By: Lily Cohen
September 19, 2025
Published as part of The Headwaters Report
With a wealth of unappropriated water, Alaska is uniquely situated to protect Tribal water resources and avoid over allocation mistakes made by states in the western United States. Because of the abundance of water, fights over the amount of allocated water in Alaska rarely occur. The state has an opportunity to provide a contrast to the overallocation of water in rivers like the Colorado, and the evisceration of salmon populations from hydropower development in the Pacific Northwest.[1]
Alaska’s 229 federally recognized Tribal Nations span a vast geographic area across multiple biomes. From the rainforest of Southeast Alaska to the Arctic tundra in the north, there are coastal Tribes, inland Tribes, and Tribes on remote islands. Tribal languages, size, and governing structures are equally diverse. As former NARF Attorney Bob Anderson wrote in 1991, “the one common feature of . . . Native villages scattered around the state is their proximity to water.”[2] Tribes “rely on fishery resources for their physical sustenance, economic well-being, and retention of their culture.”[3]
Despite the abundance of water, Alaska Tribes still face water-related conflicts, especially when it comes to the protection of fish and other subsistence resources. Threats to these resources come from fisheries management decisions, the impacts of resource extraction on water quality, and dam development. For example, the collapse of salmon runs in the Yukon River is a crisis for Tribes along the river. Tribes are also fighting drilling and mining activities that threaten water quality in many regions of the state. Additionally, while some hydropower projects have the support of Tribes, other existing and proposed dams do not because they threaten salmon runs.
Tribal water rights in Alaska are distinct from those in the Lower 48; therefore, protecting Tribal water resources in Alaska requires different mechanisms. Passage of the Alaska Native Claims Settlement Act (ANCSA) in 1971 extinguished all but one Indian reservation in the state. Therefore, traditional reservation-based water rights claims theories, like Winters claims, are likely unavailable. Still, even without reservations, state and federal courts have clarified that Alaska Tribes retain jurisdiction over their members.[4] However, the contours of the Tribes’ territorial sovereignty, and water rights that may flow from that jurisdiction, are less well defined. Fortunately, Alaska’s constitution and statutes present options for protecting water and fisheries that are not available in other states.
This article will provide (1) a background on water resources in Alaska; (2) an overview of why Tribal water rights in Alaska are unique; (3) a discussion of opportunities to protect Tribal water-related interests through state law; and (4) ways that the state can better manage its water resources for all its constituents.
Alaska Has a Lot of Water, and Most of It Remains Unappropriated and Unquantified
Alaska’s water resources are vast compared to any other state. While the state’s population claims less than 800,000 people, Alaska boasts over 40% of all surface waters in the entire United States. This includes over 3 million lakes, over 12,000 rivers, and thousands more streams and creeks. Alaska also has over half of all wetlands in the entire United States and approximately half of the nation’s coastline.[5]
Because of the abundance of water, the state has not appropriated the vast majority of its water, and it has faced relatively few conflicts over water. As of 2015, less than 1% of water in the state had been appropriated.[6] Similarly, as of 2009, less than 1% of rivers and lakes have any diversions, withdrawals, or impoundments.[7] With so much unappropriated water, conflicts over rights to quantities of water have mostly not occurred. Further, there has never been a basin wide adjudication in Alaska.[8] A former Governor of Alaska even proposed building a massive pipeline to California to sell over a trillion gallons of water every year.
