Tribes Guaranteed Protection By Treaty
Emily Bergeron - University of Kentucky
University of Kentucky
Current Issue
Parent Article
Emily Bergeron

Where we are born, live, and work significantly impacts our health. Relevant conditions are known as the social determinants of health. SDOHs include housing, education, income, healthy food, and environmental quality. Some communities bear a disproportionate burden of health risks because of inequities in SDOHs. A more just distribution of (or, more hopefully, an overall reduction of) risk requires considering the cumulative nature of these effects and the intersection between environmental burdens and benefits.

Despite treaty and trust obligations, and due to land tenure issues and other federal policies, Native Americans and Native Alaskans face such cumulative impacts, dealing with health and environmental problems at markedly higher rates. Nearly 25 percent of Superfund sites are in Indian Country; 16 percent of all Native Americans live within three miles of such sites. Over 600,000 Native Americans live near nuclear test sites, uranium mines, power plants, and toxic dumps.

Exacerbating these environmental burdens are multiple bad SDOHs. For example, nearly one in four Native Americans exist at or below the poverty level, more than twice the rate of white people. Hunger and malnutrition persist in Native American communities. One Native American Agriculture Fund study found that 56 percent of respondents experienced food insecurity during the pandemic; 31 percent very low security. This is partly attributable to a long history of social, political, and economic exclusion, forced removal, and a failure to meet specific treaty and trust obligations. Further, land use and zoning policies have disrupted traditional practices, such as cultivating Indigenous foods, hunting, and fishing. Native Americans are more than twice as likely to die due to diabetes than non-Hispanic White people, showing current disparities in healthcare access.

Better enforcement of existing policies could make a striking difference. Food security, for example, could be improved simply by meeting existing treaty and trust obligations. From 1778 to 1871, the United States entered into nearly 400 treaties with tribes across North America, many of which stipulated the government supply Native nations with food, agricultural lands, and farming implements or livestock. Treaty-guaranteed hunting and fishing rights also support subsistence.

Telling of the commitment toward protecting these rights is the Ninth Circuit’s 1976 determination in U.S. v. Washington that treaty rights guaranteed tribes the amount of fish necessary to provide them with a moderate living, but no more. In the 2018 decision in Washington v. United States, the Supreme Court deemed it impossible to uphold treaty obligations simply by allowing access to waters where the state had already destroyed the fishery, ordering the state to remove and replace about 1,000 culverts that blocked migrating salmon. However, this slow, piecemeal enforcement of existing obligations cannot compensate for centuries of failures to provide for the most basic human right.

In the environment, interrelated elements add up to a unified whole, and no component can be wholly understood separately from the system in which it exists. The same is true of environmental justice. It is scientifically well-recognized that risks from environmental pollution are exacerbated when a community faces multiple stressors. And yet, issues such as fair housing, food sovereignty, and environmental justice have operated in distinct siloes in policymaking and advocacy for decades.

The basis for a more inclusive definition of “environment” exists. The Bureau of Indian Affairs’ NEPA Guidebook broadly explains environmental effects include “ecological (such as the effects on natural resources and the components, structures, and functions of ecosystems) [and] aesthetic, historic, cultural, economic, social, or health” impacts. Why not extend this broader definition beyond the confines of this procedural law, and also consider multiple stressors and cumulative impacts?

Brazil’s Forest: Governance, Indian Reserves, and Narco-Deforestation
Bruce Rich - Attorney & Author
Attorney & Author
Current Issue
Bruce Rich

The world sweltered in the spring and summer of 2023, when heat waves broke historical records in Asia, Europe, and North America. The consensus is growing that much of this warming is indeed a consequence of climate change. World greenhouse gas emissions still increased in 2022, energy-related emissions (power, transport, industry) growing by nearly 1 percent to 36.9 gigatons. Tropical deforestation also increased by 10 percent to 4.1 million hectares, an area the size of Switzerland, emitting 2.7 gigatons of GHGs—equivalent to all of India’s fossil fuel emissions.

Although deforestation accounts for a much smaller proportion of GHGs than the energy sector, the role of tropical forests as reservoirs of much of the world’s biodiversity and as providers of ecosystem and climate mitigation services is extraordinarily important. Over 1.6 billion of the world’s poorest, including many Indigenous people, are dependent on tropical forest resources.

What’s remarkable is that, according to the World Resources Institute, over 43 percent of the tropical forest loss last year occurred in Brazil, adding 1.2 gigatons of carbon dioxide to the atmosphere—2.5 times Brazil’s total fossil fuel emissions. The Amazon forest still sequesters as much as one quarter of the CO2 absorbed by the earth’s entire land surface and feeds the rainfall of half a continent. Recent studies warn that the region may be approaching the point where it emits more GHGs into the atmosphere than it removes, if one counts the total of global warming gases released from clearing and burning forests, and the discharge of methane from decaying cleared vegetation and increased livestock production on former forest lands.

Between 2019 and 2022, Brazil, under the presidency of Jair Bolsonaro, provided a case study in how changes in governance can directly lead to increased ecological destruction. The politician, who proudly called himself the “tropical Trump,” was an ally of Brazil’s agrobusiness in the Amazon region. He vigorously advocated opening up existing protected natural and Indigenous areas for mining and agriculture. He and his allies in the national Congress drastically reduced enforcement of Brazil’s environmental laws, resulting in widespread illegal land grabs and surging deforestation.

