America faces an unprecedented water crisis despite its vast wealth. The consequences of climate change in the West are jarring as drought sinks its teeth across the region. Like many other environmental issues, water scarcity disproportionately impacts minoritized communities.[1] The doctrines of prior appropriation and riparianism reflect modern water law’s legacy of settler colonialism. Despite the rise of international human rights, particularly indigenous rights, the United States fails to match developing standards. American Water Law’s dismissal of international human rights standards is hazardous to indigenous values for water. Both prior appropriation and riparianism restrict native rights and well-being by devaluing indigenous uses of water.
International human rights have expanded significantly to address historical disparities.[2] As relevant here, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) enumerates water rights for indigenous communities.[3] The Declaration states indigenous peoples have the “right to practice spiritual and religious beliefs and cultural traditions and customs,” the right to access sacred places, “the right to maintain, control, protect, and develop their cultural heritage, traditional knowledge, and traditional cultural expressions,” and “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.”[4] UNDRIP recognizes that indigenous communities view the natural world differently, with less emphasis on economic utility.
Despite the indigenous rights enshrined in international instruments, the United States neglects to recognize and enforce many of them within its borders. Built on the foundations of colonialism, our current water law system maintains formidable structures of capitalist ideology. The Doctrine of Prior Appropriation is a blatant example. To appropriate water, the doctrine requires an intent to divert water and put it to beneficial use.[5] Specifically, the element of beneficial use highlights free market values of unlimited economic growth. Case law identifies that water used for domestic, agricultural, and industrial purposes fits within the definition of beneficial use.[6]
While courts have broadened the scope of beneficial use to conservation, recreation, and aesthetic purposes in recent years,[7] they refuse to expand further to incorporate indigenous water uses.[8] The spirituality of water is a common element across many native tribes, with water being “perceived cross-culturally as the fons et origo, the source of all existence.”[9] Although water has a vital spiritual purpose for tribes, Western water law considers spiritual water wasteful since it only “values and protects diversionary, utilitarian, consumptive uses of water.”[10] Often, courts deem spiritual indigenous water abandoned through non-use because Western water law does not perceive indigenous values of water as relevant.[11]
Similar issues of devaluing indigenous uses occur in riparianism. In Reppun v. Board of Water Supply, the Hawaiian Supreme Court established riparianism and the public trust doctrine in Hawaii.[12] Following this decision, the Hawaiian State Constitution recognized the state’s obligation to the public trust, and the Hawaiian Water Code of 1978 recognized the preeminence of public trust matters over economic concerns.[13] Within the public trust doctrine, there are enumerated protections for conserving the natural world to maintain Native Hawaiian traditions.[14]
Despite this, courts and lawmakers continually place commercial interests above environmental and indigenous interests. Although the Commission on Water Resource Management is legally required to balance the public interest with maximum beneficial use, the Commission regularly promotes commercial interests over indigenous interests.[15] The Commission continues to grant commercial permits to divert water from Native Hawaiian streams, depleting streams in opposition to the Commission’s obligation to protect upstream flows and prevent Native Hawaiian traditional taro farming practices.[16] Failure to preserve traditional native Hawaiian water uses hinders native peoples’ rights to maintain cultural and religious practices, traditional taro farming knowledge, or their spiritual relationship with water and the environment.
In both prior appropriation and riparianism, the law disregards indigenous values and uses of water in favor of economic development.[17] Preventing uses that native populations perceive as integral to their spiritual and cultural traditions violates principles outlined in UNDRIP. If the United States made good faith efforts to incorporate the UNDRIP provisions into American law, the lack of support for tribal values in prior appropriate and riparianism would not exist. Not valuing native uses of water risks driving the cultural and spiritual practices of indigenous tribes out of existence.
In tandem with this devaluation, American law imposes Western values onto indigenous communities to manipulate them into becoming an instrument of the American economy. In United States v. Winters, the Supreme Court shockingly confirmed the implied right to water in United States treaties with native tribes.[18] The court elaborated on this seemingly positive conclusion, reasoning that “ceding water to non-natives would defeat the declared purpose of the tribes and the govt: to assimilate natives into a ‘pastoral and civilized people.’”[19] In Arizona v. California, the court held that reservations were entitled to government-allocated water because the purpose of establishing reservations in the first place was to “establish tribal farming communities.”[20] Devaluing tribal uses while overlaying Western values on water use acts to assimilate indigenous communities into American culture, effectively erasing their unique identity and culture.
Overall, the unwillingness of American lawmakers to implement UNDRIP provisions into American water law enables critical damage to indigenous communities. American Water law does this through prior appropriation, riparianism, and federal policy. Despite the immense challenges facing tribes, recognizing this problem can lead to a solution. The United States can adopt UNDRIP’s principles by expanding the definition of beneficial use in prior appropriation. In riparianism, enforcement of balancing maximum-beneficial uses in a way that upholds indigenous uses of water and prevents overzealous promotion of economic uses. Recognizing the legal importance of tribal water uses can further transition federal policy to view the tribal need for water not merely as a means to further economic development but as a practice central to indigenous identity and existence within this country.
[1] Clean Water For All et al., Water, Health, and Equity: The Infrastructure Crisis Facing Low-Income Communities and Communities of Color – How to Solve It, 8 (2018).
[2] See The Universal Declaration of Human Rights: The Foundation of International Human Rights Law, U.N., https://www.un.org/en/about-us/udhr/foundation-of-international-human-rights-law (last visited April 30, 2024).
[3] Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295/U.N. Doc. 07-58681, annex, ¶¶ 11-12, 25, 31(1) (2008).
[4] Id.
[5] State ex rel. Reynolds v. Miranda, 493 P.2d 409 (N.M. 1972).
[6] Reed Benson et al., Water Resource Management: A Casebook in Law and Public Policy (8th ed. 2021).
[7] City of Thornton v. City of Fort Collins, 830 P.2d 915 (Colo. 1992).
[8] Michelle Bryan, Valuing Sacred Tribal Waters Within Prior Appropriation, 57 Nat. Resources J. 139, 151 (2017).
[9] Id. at 140.
[10] Id.
[11] Id. at 153.
[12] Reppun v. Board of Water Supply, 656 P.2d 57, 66-8 (Haw. 1982).
[13] Haw. Const. art. XI, § 7 (stating that that state must “protect, control, and regulate the use of Hawaii’s water resources of the benefit of the public.”); Summer Sylva, Indigenizing Water Law in the 21st Century: Na Moku Aupuni O Ko’Olau Hui, a Native Hawaiian Case Study, 16 Cornell J.L. & Pub. Pol’y 563, 568 (2007).
[14] Haw. Rev. Stat. § 174C-2(c).
[15] Douglas W. MacDougal, Private Hopes and Public Values in the “Reasonable Beneficial Use” of Hawai’i’s Water: Is Balance Possible?, 18 U. Haw. L. Rev. 1, 1 (1996); Haw. Rev. Stat. § 174C-2(c).
[16] Kelly Kay et al., Plantation Pasts, Plantation Futures: Resisting Zombie Water Infrastructure in Maui, Hawai’i (forthcoming), J. Peasant Stud. 1, 1 (2023).
[17] Bryan, supra note 11, at 153; MacDougal, supra note 18.
[18] Winters v. United States, 207 U.S. 564, 565 (1908).
[19] Robert T. Anderson, Indigenous Rights to Water & Environmental Protection, 53 Harv. Civ. Rts. & Civ. Lib. L. Rev. 337, 347 (2018) (citing id. at 576).
[20] Id. at 348.
