Articles

Tribes as Essential Partners in Achieving Sustainable Governance

Elizabeth Burleson

Pace Law School ; London School of Economics (LSE)
LEGAL STRATEGIES FOR GREENING LOCAL GOVERNMENT, Hirokawa & Salkin, eds., ABA, 2012
FSU College of Law, Public Law Research Paper No. 481

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Indigenous peoples have modeled sustainable development around the world. Incentivizing the innovation and instillation of wind, solar, and other renewable energy sources can come in the form of public funding, including renewable portfolio standards, feed in tariffs and green tag programs. This article analyzes ways in which tribal communities are helping to expand cooperative good governance.

Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner as a State

Marren Sanders

Phoenix School of Law
July 30, 2009
William Mitchell Law Review, 36 Wm. Mitchell L. Rev. 533 (2010)

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This article examines the “Treatment as a State” (TAS) provision of the Clean Water Act and the requirements that Native nations must satisfy in order to exercise their sovereign right to environmental regulation within the reservation. To gain TAS status and set their own water quality standards (WQS), Native nations must prove that they have a functioning tribal government with authority and capacity to regulate. Therefore, tribes considering taking the TAS step must critically evaluate their internal capacity to do so. The establishment of tribal WQS offers significant advantages to Native nations, but also very real risks as they face legal and legislative uncertainty and jurisdictional challenges. It concludes that despite a history of colonization and assimilation, tribes can and are playing a critical role in the sustainability of clean water in Indian country. Building infrastructure is not an easy task. However, for many tribes the challenge may be worth the risks.

Unconventional Waters: The Quiet Revolution in Federal and Tribal Minimum Streamflows

Michael C. Blumm

Lewis & Clark Law School
Ecology Law Quarterly, Vol. 19, p. 445, 1992

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The most contentious natural resource issue in the West involves streamflows. Legal rights to streamflows were long nonexistent under the region’s dominant water law doctrine of prior appropriation, which historically required a diversion for a recognized water right (thus supplying no legal protection for streamflows). Prior appropriation also ignored long-range planning, conservation, water quality, the needs of Indian tribes, recreation needs, and wildlife habitat, among other things. For these reasons, many think prior appropriation is out-of-step with modern values.

Perhaps the polar opposite of state prior appropriation laws is the federal reserved rights doctrine, a judicially created principle aimed at protecting the purposes of federal reservations. These federal water rights require neither diversions nor conformance to state law definitions of beneficial use, and therefore offer opportunities to protect streamflows, especially in view of the fact that reserved rights often trump prior appropriation rights. Also threatening to destabilize Western prior appropriation rights are regulatory measures under federal statutes like the Clean Water, Endangered Species, and Federal Power Acts.

This article surveys developments in federal reserved and regulatory water rights which may threaten established Western water rights. The article forecasts the dawn of a new era in which states will have to accommodate these unconventional water rights.

Using Plenary Power as a Sword: Tribal Civil Regulatory Jurisdiction under the Clean Water Act after United States v. Lara

Ann E. Tweedy

Hamline University School of Law
March 5, 2005
Environmental Law, Vol. 35, p. 471, 2005

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This essay examines the implications of the Supreme Court’s decision in United States v. Lara for tribes seeking Treatment-as-State (TAS) status under the Clean Water Act (CWA). It concludes that, because the CWA recognizes and affirms tribal sovereignty over water quality, the CWA should be read, under Lara, to legislatively restore tribal sovereignty over water quality. First, this article delineates the pre-Lara requirements, for TAS status and examines the interpretation adopted by the Environmental Protection Agency (EPA) of the CWA’s TAS provisions. Second, the article explains (1) Lara, (2) its implications, and (3) the context of prior Supreme Court cases on tribal sovereignty. Finally, this essay argues that the CWA’s plain language, its legislative history, and its other provisions support a reading of the Act as restoring tribal sovereignty in the context of water quality.

Tribal Sovereignty Over Water Quality

Jessica Owley

SUNY Buffalo Law School
2004
Journal of Land Use & Environmental Law, Vol. 20, p. 61, 2004

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This article investigates the use of section 518 of the Clean Water Act, the “Treatment As State” provision, which enables Indian tribes to exercise rights and obtain privileges under the Clean Water Act in the same manner as states are able to. The article details the evolution of section 518 and the evolving nature of tribal jurisdiction over nonmembers and the Environmental Protection Agency’s interpretation of the statute. The EPA’s failure to acknowledge either the statute’s affirmation of tribal sovereignty or the statute’s clear delegation of federal authority to tribes has created uncertainty leading to inaction on the part of the EPA, tribes, and states. The article proposes a compromise: removal of tribal enforcement actions to federal courts enabling enforcement of tribal law while allaying fears regarding potential inadequacy of tribal courts