Indigenous reserves in Brazil historically have an even better record of forest conservation than protected natural areas. Bolsonaro vowed he would not allow “one more centimeter” of land to be safeguarded for Brazil’s 1.7 million Indigenous people, claiming they had too much land already. Bolsonaro greatly weakened the government Indian agency FUNAI (National Indigenous Foundation), leading to uncontrolled encroachment and forest destruction on Indigenous territories. He was transforming FUNAI into what Brazilian researchers characterized as a militarized agency for anti-Indigenous policies.

Last year, Bolsonaro lost his bid for reelection, and on January 1 former President Luiz Inácio Lula da Silva was inaugurated for his third term. Lula had served two terms as president from 2003 to 2010, when he was a strong advocate for environmental progress and Indigenous rights. Lula is reversing the destructive policies of his predecessor. He has already recognized six new Indigenous reserves in which mining and agrobusiness would be banned, and pledged to end deforestation in Brazil by 2030.

In just six months there was very tangible progress. Satellite monitoring by INPE (Brazil’s Space Research Institute) revealed that the country’s deforestation had fallen by 33.6 percent in the first half of 2023 compared with the same period in 2022. But it’s too soon to declare victory, since the peak of the dry season, when most deforestation occurs, is between July and September.

It’s also much more difficult to restore effective governance than to destroy it. The biggest threat may be that the legal vacuum in the region created by the previous administration was viewed as a unique opportunity for powerful crime syndicates from Rio de Janeiro and São Paulo. In June the UN Office on Drugs and Crimes in its annual “World Drug Report” highlighted the magnitude of the threat of “narco deforestation” in the Amazon, where “the laundering of drug trafficking profits into land speculation, cattle ranching, and related infrastructure” has also expanded into illegal trade in wildlife, illicit fisheries, and illegal mining. Brazilian narco-gangs and environmental criminals are increasingly collaborating to seize more control of the region, sharing airplanes and covert landing strips used in opening up illegal mining to also smuggle drugs and arms. The UN report stated that the northwestern area of Brazil’s Amazonas state together with bordering areas in Colombia and Peru “probably [has] the densest concentration of organized crime groups on earth.”

Brazil’s Forest: Governance, Indian Reserves, and Narco-Deforestation.

ELI Announces Partnership to Advance Government-to-Government Consultation in State and Local Decisionmaking
April 2023
(Washington, D.C.): The Environmental Law Institute (ELI), the National Association of Tribal Historic Preservation Officers (NATHPO), and Dr. Jamie Donatuto, community environmental health analyst for the Swinomish Indian Tribal Community, today announced their partnership with two California Native American Tribes—the Dry Creek Rancheria Band of Pomo Indians, and the Pechanga Band of Indians—in a groundbreaking project to advance tribal sovereignty and cultural resource protection in state and local environmental decisionmaking.
The Forgotten Sovereigns
Bella Sewall Wolitz - Brownstein Hyatt Farber Schreck
Brownstein Hyatt Farber Schreck
Current Issue
Two drawings of salmon swimming around each other on a white background

When most Americans, even lawyers, are asked about sovereigns under U.S. law, they focus initially on the federal government and the 50 states. Pressed, lawyers would probably observe that U.S. territories and foreign governments are sovereign as well. Yet Indian tribes, the peoples who have been on this continent practicing self-government by right and necessity since time immemorial, and thus the United States’ first sovereigns, are all too often forgotten. Tribes are an afterthought — if they are remembered at all. This has to change. It is my hope that after learning about the crucial role tribes play in natural resource governance, environmental professionals will never forget these sovereigns as potential allies.

This article discusses the legal authorities, and political capacities, of Indian tribes in the United States to manage natural resources. For lawyers and other professionals who are involved in projects on or near Indian lands, understanding of tribal powers is the first step toward developing the knowledge, skills, and relationships needed to collaborate successfully with Indian tribes on joint projects. Tribes have unique legal authorities and a seat at the table for some of the hardest decisions facing our country, which means that working with them to achieve desired outcomes can be pivotal to success.

If I could make one change in the U.S. law school, forestry school, and general environmental policy curricula, it would be to require every student to take a class on federal Indian law. This course of study looks seriously at questions of sovereign control over natural resources, from hunting and fishing rights to minerals and sites for renewable energy development. While it must be acknowledged that the history of Indians in the United States involves policies of violent removal of many tribal communities from their ancestral homelands, tribes have long demanded and today receive significant recognition as decisionmakers under the law of environmental stewardship. It is good policy as well as smart politics for environmental professionals to consider the potential tribal role, and to collaborate with tribes in advocacy and implementation of projects. Tribes have the capacity to become major players in the natural resource policy of this century. This is the case because of treaties protecting their prerogatives, as well as executive branch policies that are increasingly influenced by effective tribal political advocacy.

The starting point is essential to understand: tribes are sovereigns. American Indian tribes are unique among the United States’ many ethnic and racial groups because they are also sovereign entities that exercise inherent rights to self-government. Tribal claims to stewardship of natural resources may be based in tribal sovereignty, treaties, and property rights, as well as the Indian trust doctrine.

There are now 574 federally recognized tribes in the United States. Many of these have their own sovereign lands, governments, and court systems, and interact on a constant basis with state and federal entities. This article surveys just a few of the legal bases that tribes have for being involved in natural resource management. Their role may exist not just on tribal lands, where their sovereignty is at its most comprehensive, but also in other situations where a land, water, or resource management decision has the potential to impact tribes and their territories.

