Indigenous Water Justice

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INDIGENOUS WATER JUSTICE
by
Jason Robison,* Barbara Cosens,** Sue Jackson,***
Kelsey Leonard,**** & Daniel McCool*****
*Associate Professor, University of Wyoming, College of Law. S.J.D., Harvard
Law School (2013); LL.M., Harvard Law School (2009); J.D., University of Oregon
School of Law (2006); B.S., Environmental Studies, University of Utah (2003). The
authors dedicate this Article to our indigenous colleagues who participated in the
Indigenous Water Justice Symposium: Judith Antell, Autumn Bernhardt, Daniel
Cordalis, Forrest Cuch, Howard Dennis, Phil Duncan, John Echohawk, Torivio
Fodder, Fred Hooper, Paul Lumley, Nora McDowell, D.R. Michel, John Sirois,
Marilyn Tewa, James Trosper, Daryl Vigil, Jeanette Wolfley, and Rene Woods. We are
inspired by and grateful to you. We also greatly appreciate feedback offered by
numerous colleagues on drafts presented at the Rocky Mountain Mineral Law
Foundation’s Eighteenth Institute for Natural Resources Law Teachers, the
Waterkeeper Alliance’s 2017 Annual Conference, and the University of Wyoming
College of Law’s Junior Scholars Forum. Funding for the Article was graciously
provided by the Carl M. Williams Faculty Research Fund. Any errors or omissions are
our own.
** Professor, University of Idaho, College of Law. LL.M., Lewis & Clark School of
Law (2002); J.D., University of California, Hastings College of Law (1990); M.S.,
Geology, University of Washington (1982); B.S., Geology, University of California,
Davis (1977).
*** Professor, Australian Rivers Institute, Griffith University; Honorary Fellow,
School of Geography, University of Melbourne. Ph.D., Geography, Macquarie
University (1998); B.Sc., Economic Geography, University of New South Wales
(1988).
**** Philomathia Trillium Scholar, Department of Political Science, McMaster
University. J.D., Duquesne University School of Law (2015); M.Sc., Geography,
University of Oxford (2012); A.B., Anthropology and Sociology, Harvard University
(2010). Enrolled Citizen, Shinnecock Indian Nation.
***** Professor Emeritus, University of Utah, Department of Political Science.
Ph.D., Political Science, University of Arizona (1983); M.A., Political Science,
University of Arizona (1979); B.A., Sociology, Purdue University (1973).

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874 LEWIS & CLARK LAW REVIEW [Vol. 22:3
Indigenous Peoples are struggling for water justice across the globe. These
struggles stem from centuries-long, ongoing colonial legacies and hold
profound significance for Indigenous Peoples’ socioeconomic develop-
ment, cultural identity, and political autonomy and external relations
within nation-states. Ultimately, Indigenous Peoples’ right to self-
determination is implicated. Growing out of a symposium hosted by the
University of Colorado Law School and the Native American Rights
Fund in June 2016, this Article expounds the concept of “indigenous
water justice” and advocates for its realization in three major trans-
boundary river basins: the Colorado (U.S./Mexico), Columbia (Cana-
da/U.S.), and Murray-Darling (Australia). The Article begins with a
novel conceptualization of indigenous water justice rooted in the historic
United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP)—specifically, UNDRIP’s foundational principle of self-
determination. In turn, the Article offers overviews of the basins and
narrative accounts of enduring water-justice struggles experienced by In-
digenous Peoples therein. Finally, the Article synthesizes commonalities
evident from the indigenous water-justice struggles by introducing and
deconstructing the concept of “water colonialism.” Against this backdrop,
the Article revisits UNDRIP to articulate principles and prescriptions
aimed at prospectively realizing indigenous water justice in the basins
and around the world.
Introduction ......................................................................................... 875
I. Indigenous Water Justice ......................................................... 877
A. UNDRIP & Self-Determination .................................................. 879
B. Water is Life: Self-Determination & Water .................................. 884
1. Of Bounty & Well-Being: Socioeconomic Self-Determination ... 885
2. Of Identity & Heritage: Cultural Self-Determination ............ 887
3. Of Self-Governance & Participation: Political Self-
Determination ................................................................ 889
II. Place: Waterscapes, Homelands, & Colonial States .......... 891
A. Colorado River Basin ................................................................. 892
1. Basin Overview .............................................................. 892
2. Indigenous Water-Justice Struggles ..................................... 895
B. Columbia River Basin ............................................................... 904
1. Basin Overview .............................................................. 904
2. Indigenous Water-Justice Struggles ..................................... 910
C. Murray-Darling Basin ............................................................... 918
1. Basin Overview .............................................................. 918
2. Indigenous Water-Justice Struggles ..................................... 923
III. Decolonizing Water .................................................................. 931
A. Water Colonialism: A Living Legacy .......................................... 931
1. “Water Colonialism” ....................................................... 931
2. Deconstruction ............................................................... 932

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2018] INDIGENOUS WATER JUSTICE 875
a. Institutional Discrimination .......................................... 932
b. Inertia &Scarcity .......................................................... 933
c. Temporality, Adaptivity & Capacity .............................. 934
B. Realizing Indigenous Water Justice: Principles & Prescriptions .... 936
1. Indigenous Water Rights .................................................. 936
a. Delineation & Composition ........................................... 937
b. Cultural & Spiritual Water Uses ................................... 939
c. Alienability & Water Marketing .................................... 941
d. Infrastructure: Wet Water & Shared Benefits .................. 943
2. Political Partnership ........................................................ 946
a. Autonomy & Capacity .................................................. 946
b. Consultation, Cooperation & Consent ........................... 948
IV. Conclusion .................................................................................. 951
INTRODUCTION
“The world is watching what is happening[.]”1 “If the [U.S.] chooses
not to act in response to the alarming actions being manifested in North
Dakota, their rhetoric within the halls of the [U.N. is] nothing more than
empty, meaningless promises.”2 Members of the U.N. Permanent Forum
on Indigenous Issues expressed these sentiments late 2016. The alarm-
ing, closely watched actions concerned the controversial Dakota Access
Pipeline (DAPL).3 As for the empty, meaningless promises, they impli-
cated a host of domestic and international human rights instruments,4
but in no small measure the historic United Nations Declaration on the
Rights of Indigenous Peoples (UNDRIP).5 As articulated by the Perma-
nent Forum, the United States and its political subdivisions had trans-
gressed UNDRIP repeatedly in their dealings with the people of the
Great Sioux Nation over DAPL.6 The Mni Sose (Missouri) River’s sacred,
sustaining waters—stored in Lake Oahe—were a central (albeit not ex-
1Press Release, Mr. Alvaro Pop Ac, Chair of the U.N. Permanent Forum on
Indigenous Issues, Indigenous Issues on the Protests of the Dakota Access Pipeline,
United Nations Permanent Forum on Indigenous Issues (Aug. 25, 2016).
2Report and Statement from Chief Edward John, Expert Member of the U.N.
Permanent Forum on Indigenous Issues, Firsthand Observations of Conditions
Surrounding the Dakota Access Pipeline 6 (Nov. 1, 2016).
3See generally Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F.
Supp. 3d 101, 114 (D.D.C. 2017) (discussing federal litigation and associated
controversies).
4See, e.g., Report and Statement from Chief Edward John, supra note 2, at 6
(referencing U.S. Bill of Rights and International Covenant on Civil and Political
Rights).
5Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc
A/RES/61/295 (Sept. 13, 2007) [hereinafter UNDRIP].
6Press Release, Mr. Alvaro Pop Ac, supra note 1; Report and Statement from
Chief Edward John, supra note 2, at 7.

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876 LEWIS & CLARK LAW REVIEW [Vol. 22:3
clusive) concern.7 “For indigenous peoples, water provides lifeways, sub-
sistence, and has undeniable spiritual significance,” described Special
Rapporteur Victoria Tauli-Corpuz in an end-of-mission statement.8 “In
Lakota, they express this belief as Mni Wiconi: water is life.”9 Illuminating
DAPL’s perpetuation of the Pick-Sloan Plan’s painful, protracted colonial
legacy within the Missouri River Basin, the Special Rapporteur’s state-
ment echoed the Permanent Forum’s earlier calls for full compliance
with UNDRIP.10 Yet to no avail. Oil began flowing in DAPL nearly con-
temporaneously with the statement, and the project became fully opera-
tional shortly thereafter.11 Although the U.S. District Court for the Dis-
trict of Columbia subsequently held that the Army Corps of Engineers
had violated the National Environmental Policy Act when granting per-
mits for DAPL,12 the court nonetheless determined oil could flow
through the pipeline while the agency was conducting ongoing environ-
mental analyses.13
DAPL illuminates the historical and contemporary phenomenon at
the heart of this Article: Indigenous Peoples’ struggles for justice in rela-
tion to the essence of life—water. While the Missouri River Basin (Mni
Sose) is conducive to rich and bitter inquiries into such struggles, our at-
tention lies on three other major transboundary basins involving equally
multifarious colonial legacies and power contests over water: (1) the Col-
orado River Basin in the United States and Mexico, (2) the Columbia
River Basin in Canada and the United States, and (3) the Murray-Darling
Basin in Australia. This framing stems from the gathering out of which
the Article grows: an Indigenous Water Justice Symposium kindly hosted
by the University of Colorado Law School and the Native American
Rights Fund in June 2016.14 We have dedicated the Article to our indige-
nous colleagues who participated in this symposium, and our core thesis
regarding the water-justice struggles faced by them as well as their fami-
lies, ancestors, communities, and sovereign nations is basic. Domestic wa-
7Report and Statement from Chief Edward John, supra note 2, at 2, 7.
8End of Mission Statement by the United Nations Special Rapporteur on the Rights of
Indigenous Peoples, Victoria Tauli-Corpuz of Her Visit to the United States of America, U.N.
OFFICE OF HIGH COMM’R OF HUMAN RIGHTS (Mar. 3, 2017), http://www.ohchr.org/
EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21274&LangID=E.
9Id.
10 Id.; Press Release, Mr. Alvaro Pop Ac, supra note 1.
11 Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 255 F. Supp. 3d
101, 120 (D.D.C. 2017).
12 Id. at 112.
13 For an overview of this litigation, see The Standing Rock Sioux Tribe’s Litigation on
the Dakota Access Pipeline, EARTHJUSTICE (last updated Dec. 4, 2017), https://
earthjustice.org/features/faq-standing-rock-litigation.
14 Indigenous Water Justice Symposium, UNIV. OF COLO. LAW SCH. (June 6, 2016),
http://scholar.law.colorado.edu/indigenous-water-justice-symposium/.

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2018] INDIGENOUS WATER JUSTICE 877
ter laws and policies in Australia, Canada, and the United States should
evolve to achieve indigenous water justice.
Our inquiry rooted in this thesis unfolds in three Parts. Part I begins
with a novel conceptualization of “indigenous water justice.” For authen-
ticity and depth, it grows out of UNDRIP’s umbrella principle of self-
determination,15 and water’s diverse, inherent connections to that prin-
ciple, including key norms imposed by UNDRIP bearing on those con-
nections. Part II then turns to place. It examines the Colorado, Colum-
bia, and Murray-Darling basins as sites replete with contemporary and
historical struggles for indigenous water justice. These struggles implicate
a host of domestic laws, policies, and associated institutions pertinent to
Indigenous Peoples’ socioeconomic development, cultural identity, and
political autonomy and external relations. Colonialism is the taproot of
these struggles and marks Part III’s entry point. It develops the concept
of “water colonialism” to synthesize commonalities among the indige-
nous water-justice struggles that are characteristic of historical and ongo-
ing colonial processes. With these shared colonial legacies as context, the
Article ultimately takes a prescriptive turn, addressing the prospective re-
alization of indigenous water justice. Our prescriptions focus at the do-
mestic level and revolve around the broad topics of indigenous water
rights and political partnership. Anchoring the prescriptions are princi-
ples derived from UNDRIP provisions examined in the discussion of wa-
ter and self-determination. Overall, while mindful of the context-specific
and non-exhaustive nature of our inquiry, its normative framework and
prescriptions aim to prompt future scholarship, advocacy, and institu-
tional reforms pertaining to the basins and elsewhere. UNDRIP again
marks our point of departure.
I. INDIGENOUS WATER JUSTICE
In innumerable, unequivocal, and heart-wrenching ways, indigenous
members of our communities and societies have suffered monumental
injustices stemming from “colonization and dispossession of their lands,
territories and resources.”16 This legacy is morally and politically repre-
15 Rodolfo Stavenhagen, Making the Declaration Work, in MAKING THE DECLARATION
WORK: THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 352,
365 (Claire Charters & Rodolfo Stavenhagen eds., 2009).
16 UNDRIP, supra note 5, at pmbl. We rely on the proposed definition of
“Indigenous Peoples” by José R. Martinez Cobo. José R. Martinez Cobo, Study of the
Problem of Discrimination Against Indigenous Populations:
Indigenous communities, peoples and nations are those which, having a
historical continuity with pre-invasion and pre-colonial societies that developed
on their territories, consider themselves distinct from other sectors of the
societies now prevailing in those territories, or parts of them. They form at
present non-dominant sectors of society and are determined to preserve, develop
and transmit to future generations their ancestral territories, and their ethnic

