Frances Williamson has posted Tribal Water Rights: Private Law Alternatives to the Federal Trust Doctrine (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:
This paper discusses the federal promise of water, the judicial origins of the federal trust responsibility, and the impact of the Arizona v. Navajo Nation decision on tribal water rights. Most importantly, this paper proposes legal mechanisms for tribes and tribal advocates to use to depict and advance tribal water rights. Ideas from property law and contract law provide opportunities for exploration and hope to tribes seeking certainty in a time of water shortage.
Courts provide a forum for the vindication of the federal trust responsibility and the promise of water. Cases like Arizona v. Navajo Nation will continue to appear in courts as water disappears in the West. Courts and legislatures must address the history of tribal water rights, what those rights entail, and the nature of the federal promise made to the tribes if they are to tackle the challenges posed to tribes and other governments by climate change. Private law comparisons to the federal trust doctrine demystify this complex facet of federal Indian law and provide additional frameworks jurists and advocates can use to understand the nature of tribal water rights.