There are several overarching federal policies that involve tribes in natural resource decisionmaking. To help practitioners understand applicable law, let’s start with an overview of important environmental statutes and regulatory programs that recognize protection of lands, as well as the primacy of tribes in enforcing environmental laws in Indian country. There are also different sources for tribal authority over hunting and fishing, because protecting those rights can overlap with the goals of protecting environments to maintain healthy land and water ecosystems.

Under Executive Order 13175, issued in 2000, federal agencies are required to consult with potentially affected federally recognized tribes when developing policies with “tribal implications.” This means that agencies must initiate discussions before issuing regulations or making decisions that could impact tribal resources. The executive order also calls for agencies to take tribal viewpoints into account and to avoid taking actions that would impinge on their interests.

One of President Biden’s first actions was to express support for this tribal consultation policy and to require federal agencies to shore up implementation. Last January, President Biden issued a presidential memorandum on Tribal Consultation and Strengthening Nation-to-Nation Relationships. The 2021 P.M. describes the administration’s priorities: respecting tribal sovereignty and self-governance, fulfilling federal trust and treaty obligations, and engaging in “regular, meaningful, and robust” consultation with tribes. The P.M. requires agencies to prepare and update plans of action to implement meaningful consultation policies.

Agencies have produced plans to comply with these consultation requirements. The National Congress of American Indians maintains a helpful website with links to pages for agencies that lay out these consultation policies, as well as listing upcoming consultations. This resource is available at

Consultation may sound like a merely procedural step, but it is more than checking a box: if used well it can provide early and important feedback to agencies, helping them to reformulate projects. Note that tribes will not always favor environmental goals; tribes need economic growth and support development projects consistent with their sovereign needs. But sometimes tribal and environmental goals align, such as when tribal cultural and historical knowledge can benefit scientists in determining the health of various ecosystems and the effects of climate change. There are some challenges: a 2019 study by the Government Accountability Office identifies factors that impede effective tribal consultation, such as insufficient tribal resources to participate and lack of staffing to respond to consultation requests.

Yet dialogue can be valuable. If tribes are able to obtain resources for expert advice, these consultations will be more effective at raising concerns at early stages and in fora where federal agency officials are looking for consensus-based steps forward.

The role of tribes does not end with consultation under E.O. 13175. The National Environmental Policy Act also includes requirements for analysis of environmental justice implications of federal decisions potentially including consideration of tribal concerns. The Biden administration has committed to respecting EJ imperatives of not foisting pollution and other environmental risks on historically disadvantaged communities. This strengthens the important role of tribes when a federal agency is required to issue a permit or right-of-way, or otherwise make a decision with the potential to impact the environment.

NEPA regulations are in flux right now. It is likely that changes introduced in this administration will increase requirements for analysis of tribal impacts. The Trump administration promulgated amended NEPA regulations in 2020. The Biden administration’s Council on Environmental Quality has announced that it, in turn, is proposing changes that will at least to some extent roll back the Trump changes. Phase 1 of the Biden administration’s NEPA regulatory changes was announced last October. It clarifies the scope of agency review. Broader, Phase 2 regulatory changes are under development. They will aim to meet the nation’s environmental, climate change, and environmental justice challenges while providing regulatory certainty to stakeholders. Under NEPA, impacts on tribal resources are analyzed in environmental impact statements and assessments, and new regulations will likely clarify and strengthen this requirement.

Because Indian lands in many places are relatively undeveloped, some of them are rich in endangered species. Tribes thus may play a significant role in Endangered Species Act implementation. Tribes are generally, but not always, subject to federal laws, and ESA enforcement has the potential to cause tension with implementing federal agencies. To defuse this tension, an agreement between the departments of the Interior and Commerce and tribes governs enforcement of the ESA on Indian lands. The secretarial order is titled American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.

S.O. 32066 allows tribes to be the primary enforcers of the ESA on Indian lands. Environmental practitioners seeking to partner with them might be able to help build capacity in Indian agencies for habitat protection or restoration to help protect the environments on which species depend.

During the mid-1980s, Congress amended a number of environmental laws to expressly provide for a regulatory role for tribes, including the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act. Under these programs, Indian tribes that receive EPA approval are able to either set standards or implement regulatory programs, or both. EPA refers to this as treatment-as-state status, or TAS.

The Clean Water Act provides particularly robust mechanisms for coordinating tribal and national interests. Tribes with Clean Water Act TAS status are able to set water quality standards for tribal waters that can be more stringent than those required by the federal government. A famous 1992 case involved a challenge brought by the city of Albuquerque that resulted in the federal court upholding EPA’s authority to grant TAS status to a tribe, the Pueblo of Isleta, and to make Isleta’s water quality standards binding upon upstream polluters— in this case, the city of Albuquerque. The city ultimately upgraded its wastewater treatment facilities to ensure compliance with Isleta’s strict water quality standards.

Another important Clean Water Act authority for tribes is the Section 401 certification, which prohibits discharges to waters of the United States unless an authorized tribe or state certifies that the discharge is consistent with its water quality requirements or waives certification. The Trump administration promulgated a rule that had placed stringent limits on the timing and potential reach of tribal and state authority under Section 401. The Biden administration has announced its intention to revise the 2020 rule and issued guidance on how agencies will implement the rule in the meantime.