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878 LEWIS & CLARK LAW REVIEW [Vol. 22:3
hensible and must be broken. As expressed by UNDRIP, it is imperative
in contemporary times to respond decisively to the “urgent need to re-
spect and promote the inherent rights of indigenous peoples.”17 Indige-
nous water justice is the concept espoused in this Article to advocate for
these rights vis-à-vis water—again, the first medicine18 and essence of life.
Although indigenous water justice can be conceptualized in diverse
ways,19 UNDRIP is our particular cornerstone. This Part sheds light on
indigenous water justice as conceptualized around that authentic, vision-
ary instrument. We begin with an overview of UNDRIP and its animating
principle of self-determination. At that juncture, we turn to water and its
multi-faceted connections to Indigenous Peoples’ self-determination—
more precisely, to the socioeconomic, cultural, and political dimensions
associated with Indigenous Peoples’ exercise of the right to self-
determination. Water declarations from Indigenous Peoples reveal these
connections, and a host of UNDRIP provisions are implicated by them.
Taken together, these materials delineate important norms for conceiv-
ing of just relations between Indigenous Peoples, nation-states, and pub-
lic and private entities therein surrounding water. Whereas this Part ini-
tially identifies the UNDRIP provisions embodying these norms, Part III
subsequently revisits these provisions as bases for principles and prescrip-
tions aimed at realizing indigenous water justice within the three basins
under study and elsewhere. UNDRIP thus constitutes our normative
backbone.
identity, as the basis of their continued existence as peoples, in accordance with
their own cultural patterns, social institutions and legal systems.
Id. at ¶ 379, U.N. ESCOR, U.N. Sub-Comm’n on Prevention of Discrimination & Prot.
of Minorities, U.N. Doc. E/CN.4/Sub.2/1986/7/Add. 4. In contrast to UNDRIP, we
capitalize “Indigenous Peoples” based upon its use as a proper noun signifying the
cultural heterogeneity and political sovereignty of these groups. Michael Yellow Bird,
What We Want to Be Called: Indigenous Peoples’ Perspectives on Racial and Ethnic Identity
Labels, 23 AMERICAN INDIAN Q. 1, 2 (1999).
17 UNDRIP, supra note 5, at pmbl.
18 For a description of water as the “first medicine” from Faith Spotted Eagle, see
Jessica Ravitz, The Sacred Land at the Center of the Dakota Pipeline Dispute, CNN (Nov. 1,
2016), http://www.cnn.com/2016/11/01/us/standing-rock-sioux-sacred-land-
dakota-pipeline/index.html.
19 See, e.g., Sue Jackson, Indigenous Peoples and Water Justice in a Globalizing World, in
THE OXFORD HANDBOOK OF WATER POLITICS AND POLICY 4 (Ken Conca & Erika
Weinthal eds., 2016) (expounding alternative but related conceptualization),
http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199335084.001.00
01/oxfordhb-9780199335084-e-5?print=pdf.

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2018] INDIGENOUS WATER JUSTICE 879
A. UNDRIP & Self-Determination
Hailed as signifying a “world-wide change in the way that the coun-
tries of the world treat indigenous peoples[,]”20 the U.N. General Assem-
bly’s adoption of UNDRIP over a decade ago (September 13, 2007)
marked a “historic step” in the formation of a “new relationship between
indigenous peoples and the states and societies within which they live
and with which they co-exist . . . .”21 UNDRIP constitutes “the most im-
portant development concerning the recognition and protection of the
basic rights and fundamental freedoms of the world’s indigenous peo-
ples[,]”22 and “the most comprehensive and advanced of international
instruments” in this domain.23 As described eloquently by former Special
Rapporteur Rodolfo Stavenhagen, UNDRIP “opened the door to indige-
nous peoples as new world citizens” with attendant individual and collec-
tive rights that must be respected and promoted.24 Its provisions embody
international customary law in key respects.25 And, taken as a whole,
UNDRIP serves as a “new ‘manifesto’ for positive international and do-
mestic political, legal, social and economic action,”26 arguably paving the
way for a future international convention on Indigenous Peoples’
rights.27
20 Robert T. Coulter, The U.N. Declaration on the Rights of Indigenous Peoples: A
Historic Change in International Law, 45 IDAHO L. REV. 539, 539 (2009).
21 Adelfo Regino Montes & Gustavo Torres Cisneros, The United Nations
Declaration on the Rights of Indigenous Peoples: The Foundation of a New Relationship
Between Indigenous Peoples, States and Societies, in MAKING THE DECLARATION WORK: THE
UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 138, 138 (Claire
Charters & Rodolfo Stavenhagen eds., 2009).
22 Erica-Irene A. Daes, The Contribution of the Working Group on Indigenous
Populations to the Genesis and Evolution of the UN Declaration on the Rights of Indigenous
Peoples, in MAKING THE DECLARATION WORK: THE UNITED NATIONS DECLARATION ON THE
RIGHTS OF INDIGENOUS PEOPLES 48, 73–74 (Claire Charters & Rodolfo Stavenhagen
eds., 2009).
23 Claire Charters & Rodolfo Stavenhagen, The UN Declaration on the Rights of
Indigenous Peoples: How It Came To Be and What It Heralds, in MAKING THE DECLARATION
WORK: THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 10,
10 (Claire Charters & Rodolfo Stavenhagen eds., 2009).
24 Stavenhagen, supra note 15, at 355. Dr. Stavenhagen served as Special
Rapporteur from 2001 to 2008. Special Rapporteur on the Rights of Indigenous Peoples,
U.N. OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS, http://www.ohchr.org/EN/
Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx.
25 Int’l Law Ass’n, Resolution [ILA], Rights of Indigenous Peoples, at ¶ 2–3, No.
5/2012 (Aug. 26–30, 2012), http://www.ila-hq.org/en/committees/index.cfm/cid/
1024 [hereinafter ILA Resolution].
26 Dalee Sambo Dorough, The Significance of the Declaration on the Rights of
Indigenous Peoples and Its Future Implementation, in MAKING THE DECLARATION WORK:
THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 264, 266
(Claire Charters & Rodolfo Stavenhagen eds., 2009).
27 Stavenhagen, supra note 15, at 355–56.

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880 LEWIS & CLARK LAW REVIEW [Vol. 22:3
It is impossible to canvass UNDRIP’s genesis here.28 It entailed “per-
haps the longest and most complicated standard-setting activity the
[U.N.] has ever embarked on.”29 Of course, “a few decades are not so
much when you have been waiting 500 years.”30 Spurring the process in
the 1970s were diverse efforts to draw attention to human rights prob-
lems facing Indigenous Peoples.31 Water conflicts were salient in this con-
text. They included “fishing wars” associated with the landmark 1974
Boldt Decision in the Columbia River Basin,32 as well as the highly publi-
cized Alta Dam controversy implicating the Sami people’s land rights in
Norway from 1979 to 1982.33 The latter conflict contributed to the for-
mation of a Working Group on Indigenous Populations in 1982 by the
U.N. Sub-Commission on Prevention of Discrimination and Protection of
Minorities.34 Select milestones in UNDRIP’s evolution over the next three
decades included (1) the Working Group’s adoption and submission of a
draft UNDRIP to the U.N. Commission on Human Rights in 1993 and
1994, respectively; (2) the Commission’s preparation of a revised draft
UNDRIP and the U.N. Human Rights Council’s adoption and submission
of that document to the U.N. General Assembly in 2006; and, eventually,
(3) the General Assembly’s adoption of UNDRIP in final form on Sep-
tember 13, 2007.35 The U.N. Permanent Forum on Indigenous Issues no-
tably came into being during this process (i.e., in 2000), serving to pro-
28 For an excellent chronology, see Augusto Willemsen Diaz, How Indigenous
Peoples’ Rights Reached the UN, in MAKING THE DECLARATION WORK: THE UNITED NATIONS
DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 16, 16 (Claire Charters &
Rodolfo Stavenhagen eds., 2009).
29 Mattias Ahren, The Provisions on Lands, Territories and Natural Resources in the UN
Declaration on the Rights of Indigenous Peoples: An Introduction, in MAKING THE
DECLARATION WORK: THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS
PEOPLES 200, 200 (Claire Charters & Rodolfo Stavenhagen eds., 2009).
30 JULIAN BURGER, INT'L COUNCIL ON HUMAN RIGHTS POLICY, THE DRAFT UNITED
NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 2 (2005), http://www.
ichrp.org/files/papers/85/120B_-_The_Draft_UN_Declaration_on_the_Rights_of_
Indigenous_Peoples_Burger__Julian__2005.pdf.
31 Charters & Stavenhagen, supra note 23, at 10–11.
32 Chief Oren Lyons, Preamble, in BASIC CALL TO CONSCIOUSNESS 18 (rev. ed.
2005); U.S. v. Washington, 384 F. Supp. 312, 327 (W.D. Wash. 1974), aff’d, 520 F.2d
676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976) [hereinafter Boldt Decision].
33 Jackson, supra note 19, at 16.
34 Id.; Asbjørn Eide, The Indigenous Peoples, The Working Group on Indigenous
Populations and the Adoption of the UN Declaration on the Rights of Indigenous Peoples, in
MAKING THE DECLARATION WORK: THE UNITED NATIONS DECLARATION ON THE RIGHTS OF
INDIGENOUS PEOPLES 32, 32 (Claire Charters & Rodolfo Stavenhagen eds., 2009).
35 See S. James Anaya, The Human Rights of Indigenous Peoples: United Nations
Developments, 35 U. HAW. L. REV. 983, 992–94 (2013) (surveying milestones).

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2018] INDIGENOUS WATER JUSTICE 881
mote dialogue among Indigenous Peoples about UNDRIP and to facili-
tate its adoption.36
Although 143 U.N. Member States voted in favor of UNDRIP in
2007, Australia, Canada, New Zealand, and the United States did not.37
Given their colonial legacies and lobbying efforts during the
foregoing process, this writing had been on the wall for a while.38 After
its adoption, Australia reversed course and endorsed UNDRIP in 2009,39
with Canada, New Zealand, and the United States following suit in
2010.40 These en-dorsements contained qualifications, however,41 and
major implementa-tion issues loom.42
One critical fact about UNDRIP’s formation and substance must be
highlighted: Indigenous Peoples “played a pivotal role in the negotia-
tions on its content.”43 UNDRIP is expressed in the lexicon of interna-
tional law, and reflects Indigenous Peoples’ goals as well as varied influ-
ence by nation-states, specialized agencies, and non-governmental
organizations.44 Nonetheless, UNDRIP “holds a special place within the
[U.N.] system” based upon its having been shaped by the “primary bene-
ficiaries—indigenous peoples—directly engaged in every stage of the
36 See Permanent Forum, U.N. DEP’T OF ECON. & SOC. AFFAIRS DIV. FOR INCLUSIVE
SOC. DEV., https://www.un.org/development/desa/indigenouspeoples/unpfii-sessions-2.
html.
37 Anaya, supra note 35, at 994.
38 See Eide, supra note 34, at 39–40 (discussing lobbying against draft UNDRIP).
39 JENNY MACKLIN MP, MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND
INDIGENOUS AFFAIRS, STATEMENT ON THE UNITED NATIONS DECLARATION ON THE RIGHTS
OF INDIGENOUS PEOPLES (April 3, 2009), http://www.un.org/esa/socdev/unpfii/
documents/Australia_official_statement_endorsement_UNDRIP.pdf.
40 See, e.g., Canada’s Statement of Support on the United Nations Declaration on the
Rights of Indigenous Peoples, INDIGENOUS & N. AFFAIRS CAN. (Nov. 12, 2010), http://
www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142 [hereinafter Canada’s
Statement].
41 See id.; ADVISORY COUNCIL ON HISTORIC PRES., ANNOUNCEMENT OF U.S. SUPPORT
FOR THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES,
ADVISORY COUNCIL ON HISTORIC PRES. 1, 3, 5 (2010), http://www.achp.gov/docs/
US%20Support%20for%20Declaration%2012-10.pdf (discussing U.S. interpretations
of key provisions).
42 Canada endorsed UNDRIP without qualification in 2016, but how it will be
implemented in domestic law there remains to be seen. Tim Fontaine, Canada
Supports UN Indigenous Rights Declaration: Now What? CBCNEWS (May 11, 2016),
http://www.cbc.ca/news/indigenous/canada-un-indigenous-rights-questions-1.3578074.
See also Renae Ditmer, Victoria Tauli-Corpuz, UN Official: Trump Administration Retreating
on Indigenous Rights, INDIAN COUNTRY TODAY (March 9, 2017), https://
indiancountrymedianetwork.com/news/politics/victoria-tauli-corpuz-un-official-
trump-administration-retreating-indigenous-rights/.
43 Charters & Stavenhagen, supra note 23, at 10.
44 Daes, supra note 22, at 74.

