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Interstate Marketing of Indian Water Rights: The Impact of the Commerce Clause |
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Chris Seldin |
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| In recent years, Native American Indian tribes and Indian law commentators have increasingly advocated off-reservation uses of Indian water rights. They note that, for many tribes, marketing tribal water off-reservation can generate substantial revenue from a resource for which the tribes have little present use on the reservation. Finding off-reservation markets, however, will often require leasing water to users in other states, and many states have laws that would prohibit or substantially impede such interstate leases. After concluding that the dormant Interstate Commerce Clause may leave states with some ability to inhibit interstate leases of water rights in general, the author examines whether Indian sovereignty doctrine requires treating Indian water rights differently. In general, states may not regulate the on-reservation activities of Indian tribes. States might attempt, however, to inhibit interstate Indian water marketing by either regulating the non-Indian party to a water marketing transaction, or by attempting to characterize an interstate lease as a wholly off-reservation activity. The author argues that a principled reading of the Supreme Court's sovereignty jurisprudence would preclude states from regulating interstate Indian water marketing even through these "back doors." | |
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Copyright
© 1999 by California Law Review, Inc. |
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