The water rights Alaska Natives can't claim

On Wednesday, Sen. Lisa Murkowski will chair a Senate hearing on five bills settling tribal water rights. Every one is in Arizona or California. None can happen in Alaska, and the reason is ANCSA.

Lower 48 tribes bring these claims through reservation-based water rights, the Winters doctrine, which guarantees a reservation the water it needs. The 1971 Alaska Native Claims Settlement Act wiped out aboriginal title across Alaska and gave Native people corporate fee land instead of reservations. Fee land carries no reserved water right, so the negotiated settlements Murkowski will preside over are, for Alaska Natives, off the table.

What they got instead is the Katie John line of cases, which secured a rural subsistence fishing priority in navigable waters on federal land, about half the state's inland waters and no more. Even that is contested. Alaska has argued a 2019 Supreme Court ruling undid it; last August the Ninth Circuit again sided against the state and upheld Katie John.

Murkowski warned in May that a settlement is just paper without the money behind it. True for the five bills before her, and a sharp contrast for home: the tribes at Wednesday's hearing are negotiating what they're owed, while Alaska Natives are still in court defending a fraction of it.