🌲Indigenous Peoples and Environmental Change Unit 8 – Water Rights in Indigenous Communities

Historical Context

• Indigenous communities have long-standing relationships with water resources that are deeply intertwined with their cultural, spiritual, and economic practices
• Traditional water management systems evolved over centuries to ensure sustainable use and equitable distribution of water within communities
• Indigenous peoples developed sophisticated irrigation techniques (terracing, canals, and water storage systems) to adapt to diverse environments and climatic conditions
• Water played a central role in many indigenous creation stories, cosmologies, and religious practices, highlighting its sacred and cultural significance
• Pre-colonial indigenous societies often had well-defined systems of water rights and responsibilities based on kinship, clan, or tribal affiliations
• Customary laws and practices governed access to water sources, fishing rights, and the maintenance of water infrastructure
• Indigenous knowledge systems incorporated a deep understanding of local hydrology, seasonal variations, and the interconnectedness of water with other natural resources (forests, wildlife, and soil)
• Water was not viewed as a commodity but as a shared resource that required careful stewardship and protection for future generations

Traditional Water Management Practices

• Indigenous communities developed diverse water management practices tailored to their specific environmental contexts and cultural values
• Acequia systems, used by Pueblo communities in the American Southwest, combined communal water management with sustainable agricultural practices
  • Acequias are gravity-fed irrigation canals that distribute water equitably among farmers
  • The system is governed by a democratically elected commission (mayordomos) responsible for maintenance and conflict resolution
• Taro cultivation in Hawai'i relied on an extensive network of irrigated terraces (lo'i) and sophisticated water allocation systems
  • Water was diverted from streams through a series of 'auwai (canals) and distributed to individual lo'i
  • The system was managed by konohiki, who ensured fair distribution and the maintenance of water infrastructure
• The Hohokam civilization in present-day Arizona developed an extensive canal system for irrigation and flood control
  • The canals, some over 20 miles long, were engineered to optimize water flow and minimize sedimentation
  • The system supported large-scale agriculture and sustained a population of over 30,000 people
• The Inca Empire in South America constructed a vast network of canals, aqueducts, and reservoirs to manage water resources across diverse landscapes
  • The system incorporated features such as drop structures, filtration systems, and frost-protection walls
  • Water management was closely tied to the Inca calendar and religious ceremonies, with festivals marking important agricultural and hydrological events
• Indigenous communities in the Pacific Northwest developed sophisticated salmon fishing and water management practices
  • Fish weirs, traps, and nets were used to harvest salmon during annual migrations
  • Communities managed water flows to maintain optimal conditions for salmon spawning and rearing
• The Xochimilco chinampas in Mexico are a prime example of indigenous water management for intensive agriculture
  • Chinampas are raised fields constructed in shallow lakes, with canals providing irrigation and transportation
  • The system supports high crop yields, biodiversity conservation, and the efficient use of water and nutrient resources

Colonial Impact on Indigenous Water Rights

• The arrival of European colonizers disrupted indigenous water management systems and undermined traditional water rights
• Colonial powers often viewed water as a resource to be exploited for economic gain, leading to the commodification and privatization of water resources
• The doctrine of prior appropriation, adopted in many western U.S. states, favored early settlers and mining interests over indigenous water rights
  • This doctrine granted water rights to those who first diverted water for "beneficial use," often excluding indigenous communities
• The General Allotment Act of 1887 (Dawes Act) in the United States led to the fragmentation of indigenous land holdings and the loss of access to traditional water sources
  • The act aimed to assimilate Native Americans into mainstream society by breaking up communal land holdings and allocating individual plots
  • Many indigenous people lost their land and water rights through forced sales, fraud, or the inability to pay property taxes
• The establishment of national parks and protected areas often displaced indigenous communities and restricted their access to water resources
  • For example, the creation of Yellowstone National Park in 1872 led to the forced removal of several Native American tribes from their ancestral lands and water sources
• The construction of large-scale water infrastructure projects (dams, hydroelectric facilities, and irrigation systems) disproportionately impacted indigenous communities
  • These projects often flooded indigenous lands, disrupted traditional livelihoods, and damaged culturally significant sites
  • The Garrison Dam on the Missouri River, completed in 1953, flooded over 150,000 acres of prime agricultural land belonging to the Three Affiliated Tribes (Mandan, Hidatsa, and Arikara)
• Colonial legal systems often failed to recognize or protect indigenous water rights, prioritizing the interests of settlers and industrial development
• The legacy of colonialism continues to shape contemporary water conflicts and the ongoing struggle for indigenous water justice

