Abstract
Tribal water rights were first recognized under the federal reserved Indian water rights doctrine established in Winters v. United States back in 1908. However, the process to quantify those rights and actually get access to the awarded water has been slow and complex due to the nature of tribal water rights and the development of states’ water rights without tribes in mind. As a result, negotiated settlements have become the preferred method to settle tribal water rights claims. Such negotiated settlements require congressional approval under certain conditions; one being if a tribe seeks the ability to lease any of its federal reserved Indian water rights off the reservation. Some tribes who have gained such authority through congressional approval have actively leased their water off reservation, providing both greater water security to states and revenue for the leasing tribes. However, this authority is also often subject to certain terms and limitations laid out in the negotiated settlements. To better aid tribes and other key stakeholders, this study aimed to provide a comprehensive analysis of the current off-reservation leasing authority among the federally approved negotiated settlements. To do so, the thirty-five congressionally approved and two administratively approved settlements to date were systematically examined for off-reservation water leasing allowances and restrictions. The resulting information was consolidated into a matrix to provide an at a glance lay of the off-reservation leasing land. Overall, the majority of currently approved negotiated settlements authorize off-reservation water leasing to some extent, although several common limitations exist across them. In addition to what current off-reservation leasing authority exists; this study also revealed several larger patterns and themes related to such authority that warranted discussion.