), pursuant to congressional directives.
The tribal water settlement process generally
involves four broad steps: pre-negotiation,
negotiation, settlement, and implementation. The
time between the last three phases can span
years, particularly during the negotiation phase.
Once negotiation is completed, tribal water
settlements typically require congressional
authorization in order to implement the terms of
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the settlement and procure federal funding. In
cases where congressional approval is not
required, settlements may be approved
administratively by the secretary of the interior
or the U.S. attorney general, or, alternatively, by
judicial decree.
Tribal water settlements allow tribes to specify
application of the Winters doctrine to avoid
uncertainties surrounding beneficial use.
Settlements likewise improve the odds that tribes
will see wet water because agreements are often
paired with financial packages that afford tribes
the opportunity to develop their water, including
the opportunity for economic development.
Challenges with Tribal Water
Rights Settlements
Over the past four decades, tribal water rights
settlements have become the preferred method
for tribal reserved water rights quantification and
resolution. However, this method is not without
its challenges. The Western Water Policy Review
Advisory Committee highlighted the
shortcomings when they noted that “negotiated
settlements are not an easy solution.” Water in the
West, supra, at 3-49. Successful tribal water
settlements require parties to negotiate in good
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faith; but in reality, negotiations are often plagued
by political maneuvering and delays. For instance,
some states have used settlement negotiations to
try to pressure tribes into waiving their future
rights and other claims. Due to their ad hoc
nature, settlements typically must be ratified by
Congress, and generally involve judicial
recognition to be effective. Settlements including
infrastructure projects also require significant
federal funding, which can be restricted due to
budgetary constraints. While originally touted as
faster than adjudication, the tribal water
settlement process has slowed significantly over
the past 25 years.
Since Congress first approved the Ak-Chin Indian
Water Rights Settlement Act in 1978, the first
settlement of tribal water rights claims, only 38 of
the 574 federally recognized tribes have obtained
a formal water rights settlement, and 34 of these
settlements have been approved by Congress.
Charles V. Stern, Cong. Rsch. Serv., Indian Water
Rights Settlements (2022).
Water Settlements Should
Not Delay Access to Potable
Water
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The federal government promised tribes a
permanent homeland, conducive to the health
and prosperity of their tribal members. The
current administration has reiterated its
commitment to honoring its treaty and trust
responsibilities to tribes. Pres. Memorandum,
White House Briefing Room, Memorandum on
Tribal Consultation and Strengthening Nation-to-
Nation Relationships (Jan. 26, 2021).
Negotiated water settlements should not be a
condition to fulfilling the right to safe drinking
water. Native American households are 19 times
more likely than white households to lack indoor
plumbing. Closing the Water Access Gap in the
United States, supra, at 14. Navajo households, in
particular, are 67 times more likely than other
Americans to live without access to running
water. The Navajo Water Project; DigDeep.
Nonetheless, water settlements can (and have)
included water infrastructure projects and can
provide economic development, workforce
training, and technical support to tribes. As part
of the 2009 Navajo Nation San Juan River
Settlement, Congress authorized the Bureau of
Reclamation to construct the Navajo Gallup
Water Supply Project (NGWSP) to provide water
to the Navajo Nation, Jicarilla Apache Nation, and
the City of Gallup, New Mexico. While NGWSP
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will provide clean water access to many Native
American families in New Mexico, it did not
address water security issues faced in other areas
of the Navajo Nation. It took over a decade and a
pandemic for a settlement to be reached
regarding Navajo Nation’s water rights in the state
of Utah.
In December of 2020, following widespread
media coverage of the lack of clean water on the
Navajo Nation Reservation during the COVID-19
pandemic, Congress passed the Navajo Utah
Water Rights Settlement Act. After approval in the
U.S. House of Representatives, the Senate
expedited their vote and passage of an
appropriation package that included approval of
the Act. On May 27, 2022, the Navajo Nation
signed an agreement formalizing the settlement.
