Climate change and tribal water rights: removing barriers to adaptation strategies

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.