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The establishment of European settler colonial states from the 15th to 17th centuries, during the so-called Age of Exploration, was made possible by the issuing of a series of legal principles that have since been disputed but still hold legal sway. The rhetoric of the Doctrine of Discovery can be traced back to the papal bulls created by the Catholic Church in order to authorize Spain to conquer the non-Christian lands it was exploring. The doctrine was further applied by additional colonial forces, including the British Empire. The doctrine, stipulating that a nation acquires the property and sovereignty rights to the land and natural resources that it “discovers,” was used to justify colonial conquest. The doctrine proposed two additional principles, both of which are considered to no longer be applicable today, although they still have a significant impact on indigenous peoples: terra nullius and aqua nullius. Nullius,” in Latin, means “vacant.”
When land was defined as terra nullius, its acquisition and occupation by colonizers was considered legally legitimized. The question of Native land ownership was reviewed by the United States once it became independent from Great Britain. The U.S. Supreme Court addressed the issue in Johnson vs. McIntosh, a 1823 case that assessed whether a non-Native buyer’s acquisition of a land title from a Native tribe was legitimate. The Court established that, in accordance with the Doctrine of Discovery, the terra nullius principle had been transferred to the United States from Great Britain, rendering a title sold by a Native tribe to be invalid. While the Court held that indigenous peoples retained a “right to occupancy,” the U.S. Government, specifically Congress, could essentially dispel a title at any point.
The ruling also provided the basis for the U.S. Congress’s ability to regulate water rights. Similarly to terra nullius, aqua nullius operated on the principle that water in areas claimed to have been discovered by colonists did not belong to the indigenous populations having occupied the land previous to European settlement. In an article published in the Journal of Water, Erin O’Donnell discusses the present day implications of aqua nullius, including that indigenous communities continue to be dispossessed of their water rights after their options for water governance were limited with the Winters’ Doctrine.
This doctrine was established through the 1908 case of Winters vs. United States. The question this case dealt with was whether landowners could build on their properties dams that would block streams reaching Native reservations. The Court ruled that, while landowners were allowed to build dams, a reservation was entitled to enough water to make it “livable and productive.” According to O’Donnell, while the Winters’ Doctrine guaranteed a specific amount of water for indigenous peoples, to be used for anything necessary, it largely limited Native tribes’ water rights by placing water management in the hands of the U.S. government, confining tribal decision-making to the areas within reservations, and imposing a range of additional constraints to Native communities including on building infrastructure to deliver water.
Additional issues result from regional approaches to water rights. There are two separate forms of water law governing the eastern and western states. Prior Appropriation, which mandates the earliest user of a source of water is given priority and is guaranteed continuous use, is enshrined in the Doctrine of Prior Appropriations. Western states, primarily, operate on the basis of this law. Through the Winters’ Doctrine, reservations are given high priority, the logic being that indigenous tribes had first use before European colonial powers arrived. On the other hand, eastern states utilize the Riparian Doctrine, which grants rights of reasonable use to those who own land adjacent to a body of water, with much less acknowledgement of prior use.
Across regulatory measures, it is recognized that, on tribal lands, water can be used for subsistence and economic development purposes, including recreational and environmental needs. However, while the use by non-natives of water stipulated for Native reservations has been prohibited, Native tribes cannot regulate the use of water by non-Natives. Furthermore, the federal government holds the legal title to tribes’ water rights, so a tribe cannot prevent the federal government from representing it in court, even when there is a conflict of interest. Should the federal government interfere with the allocated water to Native reservations, tribes are entitled to compensation through the Just Compensation Clause, yet with the federal government being in control of both water management and legal representation, the fairness of such compensation is questionable.
Such issues are exemplified by the Dakota Access Pipeline. Energy Transfer Partners (ETP) built this pipeline to transport crude oil underneath the Missouri and Mississippi Rivers, as well as Lake Oahe, on route from Bakken Field in North Dakota to areas in Illinois. In 2016, massive concern was raised by Standing Rock protestors, who argued not only that traditional burial sites and sacred lands were being disturbed, but also that a potential oil spill could contaminate these significant sources of water to Lakota tribes. Activists chanted “water is life,” facing tear gas and mass arrests. Despite protests, in February 2017, the American Corps of Engineers (ACE) approved the final permit necessary to drill under Lake Oahe, not even mandating an Environmental Impact Statement (EIS). The Standing Rock tribe contested this decision, which led to the 2021 case Standing Rock Sioux Tribe v. U.S. Army Corp of Engineers. While the D.C. Circuit Court ruled against the easement that allowed the ACE not to craft an EIS, it also reversed a previous order requiring the pipeline be shut down.
Additionally, the construction of dams has been found to disrupt the water resources allocated to indigenous tribes as well as tribal land. In recent years, over 1.13 million acres of tribal land have been flooded under the reservoirs of 424 dams. While the energy supply generated by dams does not serve the reservations, the indigenous communities have to bear the negative consequences linked to the creation, maintenance, and management of dams. For example, California’s McCloud River is considered to be one of the nation’s most endangered rivers, due to the building of the Shasta Dam. Caleen Sisk, chief of the Winnemem Wintu tribe, emphasizes how the dam has driven local salmon to extinction. Congress passed the Central Valley Project Indian Lands Acquisition Act in 1941 in order to claim the land necessary for the dam. Sisk explains that promised compensation has never been received and also that her people are facing an ethnocide. The Winnemem Wintu tribe is not federally recognized, which adds to the hurdles related to fighting government action. Members of the Wintu community have rallied to call for “Land Back,” in an effort to reclaim the lands disposed of Native peoples by settler colonial states.
The legal principles that prevent indigenous communities from managing their land and water resources are products of a legal system grounded in colonialism. While such legal principles have been disputed over time, they continue to negatively impact Native tribes. Movements for environmental justice and to combat climate change must do more to include indigenous peoples who unfortunately remain among the most water-insecure and overall resource insecure in the United States.