By: Wesley James Furlong
August 19, 2025
Published as part of The Headwaters Report
As water scarcity continues to grow as an existential crisis for Tribal (and non-Tribal) communities, particularly across the western United States, Tribal Nations must be able to rely on their own laws and inherent sovereign powers to protect their water resources and rights. While Tribal Nations hold significant rights to water within the United States, history has shown that these rights are constantly under attack. While it has always been understood that states will not help protect Tribal water resources and rights, it has become increasingly clear that neither can (nor will) the United States. It is, therefore, imperative that Tribal Nations exercise their inherent sovereignty and develop their own legal mechanism to protect their water resources and rights. For Tribal water codes, regulations, and management strategies to be fully effective, Tribal Nations must be able to hold upstream, off-reservation water users and polluters accountable.
A complex and contrived framework of federal court decisions delineate the contours of Tribal Nations’ civil adjudicatory and regulatory jurisdiction over non-Indians. Despite the vast body of caselaw developed over the past four decades, very few cases concern Tribal Nations’ authority to exercise civil jurisdiction over non-Indians’ conduct that occurs outside of their reservations. In their recently published article Water Knows No Boundaries: Tribal Jurisdiction over Non-Indian’s Off-Reservation Conduct that Threatens On-Reservation Tribal Water Resources, NARF Staff Attorney Wesley James Furlong and Alexander Blewett III School of Law at the University of Montana student Lori E. Blumenthal examine the few cases that have tackled this issue and present a framework from Tribal Nations to assert and defend their jurisdiction over the off-reservation conduct of non-Indians when that conduct threatens on-reservation Tribal water resources and rights.
Their article begins by discussing Manoomin v. Minnesota Department of Natural Resources and Sauk-Suiattle Indian Tribe v. City of Seattle, the first two Tribal court decisions to tackle this issue, to orient the reader to how these complex issues have been addressed by Tribal courts. Next, their article sets forth the current framework of Tribal civil jurisdiction over non-Indians under Montana v. United States and Merrion v. Jicarilla Apache Tribe. Next, their article examines the caselaw establishing Tribal Nations’ inherent sovereign authority to exercise jurisdiction over non-Indians’ conduct occurring off-reservation that threatens on-reservation Tribal water resources and rights. Finally, their article examines the caselaw that lays the groundwork for extending Tribal Nations’ jurisdiction over non-Indians’ conduct occurring off-reservation that threatens on-reservation Tribal water resources and rights.
Water Knows No Boundaries was published in June 2025 in the 48th edition of the Public Land & Resources Law Review at the Alexander Blewett III School of Law at the University of Montana.
