Honoring Indian water rights

The recent Supreme Court decision that nearly half of Oklahoma is an Indian reservation was about where criminal cases should be prosecuted. The court ruled that crimes by native Americans on tribal lands are matters for federal or tribal jurisdiction, not state courts.

Notable as that ruling was for recognizing Indian sovereignty on reservations, criminal law isn’t the only field where laws regarding tribal lands are getting fresh definition.

Another field is water rights.

Since the late 1970s the federal government has participated in 36 settlements involving Indian tribes about who controls the water that’s on reservation land.

For example, a settlement in Oklahoma in 2016 set rules about how much water on reservations can be used by outside parties in non-tribal places such as Oklahoma City, the state capital, which draws on reservoirs on Indian land. The Congressional Research Service conducted a study of such settlements in 2019.

 Conflicts over who gets the control of water are nothing new. History books and court records are full of stories about mill operators or farmers who struggled with people upstream who limited the flow of rivers to them – and, conversely, stories about people in one place who saw water being drained willy-nilly from their lands for the benefit of people elsewhere.

Struggles over water and water rights can be more intense in places where water is short, which would include many lands west of the Mississippi where rainfall is half or less than half what it is in the East. Such would be many reservation lands.

Many native Americans know about such rainfall disparities first-hand. Ancestors of key groups in Oklahoma were forcibly moved there from the southeastern states beginning in the 1830s in what was known as the Indian Removal.

The basic rights of these peoples were generally unacknowledged until 1908, one year after Oklahoma gained statehood, when the Supreme Court ruled that reservation populations have a basic right to their own water.

Seventy years after that ruling, the federal government began helping resolve conflicts over water that had come up in the interim among reservations, states and non-Indian water users.

The negotiating brought up some interesting concepts, one being the idea of “paper water.” The term describes situations where reservations have a legal right to water but lack the financial resources to access it through dams, pipes and other infrastructure. One answer: federal money. By one estimate the government has put $7 billion to the purpose.

None of this means that tensions over water are forever gone. Droughts can lead to hardships. The installation of dams and pipes can lead to environmental conflicts over, say, wildlife habitats and water quality. The cost of water can vary depending on demand.

But the settlements over who gets to use water, and how much, at the very least validate tribal rights to water nearly two centuries after native Americans were uprooted and removed to where they are today.

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