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882 LEWIS & CLARK LAW REVIEW [Vol. 22:3
standard-setting process.”45 Indigenous Peoples succeeded in “[redefining]
the terms of their survival in international law.”46 The authenticity and
depth of this engagement and work product are the reason UNDRIP
grounds our conceptualization of indigenous water justice.
Self-determination is UNDRIP’s foundational principle beneath our
conceptualization.47 “As representatives of indigenous peoples from
around the world advocated for the Declaration through the UN system
for over two decades,” describes former Special Rapporteur James Anaya,
“it became increasingly understood that self-determination is a founda-
tional principle that anchors the constellation of indigenous peoples’
rights.”48 This constellation relationship also can be thought of in terms
of a “bundle of rights”49—i.e., the idea that Indigenous Peoples’ right to
self-determination encompasses constituent rights articulated throughout
UNDRIP such as those pertaining to Indigenous Peoples’ lands, territo-
ries, and resources; cultural identity; and self-government and political
participation.50 Article 3 of UNDRIP is the “centerpiece,”51 providing:
“Indigenous peoples have the right to self-determination. By virtue of
that right they freely determine their political status and freely pursue
their economic, social and cultural development.”52 Articles 4 and 5 dove-
tail with this provision, as revealed below.
Self-determination is “widely acknowledged to be a principle of cus-
tomary international law and even jus cogens, a peremptory norm.”53 Arti-
cle 3 of UNDRIP mirrors Common Article 1 of the International Cove-
nant on Economic, Social and Cultural Rights (ICESCR) and the
International Covenant on Civil and Political Rights (ICCPR), as well as
Paragraph 2 of the U.N. Declaration on the Granting of Independence to
Colonial Countries and Peoples.54 “All peoples have the right of self-
45 Dorough, supra note 26, at 264.
46 Id.
47 S. James Anaya, The Right of Indigenous Peoples to Self-Determination in the Post-
Declaration Era, in MAKING THE DECLARATION WORK: THE UNITED NATIONS DECLARATION
ON THE RIGHTS OF INDIGENOUS PEOPLES 184, 184 (Claire Charters & Rodolfo
Stavenhagen eds., 2009).
48 Id. Professor Anaya served as Rapporteur from 2008 to 2014. Special Rapporteur
on the Rights of Indigenous Peoples, supra note 24.
49 Eide, supra note 34, at 45.
50 UNDRIP, supra note 5, at pmbl.
51 Anaya, supra note 47, at 184.
52 UNDRIP, supra note 5, at art. 3.
53 S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 97 (2nd ed. 2004).
54 International Covenant on Economic, Social and Cultural Rights, 6 I.L.M. 360
(1967) [hereinafter ICESCR]; International Covenant on Civil and Political Rights, 6
I.L.M. 368 (1967) [hereinafter ICCPR]; Declaration on the Granting of
Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th
Sess., Supp. No. 16, at ¶ 2, U.N. Doc. A/4684 (1961).

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2018] INDIGENOUS WATER JUSTICE 883
determination” per these instruments,55 and Article 1 of UNDRIP makes
clear Indigenous Peoples fall within this ambit.56 It proclaims: “Indige-
nous peoples have the right to the full enjoyment, as a collective or as in-
dividuals, of all human rights and fundamental freedoms” recognized in
“international human rights law.”57 The emphasis on individual and col-
lective human rights is distinct, the latter marking one of UNDRIP’s “new
contributions to the international legal system.”58 Article 3’s extension of
the right to self-determination to Indigenous Peoples as distinct peoples
within nation-states likewise contrasts with the historical understanding of
that right under Common Article 1 of the ICESCR and ICCPR as inher-
ing in the whole people of a nation-state (i.e., in their choice of govern-
mental form and leaders).59
UNDRIP does not attempt to define “self-determination,” and no
universal definition exists.60 Our starting point for this inquiry is a state-
ment from former Special Rapporteur Anaya: “[T]he essential idea of
self-determination is that human beings, individually and as groups, are
equally entitled to be in control of their own destinies, and to live within
governing institutional orders that are devised accordingly.”61 Article 3
comports with this conception, encompassing within self-determination
Indigenous Peoples’ rights to “freely determine their political status and
freely pursue their economic, social and cultural development.”62 Articles
4 and 5 are also consonant. While the former addresses the political di-
mension of self-determination—“the right to autonomy or self-
government”63 in internal and local affairs—the latter covers the full
gamut—“the right to maintain and strengthen . . . political, legal, eco-
nomic, social and cultural institutions” as well as “to participate fully . . .
in the political, economic, social and cultural life of the State.”64 This
multi-dimensional character makes sense given the subject matter: Indig-
enous Peoples’ control over their destinies.65 UNDRIP is a remedial in-
55 ICESCR, supra note 54, at art. 1 (emphasis added).
56 UNDRIP, supra note 5, at art. 1.
57 Id.
58 Montes & Cisneros, supra note 21, at 159.
59 See Robert T. Coulter, The Law of Self-Determination and the United Nations
Declaration on the Rights of Indigenous Peoples, 15 UCLA J. INT’L L. & FOREIGN AFF. 1, 12,
17 (2010) (distinguishing rights of self-determination established in UNDRIP Article
3 versus Common Article 1 of ICESCR and ICCPR).
60 Id. at 13, 16.
61 Anaya, supra note 47, at 187.
62 UNDRIP, supra note 5, at pmbl.
63 Id. at art. 4. See also ANAYA, supra note 53, at 150 (“Self-government is the
overarching political dimension of ongoing self-determination.”).
64 UNDRIP, supra note 5, at art. 5.
65 See ANAYA, supra note 53, at 106 (describing how “ongoing self-determination
requires a governing order under which individuals and groups are able to make

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884 LEWIS & CLARK LAW REVIEW [Vol. 22:3
strument in this respect. It aims “to remedy the historical denial of the
right of self-determination and related human rights”66 to Indigenous
Peoples and to respect and promote those inherent rights.67
B. Water is Life: Self-Determination & Water
“We recognize, honor and respect water as sacred and sustains all
life. Our traditional knowledge, laws and ways of life teach us to be re-
sponsible in caring for this sacred gift that connects all life.”68 This rever-
ent description of water from the Indigenous Peoples Kyoto Water Decla-
ration (Kyoto Declaration) mirrors statements by Indigenous Peoples
across the globe.69 Essentiality is a fundamental attribute within these
expressions. Indeed, water “sustains all life.”70 Water’s essentiality, of
course, bears on all life forms—human beings and otherwise. Further, as
a sacred gift of sustenance, water inherently “connects all life.”71 Many
implications flow from this complementary attribute, but it is unmistaka-
bly relevant to normative rules developed by human beings regarding
water. Water places us in relation at all levels of social organization and is
as fundamental to cultural, economic, and social life as it is to biological
life.72 Indigenous Peoples’ political mobilization over water, historical
and contemporary, is wholly unsurprising given its essentiality and con-
nectivity.
So too do these fundamental attributes throw into relief the integral
roles played by water in realizing the “foundational principle that
anchors the constellation of indigenous peoples’ rights”73 in UNDRIP:
self-determination. We explore these matters now. A predicate must be
mentioned at the outset: exercise of the right to self-determination pre-
supposes the existence of a right holder. Water, as a necessary element of
human life, bears in a grave and obvious way on Indigenous Peoples’ ex-
istence, collectively and individually, as a precondition for exercising the
right to self-determination.74 Shedding light on the diverse, potent ways
meaningful choices in matters touching upon all spheres of life on a continuous
basis.”).
66 Anaya, supra note 47, at 191.
67 UNDRIP, supra note 5, at pmbl.
68 Indigenous Peoples Kyoto Water Declaration ¶ 2 (2003), http://www.cawater-
info.net/library/eng/kyoto_water_declaration.pdf [hereinafter Kyoto Declaration].
69 UNESCO, WATER AND INDIGENOUS PEOPLES (R. Boelens et al. eds., 2006),
http://unesdoc.unesco.org/images/0014/001453/145353e.pdf [hereinafter UNESCO].
70 Kyoto Declaration, supra note 68, at ¶ 2.
71 Id.
72 Franz Krause & Veronica Strang, Thinking Relationships Through Water, 29 SOC’Y
& NAT. RES. 633, 633 (2016).
73 Anaya, supra note 47, at 184.
74 Water thus implicates Indigenous Peoples’ human right to life. ICESCR, supra
note 54, at art. 6; ICCPR, supra note 54, at art. 6.

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2018] INDIGENOUS WATER JUSTICE 885
in which water factors into Indigenous Peoples’ destinies and control
thereof (i.e., self-determination) is the task at hand. Article 3 of UNDRIP
frames our approach—specifically, the intertwined socioeconomic, cul-
tural, and political dimensions of self-determination alluded to above.
While mindful that self-determination is a context-specific process for
Indigenous Peoples,75 including the distinct roles played by water within
these dimensions, we regard UNDRIP and Indigenous Peoples’ water
declarations as providing authentic, robust norms for indigenous water
justice. The discussion that follows reflects this view. It simultaneously
outlines (1) water’s connections to Indigenous Peoples’ self-
determination, and (2) Indigenous Peoples’ considered views in
UNDRIP and water declarations on key subjects that bear on the relative
justness of domestic water laws and policies toward such peoples (e.g.,
“constituent” rights to lands, territories, and resources; cultural identity;
and self-government and political participation).
1. Of Bounty & Well-Being: Socioeconomic Self-Determination
As a baseline matter, water factors directly and diversely into the lives
and livelihoods of Indigenous Peoples, holding wide-ranging significance
for their health, economy, and social well-being.76 Water is inextricably
linked to the economic and social dimensions of Indigenous Peoples’
self-determination. It forms part of the physical basis for their existence.77
Indigenous Peoples’ water declarations draw myriad connections be-
tween water and socioeconomic self-determination. Two examples suf-
fice. By virtue of their right to self-determination, the Kyoto Declaration
articulates Indigenous Peoples’ “right to freely exercise full authority and
control of . . . natural resources[,] including water.”78 A similar but
broader sentiment appears in the Garma International Indigenous Water
Declaration (Garma Declaration). It emphasizes Indigenous Peoples’
“inherent and human rights to water for basic human needs, sanitation,
social, [and] economic” purposes.79 In both cases, water’s relevance to
Indigenous Peoples’ economic development and social welfare is plain.
A host of UNDRIP provisions likewise come into play when consider-
ing water’s connections to Indigenous Peoples’ socioeconomic self-
determination. Two UNDRIP provisions touching on health and eco-
nomic development, respectively, are initially notable. Article 24 address-
es the former. It articulates for Indigenous Peoples “an equal right to the
enjoyment of the highest attainable standard of physical and mental
75 ANAYA, supra note 53, at 187.
76 Garma International Indigenous Water Declaration 1 (2008), http://www.
nailsma.org.au/sites/default/files/publications/Garma-International-Indigenous-Water-
Declaration.pdf [hereinafter Garma Declaration].
77 Kyoto Declaration, supra note 68, at ¶ 3.
78 Id. at ¶ 9.
79 Garma Declaration, supra note 76, at 2.

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886 LEWIS & CLARK LAW REVIEW [Vol. 22:3
health[,]”80 obligating nation-states to take “necessary steps with a view to
achieving progressively the full realization of this right.”81 Turning to the
economic side, Article 20 likewise contains a far-reaching pronounce-
ment relevant to water’s pivotal role for Indigenous Peoples’ develop-
ment, including (but not exclusive to) agriculture.82 Indigenous Peoples
have the right to maintain and develop their economic and social systems
per this provision, and “to be secure in the enjoyment of their own
means of subsistence and development.”83 The takeaway from both arti-
cles is straightforward: water bears unmistakably on Indigenous Peoples’
core social and economic rights.
UNDRIP’s lands, territories, and resources provisions echo this mes-
sage. Implicating customary international law,84 three articles are illustra-
tive. Article 26 provides Indigenous Peoples have the right to own, use,
and develop “lands, territories and resources that they possess by reason
of traditional ownership or other traditional occupation or use, as well as
those which they have otherwise acquired.”85 Nation-states are obliged to
“give legal recognition and protection to these lands, territories and re-
sources.”86 The economic orientation of this text mirrors Article 32,
which articulates Indigenous Peoples’ rights “to determine and develop
priorities and strategies for the development or use of their lands or ter-
ritories and other resources.”87 A basic fact underlies these provisions:
Indigenous Peoples “typically have looked to a secure land and natural
resource base to ensure the economic viability and development of their
communities.”88 Water fits squarely here. Article 29 further aims at eco-
nomic development (water-related and otherwise), while also bearing on
public health. It expresses Indigenous Peoples’ “right to the conservation
and protection of the environment and the productive capacity of their
lands or territories and resources,” calling on states to “establish and im-
plement assistance programmes for indigenous peoples for such conser-
vation and protection . . . .”89
In sum, deep and numerous connections exist between water and
Indigenous Peoples’ socioeconomic self-determination—a point evident
from the Kyoto and Garma declarations that implicates a host of
80 UNDRIP, supra note 5, at art. 24.
81 Id.
82 See id. at art. 20.
83 Id.
84 See ILA Resolution, supra note 25, at ¶ 7 (discussing the obligation “to
recognise, respect, safeguard, promote and fulfil the rights of indigenous peoples to
their traditional lands, territories and resources”).
85 UNDRIP, supra note 5, at art. 26(2).
86 Id. at art. 26(3).
87 Id. at art. 32(1).
88 ANAYA, supra note 53, at 141.
89 UNDRIP, supra note 5, at art. 29(1).

