Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era
Daniel McCool
Tucson, AZ: The University of Arizona Press, 2002
237 pp., $22.95, paper
ISBN: 0-8165-2615-x

 

Negotiating Tribal Water Rights: Fulfilling Promises in the Arid West
Bonnie G. Colby, John E. Thorson, and Sarah Britton
Tucson, AZ: The University of Arizona Press, 2005
190 pp., $35.00, paper
ISBN: 0-8165-2455-6

Tribal Water Rights: Essays in Contemporary Law Policy and Economics
John E. Thorson, Sarah Britton, and Bonnie G. Colby, editors
Tucson AZ: The University of Arizona Press, 2006
304 pp., $50.00, cloth
ISBN: 0-8165-2482-3

Much like the voluminous western water rights adjudication and settlement processes themselves, voluminous scholarly written works about the western water rights processes seem to spring up exponentially, as surely as the weeds in Albuquerque after this summer’s monsoon floods. Among the voices in this fertile field, three books from the University of Arizona Press examine the nettlesome issues of water rights for Indian tribes.

Available this fall in a paperback edition, Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era is a highly readable, if somewhat meandering, chronicle of political and social history. The book explores the increasing use over the last twenty years of tribal water rights settlements, to resolve long standing issues of ownership.

Few Indian treaties expressly mention water, and none whatsoever address it in ironclad legal terminology. Navigating these murky shoals has historically been left to the courts. As a result, the water rights of Indian tribes were seen through the conveniently cloudy prism of the vague and often misrepresented Winters doctrine, set down by the courts in 1908. Native Waters posits that the modern movement in tribal water rights towards settlements in lieu of court imposed decision making constitutes a “second era” of treaty-making. It recounts the historical inadequacies that led to the need for improved settlement processes, and reveals some of the solutions sought through tribal water rights settlements.

Tribal Water Rights: Essays in Contemporary Law Policy and Economics, invites academic professionals in these fields to report on various aspects of tribal water rights settlements. It rows out all the usual suspects including: tribal sovereignty and federal trust doctrine; the uniqueness of Pueblo water rights; the problems of quantification, allotment, groundwater; and the ubiquitous Endangered Species Act. The post settlement section also includes the basic structure of tribal water codes, and a couple of case studies of tribal management of hydropower, i.e. dams. Liberally footnoted, referenced, and indexed, it is likely to be most interesting for graduate students and academics seeking tenure to slog through ad nauseam.

Perhaps a more appealing approach for policy makers, activists, stakeholders, and concerned citizens can be found in the prior work of the three editors of Tribal Water Rights, their 2005 publication Negotiating Tribal Water Rights: Fulfilling Promises in the Arid West. Negotiating Tribal Water Rights is designed as a guidebook to the basic aspects of participation in water rights settlement processes. It introduces each of the components of tribal water rights, and
provides constructive information culled from a plethora of real world examples presented throughout, including an appendix that contains a useful table chronologically listing Indian water rights settlements and quantification cases concluded through the year 2004. Unfortunately, the book already needs to be updated to include the settlements proposed and finalized within the last two years, an unavoidable result of the rapidly evolving nature of the material.

As a collection of case studies, this trio of books is exceedingly well-voiced. But an apparent weakness in each is the need for the individual narratives and interviews to be combined into more fully integrated investigations. To echo an observation by Steven Danver, Managing Editor of the Journal of the West “I’d liked to have seen the context more completely explained.”

The other elephant-in-the-bath-tub problem is the lack of cogent discussion of the most important, most enigmatic, and most intractable part of the water rights settlement process–implementation. No substantive course is laid out for crossing the seemingly impenetrable “Maginot Line” between settlement delineation and successful implementation. Also left unanswered is the issue of how likely implementation, or the failure thereof, is to land the participants right back in the very vortex the settlements sought to avoid–the courts.

In Native Waters, author Daniel McCool finally asks those fundamental questions on page 184, “whether water rights settlements [can] live up to the oft-repeated claims for them.” Then it leaves readers to draw their own conclusions. Sadly, the unstated answer is, we just don’t know yet, but if history is to be any guide, it is hugely unlikely.

“Desert and water: As human beings, we have been and will continue to be affected by this critical, precious circumstance,” writes Arizona poet Alberto Rios. The aptly named Rios is one of three creators of the Words over Water project on the Rio Salado (Salt River) Town Lake in Tempe, Arizona. The project uses words and images carved into granite tiles installed in the seat wall around the Town Lake, creating a “book” that is six miles long. According to Rios, the pithy inscriptions are based on a Spanish literary form called a gregoria that “combines high seriousness with humor in an a ha moment” of insight. As one of the tiles reads: “Water Rules Kings.” To borrow a gregoria from Daniel McCool, the one certainty for the future of tribal water rights remains “Rivers of ink.”

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