9367 ‎(2)‎

• UCREFRP Catalog Number: 9367
• Author: Colorado Water Workshop.
• Title: Proceedings
• USFW Year: 1992.
• USFW - Doc Type: Colorado Water Workshop July 22-24, 1992.
• Copyright Material: NO

historical situation. The federal policy towards Indians and the
tribal sovereignty itself allows their institutions and their rights
to evolve with time.
Where that all leads me is that in today's situation where tribes
are facing tremendous economic pressures, many of the same sorts of
concerns that water developers are facing in terms of restrictions on
federal funding, and environmental issues, the tribes themselves
should be the ones who make the choice about whether to put that water
to use right now on the reservation, if they can get the funding, or
decide that in the long run the'better economic use of that water is
leasing in which there is a greater economic return.
The question of whether tribal water marketing ought to go
forward has come more and more to the forefront in recent years. In
1983, the Department of Interior endorsed the concept of tribal water
marketing, particularly in the context of tribal water settlements of
their water rights. In 1983, in a spin off case of Arizona versus
California, three of the Supreme Court justices endorsed the idea of
tribal water marketing. Although it was an unsolicited and gratuitous
comment, it was still three justices of the Supreme Court speaking.
I guess the last question that comes up is what other obstacles
might exist in terms of tribal water marketing? The most apparent one
is what is known as the Indian Nonintercourse Act. Some of you may
know, there is a restriction on the alienation of tribal property.
Congress has said that in order for tribal property to be alienated,
the tribe needs the approval of Congress. There are a number of ways
that Congress has addressed such transfers. In some instances,
Congress has given specific authorization for the transfer of
particular tribal property. In other cases, such as the tribal oil,
gas, or other tribal minerals they have established procedures that
must be followed for the tribes to lease or otherwise alienate their
property. I think there is a substantial question about the extent
to which the Nonintercourse Act applies to the leasing of tribal
water. The tribal land leasing statute, 25 U.S.C. 415, authorizes the
lease of tribal land and water together. Many would argue that the
statute also authorizes the tribes to lease their water separately.
Since the restriction in the Nonintercourse statute on the lease of
water rights is directed on the alienation of tribal lands, the use
of the term "lands" in section 415 ought to be sufficient to allow the
lease of water rights.
To conclude, I think that there is a framework in law, in policy,
and in equity for the tribes to have the freedom to make the choices
that need to be made in terms of how to best use their resources for
the benefit of their tribal members. I think those choices are going
to be hard for the tribes. George and Jerald can speak to that
question far better than I can. I think that accomplishment of this
result will require a lot of creative thinking on many different.
people's part; it may also involve a lot of disagreement. But I think
there is a tremendous amount of resolve among the tribal people in the
Colorado River basin to deal with this issue and get it resolved.
I will leave you with a good news and bad news story. In another
case, I work with an engineer who was born and raised in Africa. He
came to this country to go to school, and now works here as an
irrigation engineer. He would like very much to return to his home
country and work on irrigation projects there. We were eating lunch

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