Borders and Discharges: Regulation of Tribal Activities Under the Clean Water Act in States with NPDES Program Authority

Robin Kundis Craig

University of Utah S.J. Quinney College of Law
2000
UCLA Journal of Environmental Law & Policy, Vol. 16, No. 1, 2000

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Under the federal Clean Water Act, qualifying tribes can receive treatment-as-a-state status (TAS), which allows them to set water quality standards, certify that certain discharges meet those water quality standards, and, after delegation from the Environmental Protection Agency (EPA), administer the Act’s National Pollutant Discharge Elimination System (NPDES) permitting program. The EPA generally regulates tribal activities for Clean Water Act purposes before a tribe receives TAS status. However, a number of jurisdictional issues remain unclear, especially where the state has been delegated permitting authority and the tribes within that state are in various stages of receiving TAS status.

Discussions of these issues to date have focused on downstream tribes that enacted more stringent water quality standards than did the EPA in states without delegated Clean Water Act authority. As a result, several issues remain to be resolved in states with permitting authority, such as where a particular discharge is located, whether the location is the same for permitting and certification, and what is the effect of state ownership of relevant water bodies bordering on and within reservations. These may become critical questions in states where the state, the EPA, and the various tribes have claims to permitting or certification authority for a certain discharge.

It also remains to be seen whether the EPA, the courts, or the affected states and tribes themselves will be the most effective in resolving the inevitable disputes. Thus far, the general pattern has been for the EPA to resolve the conflict and for courts to follow its lead. The EPA has not committed itself to the role of binding arbitrator, however, and this area of law could become quite complex and unpredictable without an overarching,coherent view of state-tribal relations to protect water quality. As such, state-tribal compacts could offer the best path to comprehensive,peaceful, and logical water quality regulation.

Policy Questions Concerning Tribal Water Marketing

Denise Fort

University of New Mexico School of Law
January 9, 2012
30th Annual Water Law Conference, February 2012
UNM School of Law Research Paper

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Pressures to market water rights are growing, especially because municipal and industrial users can pay higher prices for water rights than can traditional agricultural uses. Water rights held by tribes are different in some key respects from water rights held by nontribal entities, in that a tribe’s ability to lease water rights is dependent on Congressional approval. The sale or lease of water rights by nontribal entities generally requires approval of a state agency. Sales and leases are becoming accepted tools of water management in many western states. Tribal water rights tend to be established through settlements. Settlements provide benefits to multiple parties, often involve federal funding for new water projects, and must be approved by the Congress. Thus, it is possible for tribes to obtain Congressional authorization for leasing as part of water settlements. But, tribes must affirmatively bargain for the ability to market water as part of proposed settlements, thereby reducing their position in settlements. Should there be a presumptive right in tribes to market water, and, if so, should there be an opportunity for involvement by other stakeholders in the review of specific leasing proposals? Second, state’s strenuously guard their water (as defined by compacts, etc.) against interests in other states. Should tribes be constrained by these interests, or should interstate marketing be permitted when a tribe can receive greater compensation for a transaction with an entity in a different state?

Statement of Judith V. Royster, Professor and Co-Director, Native American Law Center, University of Tulsa College of Law Before the Committee on Indian Affairs United States Senate: March 15, 2012

Judith Royster

University of Tulsa College of Law
November 20, 2012
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Overview of advantages and disadvantages of water rights settlements for Indian tribes.

Transcending Sovereignty: Locating Indigenous Peoples in Transboundary Water Law

Jennifer L. Archer

Archer Law Corporation
January 27, 2012
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All people rely upon water for life. Indigenous peoples are especially vulnerable to water conflicts and yet lack recognition in international water law. This thesis adopts Critical Race Theory to examine the intersection between transboundary water law, the doctrine of sovereignty and the international law of Indigenous peoples. The methodology adopted in this thesis includes: (i) a deconstruction of the UN Watercourse Convention and the doctrine of sovereignty; (ii) a review of Indigenous perspectives on sovereignty; and (iii) a proposal for the reconstruction of transboundary water law in a manner that recognizes the internationally affirmed rights of Indigenous peoples.

A deconstruction of the UN Watercourse Convention and related discourse reveals that state-centric approaches to transboundary water law fail to recognize Indigenous peoples’ international rights or the pivotal role that Indigenous peoples’ traditional knowledge might play in transcending conflict. Case examples are provided (Columbia River and Tsangpo-Brahmaputra River) that illustrate the vulnerability of Indigenous peoples in the face of state development agreements. The inequities that exist in international water law are rooted in the historical doctrine of sovereignty which has evolved to subordinate Indigenous peoples’ interests to state interests.

Indigenous perspectives regarding sovereignty provide a counter-point to the dominant legal discourse and weave an alternate narrative that challenges the myth of objectivity and neutrality that surrounds the doctrine of sovereignty and international law generally. Once we recognize that sovereignty is a social construct, we can recognize our collective ability to reconstruct international laws in a manner that transcends the sovereign discourse and recognizes the rights of Indigenous peoples. Endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is indicative of states’ commitment to recognize Indigenous peoples’ rights throughout the international legal system.