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2018] INDIGENOUS WATER JUSTICE 887
UNDRIP provisions and counterparts in human rights law. In no uncer-
tain terms, water plays a pivotal role in Indigenous Peoples’ realization of
collective and individual aspirations for economic development, em-
ployment opportunities and conditions, standards of living (e.g., food
and housing), and physical and mental health.90 These considerations
inherently influence the justness of domestic water laws and policies.
2. Of Identity & Heritage: Cultural Self-Determination
“Self-determination includes the practice of our cultural and spiritu-
al relationships with water . . . .”91 This text from the Kyoto Declaration
weaves water into a related nexus between Indigenous Peoples’ right to
self-determination and a constituent right also constituting international
custom: the right to cultural identity, including its preservation and
transmission to future generations.92 The Garma and Kyoto declarations
offer rich insights in this realm, and UNDRIP likewise contains several
provisions of relevance.
The Kyoto and Garma declarations convey water’s cultural signifi-
cance to Indigenous Peoples in profound ways. “Indigenous peoples ob-
tain their spiritual and cultural identity . . . from their lands and wa-
ters[,]” describes the Garma Declaration,93 reverberating text in the Kyo-
Kyoto Declaration regarding how Indigenous Peoples’ relationships with
their lands, territories, and water are the fundamental “cultural and spir-
itual basis for [their] existence.”94 Reflected in these statements and oth-
ers are recurring conceptions of water emphasizing its inherent ethical
value and cosmological significance. As just one example, “[w]ater is a
spirit that has a right to be treated as an ecological entity, with its own in-
herent right to exist.”95 Intergenerational stewardship obligations stem
from these understandings of water’s nature and value. “We assert our
role as caretakers with rights and responsibilities to defend and ensure
the protection, availability and purity of water[,]” proclaims the Kyoto
Declaration, further stating, “[w]e stand united to follow and implement
our knowledge and traditional laws and exercise our right of self-
determination to preserve water, and to preserve life.”96 Often appearing
as unfortunate corollaries are accounts of the historical disregard afford-
ed by nation-states and public and private entities therein to Indigenous
90 Human rights pertaining to these socioeconomic factors are set forth in
ICESCR, supra note 54, at Arts. 6, 7, 11, 12 (rights to work, just and favorable work
conditions, adequate standard of living, freedom from hunger, and highest attainable
standard of physical and mental health).
91 Kyoto Declaration, supra note 68, at ¶ 11.
92 ILA Resolution, supra note 25, at ¶ 6.
93 Garma Declaration, supra note 76, at 1.
94 Kyoto Declaration, supra note 68, at ¶ 3.
95 Garma Declaration, supra note 76, at 2.
96 Kyoto Declaration, supra note 68, at ¶ 3.

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888 LEWIS & CLARK LAW REVIEW [Vol. 22:3
Peoples’ right to self-determination, cultural rights, traditional
knowledge, and practices pertaining to water.97 In contaminating, divert-
ing, and depleting water bodies, Indigenous Peoples’ identities and sur-
vival have been undermined.
UNDRIP is ripe with associated provisions. They emphasize not only
the protection of Indigenous Peoples’ cultures, but also their revitaliza-
tion and restoration, both generally and in the specific context of lands,
territories, and resources.98
“Indigenous peoples and individuals have the right not to be sub-
jected to forced assimilation or destruction of their culture.”99 This ad-
monition in Article 8 is unfettered and plainly adherent to water. It is
bolstered by articles addressing Indigenous Peoples’ “right to practise
and revitalize their cultural traditions and customs[,]” “right to the digni-
ty and diversity of their cultures, traditions, histories and aspirations[,]”
and “right to maintain, control, protect and develop their cultural herit-
age, traditional knowledge and traditional cultural expressions.”100
The foregoing grouping connects inextricably with UNDRIP’s lands,
territories, and resources provisions.101 “[C]ontrol by indigenous peoples
over developments affecting them and their lands, territories and re-
sources will enable them to maintain and strengthen their institutions,
cultures and traditions.”102 This premise from UNDRIP’s preamble in-
forms Article 26’s focus on Indigenous Peoples’ “right to the lands, terri-
tories and resources which they have traditionally owned, occupied or
otherwise used or acquired.”103 Even more explicit in regard to water, cul-
ture, and spirituality is Article 25, which provides that Indigenous Peo-
ples have “the right to maintain and strengthen their distinctive spiritual
relationship with their traditionally owned or otherwise occupied and
used lands, territories, waters and coastal seas and other resources and to
uphold their responsibilities to future generations in this regard.”104
Much more could be said about the interplay between water and In-
digenous Peoples’ intertwined rights to self-determination and cultural
identity, including the firmament of international law underpinning the
latter.105 The basic connection, however, is clear. Water is deeply embed-
97 Id. at ¶¶ 7, 13.
98 UNDRIP, supra note 5, at arts. 8, 11.
99 Id. at art. 8(1).
100 Id. at arts. 11(1), 15(1), 31(1).
101 See Ahren, supra note 29, at 203 (describing the “logical connection between a
right to cultural identity and a right of indigenous peoples’ to their traditional
territories.”).
102 UNDRIP, supra note 5, at pmbl.
103 Id. at art. 26(1). See Ahren, supra note 29, at 209 (construing Article 26(1) as
emphasizing cultural rights to lands, territories, and resources).
104 UNDRIP, supra note 5, at art. 25 (emphasis added).
105 See, e.g., ICCPR, supra note 54, at art. 27.

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2018] INDIGENOUS WATER JUSTICE 889
ded within Indigenous Peoples’ socio-cultural life, and, in their exercise
of the right to self-determination, Indigenous Peoples hold correspond-
ing rights to conserve, restore, recreate, and transmit to future genera-
tions these traditions, values, and worldviews. The treatment of these
rights bears directly on the justness of domestic water laws and policies.
3. Of Self-Governance & Participation: Political Self-Determination
Given the preceding socioeconomic and cultural connections, it is
stating the obvious to say that water is a subject of keen importance to the
governmental institutions, processes, and relations associated with Indig-
enous Peoples’ self-determination. “To recover and retain our connec-
tion to our waters, we have the right to make decisions about waters at all
levels[,]” proclaims the Kyoto Declaration.106 There are twin aspects to
this statement. One aspect focuses on Indigenous Peoples’ internal gov-
ernmental autonomy over water, a subject implied earlier when discuss-
ing how Indigenous Peoples’ right to self-determination encompasses the
“right to autonomy or self-government in matters relating to their inter-
nal and local affairs” per Article 4 of UNDRIP.107 The other aspect con-
cerns Indigenous Peoples’ participation in water-related decision-making
within nation-states’ broader political systems. Article 5 picks up here,
emphasizing Indigenous Peoples’ “right to participate fully, if they so
choose,” in the political life of the nation-state.108 Coupled with the Gar-
ma and Kyoto declarations, these UNDRIP provisions and others illumi-
nate water’s relevance within this dimension.109
The Garma and Kyoto declarations reflect the internal-external
framing of political self-determination set forth in Articles 4 and 5 of
UNDRIP. With regard to self-governance, the Kyoto Declaration de-
scribes how self-determination includes Indigenous Peoples’ “exercise of
authority to govern, use, manage, regulate, recover, conserve, enhance
and renew . . . water sources, without interference.”110 Put differently, In-
digenous Peoples have a “right to access and control, regulate and use
water for navigation, irrigation, harvesting, transportation and other
beneficial purposes.”111 Equally relevant in regard to political participa-
tion are the Kyoto Declaration’s provisions addressing Indigenous Peo-
ples’ rights to represent themselves through their own institutions; to re-
quire free, prior, and informed consent to all developments on their
lands; and to participate in culturally appropriate consultations for “all
decision-making activities and all matters” that may affect their inter-
106 Kyoto Declaration, supra note 68, at ¶ 16.
107 UNDRIP, supra note 5, at art. 4.
108 Id. at art. 5.
109 Jackson, supra note 19, at 13–15.
110 Kyoto Declaration, supra note 68, at ¶ 11.
111 Garma Declaration, supra note 76, at 2.

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890 LEWIS & CLARK LAW REVIEW [Vol. 22:3
ests.112 A related expression appears in the Garma Declaration concern-
ing how Indigenous Peoples must be fully involved in “source water and
[watershed] protection planning and operational processes[,] including
controlling Indigenous water licenses and fair allocation policies and
practices.”113
In addition to mirroring Articles 4 and 5, the Kyoto and Garma dec-
larations’ statements resonate with counterpart UNDRIP provisions ex-
istent in this context. Article 18 is initially worth flagging. It addresses
both aspects of Indigenous Peoples’ political self-determination by rec-
ognizing their “right to participate in decision-making in matters which
would affect their rights, through representatives chosen by themselves in
accordance with their own procedures, as well as to maintain and develop
their own indigenous decision-making institutions.”114 Article 26 further
emphasizes Indigenous Peoples’ self-governance by acknowledging their
rights to “control” lands, territories, and resources they possess.115 As for
political participation, a host of articles are notable. Examples identified
earlier include provisions requiring nation-states to consult and cooper-
ate in good faith with Indigenous Peoples, through their own representa-
tive institutions, to obtain free, prior and informed consent before (1)
“adopting and implementing legislative or administrative measures” that
may affect the Indigenous Peoples, or (2) approving “any project affect-
ing their lands or territories and other resources,” including water pro-
jects.116 Indigenous Peoples likewise have rights to participate in, and to
influence the contours of, processes devised by nation-states “to recog-
nize and adjudicate the rights of indigenous peoples pertaining to their
lands, territories and resources.”117 Such processes must be “fair, inde-
pendent, impartial, open and transparent.”118 It should be highlighted
that these consultation, participation, and consent requirements consti-
tute international customary law.119
To summarize, water is a subject of critical import for Indigenous
Peoples’ governmental institutions. Stemming from it, Indigenous Peo-
ples’ lives, cultures, economies, and social well-being hinge on the au-
tonomy afforded internal decisions and decision-making processes of
these institutions, as well as on their external relations with other gov-
ernmental entities in nation-states’ overarching political systems. Alt-
hough we wish to avoid generalizations, the Garma Declaration poignant-
112 Kyoto Declaration, supra note 68, at ¶ 16.
113 Garma Declaration, supra note 76, at 2.
114 UNDRIP, supra note 5, at art. 18.
115 Id. at art. 26(2).
116 Id. at arts. 19, 32(2).
117 Id. at art. 27.
118 Id.
119 ILA Resolution, supra note 25, at ¶ 5.

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2018] INDIGENOUS WATER JUSTICE 891
ly describes the prevailing historical backdrop: nation-states “have intro-
duced and enforced unlawful and unjust mechanisms” that have violated
Indigenous Peoples’ rights “without consultation, consent or just com-
pensation where required by law.”120 That these colonial practices raise
water-justice concerns states the obvious.
Part III further elaborates on our conceptualization of indigenous
water justice, addressing principles and prescriptions aimed at realizing
indigenous water justice in the Colorado, Columbia, and Murray-Darling
basins and elsewhere. Moving toward that material, we reiterate
UNDRIP’s authenticity and centrality in our endeavor. Coupled with the
water declarations, UNDRIP reveals pervasive connections between water
and the socioeconomic, cultural, and political dimensions of Indigenous
Peoples’ self-determination. It also expresses rich, clear norms indicative
of how Indigenous Peoples conceive of just relations between themselves,
nation-states, and public and private entities therein within these over-
lapping dimensions. With self-determination as a centerpiece,121
UNDRIP’s provisions bring to mind an array of water-justice topics. Ex-
amples include the existence and composition of indigenous water rights
and the respect afforded indigenous governments’ internal autonomy
over, and rights to external participation in, water management and
planning. In accordance with Article 46, Indigenous Peoples’ rights per-
taining to these matters—all of which repose in the right to self-
determination—“constitute the minimum standards for the survival, dig-
nity and well-being of the indigenous peoples of the world.”122 UNDRIP
can thus be understood as both a guidebook and ruler for realizing and
measuring indigenous water justice at the domestic level.
II. PLACE: WATERSCAPES, HOMELANDS & COLONIAL STATES
Now we turn to place—to three among myriad transboundary river
basins where UNDRIP might be utilized as a guidebook and ruler in the
manner just suggested. We proceed through the Colorado, Columbia,
and Murray-Darling basins in that order, devoting each section partly to
overviews of the basins’ key features, including Indigenous Peoples’ his-
tories and geographies, and partly to the enduring struggles of these
peoples for water justice. The struggles poignantly illustrate the connec-
tions drawn in Part I between water and the socioeconomic, cultural, and
political dimensions of Indigenous Peoples’ self-determination. In an in-
separable way, the struggles also illuminate enduring colonial legacies
within Australia, Canada, and the United States that constitute Part III’s
analytical and normative focus.
120 Garma Declaration, supra note 76, at 1.
121 Anaya, supra note 47, at 184.
122 UNDRIP, supra note 5, at art. 43.

