Tribes could lease their water to dry states. Why is it so hard?

May 15, 2024

The Colorado River Indian Tribes now have the ability to lease their water rights off-reservation, a move that could ease pressures on communities facing the effects of climate change through drought. The option may prove to be financially beneficial for the Colorado River Indian Tribes, also known as CRIT, but experts say the ability of the tribe to enter the water market is an outlier: For Indigenous Nations in the Southwest with a desire to sell their water, the process is so convoluted, it may take years before tribes, or non-tribal communities to see any financial benefit or much needed water.

This month, CRIT leadership, Interior Secretary Deb Haaland, and Arizona Governor Katie Hobbs signed a historic agreement on the banks of the Colorado River, allowing their water to be leased to off-reservation parties like government entities and corporations. “This is a significant event in the history of CRIT. These agreements clear the path for CRIT to be finally recognized as a central party in all future decisions regarding the Colorado River,” Chairwoman Amelia Flores wrote in a press release. 

But it wasn’t easy to get here. 

CRIT comprises four tribes: the Mohave, Chemehuevi, Hopi, and Navajo, who, in 1964, secured their water rights along the river — 719,248 acre feet of water annually, making CRIT the largest water rights holders in the basin. Today, CRIT maintains a number of agricultural projects on about 80,000 acres of land, growing alfalfa, cotton, potatoes, and wheat. But much of the water infrastructure used to support those operations was built in the late 1800s and suffers from problems like unlined canals and deteriorating irrigation gates. 

Around 2018, CRIT became interested in leasing water to nearby communities as a way to make money and potentially conserve water, and in 2022, Congress passed the Colorado River Indian Tribes Water Resiliency Act, legislation that would allow CRIT to enter into water sharing agreements with the federal government and the state of Arizona. But this need for legislation is the central issue: Indigenous Nations are not allowed to lease or sell their lands or water without congressional approval due to the Indian Non-Intercourse Act passed in 1834. According to Daniel Cordalis, an attorney with the Native American Rights Fund, it’s a law that has long outlasted its usefulness. 

“Tribes should be able to manage and derive benefit from all their water rights and be an active part of solving the Colorado River’s water use puzzle,” said Cordalis. “As it stands now, only a few tribes can participate in a truly meaningful way.”

Another tribal community, the Gila River Indian Community, a few hours southwest of CRIT, has been able to lease water for decades. After securing their water rights in 2004, Gila River negotiated a settlement in exchange for federal funding for water infrastructure and access to water delivery systems to the tune of $850,000. Originally they asked for 2.1 million acre feet of water, but they received 653,500 acre feet. The state and Interior still have a say in what they are allowed to do with their water.

But again, these two tribes are the outliers — most tribes still can’t lease their water. In order to get on the water market, tribes have to figure out how much water is theirs, have their right to that water recognized by the federal government, petition Congress for permission to lease some of that water, then get state and federal officials to sit down and sign an agreement that allows that tribe to enter into additional agreements that must then be approved by those same state and federal officials.

Liliana Soto, the press secretary for Arizona Governor Katie Hobbs, she said that water agreements with tribes could lead to water conservation, shortage mitigation, and alternatives to groundwater use. 

“The state’s collaboration with CRIT has been key to making this leasing possibility a reality, and Governor Hobbs sees this as one of the many ways we are strengthening partnerships with tribal nations,” she said. 

Another solution to this long water leasing process is to create a uniform system for tribes to enter into off-reservation leasing. Samuel Joyce is an attorney with a focus on tribal law, who this year published in the Stanford Law Review about the issue with CRIT’s situation and the larger implications. As the Colorado River Indian Tribes Water Resiliency Act only applies to one tribe, Joyce argued that Congress could pass legislation that would make it easier for tribes to enter the water market.

Joyce also recognizes that legislation should be coupled with a streamlined process to settle water rights for nearly a dozen tribes that are currently awaiting court decisions.

“Reforms to make it easier for tribes to quantify their water rights should accompany leasing authorization,” Joyce wrote. “Even though tribes have senior water rights, political opposition will only grow as non-Indian users expand and climate change further reduces available water in the Colorado basin, putting priority on quantifying tribal water rights now.”

In another paper released last year, written by Bryan Leonard, a professor of environment and natural resources at the University of Wyoming, tribes were estimated to earn between $938 million and $1.8 billion in revenue a year if they were able to use all of their water allocations. Currently, tribes use only about 8 percent of their allocated water, and the rest flows downstream to users who essentially get it for free.

“Markets are only as good as the underlying property rights and institutions,” Leonard said. “The unfortunate thing for reservations is that they’re saddled with colonial-era institutions to manage their resources.”

Per the Colorado River Indian Tribes Water Resiliency Act, the tribe can only lease water in the Lower Basin, which is most of the state of Arizona. With a population boom in Phoenix, only a few hours away from CRIT, the tribe’s water could help the next influx of those flocking to the West.

This story was originally published by Grist with the headline Tribes could lease their water to dry states. Why is it so hard? on May 15, 2024.