Tribal hunting and fishing, which is not subject to state regulation, has been a lightning rod over the last four decades, as tribes increasingly require that these hunting and fishing rights be recognized. Conflicts arise because the nature of game and fish is to ignore political boundaries — fishing and hunting practices, as well as policies that affect the habitat where fish and game live, inevitably impact the health of populations elsewhere. While it is nice to say that a tribe is sovereign and has a fishing right, if the state government is allowing non-Indian fishers to capture all the fish before they get to a tribe’s reservation — or the federal government has approved dams that stop the fish from migrating up the river to their spawning places — tribes are going to find themselves having to engage with other sovereigns in order to protect their rights.

It is important to understand that tribal rights can have a few different legal origins. These rights are often subsets of both tribal property rights to control their lands and inherent sovereignty to regulate activities within their lands. Some tribes have rights under treaties or based on unextinguished aboriginal title to hunt and fish in areas outside of their reservations. Practitioners can understand these different legal theories for tribal fishing or hunting rights broadly as property rights and treaty rights.

Tribes can hold fishing and hunting rights as part of their sovereign control of land. When a tribe has land set aside in trust, often as a reservation, and that land includes access to waters that members use for fishing, then the tribe has a fishing right. Some tribes own land outright subject to restrictions on its sale of this land, so-called restricted fee lands. The establishment of trust or restricted fee land for a reservation is one of the most important actions the federal government can take for tribes. Lands set aside for Indians provide a permanent base, protect the lands against loss, and serve as territory over which tribes exercise their governmental authority. The fundamental purpose of reservation land is to protect and sustain tribal culture and self-determination. For many tribes, hunting and fishing are integral parts of culture and a heritage that goes back thousands of years. There are tribal areas where subsistence hunting and fishing are still crucial parts of the economy and peoples’ diets, without which people would go hungry.

Here, questions arise over the applicability of state law, because in general, regulation of hunting and fishing falls to states. Tribal members, however, can exercise their hunting and fishing rights on their reservations without state regulation. This means that Indians can set different seasons for hunting and fishing and allow different amounts of catch.

The question of non-Indians who want to hunt and fish on tribal territory, and which sovereign, the state or the tribe, should regulate this activity, is a more difficult legal question. The leading case is New Mexico v. Mescalero Apache Tribe, a Supreme Court decision from 1983. Mescalero demanded a fact-intensive balancing of competing state and tribal/federal interests. The Court recognized the possibility that state interests might be sufficient to justify the assertion of state authority, but acknowledged that federal and tribal interests, reflected in federal law allowing for tribal management of natural resources, justified preempting state law under the facts of the case. The Court found that the Mescalero Apache Tribe’s joint program with the federal Bureau of Indian Affairs to develop reservation game and fish resources demonstrated the interest of the tribe and justified preemption of state law as it applied to non-Indians on tribal land.

In light of these facts and the strong federal policy favoring tribal self-determination, in Mescalero the Supreme Court held that the state was preempted by federal law from regulating nonmember hunting and fishing on the reservation. But because the Court’s preemption analysis involved a fact-specific weighing and balancing of the interests at stake, the possibility exists that other, less comprehensive tribal programs would be unsuccessful in preventing a state from concurrent regulation of nonmember hunting and fishing. Basically, state interests would be much stronger in a situation where the state had substantially contributed to creating and maintaining the fish and game resources at play, and non-Indians might be subject to both tribal jurisdiction (as a person who has come onto tribal land) and state jurisdiction (as an individual who is not covered by the tribal exemption from state law). Practitioners should also be aware that while tribal hunting and fishing rules will apply on lands held in trust for tribes, some reservations include within their boundaries lands owned in fee by non-Indians as allotments. Non-Indians on allotments are more likely to be subject to only state hunting and fishing rules as established by Montana v. United States.

Tribes may also claim rights to hunting and fishing through treaties. Many treaties include specific language reserving the right of tribal members to hunt and fish. Some treaties limit this reserved hunting and fishing right to the reservation, but many also include provisions under which members of a tribe reserve the right to hunt and fish off the reservation. For example, many Pacific Northwest Indian tribes have treaties reserving their right to fish in “Usual and Accustomed” fishing places that include habitat of important marine and freshwater fish. These rights are grounded in the treaty language, which makes them the supreme law of the United States. They should be understood not as grants of rights but as reserved rights, meaning that the treaty language reserves the right of the tribe to continue game and fish management and harvesting traditions that extend way back before the establishment of the United States.

Tribal hunting and fishing rules can preempt state rules, in all cases for tribal members on tribal trust lands on reservation, and in some cases for non-Indians on tribal lands or for tribal members even off-reservation under reserved fishing and hunting rights. In these scenarios, tribal –– not state –– rules control harvest levels. This raises the question, what would happen if a tribe, by allowing more permissive hunting and fishing, started to have a negative impact on a species?

In such a case, federal courts recognize a “conservation necessity” exception to the rule that federal and tribal authorities on hunting and fishing can preempt state law. In the Puyallup series of cases, courts articulated three tests that a state regulation would have to pass in order to be able to validly restrict tribal fishing and hunting rights. First, the state must show that its regulation is reasonable and necessary to perpetuate the species, and second, that the regulation is the least restrictive means of achieving this goal. If alternative methods of conservation are available that are less injurious to the tribe’s reserved rights, they must be utilized. Third, the regulation must not discriminate against Indians, either by placing greater burdens on them than on non-Indians, or by imposing restrictions that have the effect of preventing Indians from taking their share of the resource.

The conservation exception is important for those who are concerned about tribal resource management. A state may limit Indian-reserved fishing and hunting rights in the interest of conservation both on and off the reservation, and may prohibit tribes from engaging in any activity that would endanger continuation of the species, as long as the state’s actions in doing so are nondiscriminatory and necessary. This is a high bar. In general, state and tribal agencies are on the same side, trying to manage and conserve valuable fish and wildlife populations.