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892 LEWIS & CLARK LAW REVIEW [Vol. 22:3
A. Colorado River Basin
Figuratively, there are two rivers in the Colorado River Basin. The
first one is the watercourse that comes to life in the Colorado Rockies,
sweeps through the magnificent Colorado Plateau, and with rare excep-
tions, dribbles to a dismal end in the sands of Mexico long before reach-
ing the sea.123 The other river is composed of ink, written and influenced
by a veritable army of lawyers, water managers, politicians, activists, aca-
demics, and—occasionally—the citizens of the basin. The former is the
heart and soul of the American Southwest, the latter is called the “Law of
the River.”124 Within this complex milieu, American Indian tribes have
attempted over the past century to retain their identity, sovereignty, and
culture by fighting for water rights, because in this sparsely-watered coun-
try, there is neither survival nor self-determination without water: “We are
of water, and the water is of us. When water is threatened, all living things
are threatened.”125
1. Basin Overview
The Colorado River arises in its eponymous state in Rocky Mountain
National Park, and joins its largest tributary, the Green River, in another
national park—Canyonlands—in Utah.126 From there it flows generally
southwest through some of the most sublime scenery on the planet, trav-
ersing Glen Canyon and its dam, Grand Canyon National Park, and the
Navajo, Hualapai, and Havasupai Indian Reservations.127 Along that
stretch it picks up two additional major tributaries, the San Juan River
and the Little Colorado River, and eventually pours into Lake Mead be-
hind Hoover Dam.128 Then, skirting Las Vegas, the river turns south and
forms the boundary between Arizona and California.129 Along that
boundary it passes five more Indian reservations, is occasionally joined by
a much-diminished Gila River, and eventually crosses the border into
Mexico to flow due south toward the Gulf of California.130 In historical
times, the river’s delta was a spectacular desert oasis—the western version
123 For a basin map that includes tribal lands, see U.S. BUREAU OF RECLAMATION,
COLORADO RIVER BASIN WATER SUPPLY AND DEMAND STUDY, TECHNICAL REPORT C –
WATER DEMAND ASSESSMENT C-40 fig.C-17 (2012), https://www.usbr.gov/lc/region/
programs/crbstudy/finalreport/Technical%20Report%20C%20-%20Water%20Demand%
20Assessment/TR-C-Water_Demand_Assessmemt_FINAL.pdf [hereinafter TECHNICAL
REPORT C].
124 See generally Lawrence J. MacDonnell, Colorado River Basin, in WATER AND
WATER RIGHTS 5 (Amy K. Kelley ed., 2011) (surveying Law of the River).
125 Water Declaration, BLACK MESA TRUST, http://www.blackmesatrust.org/?page_
id=59.
126 TECHNICAL REPORT C, supra note 123, at C-40 fig.C-17.
127 Id.
128 Id.
129 Id.
130 Id.

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2018] INDIGENOUS WATER JUSTICE 893
of the Everglades.131 But today the river almost never reaches the sea, and
the delta is largely a desiccated wasteland.132
Along its more than 1,400-mile course through seven U.S. states and
two Mexican states,133 the Colorado River does not flow through any ma-
jor cities, yet its system provides water to Las Vegas, Phoenix, and Tucson
inside the basin, and Albuquerque, Cheyenne, Denver, Los Angeles, Salt
Lake City, San Diego, Santa Fe, and Tijuana outside the basin.134 And de-
spite its relatively modest flow, the river is enormously important:
The Colorado River is the single most important water resource in
the Southwestern United States and Northwestern Mexico—
supplying water to an estimated 40 million people and over 5 mil-
lion acres of irrigated agriculture.
Within the United States, the Colorado River also serves federally
recognized Indian tribes in the 7 basin states, dozens of military in-
stallations, flows through 11 National Park Service units and sup-
ports unique riparian, environmental and recreational values. The
region is visited by tens of millions of recreational visitors every
year, adding to the economic importance of this unique and lim-
ited resource.135
Though it provides economic sustenance to the entire region, the
river is much more than that: “Lifeblood, life force, this river is the arche-
type for this region, the Colorado Plateau, which for many is America’s
true heart.”136 The first impression one should get in reading these de-
scriptions is that the Colorado River is a highly contested, over-developed
river where current and future imbalances between water supplies and
demands are precarious.137
131 See ALDO LEOPOLD, A SAND COUNTY ALMANAC: AND SKETCHES HERE AND THERE
154–58 (1949) (describing 1922 canoe trip through the delta’s green lagoons).
132 Brian Clark Howard, Saving the Colorado River Delta, One Habitat at a Time,
NAT'L GEOGRAPHIC, http://news.nationalgeographic.com/news/special-features/2014/
12/141216-colorado-river-delta-restoration-water-drought-environment/.
133 MacDonnell, supra note 124, at 5–6.
134 U.S. BUREAU OF RECLAMATION, COLORADO RIVER BASIN STAKEHOLDERS MOVING
FORWARD TO ADDRESS CHALLENGES IDENTIFIED IN THE COLORADO RIVER BASIN WATER
SUPPLY AND DEMAND STUDY, PHASE I REPORT 1–2, fig.1 (2015), https://www.usbr.gov/
lc/region/programs/crbstudy/MovingForward/Phase1Report/fullreport.pdf.
135 SEC’Y OF THE INTERIOR, ORDER NO. 3344, ACTIONS TO ADDRESS EFFECTS OF
HISTORIC DROUGHT ON COLORADO RIVER WATER SUPPLIES 1 (Jan. 18, 2017), https://
www.doi.gov/sites/doi.gov/files/uploads/signed_so_3344_co_river.pdf.
136 Brooke Williams, The Colorado: Archetypal River, in DESERT WATER: THE FUTURE
OF UTAH’S WATER RESOURCES 135, 136 (Hal Crimmel ed., 2014).
137 See U.S. BUREAU OF RECLAMATION, COLORADO RIVER BASIN WATER SUPPLY AND
DEMAND STUDY, STUDY REPORT SR–1 (2012), https://www.usbr.gov/lc/region/
programs/crbstudy/finalreport/Study%20Report/CRBS_Study_Report_FINAL.pdf
(addressing water supply-demand imbalance).

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894 LEWIS & CLARK LAW REVIEW [Vol. 22:3
Figure 1. Colorado River Basin138
138 TECHNICAL REPORT C, supra note 123, at C-40 fig.C-17.

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2018] INDIGENOUS WATER JUSTICE 895
In the midst of all this are twenty-six Indian tribes on twenty-eight
reservations (Figure 1).139 They got there first. Complex irrigation systems
in the Colorado River Basin were not novelties built by Mormon pioneers
or the Bureau of Reclamation, but rather by the Hohokam in what is now
central Arizona.140 When the first Spanish conquistadors appeared in this
region nearly 500 years ago,141 Indigenous Peoples had been living in the
area for millennia.142
2. Indigenous Water-Justice Struggles
The current state of water justice for Indigenous Peoples in the Col-
orado River Basin is best understood as a result of two conflicting but
simultaneous trends: the fall and rise of American Indian power, and the
rise and fall of federal water development.
Manifest Destiny dealt a hard hand to Indigenous Peoples. The fate
of American Indians in the Colorado River Basin reflects the larger story
of the clash between Indigenous Peoples and invading colonial forces.
The nineteenth century could best be described as one of resistance,
conquest, and internment. Reservations were created as tribes were mili-
tarily subdued, starting with the Gila River Indian Reservation in 1859.143
As a result, tribes were left destitute and forced to live on segments of
land that, in most but not all cases, were small portions of former home-
lands.144 Often the most desirable portions of these homelands were ex-
cluded from reservations at the insistence of local Anglos.145 The U.S. Su-
preme Court acknowledged this pattern in the seminal case of Arizona v.
California: “It can be said without overstatement that when the Indians
139 TECHNICAL REPORT C, supra note 123, at C-39 tbl.C-5, C-40 fig.C-17. The table
in this source notes twenty-four tribes in the text and footnotes but omits the
Havasupai and Hualapai tribes.
140 Hohokam Canals: Prehistoric Engineering, THE ARIZ. EXPERIENCE, http://
arizonaexperience.org/remember/hohokam-canals-prehistoric-engineering.
141 The Coronado Expedition, THE ARIZ. EXPERIENCE, http://arizonaexperience.org/
remember/coronado-expedition.
142 See Helen C. Fairley, Cultural Resources in the Colorado River Corridor, in U.S.
GEOLOGICAL SURVEY, THE STATE OF THE COLORADO RIVER ECOSYSTEM IN GRAND CANYON
177, 178 (2005), https://pubs.usgs.gov/circ/1282/c1282.pdf (describing archaeological
research of human habitation in Grand Canyon).
143 About, GILA RIVER INDIAN COMMUNITY, http://www.gilariver.org/index.php/
about (last visited May 15, 2018).
144 For sources describing this pattern, see generally VINE DELORIA, JR. & CLIFFORD
LYTLE, THE NATIONS WITHIN: THE PAST AND FUTURE OF AMERICAN INDIAN SOVEREIGNTY
(1984); DAVID E. WILKINS & K. TSIANINA LOMAWAINA, UNEVEN GRO UND: AMERICAN
INDIAN SOVEREIGNTY AND FEDERAL LAW (2001); CHARLES WILKINSON, BLOOD STRUGGLE:
THE RISE OF MODERN INDIAN NATIONS (2005).
145 As used here and elsewhere, the colloquial term “Anglos” refers to non-
indigenous settlers.

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896 LEWIS & CLARK LAW REVIEW [Vol. 22:3
were put on these reservations they were not considered to be located in
the most desirable area of the Nation.”146
The result was that tribes were politically powerless and surrounded
by hostile Anglos with ample political resources. This relationship be-
came so antagonistic that the U.S. Supreme Court noted in 1886 that,
“[b]ecause of the local ill feeling, the people of the States where [Indi-
ans] are found are often their deadliest enemies.”147 These deadly ene-
mies began moving into the Colorado River Basin in large numbers dur-
ing the latter half of the nineteenth century, and at the century’s turn
were demanding federal assistance to irrigate desert lands. The govern-
ment obliged and created the Reclamation Service in 1902 (later re-
named the Bureau of Reclamation).148 This genesis began a period of ex-
tensive water development in the basin, most of which was federally
financed, that necessitated a water-allocation system among the basin’s
seven U.S. states. The 1922 Colorado River Compact was the initial in-
strument drafted for this purpose,149 expediently dividing the basin into
an Upper Basin and a Lower Basin, apportioning a quantified amount of
water use to each sub-basin, and imposing important flow obligations.150
Unfortunately, the Compact’s apportionment scheme was based on over-
estimates of annual flows—a hydrological fallacy that has vexed the basin
ever since.151 However, the Compact offered the federal government the
assurance it desired, and six years later Congress passed the Boulder
Canyon Project Act of 1928,152 ratifying the Compact and authorizing
construction of Boulder (Hoover) Dam and the All-American Canal.153
The 1928 Act was the first in a series of enormous federal water in-
frastructure statutes that developed virtually the entire Lower Basin and
much of the Upper Basin. The 1956 Colorado River Storage Project Act
authorized Glen Canyon Dam, Flaming Gorge Dam, Navajo Dam, and
the Curecanti (Aspinall) Unit.154 And the 1968 Colorado River Basin Pro-
ject Act prompted construction of the massive Central Arizona Project
146 Arizona v. California, 373 U.S. 546, 598 (1963).
147 United States v. Kagama, 118 U.S. 375, 384 (1886).
148 Reclamation Act of 1902, Pub. L. No. 57-161, ch. 1093, 32 Stat. 388 (1902)
(codified as amended in scattered sections of 43 U.S.C.).
149 Colorado River Compact pmbl., art. I (1922), reprinted in KATHERINE OTT
VERBURG, U.S. BUREAU OF RECLAMATION, THE COLORADO RIVER DOCUMENTS 2008.
150 Id. at art. III(a)–(d).
151 COLORADO RIVER GOVERNANCE INITIATIVE, RETHINKING THE FUTURE OF THE
COLORADO RIVER: DRAFT INTERIM REPORT OF THE COLORADO RIVER GOVERNANCE
INITIATIVE 70 (2010), http://www.waterpolicy.info/wp-content/uploads/2015/09/
CRGI-Interim-Report.pdf.
152 Boulder Canyon Project Act, Pub. L. No. 70-642, 45 Stat. 1057 (1928).
153 Id. at §§ 1, 13(a).
154 43 U.S.C. §§ 620–620o (2016).

