Sarah Krakoff has posted “Settler Colonialism and Reclamation: Where American Indian Law and Natural Resources Law Meet” on SSRN. It’s forthcoming in the Colorado Natural Resources, Energy & Environmental Law Review. Here is the abstract:
Three hours east of Phoenix, Arizona, the Colorado River Indian Tribes (“CRIT”), a federally recognized tribe that includes over 3,700 enrolled members of Mohave, Chemehuevi, Navajo, and Hopi descent, occupies a reservation nearly 300,000 acres in size. The CRIT was one of five tribes to have its water rights confirmed in the landmark case of Arizona v. California, and therefore has senior rights to 719,248 acre-feet of Colorado River water, nearly one-third of Arizona’s allocation. How the CRIT came to be a single federally recognized tribe composed of members from four indigenous peoples located on lands that were a fraction of their aboriginal territory is both a federal Indian law story and a natural resources law story. The stories are two sides of a single coin, which is the currency of settler colonialism in the United States. The object of settler colonial societies was to clear the land of their indigenous populations to allow for nonindigenous settlement. In the U.S. context, American Indian law has often done the work of clearing the land, while natural resources law assures the successful occupation of that land by non-Indians. This Article delves into CRIT’s natural resources history, which serves as a reminder that public land and water law do not start from a blank slate. The distribution of land and water to non-Indians required first that those resources be wrested from Indian control. With that as the starting point, current debates about Indian water rights can be seen in their proper context, as measures of corrective justice that recognize indigenous peoples’ preexisting political, moral, and legal claims, rather than as special rights doled out to select minorities. Understanding tribal water rights this way also liberates them from static and limited notions of use, making them all the more relevant to the contemporary challenges of climate change and resource scarcity.