By: Ashley Dawn Anderson
October 27, 2025
Published as part of The Headwaters Report

INTRODUCTION

Tribal Nations in Oklahoma face many water quality and quantity issues. Not only is the state coming off a five-year drought, but flooding is also frequent. Surface water quality is poor because of agricultural runoff and algal blooms. Hydraulic fracturing (“fracking”) is a massive issue in Oklahoma, and it has impacted every stage of the water cycle because it requires large quantities of water and contaminates ground and surface water.[i]

The most pressing water issue in Oklahoma is, however, lack of access to safe drinking water. Many Oklahomans rely on groundwater from wells, but many groundwater aquifers are depleted by commercial wells and contaminated by industrial operations, particularly oil and gas injection wells.

These issues are especially prevalent for the thirty-eight Tribal Nations in Oklahoma. For example, Tribal lands in Oklahoma are significantly more likely to flood than other parts of the state. Tribal members are also less likely to have access to safe drinking water.[ii]  Tribal Nations are more vulnerable to these water quantity and quality issues because the state is hostile toward Tribal Nations exerting jurisdiction over their water resources. While Tribal Nations should be able to exercise the full extent of their water rights and regulatory jurisdiction, the state government impedes Tribal efforts at every turn.

There remains uncertainty regarding the water rights of Tribal Nations in Oklahoma. Only two Tribal Nations in Oklahoma, the Choctaw Nation and the Chickasaw Nation, have quantified water rights, and their rights were quantified by reaching a water rights settlement with the state. Without quantification, Tribal Nations do not know how much water they may rightfully use and cannot adequately enforce their rights against improper state water uses.  

OKLAHOMA WATER LAW

Tribal water rights arise under federal law, but Tribal Nations must work within a state’s water law system during an adjudication and the administration of water rights. Thus, it is important to understand the state’s water law administration system.

Water rights are property interests in the use of water, giving the right holder the ability to use the resource without altering or exploiting the common resource. Water rights can be for consumptive or nonconsumptive uses. Consumptive uses remove water from the stream, such as most water diverted for crop irrigation. Nonconsumptive uses preserve water within the stream or return water to the stream, such as maintaining a river’s instream flows or using water for hydroelectric power generation.  

Generally, a state’s water law system either follows the riparian rights doctrine or the prior appropriation doctrine. States in the eastern half of the United States, where surface water is more abundant, follow the riparian rights doctrine, and states in the western half of the country, where water is scarcer, mostly follow the prior appropriation doctrine.  However, three states – Oklahoma, California, and Nebraska – follow a dual system recognizing both the riparian rights and appropriative water rights.  

Under the riparian rights doctrine, all landowners with property bordering waterways, called riparian owners, have the right to access and use water. Riparian rights arise because a property abuts a waterway, so riparian rights “run with the land” and are not lost through non-use. A riparian owner’s rights are limited to the “reasonable use” of water. A reasonable use is determined by comparing all riparian owners’ use of the water body and ensuring any one use does not interfere with the rights of the other riparian owners.  For example, under Oklahoma law, damming a stream to collect and store water is a reasonable use unless the dam prevents the natural flow of the stream and interferes with other riparian owners’ rights.[iii]  In a purely riparian system, during times of water scarcity, all riparian owners must reduce their uses proportionally to their fellow users on the source.

Under the prior appropriation doctrine, water rights are established through an “appropriation,” or actual use, of the water. Appropriation requires: (1) intent to put water to beneficial use; (2) a physical diversion of water; and (3) application of water to beneficial use within a reasonable amount of time. Beneficial use is defined in state law, and, in Oklahoma, beneficial uses include, but are not limited to, recreation, irrigation, livestock watering, and municipal uses. Appropriative water rights are fulfilled in order of seniority, where the earliest appropriative rights are most senior. The shorthand “first in time is first in right” describes the prior appropriation doctrine. In times of scarcity, senior appropriators may still use the entirety of their water rights, even if junior appropriators would not realize any of their water rights.