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2018] INDIGENOUS WATER JUSTICE 897
and several additional projects in the Upper Basin and Lower Basin.155
Other huge federal projects diverted water out of the Colorado River Ba-
sin to Denver and the Front Range, Albuquerque on the Rio Grande, and
Salt Lake City in the Great Basin.156 And California built its own huge
pipeline from the Lower Colorado River to the southern coastal plain.157
At this time, the U.S. paid more attention to Mexico than it did to sover-
eign Indian tribes, signing a treaty with that country in 1944 generally
promising Colorado River deliveries of 1.5 million acre-feet annually.158
During this period of intense water development, tribes had virtually
no voice or input, and as a result, virtually no water. The Bureau of Indi-
an Affairs (BIA) had a meager Indian irrigation program and started its
first project along the Colorado River in 1867.159 But the program was so
poorly funded, especially compared to non-Indian water development,
that BIA insiders would joke: “We began our first irrigation project in
1867 and we’ve never finished one yet.”160 Other than an off-hand refer-
ence to what Herbert Hoover dismissively called the “wild Indian arti-
cle,”161 Indians were a “forgotten people” when the 1922 Compact was
negotiated.162 It “acknowledged the existence of Indian water rights but
effectively ignored them.”163 The 1948 Upper Basin Compact also includ-
ed this Indian disclaimer, and then apportioned water to the Upper Ba-
sin states but not to Upper Basin tribes.164 Thus, what came to be called
the “Law of the River” generally coalesced during this period into a polit-
155 43 U.S.C. §§ 1501–1556 (2016).
156 See UPPER COLORADO RIVER COMM’N, SIXTY-SEVENTH ANNUAL REPORT 143–44
(2015), http://www.ucrcommission.com/RepDoc/UCRCAnnualReports/67_UCRC_
Annual_Report.pdf (identifying trans-basin diversions and infrastructure).
157 Colorado River Aqueduct, THE METROPOLITAN WATER DIST. OF S. CAL., http://
www.mwdh2o.com/AboutYourWater/Sources%20Of%20Supply/Pages/Imported.as
px (last visited May 15, 2018).
158 Utilization of the Waters of the Colorado and Tijuana Rivers and of the Rio
Grande, Mex–U.S., art. 10, Feb. 3, 1944, T.S. 994. Article 10 contains the treaty’s
Colorado River apportionment.
159 U.S. GOV’T ACCOUNTABILITY OFFICE, INDIAN IRRIGATION PROJECTS: NUMEROUS
ISSUES NEED TO BE ADDRESSED TO IMPROVE PROJECT MANAGEMENT AND FINANCIAL
SUSTAINABILITY 37 (2006), http://www.gao.gov/assets/250/249094.pdf.
160 DANIEL MCCOOL, COMMAND OF THE WATERS: IRON TRIANGLES, FEDERAL WATER
DEVELOPMENT, AND INDIAN WATER 112 (1994).
161 NORRIS HUNDLEY, JR., WATER AND THE WEST: THE COLORADO RIVER COMPACT
AND THE POLITICS OF WATER IN THE AMERICAN WEST 212 (2nd ed. 2009); Colorado
River Compact, supra note 149, at art. VII.
162 HUNDLEY, supra note 161, at 80.
163 Amy Cordalis & Daniel Cordalis, Indian Water Rights: How Arizona v. California
Left an Unwanted Cloud over the Colorado River Basin, 5 ARIZ. J. ENVTL. L. & POL’Y 333,
341 (2014).
164 Upper Colorado River Basin Compact, COLO. REV. STAT. ANN. § 37-62-101
(2016). The apportionment scheme and disclaimer appear in Articles III and XIX(a),
respectively.

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898 LEWIS & CLARK LAW REVIEW [Vol. 22:3
ical-legal framework for diverting water away from Indian reservations
and to non-Indian farms, power plants, and cities, largely funded by the
federal government and built by the Bureau of Reclamation.
But the invisibility of Indian tribes gradually began to change due to
a series of victories at the national and basin-wide levels. In 1908, the U.S.
Supreme Court decided the landmark case of Winters, holding that the
creation of Indian reservations entailed implicit reservations of water
necessary to fulfill the purposes for which reservations had been created
(e.g., agriculture in Winters).165 These reserved water rights did not de-
pend upon ongoing diversion and use, and their priority date was the
reservation’s creation date—often senior to other appropriators and thus
entitled to be satisfied first during shortages.166 This novel reserved rights
doctrine became a “kind of Magna Carta for the Indian.”167 It was a stun-
ning—and surprising—defeat for Anglo settlers. It is critical to remember
that Winters was handed down during an era when most observers as-
sumed, and some non-Indian westerners hoped, Indians were a vanishing
race that would soon dissolve into the ether, leaving their lands and ap-
purtenant water available for Anglos.168
The momentous victory in Winters did not have an immediate effect
in the Colorado River Basin, but it promised a brighter future.169 In 1924,
all Indians were granted U.S. citizenship,170 and a decade later the Indian
Reorganization Act gave federal imprimatur to Indian self-government,
providing tribes with a political voice and measure of autonomy.171 These
developments made it possible for tribes to begin asserting their political
and legal views, especially on a subject as essential as water.
The next surge of victories came as a result of World War II. Return-
ing Indian veterans demanded a voice in the political process; in many
states and localities they could not even vote. At the national level, Indi-
ans formed the National Congress of American Indians (NCAI) in
1944.172 Indian veterans in New Mexico and Arizona, with the help of
165 Winters v. United States, 207 U.S. 564, 576–77 (1908). For a reexamination of
Winters upon its centennial, see THE FUTURE OF INDI AN AND FEDERAL RESERVED WATER
RIGHTS: THE WINTERS CENTENNIAL 1–2 (Barbara Cosens & Judith V. Royster eds.,
2012).
166 See generally Winters, 207 U.S. at 576–77.
167 Norris Hundley, Jr., The Dark and Bloody Ground of Indian Water Rights:
Confusion Elevated to Principle, 9 W. HIST. Q. 454, 463 (1978).
168 For illumination of this context, see FREDERICK HOXIE, A FINAL PROMISE: THE
CAMPAIGN TO ASSIMILATE THE INDIANS, 1880–1920, at 143–45, 168, 187 (2001).
169 See THE FUTURE OF INDIAN AND FEDERAL RESERVED WATER RIGHTS, supra note
165, at 8–9.
170 Indian Citizenship Act, Pub. L. No. 68-175, 43 Stat. 253 (1924) (extending
citizenship to Indians).
171 Indian Reorganization Act, Pub. L. No. 73-383, 48 Stat. 984 (1934).
172 Mission and History, NAT’L CONGRESS OF AM. INDIANS, http://www.ncai.org/
about-ncai/mission-history (last visited May 15, 2018).

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2018] INDIGENOUS WATER JUSTICE 899
NCAI, sued successfully for the right to vote in 1948.173 Indians in Utah
later won the right to vote in 1957—again, the result of a lawsuit.174
In the 1950s, indigenous well-being took a big step backward with
the termination era175 and passage of federal legislation called the
McCarran Amendment,176 which the U.S. Supreme Court later interpret-
ed as authorizing state courts to adjudicate reserved rights in general
stream adjudications.177 This unfortunate digression was followed, howev-
er, by an organized Indian power movement reflecting the larger U.S.
civil rights movement.178 This surge in political activism eventually result-
ed in the Indian Self-Determination and Education Assistance Act of
1975, which greatly assisted tribes in advocating for their own interests.179
In the meantime, basin tribes won a major victory in arguably the most
important Colorado River judicial decision ever issued. In 1963, after a
decade of litigation, the U.S. Supreme Court issued its Arizona v. Califor-
nia opinion.180 The Court re-affirmed the Winters Doctrine and an-
nounced a standard for quantifying reserved rights associated with Indian
reservations created, partly or wholly, for agriculture—the “practicably
irrigable acreage” (PIA) standard.181 Applying this standard, the Court
authorized five tribes with reservations along the Lower Colorado River
to divert approximately 950,000 acre-feet annually,182 while indicating its
use of the PIA standard “shall constitute the means of determining [the]
quantity of [the] adjudicated water rights but shall not constitute a re-
173 Harrison v. Laveen, 196 P.2d 456, 463 (Sup. Ct. Ariz. 1948); Trujillo v. Garley,
statutory three-judge federal court, New Mexico (1948) (unreported). For case
analyses, see DANIEL MCCOOL ET AL., NATIVE VOTE: AMERICAN INDIANS, THE VOTING
RIGHTS ACT, AND THE RIGHT TO VOTE xi (2007).
174 Allen v. Merrell, 305 P.2d 490 (Sup. Ct. Utah 1956).
175 The termination era was a period in federal Indian policy during which the
federal government disestablished reservations and terminated its trust relationship
with certain tribes in furtherance of the ultimate goal of assimilation. The Termination
Era, NATIVE AM. NETROOTS, http://nativeamericannetroots.net/diary/1511.
176 Pub. L. No. 82-495, § 208(a), 66 Stat. 560 (1952) (codified at 43 U.S.C. § 666
(2012)).
177 Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 564 (1983); Colo. River
Water Conservancy Dist. v. U.S., 424 U.S. 800, 809–11 (1976).
178 See DONALD L. FIXICO, INDIAN RESILIENCE AND REBUILDING: INDIGENOUS NATIONS
IN THE MODERN AMERICAN WEST 122–25 (2013) (describing Indian activism in the
1960s).
179 Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No.
93-638, 88 Stat. 2203 (codified as amended at 25 U.S.C. § 2501 et seq. (Supp. IV
2017)).
180 Arizona v. California, 373 U.S. 546, 550 (1963).
181 Id. at 600–01. See also COHEN’S HANDBOOK OF FEDERAL INDIAN LAW 1184–85
(Nell Jessup Newton et al. eds., 5th ed. 2005) (“In general, water rights to support an
agricultural purpose for reservations are quantified according to irrigable acres, while
water rights for other purposes are quantified by other measures.”).
182 Arizona v. California, 547 U.S. 150, 169, 174, 181 (2006).

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900 LEWIS & CLARK LAW REVIEW [Vol. 22:3
striction of the usage of them to irrigation or other agricultural applica-
tion.”183 Arizona v. California did not, however, address reserved rights
held by basin tribes beyond the five just noted, which left these important
matters unresolved.
By the late 1970s, the political fortunes of American Indians and the
federal water development program began a role reversal. President
Carter issued his famous “hit list” of wasteful, pork barrel water projects
in 1977.184 Western politicians howled, but then had to acquiesce to the
advent of cost-sharing during the Reagan era. At the same time, the ris-
ing environmental movement began to challenge the wisdom of building
dams and drying up rivers. The Bureau of Reclamation’s plans to build
dams on the Green River in Echo Park (i.e., Dinosaur National Monu-
ment) and in the Grand Canyon were thwarted.185 It was becoming obvi-
ous to many that, with nearly 80,000 dams in place,186 the United States,
and especially the Colorado River Basin, had run out of desirable dam
sites. Following the rambunctious overreach of the Floyd Dominy era
(Reclamation Commissioner from 1959 to 1969),187 the Bureau was be-
ginning to look like an effete organization without a viable mission. Its
last big construction project, the Animas-La Plata Project,188 was so ab-
surdly cost-ineffective that even long-time supporters began to criticize
the agency.189 And its long indifference to Indian water needs put it
squarely in the cross-hairs of the boisterous and increasingly influential
tribal community.
No longer could Indian tribes be ignored. They had won numerous
victories in court in most of the major river basins in the American West,
183 Id. at 168.
184 DANIEL MCCOOL, RIVER REPUBLIC: THE FALL AND RISE OF AMERICA’S RIVERS 29–
30 (2012).
185 These dam fights are chronicled in MARK W.T. HARVEY, A SYMBOL OF
WILDERNESS: ECHO PARK AND THE AMERICAN CONSERVATION MOVEMENT (1994); RUSSELL
MARTIN, A STORY THAT STANDS LIKE A DAM: GLEN CANYON AND THE STRUGGLE FOR THE
SOUL OF THE WEST (1990).
186 This figure is drawn from the National Inventory of Dams compiled by the
Army Corps of Engineers and accessible at National Inventory of Dams, U.S. ARMY CORPS
OF ENG’RS, http://nid.usace.army.mil/cm_apex/f?p=838:12 (last visited May 15, 2018).
187 Reclamation History, U.S. BUREAU OF RECLAMATION, https://www.usbr.gov/
history/CommissBios/dominy.html (last visited May 15, 2018).
188 Animas-La Plata Project, U.S. BUREAU OF RECLAMATIO N, https://www.usbr.gov/
uc/progact/animas/ (last visited May 15, 2018).
189 See JEDIDIAH S. ROGERS, U.S. BUREAU OF RECLAMATION, ANIMAS-LA PLATA
PROJECT 1, 12, 19 (Andrew H. Gahan ed., 2013), https://www.usbr.gov/history/
ProjectHistories/Animas_La_Plata%20D1%20[1].pdf; Ed Marston, Cease-Fire Called on
Animas-La Plata Front, HIGH COUNTRY NEWS (Nov. 11, 1996), https://www.hcn.org/
issues/93/2875.