This thesis concludes by offering a proposal for reconstructing transboundary water law through a return to ethics and coalition building. Future reform should be directed towards (a) articulating an international water ethic with the critical engagement of Indigenous peoples; and (b) ensuring that river basin organizations are established on every transboundary river in a manner consistent with this shared international water ethic.

Water Pressure: Defending Indigenous Peoples’ Right to Water in British Columbia

Jennifer L. Archer

Archer Law Corporation
April 13, 2011

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Water is the origin of life. It is necessary for agriculture, industry, fishing, and power in British Columbia (BC). Everyone has a vested interest in ensuring BC’s water security. It is, however, a particularly pressing issue for Indigenous Peoples. Their struggle for water sovereignty is a quest for freedom and for self-determination of one’s life and livelihood. It is inextricably linked to Indigenous fishing rights, agriculture, economic development, cultural integrity and spiritual continuity. First Nations peoples in BC cannot realistically enjoy and exercise their constitutionally protected rights and freedoms without water sovereignty.While First Nations’ right to water has never been expressly codified, there are currently several developments on the international, federal and provincial fronts that are setting the stage for a growing conflict over water in BC. On the international front, the United Nations General Assembly has passed a general resolution on July 28, 2010 confirming that access to clean water is a human right; in September 2010, the Human Rights Council affirmed its legal enforceability. In November 2010, Canada endorsed the UN Declaration on the Rights of Indigenous Peoples. Federally, Bill S-11 The Safe Drinking Water for First Nations Act was introduced May 26, 2010 and passed second reading in the Senate in December 2010. Provincially, the BC Government released its Policy Proposal on British Columbia’s new Water Sustainability Act in December 2010. This paper examines these recent international, federal and provincial developments within the context of First Nations peoples’ right to water in BC.

Testing the Waters: Jurisdictional and Policy Aspects of the Continuing Failure to Remedy Drinking Water Quality on First Nations Reserves

Constance MacIntosh

Schulich School of Law at Dalhousie University
2008
Ottawa Law Review, Vol. 39, No. 1, 2008

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This paper considers why, from a policy and legal perspective, there is such a disparity between the water quality on First Nations reserves, and that experienced in the majority of other Canadian communities. This involves engaging with how jurisdictional allocations, governmental policies, statutory or policy-delegated mandates, and operational practices converge. In this discussion, two inter-related tensions emerge. The first is between Aboriginal aspirations to self-govern and community capacity to effectively engage in governance activities. The second is Canada’s proper role and responsibilities in resolving the governance/capacity tension, and in resolving the water quality problems.

Public Health Protection and Drinking Water Quality on First Nation Reserves: Considering the New Federal Regulatory Proposal

Constance MacIntosh

Schulich School of Law at Dalhousie University
July 4, 2009
18(1) Health Law Review 5

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In January 2009, the federal government issued a discussion paper that details its preferred regulatory route for enabling a legislative framework. This route is to referentially incorporate provincial legislation regarding operational standards through a framework statute, and then develop the details of the regime through regulations to be developed in consultation with First Nations over the next few years. Importantly, the opening sentence of the discussion paper’s executive summary expressly connects water and public health. It reads: “The provision of safe drinking water and the effective treatment of wastewater are critical in ensuring the health and safety of First Nations people and the protection of source water on First Nation lands. Below I sketch out the current conditions and how the federal proposal suggests engaging these conditions. I conclude that although regulated standards will undoubtedly bring about improvements to public health, the proposal misses some key issues. One major failing is that the proposed regime does not address off-reserve source water protection. I suggest routes to amend this issue.

The Recognition of Indigenous Customary Law in Water Resource Management

Donna Craig, Elizabeth Gachenga

July 30, 2010

Water Law, Vol. 20, Nos. 5/6, p. 278, 2010

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There is an inextricable link between indigenous rights, human rights and sustainable development. In this paper we consider the role of indigenous customary law in the sustainable management of water resources. We propose legal pluralism as the more effective context for recognition of indigenous customary law for sustainable water resource management as opposed to functional recognition or other minimalist forms of recognition.