Oklahoma’s geography determined the development of the state’s dual doctrine system. The eastern half of the state has more abundant water, so the riparian rights doctrine arose, and the western half of the state is more arid, so the prior appropriation doctrine was more appropriate. The Oklahoma Legislature attempted to create a uniform prior appropriation system in 1963. The 1963 water law (1) adopted the prior appropriation doctrine across the state; (2) recognized riparian rights that had vested as of 1963; and (3) extinguished riparian rights that had not been exercised or vested.[iv]  In the 1990 decision Franco-American Charolaise, Ltd. v. OWRB, the Oklahoma Supreme Court held that the Oklahoma Legislature could not abolish unexercised riparian rights without just compensation.[v]  In Franco-American, the Oklahoma Supreme Court concluded that the prior appropriation scheme  “coexists with, but does not preempt or abrogate, the riparian owner’s common-law right.”[vi]  

Today, Oklahoma is a prior appropriation state that recognizes riparian rights as senior to all appropriative rights. In Oklahoma’s dual doctrine system, reasonable riparian rights, even newly established riparian rights, are senior to all appropriative rights.[vii]  Holders of riparian rights can establish new reasonable uses, and the riparian rights will be senior to all prior appropriations in times of shortage. Further, an appropriation cannot unduly interfere with a riparian’s reasonable use of water, but a riparian’s reasonable use is also determined in relation to the appropriative uses. In times of water shortage, all reasonable riparian rights must be fulfilled. In times of water shortage, all reasonable riparian rights must be fulfilled.  This is accomplished by requiring the most junior appropriative users to first limit their water use to a level that will satisfy the riparian use. If this junior user cannot use any water, and the riparian right still hasn’t been fulfilled, then the next most junior appropriative user will also be limited.”

Oklahoma also recognizes ownership rights, rather than use rights, to standing water on a property and groundwater under the property.[viii]  Under Oklahoma’s groundwater law, a landowner has a right to take groundwater under their land for a domestic use without a permit.[ix] For non-domestic uses of groundwater, a landowner must apply for a groundwater use permit through the Oklahoma Water Resources Board (OWRB).  The OWRB manages water permitting for surface and groundwater appropriations.  The OWRB also creates state water plans and administers general stream adjudications.[x]

TRIBAL WATER RIGHTS IN OKLAHOMA

Tribal water rights are generally federally reserved (“Winters rights”) and held in trust by the United States. In Oklahoma, however, several Tribal Nations may have claims to “restricted fee” water rights under the Five Tribes Doctrine, which says that the “Five Tribes” (Choctaw, Chickasaw, Cherokee, Muscogee, and Seminole) and other continue to own all the water rights that accompanied the land transfer when the United States set aside Indian Territory. 

Under the Winters doctrine, a federal reservation of land also reserves the amount of water necessary to fulfill the purpose of thar reservation, even if documents creating the reservation do not explicitly mention water.[xi] A reservation of water includes both surface and groundwater rights.[xii]  Defining the purposes of the reservation is key to the scope of the water right and amount of water reserved. For example, a treaty can reserve water rights to preserve instream flows necessary for fish populations if the reservation was created to sustain a Tribe’s fishing lifestyle.

Since reserved water rights are determined by the explicit and implicit purposes of the reservation, each Tribal Nation must consider its treaty or executive order establishing the reservation to determine the scope of the Tribal water rights. Even without a reservation or treaty, a Tribal Nation may retain an aboriginal right to use water on their traditional territories.[xiii]

Five Tribes Doctrine

The United States acquired land that would become Oklahoma in the Louisiana Purchase and established the Indian Territory.  Indian Territory was intended to be the permanent homeland of the Five Tribes that were forcibly removed from their ancestral territories.  Indian Territory was not intended to become part of a state.  Rather, the Five Tribes received fee title to the land, giving the Five Tribes all property rights accompanying the land, including all the water rights, for a permanent, separate homeland.  These water rights are not reserved water rights, but instead restricted fee water rights.