It's worth concluding with a few examples of recent or ongoing situations in which tribes play an important role in natural resource management decisions.

The Penobscot River Restoration Program was jumpstarted when the Penobscot Indian Nation joined with environmental groups to challenge the relicensing of two dams that had been preventing salmon migration upstream. In 2004, a multiparty settlement agreement was entered into and subsequently approved by the Federal Energy Regulatory Commission. Under the settlement, the Penobscot River Restoration Trust received an option to purchase three dams from the license holders and remove the two most seaward dams. The existing licensees for six remaining dams on the river were allowed to increase electricity production. As a result, total generation remained constant, and the settlement provided funding for fisheries management and restored one thousand miles of habitat for eastern migratory fish, including Atlantic salmon, American shad, and short-nosed sturgeon. This is a prime example of the kinds of synergies between tribal goals of sovereignty over natural resources and improved fisheries management.

Another example of this synergy, but based on land, was the creation of Bears Ears National Monument by President Obama in 2016, largely in response to the request of five tribes — the Ute Mountain Ute, Navajo, Ute, Zuni, and Hopi — with cultural and ancestral ties to the region. At the time it was created, a management plan for the monument included tribal participation in stewardship of the land. After the monument was diminished by President Trump in an order that divided the monument into noncontiguous units, in October President Biden announced that he would restore Bears Ears, where tribes continue to collect plants, minerals, objects, and water for religious and cultural ceremonies and medicinal purposes.

A currently brewing conflict between tribes and a developer involves Enbridge Energy’s oil pipeline under the Great Lakes. In September, the Bay Mills Indian Community submitted written testimony to the Michigan Public Service Commission opposing the request of the corporation to build a new Line 5 oil pipeline tunnel. The tribe argues that the project threatens its treaty rights to hunt and fish, and its cultural and religious interests in the Great Lakes. The litigation over the pipeline will involve significant discussion of the tribe’s right to protect the waters where it has fishing and hunting rights under treaty.

These examples demonstrate the importance of tribes in management decisions related to habitat conservation, hydropower, and fisheries harvest. Environmental practitioners seeking to protect natural resources often, but not always, share mutual goals with tribes looking to exercise sovereign rights to land and water stewardship. However, failing to understand the centrality of tribes, as well as the legal authorities underpinning their role, will result in a shortfall in both objectives.

Tribes are already participating in difficult natural resource management decisions. Moving forward, these collaborations will only become more common. In the world of natural resource management, tribes should never again be the forgotten sovereigns. Rather, environmental practitioners, in recognition of tribes’ sovereign status and related legal rights, should be working to benefit from the voices of tribes in determining how to make efficient and wise use of natural resources. TEF The views expressed in this article are exclusively the authors.

CENTERPIECE Tribes have unique legal authorities and a seat at the table for some of the hardest decisions facing our country, which means that working with them to achieve desired outcomes can be pivotal to success in resources management.

Strengthening Water Tenure
Jessica Troell - Environmental Law Institute
Environmental Law Institute
Current Issue
Strengthening Water Tenure

Some two billion people — a quarter of humanity — lack access to safe, readily available drinking water. Moreover, freshwater security is increasingly threatened as the result of climate change, unsustainable development, and population growth. In the midst of this burgeoning water crisis, the rights of communities around the world who collectively hold, manage, and depend on freshwater resources continue to be inadequately recognized and protected. Securing the legal basis for indigenous and local community water rights can be a key national and local response.

Indigenous peoples and local communities continue their struggle to gain legal recognition of land, water, and other natural resources found within the territories they have traditionally stewarded. The realization of communities’ freshwater tenure is particularly essential to their ability to maintain food security and livelihoods, as well as to achieve other sustainable development objectives.

Observing the ways in which secure tenure underpins equitable and sustainable development, many countries have made tangible progress in legally recognizing and protecting land and forest rights. But water tenure has received far less attention. Indeed, the definition and understanding of the term itself is still evolving. Additionally, the most fundamental legal entitlements that support communities’ water security have yet to be fully articulated or generally endorsed internationally.

The development of principles and tools to guide policy and legal reforms, notably the UN Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests, has provided an important basis for building policy consensus on what constitutes responsible governance of tenure. A key aspect of this international consensus has been the importance of prioritizing the rights of the rural poor. Early discussions on the inclusion of water tenure in such guidance foundered on the unique aspects of water as a fugitive, inherently shared, and essentially public resource, which collectively makes it difficult to conceptualize water tenure in the same way that tenure is framed in the context of land and other terrestrial resources. Nevertheless, it is possible to articulate — both conceptually and based on legislative practice — a core set of water rights that comprise (in varying formulations) the diverse water tenure regimes found around the world. Taking this bundle-of-rights approach enables countries to identify areas for harmonization of legislation across water, land, forest, and other key resource sectors and, in turn, provides an important framework that can support integrated and more equitable governance.

The importance of water tenure, its practical and legal interdependencies with land and forest tenure, and the need for the further development of its conceptualization in policy and practice led to a joint undertaking by the Rights and Resources Initiative and ELI to develop a framework designed to conceptualize, compare, and track national-level legal recognition of the most essential rights for securing community-based freshwater tenure.