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2018] INDIGENOUS WATER JUSTICE 901
thanks to Winters and Arizona v. California.190 Their senior reserved rights
claims, often for large amounts of water, posed serious threats to western
states’ prior appropriation systems, including in the Colorado River Ba-
sin.191 Although states had gained jurisdiction to resolve these claims in
general stream adjudications,192 the outcomes of these expensive, glacial
proceedings were uncertain, including the prospect of substantial re-
served rights awards. Similarly, the federal government was placed in a
dilemma, squeezed between its federal trust responsibilities to tribes
(e.g., assertion of reserved rights claims) and its long-established recla-
mation program tailored to non-tribal interests. And tribes, although
empowered by recent victories, could neither view those victories as as-
surances of their fates in general stream adjudications, nor assume re-
served rights awards themselves would bring wet water and funding for
the infrastructure necessary to deliver it. Out of fear and desperation,
many parties turned to negotiation as a solution.193
Thus began the settlement era, with a modest agreement signed at
Ak-Chin in central Arizona in 1978,194 and continuing with another
eighty-eight settlements, agreements, and compacts.195 To date, twelve
settlements, involving sixteen tribes, have been negotiated in the Colora-
do River Basin, allocating 2.9 million acre-feet in diversion rights to those
tribes as well as their counterparts with adjudicated rights per Arizona v.
California.196 That leaves a dozen tribes without water rights recognized
and quantified via settlement or adjudication,197 and the amount of water
that could potentially be claimed by these tribes is enormous. In 1992,
ten basin tribes formed the Ten Tribes Partnership “for the purpose of
strengthening tribal influence . . . to develop and protect tribal water re-
sources.”198 These ten tribes already have rights to about twenty percent
of the mainstream flow of the Colorado, with many possible additional
claims.199 Of these tribes, the Navajos stand out for the potential size of
190 DANIEL MCCOOL, NATIVE WATERS: CONTEMPORARY INDIAN WATER SETTLEMENTS
AND THE SECOND TREATY ERA 14–15 (2002).
191 See DONALD WORSTER, RIVERS OF EMPIRE: WATER, ARIDITY, AND THE GROWTH OF
THE AMERICAN WEST 298 (1985) (describing Winters doctrine as “potentially a
bombshell that could blow the entire structure of western water rights to ruins.”).
192 See supra notes 176–177 and accompanying text.
193 For a discussion of these dynamics, see MCCOOL, supra note 190, at 32–36.
194 Ak-Chin Indian Water Rights Settlement Act of 1978, Pub. L. No. 95-328, 92
Stat. 409 (1978).
195 For a document list and postings, see Native American Water Rights Settlement
Project, UNIV. OF N.M. AM. INDIAN LAW CTR., http://digitalrepository.unm.edu/nawrs/.
196 TECHNICAL REPORT C, supra note 123, at C-38 to C-39.
197 Id. at C-38.
198 Ten Tribes Partnership, COLORADO RIVER WATER USERS ASS’N, https://www.
crwua.org/colorado-river/ten-tribes (last visited May 15, 2018).
199 Id.

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902 LEWIS & CLARK LAW REVIEW [Vol. 22:3
claims that are “[l]ooming in the distance.”200 That tribe signed a settle-
ment in 2010 for the New Mexico portion of the San Juan River,201 and
another settlement with Utah on the lower San Juan River is pending in
Congress.202 But that leaves the Arizona portion of the reservation—the
largest part—with outstanding claims.203 In the final analysis, as acknowl-
edged by the Bureau of Reclamation’s recent Basin Study, changes in wa-
ter availability due to tribal water use and resolution of tribal water rights
claims constitute a “critical uncertainty.”204
One of the great ironies of history is that the settlement era has giv-
en the Bureau of Reclamation a new mission—just as its star appeared to
be fading. In essence, although the damage inflicted by the agency dur-
ing the first century of its existence cannot be undone, the Bureau has
begun taking steps to make amends with Indian tribes. An initial example
of this redemptive pattern is the use of Central Arizona Project water to
facilitate tribal water rights settlements. Ten tribes in central and south-
ern Arizona have fully or partially resolved their claims through such set-
tlements, which account for nearly half of the project’s water.205 Another
example is the Animas-La Plata Project mentioned above, which was po-
litically moribund until it found new life as an Indian project.206
Although it would be disingenuous at this juncture to suggest the
Bureau of Reclamation affords basin tribes the same attention as non-
tribal interests, progress is being made in this direction. The Bureau’s
Basin Study is illustrative. It did not “fully account for tribal water de-
mand[,]” “reflect the potential use of tribal water by others[,]” or “show
the potential impact on Colorado River Basin water supply if a substantial
amount of the presently unused or unquantified tribal water is used by
the tribal water rights holders prior to 2060.”207 As a result, these defi-
200 Cordalis & Cordalis, supra note 163, at 362.
201 San Juan River Basin in New Mexico Navajo Nation Water Rights Settlement
Agreement (2010).
202 S.664 – Navajo Utah Water Rights Settlement Act of 2017, CONGRESS.GOV, https://
www.congress.gov/bill/115th-congress/senate-bill/664. Hearings on this bill were
held in December 2017. Id.
203 Tribal Water Uses in the Colorado Basin, NAVAJO NATION, http://www.
tribalwateruse.org/?page_id=132 (last visited May 15, 2018).
204 U.S. BUREAU OF RECLAMATION, COLORADO RIVER BASIN WATER SUPPLY AND
DEMAND STUDY, APPENDIX C9, TRIBAL WATER DEMAND SCENARIO QUANTIFICATION C9-2
(2012), https://www.usbr.gov/lc/region/programs/crbstudy/finalreport/Technical%
20Report%20C%20-%20Water%20Demand%20Assessment/TR-C_Appendix9_FINAL.pdf.
205 Tribal Water, CENTRAL ARIZONA PROJECT, https://www.cap-az.com/tribal-water
(last visited May 15, 2018).
206 See MCCOOL, supra note 190, at 87–99.
207 Agreement Regarding Importance of the Colorado River Basin Tribal Water Study as
Identified in the Colorado River Basin Water Supply and Demand Study, U.S. BUREAU OF
RECLAMATION (2013), https://www.usbr.gov/lc/region/programs/crbstudy/agreement.
pdf.

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2018] INDIGENOUS WATER JUSTICE 903
ciencies prompted a post-Basin Study agreement between the Ten Tribes
Partnership and Department of the Interior for a separate tribal water
study.208 It is being collaboratively undertaken by the Bureau and Ten
Tribes Partnership, and was originally slated for completion in 2015, then
pushed back to 2017, and as of this date the actual release is unknown.209
All told, Colorado River Basin water management seems to be evolving
(albeit very gradually) in terms of the visibility of tribes and their water
rights.
A final, heartfelt point should be made about this hopeful yet in-
complete evolution. It is implicit in the material above regarding negoti-
ated settlements, the Ten Tribes Partnership, and the tribal study but de-
serves separate mention. Indigenous Peoples in the Colorado River Basin
have thought long and hard about the complex, existential issues associ-
ated with water justice, and have advocated and labored tirelessly in re-
gard to these issues. This dialogue, advocacy, and work undoubtedly will
continue. When asked to define indigenous water justice, one Hopi
woman replied in the plainest terms: “We’d like to have good, clean wa-
ter.”210 More elaborately, in discussions with colleagues from several tribes
over the course of this project, they articulated the following principles—
labeled the “Bluff Principles” for where they were finalized—as essential
to any fair, equitable water policy.
1. Clean water for all peoples.
2. Honoring sacred sites and the religious beliefs of all peo-
ples.
3. A holistic approach to water management that focuses on
the ecosystem.
4. Educating the public on the value of water: water is life.
5. Using science to improve our understanding of water quali-
ty and quantity.
6. A focus on collaborative, inclusive policy-making.
7. A water regime free of racism and prejudice.
8. An ethic that emphasizes concern and caring for everyone,
downstream and upstream.
9. A goal of stewardship; leave the Earth and its water systems
better than we found them.
208 Id.
209 COLORADO RIVER BASIN TEN TRIBES PARTNERSHIP TRIBAL WATER STUDY, PLAN OF
STUDY (2013), http://www.circleofblue.org/wp-content/uploads/2015/06/Reclamation_
Colorado-River-Basin-Tribal-Water-Study-Plan-of-Study-Final.pdf [hereinafter TRIBAL
STUDY].
210 Interview with Marilyn Tewa, former Tribal Council member, Hopi Tribe
(March 16, 2017) (on file with authors).

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904 LEWIS & CLARK LAW REVIEW [Vol. 22:3
10. Equity and fairness should be a basic feature in all water al-
location decisions.
11. Understand that traditional wisdom, especially from the
Elders, is critical.
12. A sense of urgency; we must act now before the problems
become overwhelming.
13. We must think of the welfare of future generations, not just
for our own time.
14. Value water as a precious life-giving resource; we should
not take it for granted.
15. Water is a gift provided by the Creator and should be sa-
cred, shared, and loved.
16. Water policy-making should embody more spirituality and
kindness, and less confrontation.211
Echoing excerpts from the Kyoto and Garma declarations and
UNDRIP in Part I, the Bluff Principles are just that—by nature, abstract
and ultimate goals. When tribal water officials reviewed the principles,
they were struck by the gap between such high-minded ideals and every-
day challenges on the ground. The Navajo Nation’s principal hydrologist
explained: “There is a viewpoint that people have on what things should
be, and then there’s what things really are, and I live in that second
world.”212 In a sense, the existence of this gap is evidence that indigenous
water justice has not yet been achieved. Reducing the space between
principle and reality thus might be regarded as the paramount struggle
facing the Colorado River Basin as policymakers attempt to bend the Law
of the River toward Indigenous Peoples’ self-determination and water jus-
tice. This herculean task is not unique to this setting, of course, which
brings us to the waterscape, homelands, and colonial legacy of the Co-
lumbia River Basin.
B. Columbia River Basin
1. Basin Overview
The Columbia River begins in the Rocky Mountains of British Co-
lumbia, Canada, at Columbia Lake and wetlands, and flows 1,200 miles
211 We express thanks and admiration to all of our indigenous colleagues who
contributed to the drafting of these principles: Darphane Badback, Yolanda Badback,
Stacia Bailie, Amanda Barrera, Delphina Carter, Forrest Cuch, Howard Dennis,
Lorrie Muriel, Nora McDowell, and Marilyn Tewa. We are deeply indebted to John
Weisheit and Owen Lammers for organizing two sessions with these wonderful
people—the first in Moab, Utah in June 2016, and the second in Bluff, Utah in
October 2016.
212 Interview with Jason John, Principal Hydrologist, Navajo Nation Department
of Water Resources (March 15, 2017).

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2018] INDIGENOUS WATER JUSTICE 905
before it reaches the Pacific Ocean in a rich estuary near Astoria, Oregon
(Figure 2). The basin includes ancestral lands of seventeen First Nations
in Canada, and fifteen Native American tribes in the United States. It also
includes portions of seven U.S. states and one Canadian province. With
its headwaters in the Rocky Mountains, the river is fed by snow-
dominated watersheds, giving it a hydrograph indicative of high spring
runoff and a pre-climate change average annual flow of 200 million acre-
feet.213 The river and its tributaries provide spawning grounds for thir-
teen runs of salmon and steelhead populations that have adapted to a
highly dynamic environment over ten million years.214
Indigenous Peoples have an ancient history in the Columbia River
Basin. From oral and then written accounts, it is clear they had a special
relation to the Columbia River and its iconic salmon prior to European
contact. Salmon provided the primary protein source and formed the
cornerstone of religion, culture, and economy.215 The lifecycles of the
fisheries formed the basis for marking time.216 Indigenous Peoples took
advantage of river morphology to harvest salmon. One of the oldest fish-
ing villages in North America called Wy-am (Celilo Falls) was an econom-
ic and cultural mecca.217 Indigenous laws regulated fish harvest.218
Initial contact between the basin’s Indigenous Peoples and Euro-
Americans occurred on September 20, 1805.219 For at least three decades,
contact focused on trade and did not alter Indigenous Peoples’ domi-
nance in the region.220 This balance shifted as the migration of Euro-
Americans transitioned to settlement. Commercial fishing with high-
213 Alan F. Hamlet, The Role of Transboundary Agreements in the Columbia River Basin:
An Integrated Assessment in the Context of Historic Development, Climate, and Evolving Water
Policy, in CLIMATE AND WATER: TRANSBOUNDARY CHALLENGES IN THE AMERICAS 23
(Henry F. Diaz & B.J. Morehouse eds., 2003).
214 Michael C. Healey, Resilient Salmon, Resilient Fisheries for British Columbia,
Canada, 14 ECOLOGY & SOCIETY 2, 6 (2009), https://www.ecologyandsociety.org/
vol14/iss1/art2/.
215 Mary L. Pearson, The River People and the Importance of Salmon, in THE COLUMBIA
RIVER TREATY REVISITED: TRANSBOUNDARY RIVER GOVERNANCE IN THE FACE OF
UNCERTAINTY 70 (Barbara Cosens ed., 2012). For a useful source illuminating the role
of salmon in indigenous mythology, see DONALD M. HINES, TALES OF THE NEZ PERCE
(1999).
216 DAN LANDEEN & ALLEN PINKHAM, SALMON AND HIS PEOPLE: FISH & FISHING IN
NEZ PERCE CULTURE 1 (1999).
217 Celilo Falls, COLUMBIA RIVER INTER-TRI BAL FISH COMMISSION, http://www.
critfc.org/salmon-culture/tribal-salmon-culture/celilo-falls/ (last visited May 15, 2018).
218 Katrine Barber, Indigenous Regulations of the Harvest, THE OREGON HISTORY
PROJECT, https://oregonhistoryproject.org/narratives/canneries-on-the-columbia/the-
native-fishery/a-treaty-right-and-indigenous-regulation/#.WXvKt1GJiQN (last visited May
15, 2018).
219 ALVIN M. JOSEPHY, THE NEZ PERCE INDIANS AND THE OPENING OF THE NORTHWEST
5 (1997).
220 Id. at 15, 40.