Although there is a lot of water in Alaska, the state has not quantified these water resources and does not have a strong grasp on the scope of the water availability. For example, the state lacks streamflow data for over 99% of rivers and streams.[9]
Despite the abundance of water, lack of quantification and technical information create potential to over-allocate water in the state. This is especially problematic because applications for water rights or temporary water use permits are not required to include stream gauge data.[10] Water rights applications to appropriate over 100,000 gallons per day must include a description of the monthly flow data, but only if it is available. If there isn’t an existing gauge, an applicant can submit an estimate that is “reasonably accurate.”[11] This means that the state often does not know how much water is physically available when it issues legal water rights.[12]
Further, there is no state statute or regulation that requires a minimum percentage of water remaining for instream flow. While the state often attempts to leave a portion of the water available for instream flow, this attempt is based on only estimates. Unfortunately, the state does not always stick to this goal. For example, Tribes in Alaska have a history of successfully challenging the state for issuing water rights that could have enabled miners to completely dewater multiple salmon streams.[13]
Water Rights for Alaska Tribes
The legal landscape faced by Alaska’s 229 federally recognized Tribes regarding water rights is often distinct from the Lower 48. (See our Water Rights For Alaska Tribes for an overview of water rights in the Lower 48). Like western states, Alaska follows the doctrine of prior appropriation, but the similarities sometimes end there. In the Lower 48, most Tribes assert water rights through the Winters, implied-rights doctrine, or occasionally through the Winans doctrine when treaty rights include retained fishing, harvesting, or other aquatic-based rights. This section will discuss why many Alaska Tribes would face challenges asserting water rights under those doctrines, and it will also examine key exceptions.
Winans rights are reserved by a Tribe through a treaty that recognizes the Tribe’s rights and practices that have continued since time immemorial.[14] For example, the Klamath Tribes retain the water rights necessary to fulfill their treaty-guaranteed hunting and fishing rights, even though the federal government extinguished their initial reservation. The rights that a Tribe has always held are also called aboriginal rights. Winans rights provide a right to a quantity of water to continue those aboriginal or never relinquished rights and practices. In Alaska, however, the federal government made no treaties before Congress ended treaty-making with Tribal Nations in 1871, likely limiting the ability for the Tribes to assert Winans rights.[15] Additionally, ANCSA’s passage affected many Tribes’ ability to assert claims based on aboriginal use. ANCSA extinguished aboriginal rights in Alaska and created a set of Alaska Native corporations to receive money and land as compensation for those rights. The rights extinguishment included claims based on “aboriginal right, title, use, or occupancy” and explicitly extinguished aboriginal hunting and fishing rights.[16] Therefore, Alaska Tribes would likely face hurdles asserting Winans rights.
One exception to the extinguishment of aboriginal rights is that Alaska Tribes still retain aboriginal use claims in waters under federal jurisdiction off the coast of Alaska.[17] ANCSA only extinguished claims within Alaska, which includes waters within three miles of the coast.[18] Beyond this three-mile boundary, however, Tribes can still prove that they have aboriginal hunting and fishing rights in the federally controlled ocean. This exception is important for offshore fishing rights but does not impact onshore freshwater appropriation.
Winters rights are established by the federal government when it reserves land for a federal purpose, such as creating an Indian reservation.[19] Winters rights reserve a quantity of water necessary to fulfill the purpose of that reservation. In Alaska, the federal government established 23 reservations between 1891 and 1943.[20] However, ANCSA extinguished 22 of those 23 reservations.[21] Therefore, most Alaska Tribes may not be able to assert Winters rights in the same way as Tribes with reservations.
The Metlakatla Indian Community, which resides on the one reservation that was not extinguished by ANCSA, is the most obvious exception to this challenge of asserting Winters rights. In 1918, the U.S. Supreme Court ruled that the Community had reserved rights to fish in the waters adjacent to the coast of their reservation.[22] Then in 2023, the Ninth Circuit recognized that this implied right extended up to 50 miles from the reservation boundaries for non-exclusive fishing.[23] Notably, these cases do not address reserved rights to specific quantities of freshwater. Instead, the courts use the reserved water rights doctrines to uphold the Community’s rights to fish in off-reservation waters.
