Across the United States today, water compacts—legally binding agreements between states that apportion a river’s water usage—allocate much of our nation’s water. However, Native American tribes, despite having some of the most senior water rights in the country, have never been accounted for in water compacts. As a result of being entirely excluded from water compacts, tribes have faced significant water shortages and have spent years trying to get their fair share of water.
However, a recent Supreme Court case, Texas v. New Mexico, may provide tribes an avenue to finally assert their water rights claims in water compacts. In the case, the Court held that the federal government was allowed to independently intervene in a dispute over a water compact between two states and, once the government had intervened, the states involved in the original compact dispute could not resolve their claims without the federal government’s consent.
Texas v. New Mexico, then, may open up a pathway for tribes to assert their water rights claims in future water compact disputes. If two states began litigating over a water compact that had long ignored Native American water rights, could a tribe intervene in the dispute in the same way the federal government did? And, if so, could the tribe also prevent the states from resolving the dispute until the compact was amended to account for the tribe’s water rights? This Note answers both these questions in the affirmative, arguing that, while it is far from guaranteed, Texas v. New Mexico may present tribes with a unique way to finally see their water rights addressed in water compacts.
