Valuing Tribal Sacred Water within Prior Appropriation

Across the cultures and places of our planet, there is a belief that water is sacred. This “panhuman” phenomenon is witnessed in such groups as Judeo-Christian, Muslim, Shinto, Chinese, Buddhist, Greek, Roman, Celtic, Zulu, and a myriad of other belief systems. “Water is perceived cross culturally as the fons et origo, the source of all existence.” And in common spaces, the peoples deeming a particular water to be sacred can evolve over time as different groups move through an area. The American West is no exception to sacred conceptions of water. It is home to American Indian cultures that view water as a sacred, central resource to their spiritual practices and places. In an era of American Indian self-determination, and at a time when the West is making space for alternative water values such as instream flow for fisheries, it is time to begin a conversation about how prior appropriation can incorporate the value of sacred waters. The prevailing paradigm of “Western, liberal construction of nature has led to the near exclusion of indigenous cosmologies and peoples from mainstream law and policy . . . .” To date, federal law has been the medium through which we have sought to reconcile the competing interests of tribal water use and state-based water rights. The Winters Doctrine, spurred along by the McCarren Amendment, led courts to attempt the adjudication and characterization of those rights so their quantities could be placed in the ladder of priority under state law. Other federal laws such as protection of cultural resources on federal lands might also angle toward the situation. Prior appropriation can be a recalcitrant legal regime, whose central premise is to create a legal certainty around water rights. Charles Wilkinson aptly counts includes it among the West’s immovable “Lords of Yesterday” for good reason. Nonetheless, prior appropriation has revealed itself to be a system that can, ultimately, shift to accomodate uses of emerging social value. The best example is the emerging value of instream flow protection in prior appropriation law. This is not to say that state-based water regimes should be the singular or even primary locus of tribal protections. Tribal law will always center upon and be grounded in federal law. Nonetheless, federal law is an incomplete foothold. And it is time for water rights systems to account for other values for which people in a common place use shared waters. Prior appropriation at bottom aligns with our values for water, and those values include culture and religion. Waters are connected to a uniqueness of place, or “placehood,” that is increasingly recognized as a societal value. Internationally, the right of a peoples to “[practice] and revitalize their cultural traditions and customs” is recognized. So, too, is the right to “ . . . maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions . . .” and “maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources.” Although it was the last nation state to do so, the United States indicated its intent to uphold these international principles in 2010. Nationally, not only do all peoples have basic rights of religious exercise and expression, but our laws recognize the value of cultural heritage. Further, as we place greater emphasis on the vital role of traditional ecological knowledge, we realize that we all benefit when cultural protections encompass natural resources upon which we all depend. While we could try to wedge new protections into state law by Congressional fiat or a new, case-by-case acquisitions and agreements around particular sacred waters, or igniting anouther, fierce round of tribal-state negotiations within the context of reserved rights, a saner, more civilized beginning may be to add sacred waters as a beneficial, protected use within prior appropriation. Much has been written in the area of waters to support fishing rights under treaty. This article does not address these rights, but rather focuses on the sacred nature of the water resource itself. While the two may be complementary, a sacred water use may also exist separate from a recognized treaty fishing right. There are other places where these values should further be reflected, such as federal lands management plans, local land development codes, and environmental assessment review. This piece, however, will focus on the notable absence of sacred value within prior appropriation. This shift is important not only for the legal protections it might afford, but just as importantly as a signal that our water laws can stretch to protect the many interests of our time. In Part I, this article illustrates through examples the varied ways in which tribal water use may touch upon the sacred. This part then explains how prior appropriation, as the predominant legal regime governing water use in the West, fails to reflect this important sacred value of water. In this part, the article also briefly explains why other federal laws and executive orders similarly fall short. While acknowledging that these laws, too, could benefit from revision, this part argues that prior appropriation is a reflection of society’s values for water, and is thus an important place to begin incorporating the value of sacred water use. In Part II, the article shifts to international models where more robust protection of sacred water is taking place. Part III then concludes with some possible starting places for better aligning the prior appropriation doctrine with sacred water values.