Legal Frameworks and Treaties

• Indigenous water rights are governed by a complex web of legal frameworks, treaties, and court decisions at the national and international levels
• In the United States, the Winters Doctrine (1908) established the principle of federal reserved water rights for Native American reservations
  • The doctrine holds that when reservations were created, sufficient water was implicitly reserved to fulfill the purposes of the reservation
  • However, the quantification and enforcement of these rights have been subject to ongoing legal battles and negotiations
• The McCarran Amendment (1952) waived U.S. sovereign immunity, allowing state courts to adjudicate federal reserved water rights, including those of Native American tribes
  • This amendment has led to lengthy and costly legal proceedings, often pitting tribes against powerful agricultural and industrial interests
• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, recognizes the rights of indigenous peoples to their traditional lands, territories, and resources, including water
  • Article 25 affirms the right of indigenous peoples to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or occupied lands and waters
  • Article 32 requires states to consult and cooperate with indigenous peoples to obtain their free and informed consent prior to the approval of any project affecting their lands or resources, particularly in connection with water resources
• The International Labor Organization (ILO) Convention 169 on Indigenous and Tribal Peoples (1989) also recognizes the rights of indigenous peoples to their natural resources, including water
  • The convention requires states to safeguard the rights of indigenous peoples to use, manage, and conserve these resources
• Despite these international legal frameworks, the implementation and enforcement of indigenous water rights remain a challenge in many countries
• In Canada, the First Nations Water Settlement Agreement (2016) aimed to address the chronic underfunding and neglect of water infrastructure on First Nations reserves
  • The agreement committed $1.8 billion over five years to improve water and wastewater systems and support the development of sustainable water governance models
• The Ngarrindjeri Nation in South Australia successfully negotiated the Kungun Ngarrindjeri Yunnan Agreement (2009) with the state government, recognizing their cultural, spiritual, and economic connections to the Lower Murray River and Lakes region
  • The agreement establishes a co-management framework for water resources and ensures Ngarrindjeri participation in decision-making processes
• In New Zealand, the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 granted legal personhood to the Whanganui River, recognizing the Māori concept of Te Awa Tupua (the inseparability of the people and the river)
  • The act establishes a co-governance structure between the Whanganui iwi and the New Zealand government to protect and manage the river's health and well-being

Contemporary Challenges

• Indigenous communities continue to face numerous challenges in asserting their water rights and maintaining their traditional water management practices
• Climate change is exacerbating water scarcity, flooding, and other hydrological extremes, disproportionately impacting indigenous communities
  • Rising sea levels threaten the very existence of many coastal and island indigenous communities, forcing them to confront the prospect of displacement and cultural loss
  • Changing precipitation patterns and increasing temperatures are altering the availability and quality of water resources, affecting indigenous agricultural practices and food security
• The ongoing legacy of colonialism and systemic racism perpetuates the marginalization of indigenous voices in water governance and decision-making processes
• The commodification and privatization of water resources, often driven by corporate interests, undermine indigenous water rights and traditional management practices
  • For example, the controversial Dakota Access Pipeline project (2016) threatened the water resources and sacred sites of the Standing Rock Sioux Tribe, leading to widespread protests and legal battles
• The fragmentation of indigenous land holdings and the erosion of traditional knowledge systems pose challenges for the continuity of indigenous water management practices
• Inadequate water infrastructure and limited access to clean drinking water remain pressing issues in many indigenous communities
  • A 2016 study found that 75% of First Nations communities in Canada had water systems that posed a medium or high health risk
• The lack of recognition and protection of indigenous water rights in national legal frameworks hinders the ability of indigenous communities to assert their rights and participate in water governance
• Competing demands for water resources from agricultural, industrial, and urban sectors often overshadow the water needs and rights of indigenous communities
• The siloing of water management across different levels of government and jurisdictions can lead to fragmented and uncoordinated approaches that fail to address indigenous water concerns holistically

Indigenous Water Activism

• Indigenous communities and organizations are at the forefront of water activism, advocating for their rights and pushing for more equitable and sustainable water governance
• The Standing Rock Sioux Tribe's resistance to the Dakota Access Pipeline (2016-2017) galvanized a global movement for indigenous water rights and environmental justice
  • The tribe and their allies engaged in peaceful protests, legal challenges, and media campaigns to protect their water resources and sacred sites
  • The movement garnered international attention and solidarity, with thousands of people joining the protests at the Standing Rock reservation
• The Idle No More movement, which began in Canada in 2012, has been instrumental in raising awareness about indigenous water rights and the impacts of resource extraction on indigenous lands and waters
  • The movement has organized rallies, teach-ins, and social media campaigns to demand government action on water protection and indigenous sovereignty
• Indigenous water activists have been at the forefront of efforts to protect the Amazon rainforest and its critical water resources
  • The Kayapo people in Brazil have been fighting against the Belo Monte Dam project, which threatens to disrupt the Xingu River and displace indigenous communities
  • The Waorani people in Ecuador have successfully challenged oil drilling in their ancestral lands, protecting their water resources and biodiversity
• In Australia, Aboriginal and Torres Strait Islander activists have been campaigning for the recognition of their water rights and the inclusion of traditional knowledge in water management
  • The Murray-Darling Basin Plan, which aims to balance the competing demands for water resources in southeastern Australia, has been criticized for failing to adequately consider indigenous water needs and cultural values
• Indigenous water activists have also been working to build alliances with non-indigenous allies, such as environmental organizations, faith groups, and human rights advocates
  • These alliances have helped to amplify indigenous voices and build broader public support for indigenous water rights and environmental justice
• Indigenous youth have been playing an increasingly important role in water activism, bringing new energy, creativity, and digital savvy to the movement
  • Groups like the Indigenous Youth Council and the Indigenous Environmental Network have been empowering young people to take leadership roles in water protection and advocacy
• Indigenous water activists have been using a range of strategies and tactics, from legal challenges and policy advocacy to direct action and cultural resurgence
  • For example, the Tsleil-Waututh Nation in British Columbia, Canada, has been using a combination of legal action, scientific research, and public outreach to oppose the Trans Mountain Pipeline Expansion project, which threatens their water resources and cultural heritage

