In the seminal Indian water rights case, Winters v. United States (1908), the Court posed this question: “The Indians had command of the lands and the waters–command of all their beneficial use, whether kept for hunting, ‘and grazing roving herds of stock,’ or turned to agriculture and the arts of civilization. Did they give up all this?” The Court’s answer was no, and since then a large body of law has developed around Indian water rights, although the primary focus has been on the amount of water reserved for various tribal purposes. While Indian nations use property rights theo- ries to protect their water resources from loss to non-Indian use, they also deploy their inherent governmental authority through tribal water codes and the federal Clean Water Act to protect water quality. As competition for wa- ter resources grows and development pressures adversely affect water quality, Indian Nations and their neighbors face new challenges in defining Indian water rights for instream habitat protection and traditional consumptive uses.
This article reviews the nature of Indian water rights—both on and off reservations—and the use of tribal sovereignty to protect those rights in terms of quantity and quality. The case law in this arena is sparse, and the ability to predict an all-or-nothing litigated outcome is correspondingly lim- ited. Under these circumstances, parties would be best off to default to the usual presumptions recognizing inherent tribal authority over on- reservation water resources and state authority outside of Indian country. From this jurisdictional baseline, tribes, states and the United States should cooperate to ensure that a given regulatory regime protects water quality and access to water.
Robert T. Anderson is a Professor of Law and the Director of the Native American Law Center at University of Washington School of Law; he is also an Oneida Indian Nation Visiting Professor of Law at Harvard Law School