At the signing ceremony on the Navajo Nation,
U.S. Interior Secretary Deb Haaland noted the
importance of the settlement for the tribe and
their future: “As we seek to strengthen Indigenous
communities and support tribal self-governance,
today’s action and all of these investments will
help provide the Navajo Nation with autonomy
and flexibility to design and build appropriate
water projects that will address current and
future water needs.” Associated Press, Navajo
Sign Water Rights Settlement with Utah, Feds,
Indian Country Today (May 27, 2022).
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Water Settlements Must
Include Use-Based Flexibility
The impacts of climate change are increasingly
being felt across the country, with tribal
communities disproportionately experiencing
climate-related threats. Water settlements must
include use-based flexibility to allow tribes to
respond to the demands of climate change.
Tribes are active participants in addressing
climate change through innovative adaptation
and mitigation strategies. Incorporating
traditional ecological knowledge provides tribes
with unique opportunities to use this knowledge
in climate change responses. Likewise, the
inclusion of tribal communities in the
implementation process facilitates community
involvement as well as creative solutions to
address climate change. Another priority that sets
tribes apart from other climate change actors is
that tribal climate plans include efforts to
preserve cultural resources. M. Hepler & E. Kronk-
Warner, Learning from Tribal Innovations:
Lessons in Climate Change Adaptation, 49 Env’t L.
Rep. News & Analysis 11130 (2019).
In the increasingly arid American southwest, the
overallocation of water rights paired with the
impacts of climate change is creating strains on
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water systems. Reallocating water rights in favor
of tribal water rights claims results in improved
water supply reliability for all water users, even
though such reallocation may seem
counterintuitive to some, particularly to state
actors. The 2004 Arizona Water Settlements Act
exemplifies how Indian water rights settlements
can enhance water supply reliability for all users
within the region. Rosalind H. Bark & Katherine L.
Jacobs, Indian Water Rights Settlements and
Water Management Innovations: The Role of the
Arizona Water Settlements Act, 45 Water Res.
Rsch. W05417 (2009). The Act included several
innovative provisions, including alternative water
sources, surface and groundwater protections,
and tribal authority to constrain off-reservation
water use.
Access to water drives the economy for many
tribes through agriculture, energy production,
fisheries, grazing, and general support for towns
and communities. Accordingly, tribal water
settlement must include flexibility to promote
economic development. Many water rights in the
Colorado River Basin alone, encompassing
millions of acre-feet, are unresolved. Settling
these unresolved rights would not only settle a
legal right, but could also play a role in increasing
economic development opportunities for tribal
communities.
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As part of its water settlements, the Jicarilla
Apache Nation in New Mexico retained the
authority to market water for off-reservation use
to generate revenue. Jicarilla Apache Nation was
able to leverage its revenue from off-reservation
water leases to support tribal infrastructure and
garner congressional support for the Jicarilla
Apache Reservation Rural Water System Act.
While this has been beneficial for the Jicarilla
Apache Nation, very few tribes have the authority
to market water for off-reservation use and,
therefore, are deprived of a potential funding
source for further economic development,
including infrastructure projects.
Another example of potential economic
development relating to tribal water settlements
is the Colorado River Indian Tribes’ (CRIT)
proposed federal legislation to lease, exchange,
and store a portion of its water rights. The
Colorado River Indian Tribes Water Resiliency
Act of 2021 received unanimous endorsement of
the Central Arizona Project Governing Board. The
bill, introduced by Senator Mark Kelly and co-
sponsored by Senator Kyrsten Sinema, would
authorize CRIT to lease a portion of its Arizona
Colorado River allocation off-reservation for use
within Arizona for drought relief and protection
of natural habitats along the river. CRIT has the
first priority decreed water right to divert 719,248
acre-feet per year for lands in Arizona and
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California; and CRIT has access to wet water,
rather than simply paper water rights, rendering
leasing of its water feasible. Due to the Tribe’s
conservation efforts and farming efficiencies,
CRIT retains enough water to accomplish the
dual goals of serving tribal lands and leasing
water. Currently, CRIT is using part of its
allocation to assist the state of Arizona in
maintaining levels in Lake Mead, which would
continue with the bill’s passage. Tribal
Chairwoman Amelia Flores explained, “[b]ecause
we have been serious about conserving water, we
have the ability to protect the life of the Colorado
River as well as providing short term drought
relief to entities that need it. Conservation is
paramount for CRIT and the [Central Arizona
Project] and we hope S.3308 becomes law so we
can all work together and protect the life of the
Colorado River.” Press Release, Colo. River Indian
Tribes, Central Arizona Project Governing Board
Supports Landmark Federal Legislation That
Allows the Colorado River Indian Tribes to Lease
Its Colorado River Water and Provide Drought
Relief for Arizona (Jan. 2022).