We applied this Freshwater Tenure Methodology across 15 countries spread through Africa, Asia, and Latin America in order to assess the extent to which various national-level legal frameworks within these countries recognize and protect the freshwater rights of indigenous peoples and local communities. Importantly, we also focused on the role of women within those communities in water use and governance. The findings from this analysis — titled, “Whose Water? A Comparative Analysis of National Laws and Regulations Recognizing Indigenous Peoples’ and Local Communities’ Water Tenure”— is now available online. The dataset underpinning its findings will be expanded and updated over time.

Drawing on widely accepted understandings of land, forest, and fisheries tenure, the UN Food and Agriculture Organization has proposed this definition of water tenure: “The relationship, whether legally or customarily defined, between people, as individuals or groups, with respect to water resources.” This definition recognizes that water tenure goes beyond water rights to capture diverse legislative and customary systems that shape how various stakeholders — whether as individuals or groups — relate to one another in their use of, and impacts on, this resource. The acknowledgement of customary water tenure regimes is also critical, as they are often the primary means by which many indigenous peoples and local communities determine how group members access, use, and govern the water they need for food, livelihoods, health, and overall well-being.

Water tenure also derives its meaning and utility from the bundle of rights that constitute the fundamental elements of peoples’ relationship with each other when it comes to freshwater resources. Rights to use and manage water are governed both by legislative and customary frameworks, which may or may not be aligned with one another. Unpacking the bundle of rights that constitutes various forms of water tenure thus helps governments and others to understand the diverse ways in which the specific rights constituting tenure regimes are practically formulated, implemented, and enforced.

A bundle-of-rights approach also builds on broadly accepted understandings of common-pool-resource property rights, as well as definitions of land and forest tenure, thus allowing for a comparitive review of regimes at a landscape or territorial level. In many countries, recognition of water rights is predicated on legally recognized land or forest rights. This legislative “land-water nexus” impacts both the realization and security of water tenure rights and points to the need for more coherence across legal frameworks impacting tenure rights in related sectors.

Indigenous and local communities constitute one-third of the world’s rural poor and are among the planet’s most frequently marginalized groups. They face inequities in access to critical services, including education and other essential resources, and suffer from comparatively higher levels of poverty. This enhanced vulnerability is often more pronounced for the women in these communities. As pressures on freshwater resources mount, legal protections for the tenure rights of indigenous peoples and local communities are therefore critical to ensuring their water security.

The legal status of community-based water tenure is often further complicated by the primary role that customary rights can play in determining how some communities use, manage, and govern their water resources. The legal recognition of customary water rights varies widely across countries, and the complex relationships that can arise between legislative and customary water rights may present serious challenges. Given the high level of dependence that local communities in developing countries have on natural resources, securing their water tenure rights is of paramount importance to their ability to support sustainable livelihoods, achieve food security, and enable economic advancement — while also ensuring that communities can continue in their roles as stewards of the freshwater and broader ecosystems on which they, and others in cities and rural areas downstream, depend.

“Whose Water?” follows extensive work by the Rights and Resources Initiative to analyze the extent to which indigenous peoples’ and local communities’ land and forest tenure rights are recognized under national law. Building on RRI’s unique methodological approach, ELI and RRI began developing the Freshwater Tenure Methodology to assess whether community-based freshwater rights, including rights to surface and groundwater, are legally recognized, and how those rights are protected or addressed within national legal frameworks regulating and impacting freshwater resources. We developed the methodology through a highly consultative process and piloted it in three countries before it was finalized.

The methodology defines a community-based water tenure regime as a distinguishable set of national-level, government-issued laws and regulations encompassing situations in which freshwater rights of use and at least either governance or exclusion are held at the community level. Communities are defined broadly to capture a range of indigenous peoples and water-user associations or similar entities that include such communities. Our team identified a total of 39 CWTRs across the 15 countries we assessed: Bolivia, Cambodia, Chile, Colombia, India, Kenya, Liberia, Mali, Mexico, Morocco, Nepal, Panama, Peru, Vietnam, and Zambia.

We then worked with national experts to examine the bundle of rights for each tenure regime using five legal indicators: use, exclusion, transferability, governance, domestic due process, and transboundary due process. In addition, to provide critical context for each regime, the Freshwater Tenure Methodology includes threshold questions to assess legal recognition of the human right to water; customary water rights, laws, traditions, or practices; the dependence of communities’ water rights on their recognized rights to land and forests; and indigenous and rural women’s rights to water.

The right to use water is perhaps the most central right in the bundle, fulfilling basic human needs, ensuring health, and realizing the full suite of human rights that can only be achieved through access to water. To capture the broad range of potential rights that are relevant to communities, our methodology recognizes four categories of commonly recognized uses: for religious or cultural purposes, domestic purposes or basic human needs, small-scale livelihoods, and commercial purposes. Domestic-use rights are the most consistently protected, and the majority of community-based water tenure regimes exempt domestic uses (defined in various ways) from any sort of permitting or licensing requirement.

National laws frequently give these rights legal priority with respect to competing uses. National laws also recognize use rights for livelihoods, although some require a permit or other administrative procedural requirement in order to vest the rights. While permitting systems can help monitor and regulate water use, reduce associated conflicts, enhance sustainability, and generate public revenue, they are seldom adapted to meet the needs and circumstances of local communities. These requirements can translate into a burden for communities in realizing critical use rights for livelihoods where such administrative requirements are coupled with fees, a need to travel sometimes long distances to reach administering agencies, language barriers, and often restricted capacity of government to effectively implement the requirements in remote rural areas.