Holy Water and Human Rights: Indigenous Peoples’ Religious Rights Claims to Water Resources

Rhett Larson

Arizona State University College of Law
April 23, 2011
Arizona Journal of Environmental Law & Policy, Vol. 2, p. 81, 2011

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Water, perhaps more than any other natural resource, has profound religious meaning: in ceremonial uses, as a spiritual symbol, and as an object of worship. The scarcity of legal scholarship regarding the nexus between religious rights and water law is therefore curious. This paper examines that nexus and its implications in the context of indigenous peoples and international law. The international human right to water has developed as an implicit right necessary to securing jurisprudentially underdeveloped positive rights explicitly provided for under international human rights covenants, such as the right to a standard of living, but can also be built upon the foundation of broadly accepted, jurisprudentially mature civil rights, like the freedom of religion. Grounding the human right to water on such a foundation has important implications for indigenous peoples’ religious-rights-based claims to water resources. The stability of such claims depends upon effective frameworks within which international tribunals can adjudicate such claims. Ultimately, this Article evaluates the development of the international human right to water, discusses the nexus of that right with religious rights in the context of indigenous peoples’ water-resource claims, and proposes frameworks for evaluating those claims. The formulation and interpretation of water law requires greater consideration of the cultural meaning of water to promote cooperation within the watershed and to protect natural and cultural resources.

Water, Worship, and Wisdom: Indigenous Traditional Ecological Knowledge and the Human Right to Water

Rhett Larson

Arizona State University College of Law
January 20, 2012
ILSA Journal of International & Comparative Law, Forthcoming

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The relationship between religion and water, whether as spiritual symbol and ceremonial source, is virtually universal. This relationship is often very strong in the religious practices and beliefs of indigenous peoples, who typically have a strong spiritual connection to their traditional lands and waters. This connection is often manifested in “traditional ecological knowledge” (“TEK”), socially-beneficial environmental management practices and information transmitted by cultural, and often religious, tradition. As indigenous communities and the ecological integrity of indigenous traditional waters are threatened, indigenous people may turn to claims under international human rights as a means of protecting water resources and securing water rights. The current approach to the international human right to water is likely to prove inadequate for indigenous people to achieve protection of water quality and an equitable apportionment of water resources. A new approach to the human right to water, grounded in religious rights and religiously-based TEK, could provide a stronger protection for indigenous water rights and the water quality of traditional indigenous waters. This Essay proposes such an approach, as well as a framework for international courts to adjudicate indigenous religious rights-based claims to water resources.

‘The Human Rights of the San (Bushmen) of Botswana – The Clash of the Rights of Indigenous Communities and Their Access to Water with the Rights of the State to Environmental Conservation and Mineral Resource Exploitation’

Jeremy Sarkin, Amelia Cook

University of South Africa

August 3, 2012
Journal of Transnational Law & Policy, Vol. 20, 2010-2011
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In July 2010, the High Court of Botswana ruled against the San, often called pejoratively “Bushmen” or Basarwa, denying their right to access water on their ancestral lands inside the Central Kalahari Game Reserve (CKGR). During the June 9, 2010 hearing, the San requested that either the existing borehole on their land be reopened or that they be given permission to drill another borehole at their own expense. This court’s decision represented another step in the ongoing and protracted legal dispute between the Government of Botswana (GOB) and a group of San peoples formerly living inside the CKGR. Since 1996, when the GOB began its forced-removal campaign against the San living within the CKGR, the San have been fighting to regain access to their land. At the same time, the GOB has granted diamond-mining licenses in the Reserve on the condition that any water borehole “be utilized strictly to provide water for the mine.” The San contend that this condition specifically aims to deny them access to water from the mine.

The water issue must be seen in the context of the San’s struggle to live and pursue their livelihoods on their land, butting heads with the GOB’s desire to allow diamond mining in the Reserve. While the GOB has argued that the San’s presence in the CKGR impedes conservation efforts, the United Nations (UN) Special Rapporteur on Indigenous Rights stated in a 2010 report that the GOB’s position is “inconsistent with its decision to permit Gem Diamonds/Gope Exploration Company (Pty) Ltd. to conduct mining activities within the reserve, an operation that is planned to last several decades and could involve an influx of 500-1,200 people to the site, according to the mining company.”

At the same time, the right to water as an internationally recognized human right has gained increasing support. On July 28, 2010, the UN General Assembly adopted a resolution recognizing access to clean water and sanitation as a human right. The resolution called on “States and international organizations to provide financial resources, build capacity and transfer technology, particularly to developing countries, in scaling up efforts to provide safe, clean, accessible, and affordable drinking water and sanitation for all.” One hundred twenty-two states voted in favor of the resolution and none voted against it, while forty-one states, including Botswana, abstained.

This Article begins by reviewing the historical relations between the ruling Tswana ethnic group and the San from the time that the Tswana settled in Botswana roughly 700-800 years ago to the present day, in which the Tswana and their allies continue to dominate the political sphere. The history of the CKGR, which is central to the current debate of land and water rights for the San there today also is reviewed. Before introducing the court case, in which the San protested their eviction from the CKGR before the High Court of Botswana, the legal system in Botswana is discussed. The Article reviews and analyzes the findings of the High Court then discusses the GOB’s failure to comply with many aspects of the 2006 ruling and what this will mean for the San. It further explores the issue of human rights violations with respect to the San people of the Kalahari. It also discusses the implications this case — and the legal battle it gave rise to — have for other indigenous land rights cases and the protection of indigenous rights across Africa.

