William & Mary Environmental Law and Policy Review
Abstract
Freshwater resources in the United States face a variety of stressors, including drought, flooding, and climate change–driven shifts in precipitation, that exacerbate both water quality problems and drinking water crises. In the midst of these increasing issues regarding both water quality and quantity (allocation), Tribes are playing an ever more active role in U.S. water management. This Article provides an overview of the complex contemporary legal landscape governing tribal authority over water. After reviewing the current state of inherent tribal sovereignty with respect to water, treaty rights and reservations, the federal Winters doctrine, and Treatment-as-a-State (“TAS”) status, this Article explores how these authorities intersect with two recent Supreme Court decisions: Sackett v. EPA (May 2023), in which the Court cut back on the Clean Water Act’s jurisdictional reach, and Arizona v. Navajo Nation (June 2023), in which the Court held that the federal government has no trust duty to help Tribes get water. The Article concludes that, despite these setbacks, Tribes—especially those in the Pacific Northwest—possess a constellation of authorities over water that they can combine to allow new kinds of water management approaches, including rights of nature approaches.
Repository Citation
Robin Kundis Craig, Tribes and Water in the Wake of Navajo Nation and Sackett: Treaties, Winters, Montana, and Rights of Nature, 48 Wm. & Mary Env’t L. & Pol'y Rev. 687 (2024), https://scholarship.law.wm.edu/wmelpr/vol48/iss3/7Included in
Environmental Law Commons, Indigenous, Indian, and Aboriginal Law Commons, Water Law Commons