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906 LEWIS & CLARK LAW REVIEW [Vol. 22:3
volume canneries began in 1866.221 The corresponding decline of the
fishery led to the basin’s first hatchery in 1877.222 Settlement and agricul-
tural development led to wholesale changes in upland cover and altered
natural drainage systems.223
By the mid-1800s, the influx of Euro-American settlers brought war224
and disease225 to the basin’s Indigenous Peoples. Negotiations concerning
cessions of tribal territory were driven by railroad interests and the desire
to expand settlement.226 Changes in the territorial sovereignty of the Nez
Perce provide an illustration of the speed of change. Prior to 1855, the
aboriginal territory of the Nez Perce was seventeen-million acres.227 In
1855, the Nez Perce ceded land to the United States, reducing their terri-
tory to roughly seven-million acres.228 In 1863, cessions reduced the terri-
tory to 750,000 acres, following the discovery of gold within the 1855 res-
ervation.229 The 1893 allotment of the reservation under the Dawes Act,230
and subsequent opening to homesteading, reduced tribal trust land to
roughly 113,000 acres.231 In sum, the reduction in land held exclusively
for the tribe from seventeen-million acres to 113,000 acres occurred in a
single generation. Although Indigenous Peoples survived in the Colum-
bia River Basin, reduction in territory and decimation of populations
from colonization led to reliance on assistance from the federal govern-
ment for food and supplies.
During this period, the federal government used resources to stimu-
late innovation and growth in the western United States through legisla-
tion like the 1872 Mining Law and Homestead Act of 1862, which trans-
ferred federal lands into private ownership in exchange for nominal
221 RICHARD WHITE, THE ORGANIC MACHINE: THE REMAKING OF THE COLUMBIA
RIVER 37 (1995).
222 Hatcheries, NORTHWEST POWER AND CONSERVATION COUNCIL, https://www.
nwcouncil.org/history/hatcheries (last visited May 15, 2018).
223 See generally MARK FIEGE, IRRIGATED EDEN: THE MAKING OF AN AGRICULTURAL
LANDSCAPE IN THE AMERI CAN WEST (1999) (discussing settlement, agricultural
development, and ecological changes).
224 JOSEPHY, supra note 219, at 292.
225 Boldt Decision, supra note 32, at 352.
226 JOSEPHY, supra note 219, at 311, 324. From 1854 to 1855, Isaac I. Stevens,
Governor of Washington Territory, negotiated treaties with eleven northwest tribes.
Boldt Decision, supra note 32, at 330.
227 Where Did the Nez Perce Live Before Contact with White Men and Where Do They Live
Now?, NEZ PERCE TRIBE, http://www.nezperce.org/Official/FrequentlyAskedQ.htm#
where (last visited May 15, 2018).
228 Treaty of June 11, 1855, 12 Stat. 957 (1859).
229 Treaty of June 9, 1863, 14 Stat. 647 (1867).
230 General Allotment Act, 24 Stat. 388, ch. 119, 25 U.S.C. § 331 (1887).
231 About Us, NEZ PERCE TRIBE FORESTRY AND MANAGEMENT DIVISION, https://
nezperceforestryandfire.com/2013/01/10/what-we-offer-to-the-nez-perce-people/
(last visited May 15, 2018).

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2018] INDIGENOUS WATER JUSTICE 907
fees.232 The Army Corps of Engineers began transforming the Columbia
River for navigation with locks at the Cascades (now Cascade Locks) be-
ginning in 1896, with numerous dams to follow.233 The global economic
crisis of the Great Depression and the ensuing poverty within the basin
highlighted the fact that the rural, agricultural west could not sustain this
level of wealth and productivity without external resources, including
massive federal investment in water infrastructure.
Transformation of the Columbia River became part of the major
federal public works projects under the New Deal, leading to construc-
tion of Bonneville Dam and later Grand Coulee Dam, which would pro-
vide for irrigation and flood control, inundate tribal lands, and block
salmon from the upper Columbia Basin in Canada.234 Today, roughly 7.8
million acres of irrigated land depend on the basin’s water,235 and storage
capacity on the river is twenty percent of the average annual flow.236 The
Columbia River is one of the largest producers of hydropower in the
world.237 The United States and Canada jointly operate the river under
the Columbia River Treaty, which provides for coordination of numerous
dams for hydropower production and flood control.238 Only one Native
American entity holds a federal license for hydropower production in the
basin: the Confederated Salish and Kootenai Tribes.239
232 General Mining Law of 1872, as amended, 30 U.S.C. § 29, 43 C.F.R. Pt. 3860
(1872); Act of May 20, 1862, Pub. L. No. 37-64, 12 Stat. 392 (1862).
233 See generally WHITE, supra note 221 (chronicling hydropower development in
basin).
234 Paul W. Hirt & Adam M. Sowards, The Past and Future of the Columbia River, in
THE COLUMBIA RIVER TREATY REVISITED: TRANSBOUNDARY RIVER GOVERNANCE IN THE
FACE OF UNCERTAINTY 119–20 (Barbara Cosens ed., 2012).
235 Irrigation, FOUNDATION FOR WATER & ENERGY EDUCATION, http://fwee.org/
environment/what-makes-the-columbia-river-basin-unique-and-how-we-benefit/
irrigation/ (last visited May 15, 2018). For an excellent discussion of agriculture in
the basin, see FIEGE, supra note 223.
236 James D. Barton & Kelvin Ketchum, The Columbia River Treaty: Managing for
Uncertainty, in THE COLUMBIA RIVER TREATY REVISITED: TRANSBOUNDARY RIVER
GOVERNANCE IN THE FACE OF UNCERTAINTY 45 (Barbara Cosens ed., 2012).
237 BONNEVILLE POWER ADMIN. ET AL., THE COLUMBIA RIVER SYSTEM: INSIDE STORY 5
(2nd ed., 2001), https://www.bpa.gov/power/pg/columbia_river_inside_story.pdf.
238 Treaty Between the United States of America and Canada Relating to
Cooperative Development of the Water Resources of The Columbia River Basin, U.S.-
Can., Jan. 17, 1961, 15.2 U.S.T 1555.
239 CSKT Finalize Kerr Dam Acquisition, S&K TECHNOLOGIES, INC., http://www.
sktcorp.com/cskt-finalize-kerr-dam-acquisition/ (last visited May 15, 2018) [hereinafter
CSKT].

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908 LEWIS & CLARK LAW REVIEW [Vol. 22:3
Figure 2. Columbia River Basin240
240 This map was prepared by the Native American tribes and Canadian First
Nations of the Columbia River Basin during review of the Columbia River Treaty. It is
used with permission from the Columbia River Inter-Tribal Fish Commission. Legend
on next page.

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2018] INDIGENOUS WATER JUSTICE 909

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910 LEWIS & CLARK LAW REVIEW [Vol. 22:3
2. Indigenous Water-Justice Struggles
The Columbia River Basin presents a story of rising empowerment of
Indigenous Peoples spurred by recognition of rights and subsequent ca-
pacity building by certain tribes in the U.S. portion of the basin,241 and
current “spiraling-up”242 of that capacity as U.S. tribes and Canadian First
Nations come together to gain a voice in transboundary management of
the international river. It has not been an easy path, and the fact that ca-
pacity building has piggybacked on random events means that the extent
of capacity remains highly disparate among the basin’s Indigenous Peo-
ples.
The Columbia River Basin today is jurisdictionally complex with
transboundary issues at the international, inter-indigenous, and interstate
levels, complicating what it means to enjoy self-determination with re-
spect to water. In the U.S. portion of the basin, efforts to assert Indige-
nous Peoples’ rights for access to and sovereignty over water have played
out under federal law governing the interpretation of treaties, statutes,
and executive orders pertaining to tribal lands and resources. Of greatest
importance are efforts to gain recognition of water rights under the Win-
ters doctrine, and massive increases in empowerment and governance ca-
pacity resulting from the assertion of treaty fishing rights. The material
below describes these patterns and concludes by illustrating capacity
building in the form of tribes rising to become co-managers of the basin
fisheries.
In a 1905 case involving Columbia River Basin tribes, the U.S. Su-
preme Court held that the off-reservation treaty “right of taking fish at all
usual and accustomed places, in common with the citizens of the Territo-
ry,”243 implied a right of access across private land to exercise that right.244
The next logical extension of this precedent was the recognition of re-
served rights to water if necessary to fulfill a treaty purpose—i.e., the Win-
ters case underpinning the previously mentioned Winters doctrine.245 Fed-
241 For sources addressing this empowerment, see Barbara Cosens & Brian C.
Chaffin, Adaptive Governance of Water Resources Shared with Indigenous Peoples: The Role of
Law, 8 WATER 97 (2016), http://www.mdpi.com/2073-4441/8/3/97/html; Barbara
Cosens, Changes in Empowerment: Rising Voices in Columbia Basin Resource Management, in
TREATY REVISITED: TRANSBOUNDARY RIVER GOVERNANCE IN THE FACE OF UNCERTAINTY 61
(Barbara Cosens ed., 2012).
242 This phrase comes from Mary Emory & Cornelia Flora, Spiraling-Up: Mapping
Community Transformation with Community Capitals Framework, 37 COMM. DEVEL. 19
(2016), https://www.uvm.edu/rsenr/rm230/costarica/Emery-Flora-2006.pdf.
243 United States v. Winans, 198 U.S. 371, 378 (1905) (quoting Treaty with the
Yakima Nation, 12 Stat. 951, art. III (1855)).
244 Id. at 381.
245 Winters v. United States, 207 U.S. 564 (1908). See generally Barbara Cosens, The
Legacy of Winters v. United States and the Winters Doctrine, One Hundred Years Later, in
THE FUTURE OF INDIAN AND FEDERAL RESERVED WATER RIGHTS: THE WINTERS CENTENNIAL
5 (Barbara Cosens & Judith V. Royster eds., 2012); supra note 165.

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2018] INDIGENOUS WATER JUSTICE 911
eral and state courts have recognized reserved rights for various purposes
under this doctrine, including agriculture,246 fisheries,247 and, more
broadly, creation of homelands.248 Beyond the litigation context, recent
decades also have seen a rise in negotiated settlements among tribes,
states, and the federal government that involve creative solutions for trib-
al water development.249
In the Columbia River Basin, Winters rights have been recognized
through both litigation and settlement for agriculture (e.g., Nez Perce,
Fort Hall).250 Rights to instream flows within the boundaries of Native
American reservations have been recognized in both litigation251 and set-
tlements.252 But by far the largest water rights issue yet to be resolved
throughout most of the Columbia River Basin is the right to instream
flows associated with off-reservation treaty fishing rights. As elaborated in
Part III, the link between instream flow rights and recognition of treaty
fishing rights outside reservation boundaries has significant implications
for indigenous water justice. It also involves greater uncertainty, having
yet to be addressed by any federal court. In the face of that uncertainty,
the Nez Perce Tribe and State of Idaho agreed to instream flows on more
than 200 stream reaches in Idaho, but also agreed that the state would
hold the right.253 Basin tribes nonetheless have found a much more pow-
erful legal tool in the combination of treaty fishing rights and the En-
dangered Species Act (ESA).254 Understanding the use of the ESA begins
with understanding tribal empowerment in the wake of actions taken
during the 1960s and 1970s.
Similar to the Colorado River Basin, in conjunction with the broader
U.S. civil rights movement of the 1960s and 1970s, the American Indian
Movement began to assert and test treaty rights, resulting in the Treaty
text recognizing off-reservation fishing rights “in common with citizens of
the Territory” being interpreted in a landmark judicial decision—i.e., the
246 Winters, 207 U.S. at 576–77.
247 United States v. Adair, 478 F. Supp. 336, 345–46 (D. Or. 1979), aff‘d United
States v. Adair, 723 F.2d 1394 (9th Cir. 1983); Colville Confederated Tribes v. Walton,
647 F.2d 42, 48 (9th Cir. 1981).
248 In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. &
Source, 35 P.3d 68, 74 (Ariz. 2001).