For Native peoples, water is recognized as a cultural as well as a physical necessity. Water is vital for life and livelihood, especially for those relying on the resources provided by natural ecosystems. Water is necessary for community use and the production of food as well as for fish, riparian (growing on the water's edge) plants, and wildlife. Water is particularly valued where it is most scarce, such as in the southwestern US. Prior to European settlement, water was not owned, but was viewed as a gift to be shared by all. Settlement -- both by tribes on reservations and by other Americans -- brought increasing demands for water and concepts of ownership that were not traditional to Native peoples. As a result, rights to water, including access to sufficient quantity and quality, are now established and guaranteed by treaties, statutes, and decisional law. Changes in the amount, timing, and variability of flows will affect the exercise of these rights.

As an indication of the complexity of the issues involved in Native water rights, consider the Southwest, where climate models project that there is likely to be additional precipitation (most probably as rain) in winter, but with earlier snowmelt and generally warmer and drier conditions during the summer. If this occurs, overall winter runoff is likely to increase while summer runoff is likely to decrease significantly. An increase in yearly precipitation could be a benefit if increases in the amount of vegetation do not counterbalance the likely increase in runoff, and if the extra runoff during the winter is retained in reservoirs. However, if there is a large increase in plant growth and /or the extra precipitation comes in extreme events and goes off as floods, then it could be of no real benefit.

Further, water storage that benefits some could be detrimental to others. For example, the wild rice that grows abundantly in shallow lake and marshy habitats of northern Wisconsin and Minnesota is likely to be adversely affected. Wild rice plays a crucial role in the economic and ceremonial life of many tribes. The hand-harvested and processed seed is highly prized as a gourmet food and adds significant commercial value to the rural reservation economy. Federal treaties guarantee the right of the Anishinaabeg to gather wild rice in their aboriginal territories, which cover much of the states of Wisconsin and Minnesota. As the climate changes, deep or flooding waters in early spring could delay germination of the seed on lake or river bottoms, leading to crop failure. Lower water levels later in the summer could cause the wild rice stalks to break under the weight of the fruithead or make the rice beds inaccessible to harvesters. Extended drought conditions could encourage greater natural competition from more shallow water species.

Water quality is a major issue that is coupled to the issues of water rights and water quantity; as water quantity changes, water quality is likely to change as well. Water quality affects everything from the environment for fish to the purity of drinking water to the quality of aquifers. In addition, because of the cultural connection of Native peoples, water pollution and poor water quality can have unusual ramifications. In the Northeast, for example, streams have been polluted by persistent organic pollutants and heavy metals, so fishing and fish consumption are not permitted. These prohibitions affect not only the diets of Native peoples who observe such restrictions (many do not for cultural reasons), but the restrictions have also reduced the opportunity for intergenerational connection while fishing. In the Southwest, water purity has become an issue based on water's use in religious ceremonies.

Despite the many agreements and treaties, determination of existing Native rights to water remains a contentious legal issue over much of the western US. Access to water was a key issue in many of the treaties negotiated between tribes and the US government, especially when relocation of tribes to reservations restricted or eliminated their access to traditional homelands. Indian reserved water rights have become a subject of considerable importance to tribes, states, the federal government, and private water users. The importance of the Native water rights issue is due to: (i) the scarcity of water, particularly in the Southwest and Great Plains; (ii) the reality of drought conditions; and (iii) uncertainties arising because of fully (or even over) appropriated waters.

The concept of federal reserved water rights for Indians originated in the landmark case Winters v. United States [207 US 564 (1908)] involving withdrawal of water from the Milk River along the Fort Belknap Reservation. The Winters Doctrine said that in the treaties the federal government entered into with various tribes, the government had implied a reserved quantity of water necessary to supply the needs of the reservation. Because of this provision, the federal government's claim of water rights for the tribes would have high priority.

The courts have often had to resolve conflicting interests in the allocation of water rights, usually using a standard known as “practicable irrigable acreage -- for determining the allotment to Indian reservations. This standard quantifies Winters rights by providing that allotments of water to reservations include sufficient water to provide for agriculture, livestock, domestic, recreational, cultural, and other uses. In addition, for some tribes, specific legal language also reserves water to maintain in-stream flows necessary to sustain fish or riparian (riverbank) areas. Figure 2 compares the acreage of Indian lands that are currently being irrigated in eleven western states with the areas that could potentially be irrigated under the Winters doctrine. Quite clearly, substantially increasing the areas of irrigated lands would significantly increase the amount of water being withdrawn from current resources, increasing the competition for water among the various users.

In some cases, tribes have not had the financial resources to develop their water rights fully. In other cases, despite having high priority (i.e., senior) rights to sufficient water, tribes have often had to compete for access to water with non-tribal water users, including federal, state, and local governments. This has required negotiations, which have often proven to be time-consuming, costly, and complex. The potential for changes in the amounts and timing of water flows caused by climate change are likely to add to the complexity of the allocations, negotiations, agreements, and management of water resources.

Several strategies are available as climate changes impact the water resources around the US. Some of those strategies could include:

• Improving the efficiency of water capture and use through more efficient irrigation practices, and choosing, and growing crops that need less water.
• Increasing the use of cisterns and other water harvesting techniques of the type used several centuries ago by tribes living in the Southwest could provide a very localized means of conserving water.
• Increasing in-ground storage of water through artificial recharge.
• Other historical practices of Pueblo cultures could also be applicable. For example: mapping of ancient land-use practices show extensive use of water management techniques, including gridding of gardens to slow runoff, pebble mulch fields to reduce evaporation, stone-lined drainage channels to reduce leakage, and terraces on hillsides to retain water and prevent erosion.

Quite clearly, however the climate changes, ensuring the reliability and availability of water resources for tribal lands and surrounding users will require special consideration.