Will a Century-Old Doctrine Help Preserve Tribal Water Rights in the West?

“While Indian tribes have to determine their water rights for the rest of their future, our cities, towns and counties don’t.”

Scott King, Sierra Nevada Ally August 9, 2023

This article was originally published in the Sierra Nevada Ally.

The Colorado River is a vital water resource for millions of people across the American West. States, municipalities and industry all rely on water from this basin. With required cuts being negotiated among the seven states within the Basin, there is one group whose concerns are seemingly being washed away: tribes.

The issue–and debate–surrounding water rights in the West is not new. Of all the stakeholders relying on these strained water resources, tribal communities have senior water rights. Yet, they are the only group legally required to define their water usage by quantifying the amount of water they need in a “prove it or lose it” type of arrangement.

In recent years, however, the Native Waters on Arid Lands project has cultivated a network of relationships that can help tribes leverage this controversial, century-old ruling to honor its basic promise: ensuring tribal communities have access to water

At the base of this discussion is the Winter’s Doctrine, a 1908 U.S. Supreme Court decision that ruled “when Congress reserves land (i.e., for a reservation), Congress also reserves water sufficient to fulfill the purpose of the reservation.” The Winter’s Doctrine asserted that these water rights were implied, even if they were not explicitly defined when the federal land was initially reserved. This meant that although federally-recognized tribes have senior water rights, those rights are also strictly tied to a purpose–in most cases, agriculture.

In subsequent rulings, further restrictions on those water rights were made. In a 1963 Supreme Court decision, Arizona v. California, the Practicably Irrigable Acreage (PIA) standard was established as a means for quantifying a tribe’s water usage. Although not uniformly observed across the states today, the PIA standard determined a tribe’s water rights according to the amount of irrigable land on a reservation and the corresponding amount of water needed to cultivate that land for agriculture. 

In Cappart v. United States (1976), the Supreme Court reaffirmed the Winter’s Doctrine’s implied rights to water, “however, reserved those rights to only that amount of water necessary to fulfill the purpose of the reservation, no more.” Then in United States v. New Mexico (1978), the Supreme Court built on the Cappart decision by ruling that water rights for secondary uses, i.e. those outside of the primary purpose of the reservation, were subject to state law.

Despite these restrictions, the Winter’s Doctrine assured that tribal rights to water for agricultural purposes would be protected. Now as water systems throughout the West have become strained, the Native Waters on Arid Lands project has been collaborating with tribal communities to develop strategies for sustaining enough water resources in the face of a changing climate.

“We had groups looking at the actual climate projections and being able to share those with the tribal communities, and also learn from [the tribes] how they were adapting their own agricultural practices to adjust to a changing climate,” says Maureen McCarthy, research professor at the Desert Research Institute and a partner in the project. “We started concentrating on the Great Basin area and the Southwest, but because of requests from our partners, [we] expanded to tribal communities throughout the Intermountain West.”

Painting of pyramid lake
A watercolor painting of Pyramid Lake by Fletcher Martin. (Courtesy U.S. Bureau of Reclamation)

However, it has since become much more than that. Originally tabbed as a five-year project, the onset of the COVID-19 pandemic in its final year demonstrated the study’s value, as the channels of communication established between tribal communities, universities, and state and federal agencies enabled tribes to receive the critical resources they needed during the health crisis.

“We were closing out the project when COVID hit,” says Staci Emm, extension education professor with the University of Nevada, Reno, and member of the Yerington Paiute Tribe. “COVID isolated everybody and the supply chain disruptions put the focus back on food. Well, you have to have water to grow food.”

Funded through the U.S. Department of Agriculture’s National Institute of Food and Agriculture program, tangible results from the study included deliverables like making data accessible for tribes to develop their own climate resiliency plans.

An example of some data collected in the Native Waters on Arid Lands project. This graph shows which data needs are most important to tribal members in the Great Basin. (Courtesy Native Waters on Arid Lands)

“Some of our programs within the United States Department of Agriculture are based on data that just aren’t available on reservations, because there aren’t weather stations on reservations,” Emm says. “‘How do you calculate rainfall when you don’t have a weather station on a reservation in Nevada? I think raising that awareness of the Drought Monitor and weather stations was a real impact of Native Waters on Arid Lands.”

While 28 different tribes are present within the geographic scope of the project, nine tribes specifically collaborated as working partners in the study. These included three of the 20 federally-recognized tribes in Nevada: the Pyramid Lake Paiute Tribe, the Shoshone-Paiute Tribes of Duck Valley and the Walker River Tribe. 

In its first few years, project leaders found significant value from collaborating with tribal leaders by understanding the role water plays on their respective reservations and how climate change has already begun affecting their lifestyles.

“We worked extensively with the Pyramid Lake [Paiute] Tribe on the impact of climate [change] on not only the availability of water, but the habitat for the fish species,” McCarthy says. “It was really important for us to hear from them how they viewed everything from the TROA [Truckee River Operating Agreement] water settlement and management of water for the Truckee River, to issues they identified like an increase in salinity [that] was causing impacts on the spawning of the cui-ui fish.”

