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On Thursday, Secretary of the Interior Deb Haaland, Laguna Pueblo, reversed a 1975 memorandum that has prevented some tribes from creating water regulations within their reservations. Haaland’s action aims to make it easier for the Department of the Interior (DOI) to review and approve tribal water codes, which allow tribal governments to regulate the use of water. The DOI also announced it will engage in tribal consultations to discuss the approval process of tribal water codes.

“If we are to truly support Tribal self-determination, we cannot be afraid to review and correct actions of the past that were designed to create obstacles for Tribal nations,” Haaland said in a DOI press release

The 1975 memorandum, known as the “Morton Moratorium” after its author, then-Secretary Roger C.B. Morton, directed the Bureau of Indian Affairs to “disapprove” any tribal enactments that would regulate water use on reservations. It has historically prohibited some tribes from obtaining secretarial review of proposed water codes. 

The memorandum has created “unnecessary confusion for nearly 50 years regarding the Department’s willingness to work with and support Tribes considering water regulations within their reservations,” the press release says.

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In a 2018 resolution requesting the memorandum be lifted, the National Congress of American Indians (NCAI) argued tribal administration of water rights is essential to tribal sovereignty. “The use and protection of Indian reserved water rights has become critical as state water users realize water shortages and look to secure rights to more sources of water, leaving tribes vulnerable to misuse and misappropriation of tribal water without a means to enforce their water rights on their reservations,” the NCAI resolution states.  

Most tribes’ constitutions do not require secretarial approval of water codes. Tribes that do require secretarial approval may amend their constitutions to remove these approval requirements, according to the press release.  

“The ‘Morton moratorium’ is inconsistent with the Department’s commitment to upholding Tribal self-determination and the federal trust responsibility to support Tribal sovereignty,” Haaland said. “Today’s action underscores our efforts to move forward in this new era.”

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