The Five Tribes Doctrine also impacts the water rights of other Tribal Nations in Oklahoma that received title directly from one of the Five Tribes.[xiv]  Throughout the Nineteenth Century, the United States continued to forcibly relocate Tribal Nations to Indian Territory. The United States established new territories for these Tribal Nations by transferring land away from the Five Tribes.  As a principle of property law, in addition to the Five Tribes’ fee title, these successor Tribal Nations would have received the accompanying water rights in fee. However, the Tribal Nations that received title from the Five Tribes after the establishment of the Oklahoma Territory only received reserved water rights because the new territory set aside for the Tribal Nation would be considered a reservation within an organized territory.[xv]  

Tribal Nations in Oklahoma continue to own their restricted fee water rights, unless Congress acts to expressly transfer those rights. As a matter of federal Indian law, a Tribal Nation does not lose its property rights without explicit action from Congress.  Since the Non-Intercourse Act prohibits Tribal Nations from transferring property rights without the approval of the Secretary of Interior, the Five Tribes would not have been able to transfer their water rights without an explicit act of Congress.[xvi] The Five Tribes and successor Tribal Nations with restricted fee water rights, therefore, retain all the water rights not explicitly extinguished by an act of Congress. 

Tribal Nations in Oklahoma should consider identifying whether they can, and should, make claims to restricted fee water rights because those Tribal Nations would have greater quantities of water through restricted fee water rights than Winters rights.[xvii]  While Winters rights are limited to the amount of water to fulfill the purpose of the reservation, restricted fee water rights encompass all the water rights tied to the Tribal Nation’s land and not transferred by Congress.

Quantifying and Administering Tribal Water Rights in Oklahoma

OWRB has consistently endorsed the quantification of Tribal water rights claims so that the OWRB can create more effective using water plans accurate state and Tribal water rights. However, OWRB has recommended that Tribal claims be quantified through consultation and negotiation with the state, rather than through a general stream adjudication. Tribal Nations should consider the advantages between OWRB’s suggested approach, negotiated settlements, and general stream adjudications and determine which approach suits their needs.

Tribal Nations should also consider how their reserved rights would be implemented in Oklahoma’s dual system.  The Tribal reserved rights doctrine developed in the context of prior appropriation systems, and Tribal reserved water rights have not been quantified in a riparian state.[xviii] Despite this context, Tribal federally reserved water rights are separate from appropriative rights, which are state-based water rights. In fact, federally reserved rights are similar to riparian rights because they accompany the adjacent land and do not require a diversion or beneficial use. Because reserved rights run with the land, they are not lost through non-use.  

It is still an open question how Tribal reserved water rights would be implemented alongside riparian rights.[xix] This is an even trickier question in Oklahoma’s dual system, which is not prepared for administration of water rights in times of scarcity.[xx]

TRIBAL WATER QUALITY IN OKLAHOMA

Tribal Nations in Oklahoma face issues asserting jurisdiction over water quality on reservations because of checkerboard jurisdiction and a hostile state government. These issues are exemplified by Oklahoma’s interference with federal environmental treatment as a state (“TAS”) programs when Senator Inhofe (OK-R) inserted a provision (“the 2005 Midnight Rider”) into the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (“SAFETEA”).[xxi] 

Treatment as a State Status in Oklahoma

In 2004, the Pawnee Nation obtained TAS under the Clean Water Act Section 303 water quality standards program. In response to the state’s opposition of Pawnee Nation’s regulatory authority over its water quality, Senator Inhofe inserted a midnight rider within a federal transportation bill that gave Oklahoma veto authority over any Tribal Nation’s application for TAS of EPA’s regulatory program, such as Clean Water Act, Safe Drinking Water Act, Toxic Substances Control Act, and Clean Air Act. 

TAS allows a Tribal Nation to exert delegated federal authority over federal environmental regulatory programs on its reservation. If a Tribal Nation does not obtain TAS, the EPA, not the state, implements these regulatory programs on Tribal lands.  However, this is not the case in Oklahoma because of the 2005 Midnight Rider.

