Western tribes face challenges capitalizing on water rights: study

Indigenous groups in the U.S. West are facing difficulties transforming water that belongs to them on paper into water they can actually use, a new study has found.

Tribal nations are likely using only a fraction of their entitled water rights — thereby foregoing hundreds of millions of dollars in revenue annually, according to the study, published in the Journal of the Association of Environmental and Resource Economists.

Factors such as insufficient irrigation infrastructure and land ownership issues are complicating the quest to capitalize on the water that is rightfully theirs, the researchers determined.

“Western tribal water rights are a longstanding, yet underpublicized, component of a large and seemingly intractable problem: how to satisfy all water-rights holders when available water amounts are less than the paper water rights allotted,” the authors said in a statement. 

Residents of the U.S. West abide by a “water rights” system often referred to as “first in time, first in right,” which stems from the mid-19th century homesteading and gold rush era. Farmers and miners were able to secure and divert water in an order that prioritized the time of their arrival, rather than according to their position along a given river.

While a 1908 Supreme Court case established that the priority date for water rights on Native American reservations took precedence over those of most existing users, it wasn’t until almost a century later that tribal nations began recovering these rights.

In recent decades, tribal nations have begun engaging in settlements with state and federal authorities — giving them annual water allocations but not necessarily from the original river to which their rights applied.

“We wanted to know: After tribes settle their water-rights claims, do they actually get control over the water?” corresponding author Eric Edwards, an assistant professor of agricultural and resource economics at North Carolina State University, said in a statement.

“That is, do tribes actually get ‘wet’ water, and can it either be used on the reservation or in their control as a lease to others?” he asked.

Edwards, along with colleagues at the Rocky Mountain Research Station, Arizona State University and North Carolina State University, used satellite data to probe the impacts of water rights settlements on tribal land from 1974 to 2012.

While settlements increased cultivated agricultural land by 8.7 percent, the researchers estimated that many tribes are only using small portions of their entitlements — foregoing between $938 million and $1.8 billion in revenue.

Following the 1908 Supreme Court case, Winters v. United States, tribes gained a legal avenue to assert claims to water, the authors explained. Since that time, about 20 percent of Colorado River water has been allocated to tribes, though some claims are still pending.

One problem with the Supreme Court decision was that it failed to articulate how the water rights claims should be settled, according to Edwards.

“The federal government is responsible for providing these water rights, but the states have already allocated all the water to non-tribal users,” he said.

But Edwards and his colleagues were interested in understanding how much allocated water is actually being used by those tribes that have managed to settle.

“Some tribes are leasing water and some are farming, but there’s a big gap between the paper water right and the estimated amount of water tribes are actually using,” Edwards said.

The water belongs to the tribes legally, but it may be “being used — uncompensated — off the reservation by other groups,” according to Edwards.

“The tribes have secure legal title to the water, but establishing title isn’t enough to create the foundation for economic growth,” he said.

Among other obstacles to turning paper water rights into actual water is the fact that tribal land is held in trust by the federal government — meaning, tribes must get approval for certain land-use changes from the Bureau of Indian Affairs.

This stipulation, the researchers stated, makes it challenging for tribes to make decisions about their land, such as using it as collateral for loans.

A final impediment is the fact tribes must receive approval from Congress to lease their water rights to adjacent municipalities and other entities, according to the study.

Nonetheless, the researchers said they remained hopeful about future prospects for tribal water rights holders — who could play a critical role in quenching the thirst of an increasingly parched Southwest.

“We’re optimistic that tribes can serve to both solve some water shortfall issues and advocate for environmental uses of the water,” Edwards said.