Much of the western United States is suffering from a severe drought. As water providers look for new sources to address their limited and strained supplies, Congress should consider expanding the authority of tribes to lease their water off their reservations. Under current law, unlike non-Indian water users, tribes cannot lease their water to third parties absent express congressional consent. As a result, non-Indian water users cannot tap into an available water supply and tribes cannot financially benefit from their water rights they currently do not use.
The current legal regime is a relic of the United States’ historic and outmoded paternalistic relationship with tribes, which is codified in the Indian Trade and Intercourse Act of 1790 (the “Non-Intercourse Act”). The 230-year-old law provides: “[n]o purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution... .” 25 U.S.C. § 177. Many question the need for this antiquated law.
Fortunately, Congress recently passed legislation that could serve as a model for tribal water leases. In 2012, Congress enacted the Helping Expedite and Advance Responsible Tribal Homeownership Act (HEARTH Act), which allows tribes to enter into certain land leases without the approval of the US Department of the Interior, upon meeting specific conditions. As discussed in more detail below, allowing water users and tribes to enter into similar leases would provide more local control over water resources, provide a new source of water for non-Indian water users, and provide a new source of income for Indian Country.
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