Tribes and Water in the Wake of Navajo Nation and Sackett: Treaties, Winters, Montana, and Rights of Nature

Abstract

As headlines over the last decade have made clear, people in the United States can no longer afford to take fresh water for granted. In the midst of increasing issues regarding both water quality and water quantity (allocation), Tribes are playing an ever-more-active role in the Nation’s water management. This Article provides an overview of the contemporary legal landscape governing tribal authority over water, emphasizing two recent Supreme Court decisions: Sackett v. Environmental Protection Agency (May 2023), in which the Supreme Court cut back on the Clean Water Act’s jurisdictional reach, and Arizona v. Navajo Nation, in which the Court held that the federal government has no trust duty to help Tribes get water.

Keywords: Tribe, water, Sackett, Navajo Nation, Winters rights, TAS, rights of nature, Montana, inherent authority