The 2005 Midnight Rider (1) requires the EPA to allow Oklahoma to administer environmental programs on Tribal lands at the state’s request, and (2) prohibits all Tribal Nations in Oklahoma from obtaining TAS status unless the Tribal Nation first reached a cooperative agreement with the state. Even if a cooperative agreement is reached, a Tribal Nation still cannot operate these environmental programs on its own land because the Midnight Rider requires Tribal Nations to operate these programs jointly with the State of Oklahoma.

The Midnight Rider After McGirt

In McGirt v. Oklahoma, the United States Supreme Court ruled that Congress never formally disestablished the Muscogee Creek Reservation, so the reservation remained even though the state acted as if it had been disestablished for over a hundred years.[xxii]  This ruling applies to similarly situated Tribal Nations in Oklahoma, as affirmed in subsequent cases, which means the eastern half of the state is Indian Country. As defined by federal statute, Indian Country includes all land within the exterior boundaries of a reservation, including land owned by non-Tribal persons or entities.[xxiii]  Usually, only the EPA or a Tribal Nation with TAS can administer a federal regulatory program in Indian Country. Without the 2005 Midnight Rider, the state of Oklahoma would not have authority to implement the EPA’s regulatory programs over the entire eastern half of the state because it is almost all Indian Country.

Shortly after the McGirt decision, Governor Stitt invoked the Midnight Rider and requested EPA to approve the state’s authority over all EPA-approved environmental programs on non-Tribal land within Indian Country. In October 2020, the EPA granted Oklahoma’s request, allowing Oklahoma unilateral authority over environmental regulation in Indian Country, except on Tribally-owned land, Tribal trust land, and Tribal allotments.

After vigorous challenge from Tribal Nations in Oklahoma, including a lawsuit filed by the Pawnee Nation, the EPA “reconsidered” its October 2020 approval. In January 2025, the EPA reached a final decision of its reconsideration, withdrew its October 2020 approval, and issued a revised approval of Oklahoma’s request. The EPA’s revised approval, however, was essentially the same as the first, except for one primary difference – a condition requiring state-Tribal consultation and engagement before EPA will approve the state’s authority over environmental programs in Indian Country.  According to the EPA, this condition is meant to promote collaboration between the state and Tribal Nations. However, in May 2025, the EPA revoked its January 2025 approval and removed the condition, stating that the EPA did not have statutory authority to impose this condition. The Pawnee Nation is challenging the EPA’s May 2025 decision in the Tenth Circuit.

Despite the McGirt ruling, the status quo remains in Oklahoma. Even if the EPA revoked its May 2025 Decision, Tribal Nations in Oklahoma are still limited by the 2005 Midnight Rider. Before Tribal Nations in Oklahoma can administer TAS programs as other Tribal Nations do, there must be congressional action to repeal the Midnight Rider. Until Congress acts, Tribal Nations that want to implement TAS regulatory programs must negotiate and cooperate with Oklahoma to run these regulatory programs. Given the state’s hostility toward Tribal Nations, these cooperative agreements are unlikely to be favorable to a Tribal Nation and essentially give the state veto power over Tribal TAS applications. 

The Pawnee Nation is the only Tribal Nation in Oklahoma that has obtained TAS for a Clean Water Act program. Even with its approved TAS status, the Pawnee Nation has not been able to set water quality standards because Oklahoma has not worked with Pawnee Nation to finish the process.[xxiv] For now, the 2005 Midnight Rider is succeeding as intended and has prevented any other Tribal Nations in Oklahoma from obtaining TAS status under the Clean Water Act.

Other Mechanisms to Protect Tribal Water Quality

While a helpful tool, TAS is not the only way Tribal Nations can protect their water resources. Tribal Nations can create water codes and other regulatory mechanisms under Tribal law. Tribal Nations can also protect their water resources through inter-Tribal collaboration.