Another key part of any discussion about reserved water rights in Alaska is the Katie John line of cases. Decades of litigation clarified that under the Alaska National Interest Lands Conservation Act, the federal government reserved rights based on waters running through federal public lands. This allows the federal government to prioritize and regulate subsistence fishing on rivers that are critical to many Tribes. The State of Alaska is currently challenging this authority, again. In August, the Ninth Circuit Court of Appeals upheld the subsistence priority established by the Katie John cases,[24] but the state has appealed the decision to the United States Supreme Court.
Without treaties or reservations, most Alaska Tribes will likely face obstacles to secure water rights for their communities if they approach water rights in the same way that Tribes in the Lower 48 have. There hasn’t been litigation over water in Alaska to the same extent as in the western states; therefore, the contours of Tribal water rights in Alaska have not been precisely defined. The exceptions discussed above demonstrate that if these contours are further defined, Alaska Tribal water rights are likely to look different than in the Lower 48. How each Tribe can assert their water rights will depend on their unique history.
Despite the distinct legal landscape for Tribal water rights in Alaska, Alaska Tribes have other mechanisms to protect their water-based resources. Some of those mechanisms are discussed in the following section.
Alaska’s Constitution and Statutes Present Opportunities for Tribes to Secure Protections for Water Resources
The Alaska Constitution is unique for the explicit attention it gives to water.[25] The Constitution highlights that “[w]herever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.”[26] Alaska’s push for statehood, and creation of a constitution, was largely driven by the desire for the state to have more control over development and conservation of natural resources.[27] Therefore, the Constitution directs the legislature to manage its land and waters “for the maximum benefit of its people.”[28] Following the doctrine of western states, Alaska’s Constitution established that water rights would be determined by the doctrine of prior appropriation.[29] The Constitutional Framers then added a more unprecedented clause, which provided that water appropriation was “subject to . . . the general reservation of fish and wildlife.”[30]
This constitutional language has the potential to require meaningful protections for fisheries and other subsistence resources critical for Tribes. However, because Alaska’s water resources largely remain abundant, there is limited case law discussing the bounds of what Alaska’s Constitution requires of state agencies that manage water. Moving forward, Tribes could bring cases grounded in this constitutional language.
Alaska’s water use statutes also provide mechanisms for Tribes to protect their water resources. For example, the abundance of available water means that Tribes can acquire water rights for wells and out-of-stream use through the state appropriation system.[31] Applications for surface or groundwater use usually go unchallenged.
Additionally, Tribes can safeguard rivers from over-appropriation by using Alaska’s instream flow law. The law enables instream flow reservations that designate the amount of flow that must remain in a river or stream.[32] Instream flow reservations can be made for four purposes: (1) fish and wildlife; (2) recreation; (3) navigation; and (4) water quality.[33] Therefore, an instream flow reservation can act as a protection against the appropriation of so much water from a river that fish populations are harmed. Critically, the statute is expansive on who can apply for an instream flow reservation.[34] This means that Tribes can apply for instream flow reservations to protect critical resources such as fish and drinking water.
One challenge with instream flow applications is the amount of resources required to complete an application. The state requires an applicant to submit five years of gauging data,[35] and as noted above, the state does not have gauges on most rivers. Gauging stations can cost hundreds of thousands of dollars to install and maintain.[36] This means that unlike applications for out-of-stream appropriations of water, when Tribes apply for instream flow reservations, they must first quantify the amount of available water. If the state does grant the application, it can impose a condition that requires the applicant to continue monitoring stream flow.[37] Effectively, an instream flow applicant is doing work that benefits the state and all users of a river.
Unfortunately, the state has erected roadblocks to Alaska Tribes attempting to secure instream flow reservations. The Alaska administrative agency that adjudicates instream flow applications lets those applications languish unadjudicated for years, and in some cases, decades.[38] It took a court order before the state would adjudicate its first application that wasn’t made by a state or federal agency. Additionally, the state is now requiring a waiver of sovereign immunity from Tribes that have already completed their applications, even though this requirement is not found in the statute or regulations. Although the legislature enacted the instream flow law in 1980, the state has never approved an instream flow application for a Tribe.
