Excerpted From: Max Clayton, A New Moment for Indian Water Rights Settlements, 64 Natural Resources Journal 33 (Winter, 2024) (262 Footnotes) (Full Document)

MaxClaytonAs water becomes scarcer across the arid west, many tribal governments face a growing threat from off-reservation water users, from suburban developments to expanding metropolises. This situation is not new--struggles to protect tribal water rights were a constant throughout the twentieth century. The landmark 1908 case Winters v. U.S. concerned issues that still arise today: non-Indian water users diverting water reserved for Indian reservations. A little over a century later, however, drought conditions have become more pronounced, water use has exponentially increased, and tribal governments have increasingly asserted their legal rights to over-appropriated water. Today, 170 Native American reservations “have unresolved water claims that potentially exceed the region's hydrological capacity.” Secretary of Interior Deb Haaland has described this as “one of the most significant challenges facing our country.”

Since the 1970s, water conflicts involving Native American water rights have primarily been addressed by either state general stream adjudications or negotiated settlements. After the Supreme Court held in United States v. San Carlos Apache Tribe of Arizona that the 1952 McCarran Amendment subjects tribes to suit in state court water rights adjudications, tribes have essentially been forced to go to state court if they want to litigate their water rights. State general stream adjudications are “comprehensive proceeding[s], usually judicial, for determining the priorities, nature, and scope of all existing uses of water from a common source.” For example, the Gila River Adjudication involves over 78,000 claims to water rights in the Gila River and its tributaries in Arizona. But state general stream adjudications have led to costly and protracted litigation in what tribal governments perceive as a hostile forum. As a result, since the late 1980s, tribal governments have increasingly turned to negotiated settlements to avoid state courts.

For decades, scholars across academic disciplines have detailed the shortcomings of negotiated settlements for resolving water conflict. In particular, scholars have argued that settlements rely on hard-to-obtain congressional funding and the balance of power tilts toward non-Indian parties. These concerns have not prevented scholars, attorneys, and activists from advocating for settlement over litigation, even recognizing the limits of settlement.

Tribal governments nonetheless continue to pursue negotiated water settlements to protect their water interests. And the stakes are high. As Professor Bethany Berger has written, struggles over natural resources are ultimately a “struggle[] for self-determination.” For many Native nations, “water is life”--a source of spiritual and material sustenance and survival. Without sufficient water supply, many tribal governments' economic development efforts will be stymied. Former Hualapai Chairwoman, Sherry Counts, has argued that most “Indian tribes have far less water available to them than is necessary for the tribe to become economically self-sufficient.” Many reservations lack even basic access to clean water for domestic uses, placing added urgency on resolving water claims.

Rather than pile on reasons why Indian water settlements remain fraught, this paper does two things. First, it argues that recent congressional activity, the western water crisis, and growing tribal governmental power have altered political conditions to make settlement more favorable for tribal governments. And second, it argues that tribal governments can leverage these improved conditions to achieve better settlement outcomes. To that end, I argue that an underappreciated legal argument--that the Secretary of Interior's acquisition power under the Indian Reorganization Act includes the power to condemn competing off-reservation water rights--can strengthen tribal governments' bargaining position within some settlement discussions. These arguments lay the foundation for future Indian water rights scholarship addressing various legal strategies and arguments to use in settlement contexts.

This paper proceeds in four parts. Section I explains the legal and historical factors that have shaped water conflict resolution and why settlement has emerged as the primary method of resolving conflict of water rights since the 1980s. Section II argues that recent political developments have altered the conditions for settlement. Section III argues that Congress has empowered the Secretary of Interior power to condemn competing off-reservation water rights, which provides some leverage to the bargaining position of Native governments. Section IV offers concluding thoughts.

[. . .]

Settlements have been the primary means tribal governments have sought to resolve their water claims over the last four decades. While scholars have identified the lack of funding and an imbalance of power as factors that have historically hindered the settlement process, contemporary political conditions have shifted the prospects of settlement. An influx of federal funding indicates the importance of settlement to Congress and a shift in its policy. Environmental conditions, a supportive administration, and even more willing states have made settlement a more attractive option for some tribes. In this context, tribal governments might consider how the Secretary's condemnation power might strengthen their bargaining position against some parties to negotiations. These changes indicate a new moment for Indian water rights settlements where tribes can build from decades of political advocacy and strategic partnerships to continue to engage in nation building.

J.D. Candidate, University of Connecticut School of Law; Ph.D. Candidate, Yale University, Department of American Studies.