While this Article focuses specifically on the plight of the San inhabitants of the Central Kalahari, the G/wi and G//ana, it is crucial to note that all San groups in Botswana, who are represented by many distinct linguistic and cultural groups, suffer marginalization and discrimination to varying degrees at the hands of the GOB and Botswana society. They “are widely recognized as the most impoverished, disempowered, and stigmatized ethnic group in southern Africa.”

The Article discusses the implications of the current status of the San in Botswana. It analyzes the need for the GOB to address the general situation of the San and makes recommendations regarding how Botswana can protect and promote the unique value of the San in such a way that will complement its image, help drive its economy, and assist its goals of environmental protection, while at the same time improving the San’s vulnerable position in its society. The Article concludes that the current state of affairs of the San will not benefit Botswana in the long run, and that at the same time, it poses a legitimate and potentially detrimental threat to the country’s international image.

The Federal Role in Water Resource Management

James L. Huffman

Lewis & Clark Law School
NYU Environmental Law Journal, Vol. 17, No. 1, 2008
Breaking the Logjam: Environmental Reform for the New Congress and Administration Paper
Lewis & Clark Law School Legal Studies Research Paper No. 2009-18

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This article argues that, while we have figured out how to store water behind massive dams, move water over hundreds of miles, use less water for greater productivity, purify and reuse polluted waters, prevent the pollution of pristine waters and even reverse the flow of some rivers, we continue to fight over who gets the water and how it is used. To address this last problem, the author offers an ambitious set of proposals for federal water policy, including federal apportionment of all significant interstate rivers that are not yet apportioned, clarification of federal and Indian reserved water rights, and the establishment of a national market in water. He emphasizes, though, that states have historically provided the core water law systems and should continue to do so.

Indian Treaties and the Survival of the Great Lakes

Matthew L. M. Fletcher, Wenona T. Singel

Michigan State University College of Law
December 22, 2006
MSU Legal Studies Research Paper No. 04-14

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Federal and state statutory and regulatory protections do not appear to be the answer to preventing the calamity ongoing in the waters of the Great Lakes. To fill in the gap, environmental advocates and scholars devote much of their attentions to the public trust doctrine, first articulated in this context by Joseph Sax. There is little attention devoted to the insights of Indian tribes or the potential legal benefits of invoking Indian treaty rights. The Supreme Court has long affirmed the supremacy of Indian treaty provisions and, while the Court’s interpretation of some treaties has been cramped at best, the Great Lakes and Pacific Northwest treaties have been interpreted in a manner that suggests there is room to provide for protection of major water bodies.

We propose to incorporate Indian treaty jurisprudence into the strategy for saving the Great Lakes. The interests of the parties tend to be the same – the preservation of the resource. Indian treaties negotiated by Indian peoples that relied on water as a means of survival – economic, cultural, and political – provide a potential (and as yet untested) legal tool for the preservation of major water bodies such as the Great Lakes.

Indian Water Rights: Litigation and Settlements

Robert T. Anderson

University of Washington School of Law
Tulsa Law Review, Vol. 42, No. 1, 2006

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This paper provides a brief review of modern federal Indian water right settlements, with a focus on the Snake River Basin Adjudication Water Rights Settlement Act of 2004 (Nez Perce Tribe). It critiques the Federal Administration’s use of the Criteria and Procedures for Indian Water Settlements, which have been in place since 1990. It offers some suggestions for improvement in federal policies regarding financial contributions to Indian water rights settlements.