The program also explored new strategies for sustaining the water resources traditionally available to tribes in the region. These included novel irrigation strategies already being adopted by tribes in response to climate change-induced drought.

“We had a presentation from a farm manager of the Colorado River Indian tribes that have entered into a partnership with an Israeli company to employ a new type of drip irrigation that works exceptionally well in cultivating crops,” McCarthy says. “So to move from flood irrigation to drip irrigation means a tremendous savings in water. They’ve also been experimenting [with] how to put this irrigation system in a desert environment.”

Information-sharing has been a foundational aspect of this work. Water sustaining strategies such as drip irrigation have generated so much interest among the project stakeholders, that training workshops are being coordinated so that tribal farmers and ranchers from all over the West can consider the affordability and practicality of implementing similar strategies on their own respective lands. This is critical, as Nevada is one of three lower Colorado River Basin states being forced to curb its water allotment.

But it wasn’t until the project was nearing its conclusion that the time and effort spent establishing these relationships between tribal communities and various agencies enabled the study to evolve.

“When COVID hit, [tribes] were cut off from a lot of resources,” McCarthy says. “We stood up a working group in March 2020, which is still running now, which allowed the communities to tell us exactly what were the problems on the ground. And then [we] worked with senior folks from different federal agencies to make sure we could get those resources [to them].”

Native Waters on Arid Lands held a tribal summit 2019 in Reno, Nevada, where tribal members could gather, share resources and learn from scientists and experts on how to build more climate resiliency on reservations. (Courtesy Native Waters on Arid Lands)

For many tribes, including those whose lifestyles are not agriculturally-based, they can only ensure their access to water through settlements with the state and federal government. Many tribes lack the economic capital to turn to the free market to meet their water needs, like a city, state or developer can.

Water rights earned through settlements, however, are often restricted by rulings like the Winter’s Doctrine and subsequent Supreme Court decisions. Tribes are not only required to quantify their water usage–a legal requirement that doesn’t apply to cities or towns–but they also must tie those rights to a primary purpose. As such, Emm points to the Colorado River and the various stakeholders pulling from the water system as an example of how critical it is to make sure tribal communities have their senior water rights honored, particularly as access becomes more contested as a result of climate change.

“Tribes have large water rights on the Colorado River,” Emm says. “[But] when a city like Phoenix starts running out of water, where do they have to go to get their water? Then it becomes a very delicate situation to an Indian tribe because if they give up that water to a city, are they going to get it back? So while Indian tribes have to determine their water rights for the rest of their future, our cities, towns and counties don’t.”

That makes the century-old Winter’s Doctrine, in all its complexity and controversy, all the more significant to ensure that tribal communities get the access to water that was promised to them.

“As tribes start planning for their future water use, those that have been through settlements have their water rights quantified in perpetuity,” Emm says. “The rest of the world doesn’t. They operate on a free market. [Tribes] have to protect those water rights because there’s competing demands for water and as drought continues to occur and water resources become dynamic, it strains the relationships of an entire system.”

Further exacerbating the issue of water decline in the Colorado River is the need for renewable energy projects to meet climate goals established by state and federal legislation. Many renewable projects, such as geothermal, solar and mining for critical minerals such as lithium, also have the potential to negatively impact groundwater levels.

“We cannot repeat the mistakes that we made on resource extraction on tribal lands, when we mined for coal on the Hopi and Navajo reservations or uranium in those areas and we left very serious negative impacts,” McCarthy says. “There’s a lot of trust that has to be reestablished if that’s going to work in a way that is mutually beneficial to all communities.”

While water issues in the West are bound to grow in both significance and complexity, for tribes, it’s vital that their senior water rights assured to them under the Winter’s Doctrine, at the very least, are honored. While applying similar water usage requirements to other stakeholders like cities, towns and developers can also offer a potentially equitable, if imperfect, solution.

The decline of the Colorado River and the present climate crisis also offers a unique opportunity to incorporate tribal experiences and perspectives of their historical lands into water negotiations going forward. Which, coincidentally, is where the constructive relationships established through the Native Waters on Arid Lands project, tested and strengthened through the COVID-19 pandemic, have already demonstrated its value. 

“We’ve really got to look at how we’re going to collaboratively, effectively and efficiently manage resources and that has to happen through relationship building,” Emm says. “That’s our goal is to keep the relationships that we have, build upon those relationships and encourage those relationships to have long-term sustainability.”

Scott King

Scott King is a science and energy reporter for the Sierra Nevada Ally. Originally from Cleveland, Ohio, Scott King earned a Master’s degree in Media Innovation at the University of Nevada, Reno. Scott previously received a Bachelor’s degree in Professional Writing with a minor in Marketing from Capital University in Columbus, Ohio. Before enrolling at UNR, Scott served for two years as a literacy instructor with the Peace Corps in the community of Gouyave, Grenada. He has contributed to other local publications in the Northern Nevada region, such as Our Town Reno and The Hitchcock Project for Visualizing Science. Scott has additional experience as a writer and videographer for the Air & Space Forces Magazine.

Have thoughts or reactions to this or any other piece that you’d like to share? Send us a note with the Letter to the Editor form.

Want to republish this story? Check out our guide.

27