May 30, 2024

The Colorado River Indian tribes now have the ability to lease their water rights off-reservation, a move that could ease pressure on communities facing the effects of climate change through drought. The option could appear to be financially beneficial for the Colorado River Indian Tribes, also known as CRIT, but experts say the tribe’s ability to access the water is an outlier: for indigenous nations in the Southwest with a desire to have their water to sell , the process is so complicated that it can take years before tribes, or non-tribal communities 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-book parties such as government entities and corporations. “This is an important event in the history of CRIT. These agreements pave the way for CRIT to finally be 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 consists of four tribes: the Mohave, Chemehuevi, Hopi and Navajo, which, in 1964, have 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 approximately 80,000 hectares 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 such as unlined canals and deteriorating irrigation gates.

Around 2018CRIT became interested in leasing water to nearby communities as a way to make money and potentially save water, and in 2022 Congress passed the Colorado River Indian Tribes Water Resilience 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: Native nations are not allowed to lease or sell their land or water without congressional approval because of the Indian Non-Sex Act passed in 1834. According to Daniel Cordalis, a lawyer with the Native American Rights Fundit is a law that has long outlived its usefulness.

“Tribes must be able to manage and benefit from all of their water rights and be an active part of solving the Colorado River water use puzzle,” Cordalis said. “As it stands, 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 in the amount of $850,000. Originally, they asked for 2.1 million acre feet of water, but they got 653 500 acre feet received. The state and Home Affairs still have a say in what they may do with their water.

But again, these two tribes are the outliers – most tribes still can’t lease their water. To get on the water, tribes must find 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, and 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 Gov. Katie Hobbs, 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 lease opportunity a reality, and Governor Hobbs sees this as one of the many ways we are strengthening partnerships with tribal lands,” she said.

Another solution to this lengthy water lease process is to create a uniform system for tribes to enter into off-reservation leases. Samuel Joyce is a lawyer with a focus on tribal law, which this year published in the Stanford Law Review on the issue with CRIT’s situation and the larger implications. Like the Colorado River Indian Tribes Water Resilience Act only applies to one tribe, Joyce argued that Congress could pass legislation that would make it easier for tribes to enter the water mark.

Joyce also acknowledges that legislation must be accompanied by a streamlined process to settle water rights for nearly a dozen tribes currently awaiting court decisions.

“Reforms to make it easier for tribes to quantify their water rights must 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, prioritizing 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, estimates tribes would earn between $938 million and $1.8 billion in revenue per year if they were able to use all of their water allocations. Currently, tribes use only about 8 percent of their allotted water, and the rest flows downstream to users who get it essentially for free.

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

According to 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, just a few hours away from CRIT, the tribe’s water could help the next influx of those flocking to the West.

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