Because of their inherent sovereignty, Tribal Nations can envision and create water codes that reflect their culture, values, and ceremonies. For example, a Tribal Nation could establish Tribal water quality standards informed by traditional ecological knowledge. A Tribal Nation could also establish the water quality necessary for ceremonies or to protect culturally important species. A Tribal Nation could even recognize the rights of nature or the personhood of a waterbody, as the Ponca Nation of Oklahoma has.

There are 39 Tribal Nations within the boundaries of Oklahoma, and there are already several inter-Tribal organizations in Oklahoma (see “Additional Resources” below). Leveraging the networks of existing inter-Tribal organizations, Tribal Nations in Oklahoma can work together to find creative solutions to the obstacles created by the state government.

Tribal Nations can enter into agreements with neighboring Tribal Nations to recognize and respect each other’s water codes. For example, through the Five Tribes Wildlife Management Reciprocity Agreement, the Five Tribes agreed to recognize each other’s Tribal hunting and fishing licenses. This agreement is an important act of sovereignty and solidarity as the state government ignores Tribal hunting and fishing licenses. While not an example about water codes, this agreement demonstrates how Tribal Nations in Oklahoma can collaborate to protect their Tribal resources and sovereignty.

CONCLUSION

Even with hostility from the state government, Tribal Nations in Oklahoma are entitled to the water rights guaranteed in treaty. While there are many open questions regarding Tribal water rights in Oklahoma, these open questions present opportunities for Tribal Nations. Tribal Nations in Oklahoma must consider their water rights claims, seek proactive quantification of their water rights, and exercise their sovereignty through water rights and water quality enforcement mechanisms. 

A failure on the part of Oklahoma to recognize its interdependence with Tribal Nations along or within its borders is not only short-sighted, it is morally wrong. With ever-increasing water scarcity, the durability and strength of relationships among sovereigns will be the measure of society’s success. Ignoring this reality will only lead to more strife and more litigation. When it comes to the most basic need of access to safe water, we must come together in recognition of the interdependence of all life.

Endnotes

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[i] U.S. EPA Off. of Research and Development, Hydraulic Fracturing for Oil And Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States, at ES-3 (Dec. 2016).

[ii] See Universal Access to Clean Water for Tribes in the Colorado River Basin at 3, https://tribalcleanwater.org/wp-content/uploads/2021/09/WTI-Full-Report-4.20.pdf.

[iii] 60 Okla. Stat. § 60.

[iv] 60 Okla. Stat. § 60.

[v] Franco-American Charolaise, Ltd. v. OWRB, 855 P.2d 568, 571 (1990).

[vi] Id. at 576 (recognizing that Oklahoma follows the California Doctrine).

[vii] Id. at 571.

[viii] 60 Okla. Stat. § 60.

[ix] 82 Okla. Stat. § 1020.3.

[x] 82 Okla. Stat. §§ 105.6-.8.

[xi] Winters v. United States, 207 U.S. 564 (1908).

[xii] Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017).

[xiii] United States v. Abouselman, 976 F.3d 1146 (10th Cir. 2020).

[xiv] Taiawagi Helton, Indian Reserved Water Rights in the Dual-System State of Oklahoma, 33 Tulsa L.J. 979, 996 (1998).

[xv] Id. at 997.

[xvi] Id. at 995.

[xvii] Id. at 993.

[xviii] See Judith V. Royster, Winters in the East: Tribal Reserved Rights to Water in Riparian States, 25 Wm. & Mary Envtl L. & Pol’y Rev. 169 (2000).

[xix] See id.

[xx] Helton, supra n. xiv, at 986.

[xxi] Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, 119 Stat. 1144 § 10211 (Aug. 10, 2005).

[xxii] McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020).

[xxiii] 18 U.S.C. § 1151. 

[xxiv] Christine Pappas and Terrie A. Becerra, As Long as the Waters Flow: Native American Water Policy in Oklahoma, 30 Okla. Pol. 60, 67 (2020). 

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