The rights to plan, make, implement, and enforce decisions and resolve associated disputes — in short, to govern — are also critical aspects of community-based water tenure. To capture the ways in which communities are legally empowered to govern their water resources, the Freshwater Tenure Methodology assesses whether communities have rights to make rules related to their water resources, to make plans and implement those plans by managing those resources, to resolve water-related disputes in the community, and to enforce internal rules related to water. Notably, all but one community-based water tenure regime we identified legally recognize community rights to make rules concerning fresh water, and all 39 recognize communities’ rights to water resource planning and management. However, the tenure regimes that recognize water governance rights are also often premised on the broader legal recognition of communities’ customary or traditional rights to territories or lands and appurtenant resources and are not specific to water. These rights are also found across a range of laws with provisions that may or may not be aligned with the pertinent water legislation.

The right to exclude third parties ensures that communities have the legal authority to protect their water rights and territorial water resources from capture or abuse. Exclusion is generally considered one of the most essential components that make a bundle of terrestrial tenure rights meaningful. However, because of water’s fugitive and shared nature, it can be subject to overlapping claims. Moreover, water rights regimes are often predicated on balancing the public and private property rights in water. This balance is increasingly informed by the legal recognition of water as a human (and constitutional) right, placing a unique onus on governments to ensure equitable access to — and sustainable management of — the resource.

Legal rights to exclude third parties therefore often do not apply to those who seek to use fresh water to fulfill basic human needs, which are generally safeguarded. Exclusion rights also are often limited to private parties, as governments typically establish legal rights to control or even own all fresh water to administer on behalf of citizens as a public trust. However, even given these constraints, over 60 percent of the tenure regimes we analyzed provide some form of exclusion rights to communities. Not surprisingly, most of these are tenure regimes based on a land-water nexus that premises water rights on existing legal rights to land, forest, or territories.

Particularly where exclusion rights are missing or ineffectual, procedural rights enabling access to information, participation in decisionmaking, and access to justice where water rights are infringed upon take on even greater importance. All 39 of the CWTRs recognize communities’ due process rights of prior notice, consultation, and appeal when decisions related to the development or allocation of fresh water (or other related matters) could impact their rights. It is important to note, however, that these rights emanate from multiple sources of law, often outside the water sector, such as land laws and environmental impact assessment provisions. They are therefore not always specific to water resources or the unique impacts they can incur. Some countries have taken the initiative to require free, prior, and informed consent for decisions impacting indigenous and other communities, whether through national legislation or court decisions. Despite these positive developments, the majority of countries provide communities with less robust procedural guarantees to ensure their water rights are not infringed or extinguished by third parties.

Among the most policy relevant findings of our assessment are the variety of ways in which water tenure rights depend upon and are shaped by land and forest rights. The land-water nexus is also directly linked to the diverse ways in which customary land and water laws are given legal status and the legal recognition of indigenous territorial rights.

The nexus takes many forms under diverse national laws, deriving from land, forest, and water laws, as well as national constitutions, local government and administrative laws, and other legislation. In Kenya, for example, land is defined by the constitution to include “any body of water” on or under the surface of the land, and so provides recognition for the water appurtenant to customary lands that are legally recognized under the 2016 Kenyan Community Land Act. In Colombia, Constitutional Court decisions have recognized freshwater rights as integral to communities’ territorial rights, and in Liberia and India, certain communities’ statutory water rights are entirely dependent on their recognized forest rights.

Notably, across our 39 identified CWTRs, those that have a land-water nexus tend to grant stronger overall protections to communities’ water tenure rights. This indicates that water laws are falling somewhat behind in their recognition of CWTRs compared to other sectoral laws. However, it is also important to note that recognition of water-tenure rights is often not explicit when embedded in other sectoral laws or constitutional provisions, but rather included in broader provisions governing rights to territories, lands, or natural resources more broadly.

The recognition of water rights across laws governing lands and forests can provide diverse legal avenues for recognition of water tenure. At the same time, if laws are not consistent in how they address the elements of water tenure, those rights can also be undermined, result in duplicative requirements, or even lead to contradictory provisions. A clear understanding of the specific legal mechanisms creating or shaping the land-water nexus is therefore critical in defining and securing communities’ water tenure. Moreover, the legal interdependencies across water, land, forest, and other resource tenure systems must be reflected in policies and laws that take harmonized approaches to recognizing and protecting land and water rights — or risk undermining tenure security of the most vulnerable.

Our analysis found that only one-third of the tenure regimes legally recognize the specific rights of indigenous and community women to use or govern fresh water. Moreover, two-thirds of those provisions that do recognize women’s water rights are not specific to water, but rather pertain more broadly to rights to natural resources or to community territories, which can be interpreted to include their freshwater resources.

The ability of countries to support women within indigenous and local communities in exercising control over water resources depends largely on the extent to which national laws recognize women’s rights to participate in community-level governance. Without gender-sensitive legal protections, it is difficult to ensure that women can actively engage as equal members in community-level decisionmaking about water to ensure that it is appropriately allocated for their priority domestic and productive needs.

Customary water laws and practices are often the primary means by which indigenous peoples and local communities determine in practice how to access, use, and govern their water. Broadly speaking, customary laws reflect the norms and practices accepted by a community as unifying and obligatory and draw their authority from both contemporary and traditional values, practices, and institutions. They are not static but tend to adapt to community needs and priorities. Where customary rights and laws are not formally recognized, they are at risk of being ignored, manipulated, and eroded when competing claims arise.