Despite these roadblocks, applying for instream flow reservations can still facilitate the protection of water resources. For example, some Tribes have maneuvered around the state requiring a waiver of sovereign immunity by working with a nonprofit that applies for the instream flow reservation. Additionally, the priority date for the instream flow reservation is set by the date the state agency accepts the application. Therefore, even if the state delays in adjudicating applications, the application date of priority remains intact. Future state administrations may choose to facilitate adjudication of those languishing instream flow applications. Alternatively, Tribes with pending applications can consider bringing lawsuits challenging the state’s failure to act on its own statutory mandates.
State-Led Opportunities for Improving Management of Water Resources
There is clear authority under Alaska’s Constitution and statutes for the state to take a more proactive role in managing water. This would protect not only Tribal aquatic resources, but also safeguard fish habitat for the state’s commercial and recreational fishing economies.
Under the current regulations, there are two key ways that the state could prioritize informed management of water resources. First, the state can work through the backlog of unadjudicated instream flow applications. Timely adjudication ensures that all the data collected for an application remains relevant and that the applicant did not expend resources to collect that data in vain. Second, the state can increase its stream gauging effort, especially on crucial salmon bearing streams. To supplement this endeavor, the state can create a grant program for Tribes, municipalities, and nonprofits that would facilitate collecting the data necessary for an instream flow reservation.
It is appropriate for the state to provide funding to this effort because gauging data and instream flow reservations benefit the general public. Quantifying flow can serve both as protection against dewatering fish habitat and can lower barriers for development activities. For example, if the quantity of water required for instream flow has already been determined, this could assist developers for projects like data centers and mines that need large quantities of water by providing clarity on where these types of projects can be supported by legal and physical water availability.
The state can also amend its policies, regulations, and statutes to ensure that it is upholding the constitutional mandate of managing waters “for the maximum benefit of its people.”[39] If the agency has streamflow data before deciding on a water use permit, this will prevent reliance on estimates. Inaccurate estimates increase the legal risks involved with over-appropriation and could result in harm to fish populations because permit holders remove too much water from a stream. The state can prevent these types of harm by requiring applicants to provide more accurate data, or by improving the standards that the agency uses to make determinations.
Additionally, lawmakers have previously considered enacting automatic instream flow reservations for fish and wildlife.[40] The proposed legislation would have created a baseline automatic reservation for areas with limited hydrologic data and allowed for amendments if additional data became available.[41] Such a statute would fulfill Alaska’s Constitutional requirement to ensure that appropriation of water is subject to “the general reservation of fish and wildlife.”[42] An automatic baseline would also remove the burden from Tribes that are trying to protect fish habitat by securing instream flow reservations.
Ultimately, the state has an opportunity to proactively ensure that aquatic resources are protected throughout Alaska. The push for extractive resource development by the current state and Federal administrations highlights the importance of forward-thinking measures to ensure the long-term sustainability of Alaska’s water resources. Meanwhile, Tribes will continue working to safeguard the land and water that has sustained them since time immemorial.
Endnotes
[1] See, e.g., Michael C.Blumm, Sacrificing the Salmon: A Legal and Policy History of the Decline of Columbia Basin Salmon(2002).
[2] Robert T. Anderson, Alaska Legislature Considers Innovative Instream Flow Law, 2 Rivers 255, 256 (1991).
[3] Id.
[4] See, e.g., John v. Baker, 982 P.2d 738 (Alaska 1999); Kaltag Tribal Council v. Jackson, 344 F. App’x 324 (9th Cir. 2009).
[5] James Brooks, “Alaska has more than half of America’s wetlands. A new ruling could change how they’re managed,” Alaska Beacon, May 25, 2023, https://alaskabeacon.com/2023/05/25/alaska-has-more-than-half-of-americas-wetlands-a-new-ruling-could-change-how-theyre-managed/; Christopher Estes and Alaska Department of Fish and Game, ADF&G Instream Flow and Lake Level (Reservation of Water) Protection Report 4 (May, 2009) [hereinafter “ADF&G Report”].
