WSPC02585

• File Number: 8064
• Description: Indian Water Rights
• State: CO
• Basin: San Juan/Dolores
• Water Division: 7
• Date: 3/17/1997
• Author: Todd M Olinger
• Title: Summary of Indian Water 1997
• Water Supply Pro - Doc Type: Report/Study

Indian Water-1997: Trends and Directions in Federal Water Policy

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of being useful to tribes. Water can be released from them for all kinds of
reservation uses, including agricultural, municipal, and industrial.
Moreover, instream flows can be maintained to protect and perpetuate a
tribal fishery. Power can be generated and the,revenue made available to
tribes. All of these devices need to be considered as we have second thoughts
about how the existing big federal water projects ought to be operated and
used in the future.

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Water Marketing

Fiscal conservatives and environmentalists have joined in urging that water
be subject to market forces. They argue that some of the problems of
economically inefficient use of water can be solved if water that is in excess
of present needs of one user is leased or sold to others who are willing to pay
to use it now. A farmer will not continue using six acre-feet per acre of
irrigation water if he or she can raise the same crops with four acre-feet per
acre and sell the other two acre-feet to a nearby city for cash.

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For some tribes, water marketing can offer the possibility to achieve
significant financial returns, where now they receive little or none from their
water resources, Consider a tribe that uses, or allows a non-Indian lessee to
use, water to grow crops on marginal reservation land, receiving little in
return for it, Or consider the tribe with great water rights claims but with
no facilities to deliver water to the reservation. If the tribe can sell, on an
annual basis or for a longer term, the right to use water off the reservation,
it could return a bOilnty to the tribal treasury to be used for tribal needs. Of
course, the decision to trade water for money can be soundly rejected if the
water is needed for cultural or spiritual purposes, or if the tribe needs it to
support the reservation's economic base.

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Virtually all ofthe dozen most recent Indian water settlements have some
provision allowing limited water marketing. This gives tribes the option of
using some of their water on or off the reservation. It gives them the benefit
of their water rights whether or not they have an immediate need for on-
reservation use. But, I must ask why these water marketing rights in the
settlements have been so limited. Non-Indian water rights under the prior
appropriation doctrine are always transferable. That is inherent in the
water right. Tribes are told to play by the rules, to quantify their water
rights and determine priority dates in state court, to fit their rights into the
prior appropriation system. Then, when they do quantify them in a
settlement, Congress attaches conditions to reduce the value of their rights
by making some or all of them non-transferable.

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There is simply no principled basis for limiting the leasing or other transfer
of Indian water rights, while every other water rights holder in the West can

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