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Indian Warer-1997: Trends and Directions in Federal Water Policy I I I I could be perpetual homelands. A treaty that promises a fishing right implicitly promises enough water of sufficient quality to sustain a fishery. The Endangered Species Act (ESA) has emerged as one of the West's primary water laws. Of course, it is not a "water law" in the usual sense. In fact, however, it determines the fate of water development as decisively as any state's water law. It can force a federal dam to change its operations to protect endangered salmon. It can stall a project planned to develop tribal water, in order to ensure that the habitat of endangered fish is spared. I I In some cases, the Endangered Species Act can be a tool for protecting tribal treaty rights. In others, it may be an obstacle to realizing tribal rights. The goal should be to discover ways in which the ESA can be used to a tribe's benefit, and to insist that the federal government not apply it in ways that cast unfair and inappropriate burdens on the tribes. What happens when an endangered species can be preserved in a variety of ways? For instance, species preservation may present a choice between curtailing non-Indian diversions and preventing a tribe from developing its senior water right? It seems reasonable to anyone who understands the trust relationship in Indian law (not to mention a senior call on the water) that tribal rights must have first call on the government's loyalty. Typically, however, tribes-lacking political clout-got their opportunity to develop water later than their non-Indian neighbors. They should not be disadvantaged by this injustice of history. The rule should be: a reasonable exercise ofIndian senior reserved water rights will not be curtailed by the ESA until all reasonable opportunities to limit non-Indians with junior rights have been exhausted. I J I I Tribes have an obligation to preserve species, of course. But they should be held to their just share of solving the problem, an obligation proportional to their contribution to the problem relative to the others' contributions. I I I I The notion of sustainability is increasingly accepted by policy-makers. Human uses that touch the land gently and respectfully are now preferred in discourses over resource use. There is a recognition that humans are part of ecosystems-participants, harvesters, and protectors. No longer do most enlightened people think that it is legitimate to exploit resources without regard to the consequences. This widespread awareness suggests some intersection with the traditional values of many tribes. There is a tendency, however, to capture and define the idea of sustainability as if it were created on Earth Day and to fail to realize the tribal roots and understanding of this issue, In a national partnership with tribes, the ideal of sustainability, including protection of endangered species and all the rest of our nation's resources can be genuine, reciprocal, and beneficial to all. I I I 10