[6] Statewide Aquatic Resources Coordination Unit (SARCU), Alaska Department of Fish and Game (Aug. 19, 2015, 11:10 AM). Website preserved on page 72 of supplemental materials from Marie Lowe and Linda Least, Understanding Water rights in Alaska (Institute of Social and Economic Research, University of Alaska Anchorage, Feb. 2017) [hereinafter “ISER Report”].
[7] ADF&G Report, supra note 5 at 4.
[8] ISER Report, supra note 6 at 3.
[9] ISER Report, supra note 5 at supplement 77.
[10] 11 AAC 93.040, 93.220.
[11] 11 AAC 93.040(c)(14).
[12] After someone files an application to obtain a water right, the state issues a permit that allows the permit holder to undertake any construction required and to begin using water. Once the permit holder notifies the state that it has perfected the appropriation, the state issues a certificate of appropriation of water. This certificate is as distinguished from an adjudicated water right that might be obtained in another state, but is no less of a property right. See Tulkisarmute Native Cmty. Council v. Heinze, 898 P.2d 935, 941-2 (Alaska 1995).
[13] See, e.g., Tulkisarmute Native Cmty. Council, 898 P.2dat 952.
[14] U.S. v. Winans, 198 U.S. 371, 381 (1905); United States v. Adair, 723 F.2d 1394, 1414 (9th Cir. 1983).
[15] Robert T. Anderson, The Katie John Litigation: A Continuing Search for Alaska Native Fishing Rights After ANCSA, 51 Ariz. St. L.J. 845, 850 (2019).
[16] 43 U.S.C. § 1603.
[17] Village of Gambell v. Hodel, 869 F.2d 1273 (9th Cir.1989).
[18] Amoco Prod. Co. v. Village of Gambell, 107 S. Ct. 1396 (1987).
[19] Winters v. United States, 207 U.S. 564 (1908).
[20] Mariel Murray, Cong. Rsch. Serv., R46997, Alaska Native Lands and the Alaska Native Claims Settlement Act (ANCSA): Overview and Selected Issues for Congress 11(2021), https://www.congress.gov/crs-product/R46997.
[21] 43 U.S.C. § 1618(a).
[22] Alaska Pac. Fisheries. v. United States, 248 U.S. 78 (1918).
[23] Metlakatla Indian Cmty. v. Dunleavy, 58 F.4th 1034 (9th Cir. 2023),
[24] United States v. Alaska, No. 24-2251, 2025 WL 2406531 (9th Cir. Aug. 20, 2025).
[25] Alaska Const. art. VIII, §§ 2, 3, 13.
[26] Alaska Const. art. VIII, § 3.
[27] Victor Fischer, Alaska’s Constitutional Convention vii, 4, 6 (Fairbanks : University of Alaska Press, 1975).
[28] Alaska Const. art. VIII, § 2.
[29] Alaska Const. art. VIII, § 13.
[30] Id.
[31] AS 46.15.040.
[32] AS 46.15.145.
[33] AS 46.15.145(a)(1).
[34] AS 46.15.145(a).
[35] ISER Report, supra note 5 at 3.
[36] Id.; Water Protection, Bristol Bay Heritage Land Trust, https://bristolbaylandtrust.org/water-protection/ (last visited July 21, 2025).
[37] 11 AAC 93.146(d)(1).
[38] ISER Report, supra note 5 at 3.
[39] Alaska Const. art. VIII, § 2.
[40] Robert T. Anderson, Alaska Legislature Considers Innovative Instream Flow Law, 2 Rivers 255 (1991).
[41] ADF&G Report, supra note 6 at 27-28.
[42] Alaska Const. art. VIII, § 13.
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