The law governing the quantification and use of tribal water rights is complex and inconsistent, creating major challenges for tribes working to gain control over and make use of their water resources. There are even greater challenges a tribe must overcome if it wishes to safeguard non- consumptive water uses not generally protected under Western water law regimes. Non-consumptive water uses include any use that does not require removing water from the natural water body. Such uses include protecting in-stream water flows for fisheries, riparian habitat, traditional plants, ceremonial uses, or recreation. There are legal tools available to tribes, however, which can accomplish non-consumptive tribal water resource management goals. This article will describe and explore the pros and cons of several to those options.
This article will proceed by first describing the federal law that governs special tribal territory and resources, or Indian federally reserved rights. The article will then present the state of federal law governing tribal non-consumptive water use as it interacts with and has been applied within Western prior appropriation state water law systems. The article then describes the pros and cons to five major strategies available to tribes wishing to protect their non-consumptive water resources on or near their reservations: first, negotiating water settlement agreements to include in- stream flows or other non-consumptive use protections; second, developing tribal water codes that protect and allocate resources to non- consumptive use; third, irrigating for in-stream flows or traditional plants, or both; fourth, leveraging federal laws that tangentially protect non- consumptive water use; and fifth, implementing tribal conservation easements.