Climate Change and Groundwater Access Provisions in Native American Water Rights Settlements

In the United States, access to use water comes in the form of legally allocated rights to specific quantities from specific sources. On Native American reservations, this legal process has often been absent. Through tribal water rights negotiations and settlements, the United States government has attempted to determine the access rights and quantities available to tribes on and around their reservation lands. Over the past 50 years, many Native American tribes formally settled outstanding water rights claims through a combination of state court adjudications and congressional legislation. This paper explores provisions built into settlements that address the rapidly changing water supplies available to Native American tribes considering climatic changes and groundwater allocations. Climate change, specifically across U.S. tribal lands, threatens to significantly alter the timing and availability of surface and groundwater supplies. How tribal water rights settlements provide flexibility to deal with this is unknown, as they generally lock in water use at a specific flow rate and purpose for the foreseeable future. I employed a policy analysis approach to this question, first exploring Native American water rights settlements enacted between 1977 - 2017 to identify language in each settlement pertaining to climate change and/or groundwater. Next, I looked at this language and language in associated administrative documents and asked how a focus on climate change and groundwater supplies varied in settlements between these years. I hypothesized that through time, awareness of the impacts of climate change increase in settlement language and provisions, but are moderated by factors including water right size and the location of the tribe or reservation. By engaging in a comprehensive analysis of Native American water rights settlements, we take a step toward better understanding the role of these agreements in helping or hindering tribes as they prepare for an uncertain water future.