American Indians, Climate Change, and Ethics for a Warming World

Sarah Krakoff

University of Colorado Law School
August 20, 2008
Denver University Law Review, Vol. 85, No. 865, 2008
U of Colorado Law Legal Studies Research Paper No. 08-19
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American Indian tribes and people have contributed very little to the causes of global warming, yet for geographic, cultural, and demographic reasons, they stand to suffer disproportionately from global warming’s negative effects. A recent study, Native Communities and Climate Change, prepared by the Natural Resources Law Center at the University of Colorado Law School, documents that these effects include, among others, threats to traditional hunting and gathering, destruction of tribal villages in Alaska, increased pressure on tribal reserved rights to water in the arid Southwest, and inundation of reservation lands in Florida. The disproportion between tribal contributions to global warming and the negative impacts on tribes qualifies this as an environmental justice issue. As the Native Communities and Climate Change Report suggests, a complex of legal rights, in conjunction with Congress’s moral obligation to tribes, provides the foundation and incentive for the federal government to take action to address these impacts. Yet as important as it is to highlight its environmental justice aspects, global warming’s spatial and temporal dispersions render it a global and intergenerational collective action problem that is not susceptible to typical environmental justice solutions. Addressing the disparate effects warming will have on tribes and other disadvantaged communities leads us into these potentially tragic features of climate change, and requires us to articulate an ethical framework that would support global efforts to mitigate (i.e. reduce and eventually eliminate) human contributions to global warming, as well as to assist tribal communities in the already inevitable need to adapt to a warming world. Ultimately, solutions, if they are to take seriously environmental justice claims as well as the impacts at large, lie in the realm of sustainability. This brings us to the significant problem that, despite decades of discussion about sustainability and what it means, we have done relatively little to implement or achieve it. Why, then, should anyone bother to try? The answer lies in the kinds of lives we want to lead, the norms we want to aspire to, and the virtues we want to cultivate, irrespective of whether we will ever have any certainty that either the specific injustices suffered by American Indians or the broader effects that everyone will endure as a result of climate change will be redressed or avoided. Not coincidentally, a philosophical worldview that we might turn to for instruction as we navigate this new terrain is that embraced by many American Indian tribes. Attachment to place and community, and the daily rituals that entails, may be key not only to understanding the disproportionate effects of climate change on American Indian tribes, but also to formulating an ethic for all of us to live by in a world requiring skills, flexibility, and engagement of a kind that we can only barely imagine. This article explores these themes by examining the distinct effects of climate change on the four American Indian tribes discussed in the Native Communities and Climate Change report, then delving into the difficulties surrounding achieving a global solution to climate change, and finally circling back to the ethic embraced by many American Indian tribes that might provide a blueprint for behavior in a warming world.

The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the Mccarran Amendment Era: A Promise Unfulfilled

Michael C. Blumm, David H. Becker, Joshua D. Smith

Lewis & Clark Law School
Environmental Law, Vol. 36, p. 1157, 2006
Lewis & Clark Law School Legal Studies Research Paper No. 2007-1

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Western state water law has been notorious for its failure to protect streamflows. One potential means of providing the missing balance in western water allocation has always been Indian water rights, which are federal rights reserved from state laws. These federal water rights normally have priority over state-granted rights because they usually were created in the 19th century, well before most Western state water allocation systems were even established.

Over two decades ago, in 1983, Justice William Brennan assured Indian tribes that their reserved water rights would not be compromised by subjecting them to state court adjudications under the so-called McCarran Amendment, an appropriations rider given expansive interpretation by the Supreme Court in the 1970s and 1980s. Justice Brennan’s belief that state courts – comprised largely of elected judges – could treat tribal claims evenhandedly, despite the high stakes and entrenched interests involved in Western water rights adjudications, has never been evaluated.

This study aims to begin to fill that gap by examining the results of six Western water right adjudications – five of which were decided by state courts – involving the Klamath, Wind, Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The results suggest that Justice Brennan’s optimism was quite misplaced: in none of the cases studied did a court order restoration of streamflows necessary to fulfill the purpose of the tribe’s reservation. Instead, the state courts created a number of new legal principles to limit or diminish tribal water rights, in an apparent effort to reduce the displacement of current water users.

The paper concludes that in the McCarran Amendment Era tribes must resort to extrajudicial means of restoring streamflows necessary to fulfill the purposes of their reservations. It shows how some tribes have employed settlements – and even state law – to achieve partial streamflow restoration, which is all that now seems possible in an era in which their claims are usually judged by skeptical state court judges who face reelections in which entrenched water users exert considerable influence.

Indian Water Rights, Practical Reasoning and Negotiated Settlements

Robert T. Anderson

University of Washington School of Law
July, 29 2010
California Law Review, Forthcoming

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Indian reserved water rights have a strong legal foundation buttressed by powerful moral principles. As explained more fully below, the Supreme Court has found implied reserved rights when construing treaties and other legal instruments recognizing or creating tribal reservations when access to water is necessary to fulfill the purposes behind establishing the reservation. The precise scope and extent of these rights in any treaty are unknown until quantified by a court ruling or an agreement ratified by Congress. When litigation is the quantification tool, tribal claims are generally caught up in massive general-stream adjudications. These adjudications are massive because to obtain jurisdiction over the Indian water rights (and over the United States as trustee to the tribes), states must adjudicate all claims to a given river system; they may not engage in piecemeal litigation of only the Indian and federal claims. The result can be that there are thousands of state water right holders who must be joined as parties to exceedingly complex litigation that takes too long and costs too much. Moreover, even when such adjudications are litigated to a conclusion and tribes win a decreed water right, such a “paper right” may do little to advance tribal needs without the financial ability or the infrastructure to put the water to use. At the same time, the general failure of the United States to assert and protect tribal rights until the 1970s, along with its zealous advancement of competing non-Indian uses, created expectations among non-Indians that their state-law water rights were secure. In fact, many non-Indian rights are far from secure.