Approximately 80 percent of the 39 CWTRs analyzed across Africa, Asia, and Latin America provide legal recognition of customary water tenure rights, creating a legal basis for ensuring the continuity and enforceability of those rights. However, even where customary water tenure rights are recognized, such rights must often be reconciled or harmonized with legislation, which can fundamentally alter their character and functioning. Moreover, even where customary water tenure rights are granted legal recognition, there is a risk that they will not enjoy the same level of enforcement as permitted rights. There is thus a strong need for research to understand the diverse impacts and policy options for improved recognition of customary water tenure rights and more effective harmonization of customary and legislative systems.

Across the water tenure regimes, we found a high number of water rights for livelihoods and commercial uses are subject to permitting or other procedural requirements. These burdens can be significant. In Nepal, for example, communities must form up to three distinct user associations to obtain their full suite of potential water use rights, including those for irrigation. The burden on communities is often compounded by the fact that governments often lack the capacity to implement their own administrative requirements, particularly in rural areas. For example, recent research across five African countries by the International Water Management Institute and the Pegasys Institute demonstrates the inability of countries to achieve even a small fraction of statutory permitting requirements and a bias toward formal, large-scale users.

Our findings highlight a need to more closely tailor water regulatory tools to the needs and priorities of communities, including more effective recognition and protection of customary rights, consideration of alternatives to permitting requirements that balance state policy priorities with the actual capacities of both agencies and communities, and exemption where possible from permitting requirements of critical water rights for domestic and livelihoods uses.

We found that water tenure does exist — in multiple forms — and that it plays a central role in supporting indigenous peoples’ and local communities’ livelihoods, resource governance and protection, and sustainable economic development. The findings also highlight the critical importance of identifying and fully understanding the nuances of the land-water nexus and promoting more integrated, tenure-rights-based approaches to land and water governance. Such approaches must look to incorporate innovative mechanisms for intersectoral coordination and collaboration, as well as better-harmonized legislation. They must also take full account of the differentiated roles, needs, and priorities of men and women through more gender-equitable legal protections for water tenure rights.

A key consideration in determining policy options and legal tools for supporting water rights is the balance that must be struck between security of tenure and the flexibility required to be able to respond to changing availability and quality of water as a result of societal and climate-driven uncertainty and change. This could require, for example, a rethinking of the time limitations provided on administrative water rights, more effective use of legal prioritization of certain uses and water tenure holders under circumstances of scarcity or disaster, and a focus on building the capacity of water tenure institutions for adaptive management that enables adjustments in the face of uncertainty and change while still maintaining equity in allocation and accountability to all tenure holders.

With respect to the water tenure rights of indigenous and local communities, a careful assessment of the resilience of customary water tenure practices and how those can be protected by law could contribute meaningfully to their water security. This could also provide innovative alternatives to alleviate the burden on governments that lack the capacity to meaningfully bring customary tenure holders into the formal administrative water rights system. More broadly, careful consideration of the wide range of potential legal mechanisms for balancing resilience and security must be an integral part of ongoing work on water tenure.

Women within indigenous and local communities have differentiated responsibilities, needs, and priorities with respect to the domestic and productive uses of water and the sustainable management of freshwater resources. Legal recognition of the specific rights of women in these communities to use and govern water is essential for ensuring that they have a meaningful voice in decisionmaking and control over this essential resource. Despite the broad international recognition of women’s critical role in water management and decisionmaking for over 30 years, men continue to dominate water-related governance at all levels, reflecting the persistent, patriarchal gender ideology that prevails in many countries and communities. This status quo is bolstered by the notable absence of gender-sensitive legal protections, as evidenced by the findings described above.

Addressing this status quo will require gender-transformative provisions in water legislation to prohibit discriminatory practices and ensure that women are represented equitably in decisionmaking processes and in institutions charged with water governance. The pervasiveness of the land-water nexus in the legal recognition and protection of water tenure, coupled with the fact that less than 15 percent of landholders globally are women, also indicates gender-equitable water tenure will also require land and forest laws to more adequately protect and respect women’s tenure rights, including their inheritance rights to community lands and resources. To build on those practices and norms that respect resource tenure rights, particularly in the context of community-based tenure, such reforms and the resulting governance institutions must be informed by the voices of the women.

The emergence of environmental rule of law as a priority for international action, as framed by UN Environment and others, provides a critical context shaping how water tenure rights can improve environmental and water governance. While environmental and water laws have proliferated globally in recent decades, equitable and accountable implementation and enforcement of these laws often remain elusive.

The components of environmental rule of law include fair, clear, and implementable legal provisions; meaningful procedural guarantees for public participation; accountable institutions and decisionmaking; clear mandates and institutional roles; accessible, fair, and transparent dispute resolution mechanisms; and recognition of the mutually reinforcing relationship between rights and the rule of law.

These core elements of environmental rule of law must provide the context for the further elaboration of the concept of water tenure and its practical application across various contexts. At the same time, equitable and secure community-based water tenure, as captured in our assessment, has the potential to advance each of these components and contribute to more effective overall water governance at the local and national levels. TEF

Many countries have made progress in legally recognizing and protecting land and forest tenure rights. But the water rights of indigenous and local communities have received far less attention, despite their role in supporting equitable and sustainable development.

Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes
Environmental Law Institute
Date Released
January 1989

This handbook examines the Section 401 State water quality certification process and how it applies to wetlands. The EPA's Office of Wetlands Protection recommends this report as a reference tool in establishing a wetlands protection program or improving wetland protection mechanisms.