Water has been a central battleground for race relations in U.S. history, from access to swimming places, to provision of clean drinking water. In the Western U.S., racial conflict may erupt in disputes over Native American water and fishing rights. Today, Native American Tribes in particular are acting to protect their paramount rights to water at a time when supplies are under stress from urbanization, watershed derogation and climate change. Federal and state judges are finding that they are the ultimate arbiters of water disputes whose roots trace back to the historical vagaries of federal Indian policy and this nation’s disregard of the tribes’ water needs.

Since colonial times federal Indian policy has been schizophrenic, at times treating tribes as sovereigns and negotiating with them on a government to government basis; at other times forcibly removing tribes from their historic lands to reservations; at still other times attempting to extinguish tribes by “allotting” tribal lands to individual tribal members and selling off surplus land; and ultimately by attempting to terminate tribal treaty rights and “assimilate” tribal members into the general population. Today federal Indian policy again recognizes that the tribes are sovereigns and fosters tribal self-government, but judicial precedent and state and federal administration still limit tribal rights.

In the midst of the destructive allotment period, the Supreme Court issued two seminal cases—United States v Winans and Winters v United States—holding that the tribal fishing and water rights survived statehood and trumped later-acquired property rights. Despite these decisions, for the next sixty years the federal government proceeded to build large irrigation projects throughout the West, oblivious to the possibility that one day the tribes might assert their paramount rights to water against the farmers, municipalities and others who relied on these reclamation projects for water.