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Abstract

A growing body of international legal principles recognizes the right of indigenous people to water resources as a key component of their rights to self-determination, land, and economic self-sufficiency. These legal norms impose obligations on states both to recognize this right and to take affirmative steps to allow indigenous people to realize it. While the United States has not formally acceded to many of the applicable international instruments, the primary principles are embodied in instruments it has joined, and, in addition, some of these principles may constitute customary international law that applies regardless of accession.

Part I of this Article examines this body of legal principles as they relate to indigenous people’s access to water resources and also examines the international institutions which have been set up to interpret and implement these principles. Part II discusses the bipartisan federal policy over the last five decades in the United States to promote and protect the self-determination of Indian Tribes and the specific actions the United States has taken over that time period concerning Indian water rights. Finally, Part III discusses how international legal principles and mechanisms might be used to support a more comprehensive approach by the United States to address the unmet water needs of Tribes, rather than the current approach that focuses primarily on the adjudication and settlement of individual Tribes’ legal claims to water.