DOI Drops 50-Year-Old Native American Water Code Ban

The U.S. Department of the Interior lifted a decades-old policy that had prohibited certain Native American tribes from adopting their own water-use rules, which critics said left those resources at risk of misappropriation and was inconsistent with tribal self-determination.

Rescinding the so-called Morton Moratorium — named for former Interior Secretary Rogers C.B. Morton, who enacted the measure in 1975 — will streamline the department's review of new tribal water codes, the DOI announced in a press release.

Interior officials plan to consult tribes on aspects of that process, including the "appropriate delegation of approval authority" as well as approval criteria, according to Secretary Deb Haaland. She said the DOI "cannot be afraid to review and correct actions of the past that were designed to create obstacles for Tribal nations."

"The 'Morton moratorium' is inconsistent with the Department's commitment to upholding Tribal self-determination and the federal trust responsibility to support Tribal sovereignty," Haaland said in the statement. "Today's action underscores our efforts to move forward in this new era."

Advocates for Native American rights, including the National Congress of American Indians, have for years called on the Interior Department to drop its longtime water code ban.

That policy left "tribes vulnerable to misuse and misappropriation of tribal water without a means to enforce their water rights on their reservations," the NCAI said in a 2018 resolution calling for its repeal.

Noting the Morton Moratorium was meant to precede new federal guidance for reviewing tribal water codes, the organization said the policy had "effectively frustrated its original purpose" because the DOI never enacted those rules.

As a result, the NCAI said tribes that didn't put water-use rules in place before 1975 have risked having those resources misused or misappropriated — a substantial threat as state water users face shortages and look to shore up their own access.

"It is in the best interest of the federal government and tribes to be able to develop and implement tribal water codes in order to support tribal self-determination and self-governance over their most significant tribal natural resource — water — in order to provide a sustainable homeland for tribes and their members," the NCAI argued at the time.

The Interior Department took a similar stance in announcing the Morton Moratorium's repeal Thursday, saying the policy "imposed a procedural hurdle" for tribes that wanted to adopt new water-use rules.

"The action has created unnecessary confusion for nearly 50 years regarding the department's willingness to work with and support tribes considering water regulation within their reservations," the DOI said.

Federal regulators will nonetheless retain final authority over water codes for tribes whose constitutions don't give them full sovereignty in that arena.

It remains unclear how the Bureau of Indian Affairs will evaluate any new policies, according to David L. Ganje, a Phoenix-based natural resources lawyer.

Tribes will still "have to go through a bureaucratic dance" with the BIA, he said, adding the agency has been "inarticulate, unresponsive [and] incompetent" in handling Native American water issues in the past.

Still, Ganje cheered the Morton Moratorium's repeal, saying the policy prevented many tribal communities from realizing the full sovereignty they're owed over natural resources on their lands.

Without that authority, he said, many tribes entered water-sharing agreements — both formal and informal — with state partners. Ganje predicted Native groups will be cautious in flexing their new water rights, but said those policies will likely resemble property-rights laws they've always been able to enact for reservation lands.

"It's the right thing to do because these rights exist," he said of the DOI repeal, pointing to the U.S. Supreme Court's 1908 ruling in Winters v. United States  that guaranteed water access for Native American reservations. "These are actual water rights."