This article first reviews the Indian water rights issues that the Supreme Court has decided. The article then traces a critical issue common to Indian water rights litigation in the federal and state courts: how to determine the purposes of the reservation for which a reserved water right should be implied. The review of Indian water rights cases demonstrates the generally confusing state of the law in significant respects, especially with regard to the “purposes” determination. The relative uncertainty in this context fits neatly into the portions of Professor Frickey’s scholarship that call for less litigation and more sovereign-to-sovereign negotiation. Finally, the article reviews the approach taken by the parties and Congress in several recent Indian water rights settlements. There have been over two dozen Indian water rights settlements since the 1970s, each usually preceded by years of litigation. Given the Supreme Court’s abandonment of long accepted substantive and interpretive rules of Indian law, many tribes now prefer government-to-government negotiations for settling natural resource disputes in lieu of “all or nothing” litigation.

Indian Tribal Rights to Groundwater

Judith Royster

University of Tulsa College of Law
Kansas Journal of Law & Pubic Policy, Vol. 15, p. 489, 2006

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There are a number of methods or analyses under which Indian tribes may claim rights to groundwater. Several tribes have asserted rights to groundwater as part of their federally-reserved water rights under the Winters doctrine. Untested so far is an alternative theory of reserved rights under the Shoshone rule that constituent elements of trust land are, like the land itself, held in trust for the tribes. In addition, state law groundwater rights, based on ownership or use, should be available to tribes that wish to assert them. And finally, several water settlement acts address tribal rights to groundwater as well as surface water. This article surveys those approaches to Indian rights to groundwater.

Indian Water Rights and the Federal Trust Responsibility

Robert T. Anderson

University of Washington School of Law
Natural Resources Journal, Vol. 46, No. 2, 2006

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Although federal policy shifted from assimilation to pro-tribal positions, the federal courts have quite consistently supported Indian reserved water rights. Indian water rights, however, were neglected by Congress in favor of non-Indian agricultural development in the arid west. Modern litigation over tribal rights takes place primarily in state courts that are tempted to interpret the few United States Supreme Court cases in ways that protect existing non-Indian uses over senior tribal water rights. Modern Indian water rights settlements tend to protect existing non-Indian uses, while providing substantial benefits for tribes, but in a haphazard manner. This article examines the history of Indian water rights and concludes that the traditional practicably irrigable acreage quantification standard should be adhered to by the courts – supplemented by the homeland theory that awards water to fulfill all purposes behind creation of a reservation. The author also argues that the Executive Branch should adopt firm budgetary policies that promote settlements as an Administration priority in order to ameliorate historic inequities in western water development.

Oil and Water in the Indian Country

Judith Royster

University of Tulsa College of Law
1997
Natural Resources Journal, Vol. 37, No. 457, 1997

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Abstract:
Congress first authorized general oil and gas leasing in Indian country in the 1920s. In the intervening decades, non-Indian oil and gas companies have conducted exploration, development, and production activities on Indian lands, with all the attendant environmental effects. In particular, water pollution – from oil spills, use of injection wells, and other activities – has been a serious and often devastating problem on Indian lands. This article explores environmental regulation of oil and gas development in Indian country, concentrating on the protection and regulation of water resources.

Climate Change and Tribal Water Rights: Removing Barriers to Adaptation Strategies

Judith Royster

University of Tulsa College of Law
April 20, 2012
CLIMATE CHANGE, INDIGENOUS PEOPLES, AND THE SEARCH FOR LEGAL REMEDIES, Randall Abate & Elizabeth Kronk, eds., Edward Elgar Publishing, Forthcoming

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Abstract:
The effects of climate change on water resources in the United States are well-understood and likely to have profound impacts on water resources and water availability. Although the effects of climate change will be felt nationwide, their impact on Indian tribal communities may be particularly severe. Tribes’ relationship to water is not only economic, but cultural and spiritual. Water drives the economy for many tribes, supporting agriculture, energy production, fisheries, grazing, towns and communities. Water is also central to the culture of many tribes, providing habitat for the fish, wildlife, and native plant species that are important sources of food, medicines, and rituals. And water is sacred, embodying a spiritual dimension beyond its uses.

Governmental responses to climate change have proceeded in two overlapping sets of strategies: the first generation of mitigation strategies and the second generation of adaptation strategies. In the context of Indian tribes and climate change, the third-generation issue is who decides what adaptation strategies should be employed. Tribal self-determination mandates that adaptation strategies for Indian country be decided by the governing tribes. Recognizing tribes as governments with the right and ability to govern means that tribes are responding to climate change “as active agents and not as victims.”

Tribal adaptation to climate change to meet tribal needs, however, is more than a matter of tribal initiative and tribal institutions. Federal law must ensure that tribal adaptation is possible. To do this, to promote climate justice in Indian communities, federal law must allow Indian tribes the flexibility to design and implement adaptation strategies that meet each tribe’s needs. In the context of tribal water rights, however, too many federal Indian laws and policies are anti-adaptive. Federal approaches to tribal water rights too often stand in the way of tribes’ ability to develop adaptation strategies focused on the needs of specific reservations facing particular circumstances.

