Spring 2026
Between Nations: Indigenous Sovereignty and Inter-National Environmental Law
Abstract
Indigenous water rights disputes in the United States exist at the intersection of tribal sovereignty, environmental law, and competing systems of governance. Tribal nations regularly assert treaty-reserved rights to land and water while navigating overlapping legal regimes that include tribal law, federal law, state regulation, and international environmental norms. Viewed through a legal anthropological perspective, law emerges and operates as a culturally embedded process shaped by negotiation, institutional interaction, and local knowledge systems.
Treaty rights function as reservations of preexisting Indigenous sovereignty that predate the formation of the United States*. Indigenous communities therefore regularly engage with, reinterpret and mobilize multiple legal traditions to address environmental governance challenges. As climate change intensifies water scarcity and ecological pressures globally, international cooperation across legal systems is both practical and sustainable as sovereignty, environmental stewardship, and legal pluralism are actively reshaping the future of environmental law.
*The ability to exercise such rights is shaped by the legal status of federal recognition; as of 2026, only 575 of the more than 1,000
Native American tribes in the United States are federally recognized, limiting access for many Indigenous communities to treaty enforcement, jurisdictional authority, and federal legal protection.
Description
Water rights disputes often involve overlapping claims between federal agencies, states, tribal governments, agricultural interests, and environmental regulations. These conflicts raise fundamental questions about the coexistence of multiple legal systems, and the increasingly global scale of environmental governance.
Legal anthropology offers holistic perspectives on how law operates across different cultural, political, and institutional contexts, emphasizing that law is not confined to single, formal state institutions, but is instead produced through everyday occurrence, negotiation, and cultural understandings of authority.
How do tribes use legal doctrines and negotiations to assert water rights and environmental authority? How do multiple legal systems, of tribal law, state law, and international environmental
norms, interact and conflict within water governance? What roles does Traditional Ecological Knowledge (TEK) and cultural relationships to land and water play in reshaping environmental
governance?
The legal foundations of modern tribal water rights law originate primarily from early twentieth-century Supreme Court decisions:
In United States v. Winans (1905), the Court held that treaties with tribes ‘reserved’ fishing rights rather than ‘granting’ them, establishing Reserved Rights Doctrine and the principle that treaties protect preexisting Indigenous rights. This decision affirmed that tribal rights continue even when surrounding lands pass into private ownership.
Winters v. United States (1908) established the Winters Doctrine, wherein the Court ruled that when the federal government created Indian reservations, it implicitly reserved sufficient water to fulfill the purpose of those reservations. This doctrine remains the primary legal basis for tribal water rights claims throughout the western United States.
Further decisions clarified these principles:
In United States v. New Mexico (1978), the Court held that only water necessary for the primary purpose of federal reservations is reserved. Later, Colville Confederated Tribes v. Walton (1981) addressed conflicts between tribal water rights and non-Indian landowners within reservations, holding that non-Indian purchasers receive limited water rights subordinate to tribal
reserved rights.
These cases, and many more, exemplify the legal foundations through which tribes pursue recognition and protection of water rights through litigation and negotiation; however, these legal doctrines are never applied in isolation.
The concept of legal pluralism provides a framework for interpreting these interactions between multiple legal systems. In the context of tribal water governance, law operates through overlapping regimes that include tribal governance system, federal statutes, state regulations, and international environmental norms. Indigenous tribes frequently develop regulatory systems that implement treaty rights, including permitting, harvest protocols, and enforcement. At the same time, tribal communities increasingly engage with global legal frameworks. International agreements and declarations concerning indigenous rights influence domestic environmental law.
This interaction is what has been described as ‘vernacularization’ of law: the reinterpretation of global legal concepts within local cultural and political settings.
Another dimension of tribal environmental governance involves Traditional Ecological Knowledge (TEK). TEK refers to ecological knowledge developed through long-term interaction between indigenous communities and ancestral environments. Anthropologists argue that TEK can contribute valuable insights to environmental decision-making, particularly in areas such as ecosystem management, climate adaptation, and biodiversity conservation. TEK often emphasize reciprocal relationships between humans and nature, offering additional frameworks for understanding environmental responsibility.
The emerging concept of ‘environmental personhood’, in which ecosystems, rivers, and other natural entities are granted legal standing independent of human interests. This perspective
challenges the dominant legal tradition that treats nature as property or a resource for human exploit and consumption.
International communities are increasingly adopting an eco-centric legal framework that recognizes Nature’s rights for its own sake. By granting ecosystems direct legal standing, Rights of Nature approaches strengthen environmental litigation and enable more proactive responses to ecological harms; such litigation is essential for environmental protection, particularly against private actors. Such approaches challenge conventional legal frameworks that treat nature primarily as property or an economic resource, yet the Colonial and hierarchical legacy of international law has limited equitable enforcement, often excluding corporate accountability and sidelining affected communities.
Legal pluralism also highlights how power relations shape which legal systems carry authority into practice, and how legal authority is constantly negotiated among institutions, communities, and ecological realities.
Historically, federal and state institutions have marginalized indigenous governments despite treaty obligations which recognize tribal sovereignty. Contemporary environmental law increasingly demands cooperation between these systems. Collaborative management agreements, negotiated settlements, and co-management frameworks address overlapping jurisdiction and competing interests in resource management.
From a legal anthropological perspective, tribal water rights disputes illustrate how law operates as a dynamic cultural process rather than a fixed system of rules. Tribal nations must
navigate multiple legal systems simultaneously, drawing on treaties, federal statutes, tribal governance, and customary international law. Legal authority is regularly negotiated across
different institutions and cultural contexts, and tribal communities strategically engage with state and federal legal processes while maintaining distinct forms of governance rooted in tradition and ecological relations.
At a time of accelerating climate change and water scarcity, Indigenous approaches to environmental governance are becoming increasingly significant. Tribal participation in water management not only supports ecological sustainability but also challenges the historical exclusion of Indigenous voices within environmental law.
As environmental pressures intensify, these legal frameworks may play an increasingly important role in shaping future governance of shared ecological resources.