Water Settlements and Their
Implementation Must Be
Expedited
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While less protracted than litigation, tribal water
rights settlements can be burdensome and
lengthy. For example, negotiations by the Fort
Peck Tribe in Montana took 20 years from
inception of negotiations to approval of the
settlement compact by the state court. Thomas
Fredericks, Developing a National Indian Water
Rights Policy, in Best Practices for Protecting
Natural Resources on Tribal Lands (2015). The
tribal water rights settlement process must be
expedited, particularly in light of the tribes that
have not yet been able to quantify their water
rights.
The negotiation process, which often is the most
drawn-out portion of the process, can be
condensed through efforts by federal, state, tribal,
and private parties. SIWRO can implement
strategies to increase efficiency and cooperation
during negotiations and encourage expedited
implementation of settlements. Congress can
expedite their ratification of proposed water
rights settlements and passage of appropriations
packages, as seen with the Navajo Utah Water
Rights Settlement Act. While the expedited
settlement of the Navajo Utah Water Rights
Settlement Act provides reason to celebrate,
whether the settlement would have been
expedited without the extensive and excoriating
media attention is debatable. Future tribal water
rights settlements should be similarly prioritized
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and enacted without the need for widespread
media attention and public pressure.
The delay in completing infrastructure projects
associated with settlements is also a challenge.
For example, construction on the NGWSP began
in 2012 and is projected to be completed by year-
end of 2024. However, project conception and
planning began decades earlier in the 1950s.
Establishing a strong working relationship
between federal and tribal employees on the
ground is critical to success.
Projects are also more likely to stay on target
when creative solutions are used to address
challenges, such as collaborating with sister
agencies. As part of the NGWSP, the BIA and
Navajo Nation worked with another federal
agency (the Indian Health Service (IHS)) to help
design a portion of the pipeline. Using a portion
of its program funding and expertise, IHS was
able to build connections from the trunkline to
part of an existing Navajo utility–operated water
distribution system. As a result, water is able to
reach unserved homes sooner, before
completion of the rest of the NGWSP.
As climate change threatens an already-scarce
resource, quantifying tribal water rights is critical
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to providing additional certainty to an uncertain
future. In order to protect the future of their
communities, it is critical that tribal water rights
move from merely theoretical paper rights to
actualized wet water rights.
ENTITY:
SECTION OF ENVIRONMENT,
ENERGY, AND RESOURCES
TOPIC:
ENVIRONMENT, GOVERNMENT
The material in all ABA publications is
copyrighted and may be reprinted by
permission only. Request reprint permission
here.
Authors
Heather J. Tanana
Wallace Stegner Fellow at the S.J. Quinney College
of Law
Ms. Tanana is a citizen of the Navajo Nation and
associate professor of law (Research) and Wallace
Stegner Fellow at the S.J. Quinney College of
Law, University of Utah. Ms. Parker is a research
associate and Wallace Stegner Center Fellow at
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American Bar Association |
/content/aba-cms-dotorg/en/groups/environment_energy_resources/publications/natural_resources_environment/2022-
23/fall/the-unfulfilled-promise-indian-water-rights-settlements
the S.J. Quinney College of Law, University of
Utah. She may be reached at
heather[email protected].
Elisabeth Paxton Parker
Wallace Stegner Center Fellow at the S.J. Quinney
College of Law
Ms. Parker is a research associate and Wallace
Stegner Center Fellow at the S.J. Quinney
College of Law, University of Utah. She may be
reached at!beth.parker@law.utah.edu.