This chapter identifies and discusses five barriers that federal law and policy place in the path of tribal adaptation strategies. Three of these arise primarily from a federal statute that forces most adjudication of tribal water rights into state courts. The variability of state court interpretations of federal reserved rights law, in turn, creates restrictions on the measure used to quantify tribal water rights, restrictions on the sources of water subject to tribal rights, and restrictions on the use of the tribal water right. A fourth restriction is a matter of regulatory policy: a restriction on tribes’ ability to promulgate water codes to regulate water uses. And the fifth arises both from federal law and from an approach used in negotiated water rights settlements: restrictions on tribes’ ability to engage in water marketing.

Indian Water and the Federal Trust: Some Proposals for Federal Action

Judith Royster

University of Tulsa College of Law
Natural Resources Journal, Vol. 46, p. 375, 2006

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Abstract:
Indian tribal reserved rights to water constitute trust assets under the protection of the federal government. Nonetheless, the federal government’s duty of protection, and remedies against the government if it fails in that duty, are seldom recognized by law. Congress could protect tribal water rights through enactment of comprehensive regulatory legislation, but such legislation would run counter to the modern trend of recognizing increasing tribal control over natural resources and would interfere with tribes’ authority to manage their water. There are, however, a number of steps that Congress and the Department of the Interior could take in fulfillment of the federal trust responsibility for Indian water rights. These proposals, briefly outlined here, would assist tribes with the development and management of their water resources and remove obstacles that presently exist in federal law to the assertion of tribal authority over water.

Winters in the East: Tribal Reserved Rights to Water in Riparian States

Judith Royster

University of Tulsa College of Law
William & Mary Environmental Law and Policy Review, Vol. 25, 2000

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Abstract:
In the eastern United States, the riparian system of state water rights developed on the predicate of sufficient water to go around. Whatever the truth of that predicate in the past, an adequate supply of water fo all uses may not be more myth than reality. In their attempts to address the issue of riparian water rights in an era of limited water, however, eastern states have so far ignored one of the most important issues in fashioning an integrated system of water allocation: the rights of the Indian tribes to water as a matter of federal law. This article begins by dissecting the existing law of the Winters doctrine – of Indian tribal rights to water – into fundamental principles that transcend the specifics of the state law system with which tribal rights must be coordinated, and implementing principles that are necessary to assure a workable water allocation system involving both federal and state-law water rights. The article concludes that the fundamental principles of reserved water rights – sufficient water to fulfill the purposes for which lands are set aside for Indian tribes – are as viable in the eastern United States as in the western. The implementing principles that have developed in western prior appropriation jurisdictions, however – quantification and priority dates – may be less useful in the east. The differences between the state-law systems of riparian rights and prior appropriation may require different approaches to the implementation of Indian tribal water rights into an integrated workable whole. Some possible approaches to implementation in eastern states are discussed.

Conjunctive Management of Reservation Water Resources: Legal Issues Facing Indian Tribes

Judith Royster

University of Tulsa College of Law
Idaho Law Review, Vol. 47, p. 255, 2011
University of Tulsa Legal Studies Research Paper No. 2012-06

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Abstract:
Conjunctive management is the integrated management of all water sources as a single system. As complicated as conjunctive management of state water resources is, things become even more complicated when conjunctive management involves tribal water resources as well. On virtually all Indian reservations, two governments exercise regulatory authority over some of the water allocation and use decisions. Those allocation and use decisions are based on different laws and different legal principles. To complicate matters further, surface water decisions may be made on a different basis than groundwater decisions and, even if the same legal regime determines both, the decisions may not be integrated with one another.

Against that background, Indian tribes face substantial legal impediments to conjunctive management of reservation waters. In particular, three aspects of federal and state law frustrate effective tribal participation in conjunctive management. First, Indian tribes are, in many instances, barred by federal action from creating comprehensive, enforceable water codes. Without a water code, management of any kind, much less conjunctive management, becomes problematic. Second, the reserved rights doctrine does not include a clear, universal right to groundwater. Instead, the determination of whether tribes have rights to groundwater as well as surface water is left to individual court decisions and settlement acts, with a resulting wide variation among tribes in groundwater rights. Because conjunctive management is the integration of surface and groundwater regimes, the variability of tribal rights to groundwater hampers comprehensive approaches. And third, the lack of conjunctive management in some states can impact tribal reserved rights to water. While states have long been legally obligated to protect tribal rights to surface water in their allocation of state surface water rights, protecting tribal reserved rights to all water sources requires states to take account of tribal rights in the states’ allocation of groundwater as well.

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