Journal of the Southwest

Introduction

Major river systems in the American West face a compounding set of challenges. Increased drought and reduced snowpack from climate change, expanding municipal populations, salinization and deteriorating surface-water quality, ramped-up groundwater pumping, over-allocated waterways, costly litigation among states, and growing public demand for environmental justice and environmental water flows all figure prominently in debates over the sustainable management of water (for examples, see Chavarria and Gutzler 2018; Dettinger, Udall, and Georgakakos 2015; Owen 2017; Phillips, Hall, and Black 2011; Rister et al. 2011; Hess et al. 2016; Hargrove et al. 2013). This article considers another important but often-overlooked piece of the water puzzle: American Indian water rights.

"Nothing is more important to the future of America's Indian reservations than water," wrote the late historian Norris Hundley Jr. (1978), "and no subject has been fraught with more confusion or been more bitterly contested than Indian water rights." For Native Americans across the West, rights to water constitute a means to power. To wrest control over this scarce and precious substance is to assert sovereignty, to reclaim and reproduce a right to self-determination. Water being life, it remains paramount in struggles for environmental justice, livelihoods, survival. Across the Navajo Nation, for example, an estimated 100,000 [End Page 231] people lack a tap, toilet, and/or running water. Residents drive for miles to fill tanks at dispersed water sources, many of which are labeled with signs warning of contamination (Sellers 2019). In 2016, the Standing Rock Sioux captured the attention and moral conscience of the world by plunging into the frigid waters of the Missouri River in protest of the Dakota Access Pipeline. They endured barrages of tear gas and rubber bullets, mounting a defiant, months-long effort to block the pipeline, a conduit for Canadian crude oil which the tribe feared would contaminate their drinking water (Weston 2017). More recently, Native American communities and advocacy groups have connected the growing "landback" movement to calls for "water back." In November 2020, the Pueblo Action Alliance, operating out of Albuquerque, New Mexico, released their Water-Back Manifesto, proclaiming that "here in the Southwest, we can't have #landback without #waterback."¹

In light of these stakes, this essay evaluates two recent developments in Indian water law. The first case considers the Gila River Indian Community (GRIC) and the Arizona Water Settlements Act of 2004, billed as the largest Indian water settlement in history (Lewis and Hestand 2006). In these proceedings, Native American groups were able to claim reserved rights to large amounts of water. As a result, they now hold significant power in delegating water to major Arizona metropolitan areas. In the second case, an ongoing but rather more obscure streamwater adjudication very nearly resulted in the severance of traditional water rights for the Native American groups involved. In U.S. v. Abousleman, commonly called the Jemez River adjudication, the Jemez, Zia, and Santa Ana Pueblos of New Mexico attempted to assert priority through "aboriginal rights." The United States District Court for the District of New Mexico acknowledged the Pueblos possessed aboriginal rights up to a point in history, but interpreted the law in a way that extinguished those rights.² Consequently, the quantity of water allocated was likely to be much less than what they sought (Hume 2018), forcing the Pueblos and their attorneys to escalate the case to the 10th Circuit Court of Appeals.

Native American water settlements and adjudications such as these are remaking socio-ecological relationships in the West, potentially upsetting balances of power. Radonic and Sheridan (2017) refer to this phenomenon, whereby tribal governments "may become powerful stakeholders in urban development" as "co-producing waterscapes" (287–288). A "waterscape," in this definition, is power laden: a "socionatural assemblage where social power is embedded in and shaped by [End Page 232] material flows of water and their representations" (Radonic and Sheridan 2017, 288).

Insofar as power plays a role in controlling and governing the flow of water, the flow of water also plays a role in brokering power. Water "embodies...