Native American Water Sovereignty and Self-Determination: An Analysis of How Native American Tribes Sustain Water Security in the American Southwest

Abstract

The recognition of Native American sovereignty and self-determination has evolved in conjunction with the growth of the United States as a country since 1776. Federally recognized Native American tribes have nation-to-nation relationships with the United States that can only be altered through Acts of Congress. As the United States strengthened throughout the 19th Century, it adopted laws and policies designed to absorb Native American tribes into the mainstream of the country. Native American reservations were established to serve as the permanent homelands of Native American tribes. In 1908, the Supreme Court of the United States established the reserved rights doctrine through its ruling in Winters v. United States (1908). The Winters ruling affirmed reserved water rights for Native American tribes so that Native American reservations would fulfill their original purpose of being permanent homelands for tribes. Native American tribes have struggled to legally secure their water rights since 1908. Today, Native American tribes that seek to legally secure their water rights must either undergo the litigation process or the water rights settlement process. This dissertation investigated and analyzed the two main ways through which Native American tribes can legally secure their water rights while retaining as much sovereignty as possible. The investigation determined that the litigation process can be very detrimental for tribal sovereignty and self-determination. While the water rights settlement process can be just as problematic for tribal sovereignty and self-determination as litigation, the fact that settlements are based on negotiations affords much more flexibility to tribes. While this dissertation argues that the water rights settlement process is more conducive to the protection of tribal sovereignty and self-determination than the litigation process, it is the prerogative of tribes to decide which process is better for them.