Case Studies and Examples

• The Navajo Nation's struggle for water rights in the Colorado River Basin highlights the ongoing challenges and opportunities for indigenous water justice
  • The Navajo Nation, the largest Native American reservation in the United States, has long been excluded from the complex web of water rights and allocations in the Colorado River Basin
  • In 2020, the Navajo Nation and the state of Utah reached a landmark agreement that would provide the Navajo Nation with access to 81,500 acre-feet of water per year from the Colorado River
  • The agreement, which still requires federal approval, is a significant step towards addressing the Navajo Nation's long-standing water insecurity and supporting its economic development goals
• The Agua Caliente Band of Cahuilla Indians' successful legal battle for groundwater rights in California sets an important precedent for indigenous water rights in the United States
  • In 2015, a federal court ruled that the Agua Caliente Band has a federally reserved right to groundwater beneath its reservation, which is located in the Coachella Valley
  • The decision, which was upheld by an appeals court in 2017, challenges the long-standing assumption that groundwater is a state-controlled resource and opens the door for other tribes to assert their groundwater rights
• The Tŝilhqot'in Nation's successful campaign to protect Teztan Biny (Fish Lake) in British Columbia, Canada, demonstrates the power of indigenous-led conservation and water stewardship
  • Teztan Biny is a culturally significant lake and fishing site for the Tŝilhqot'in people, who have been fighting against a proposed gold and copper mine that would destroy the lake and its surrounding ecosystem
  • In 2014, the Supreme Court of Canada ruled in favor of the Tŝilhqot'in Nation, recognizing their aboriginal title to the land and their right to decide how it is used and developed
  • The decision has far-reaching implications for indigenous land and water rights in Canada and has inspired other indigenous communities to assert their rights and responsibilities as environmental stewards
• The Rapa Nui people's efforts to protect their water resources and cultural heritage on Easter Island (Rapa Nui) in Chile highlight the challenges of balancing tourism development with indigenous rights and sustainability
  • Rapa Nui, famous for its ancient moai statues, has been grappling with water scarcity, waste management, and the impacts of overtourism on its fragile ecosystem and indigenous culture
  • In 2017, the Rapa Nui people voted to limit the number of tourists and migrants allowed on the island, asserting their right to control their own resources and development
  • The case of Rapa Nui underscores the importance of indigenous self-determination and the need for sustainable tourism models that respect indigenous rights and knowledge systems
• The Whanganui River Settlement in New Zealand, which granted legal personhood to the river, offers a groundbreaking model for indigenous water rights and environmental protection
  • The Whanganui River is of great cultural, spiritual, and historical significance to the Whanganui iwi (Māori tribe), who have been fighting for its recognition and protection for over 140 years
  • In 2017, the New Zealand government passed legislation that recognized the river as a legal person, with its own rights, values, and interests, and established a co-governance framework between the iwi and the government
  • The settlement, which includes a financial redress package and an apology from the Crown, is a significant step towards reconciliation and a more holistic approach to water management that integrates indigenous knowledge and values

Future Directions and Sustainability

• Addressing the ongoing challenges of indigenous water rights and sustainability requires a multi-faceted approach that centers indigenous knowledge, rights, and leadership
• Strengthening legal recognition and protection of indigenous water rights at the national and international levels is crucial for ensuring indigenous access to and control over their water resources
  • This includes implementing the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and other relevant international instruments, as well as reforming national water laws and policies to align with indigenous rights and values
• Collaborative water governance models that meaningfully include indigenous peoples in decision-making processes and respect their traditional knowledge and management practices are essential for sustainable and equitable water management
  • Co-management arrangements, such as those established through the Whanganui River Settlement in New Zealand and the Kungun Ngarrindjeri Yunnan Agreement in Australia, offer promising examples of how indigenous and non-indigenous actors can work together to protect and manage water resources
• Investing in indigenous-led water infrastructure projects and capacity-building initiatives can help address the persistent water insecurity and inequality faced by many indigenous communities
  • This includes supporting the development of culturally appropriate and sustainable water and sanitation systems, as well as providing training and resources for indigenous water managers and practitioners
• Integrating indigenous knowledge and science in water research and management can lead to more holistic, resilient, and culturally relevant solutions to water challenges
  • Indigenous knowledge systems often hold valuable insights into local hydrological conditions, ecological relationships, and sustainable water practices that can complement and enrich Western scientific approaches
• Promoting indigenous water education and youth engagement is critical for ensuring the interg