From the Water Education Foundation (Gary Pitzer):

As the Colorado River Basin becomes drier and shortage conditions loom, one great variable remains: How much of the river’s water belongs to Native American tribes?

Native Americans already use water from the Colorado River and its tributaries for a variety of purposes, including leasing it to non-Indian users. But some tribes aren’t using their full federal Indian reserved water right and others have water rights claims that have yet to be resolved. Combined, tribes have rights to more water than some states in the Colorado River Basin.

Increasingly, tribes are pressing to have the importance of their water rights recognized and seeking the means to use them. And because in most circumstances a century-old U.S. Supreme Court case moved Native Americans to the head of the line for water rights, they are likely to be the last to have to absorb a cut when water’s in short supply. That could matter as questions are addressed about how water in an already overallocated Colorado River Basin is shared by everyone in a sustainable manner.

“Certainly, tribes with existing decreed rights are part of the overallocation,” said Stanley Pollack, an attorney for the Navajo Nation in New Mexico. “To the extent that newly adjudicated rights either by settlements or through litigation arise, there may be pressures on water supplies to the extent that such new rights put additional stress on the system. However, there is a strong incentive in both settlement and litigation to protect existing water users, so it is possible that it will be the tribes that lose.”

As the Colorado River Basin becomes drier and shortage conditions loom, one great variable remains: How much of the river’s water belongs to Native American tribes?

Native Americans already use water from the Colorado River and its tributaries for a variety of purposes, including leasing it to non-Indian users. But some tribes aren’t using their full federal Indian reserved water right and others have water rights claims that have yet to be resolved. Combined, tribes have rights to more water than some states in the Colorado River Basin.

Increasingly, tribes are pressing to have the importance of their water rights recognized and seeking the means to use them. And because in most circumstances a century-old U.S. Supreme Court case moved Native Americans to the head of the line for water rights, they are likely to be the last to have to absorb a cut when water’s in short supply. That could matter as questions are addressed about how water in an already overallocated Colorado River Basin is shared by everyone in a sustainable manner.

“Certainly, tribes with existing decreed rights are part of the overallocation,” said Stanley Pollack, an attorney for the Navajo Nation in New Mexico. “To the extent that newly adjudicated rights either by settlements or through litigation arise, there may be pressures on water supplies to the extent that such new rights put additional stress on the system. However, there is a strong incentive in both settlement and litigation to protect existing water users, so it is possible that it will be the tribes that lose.”

An impending Colorado River Basin Tribal Water Study by the Bureau of Reclamation and the Ten Tribes Partnership—a group that includes tribes across the Colorado River Basin, from northern Utah to south of Yuma, Ariz.—is expected to shed some light on the current and projected state of tribal water use and development.

Formed 26 years ago, the Ten Tribes Partnership consists of federally recognized tribes with federal Indian reserved water rights in the Colorado River or its tributaries. Not all federally recognized tribes in the Colorado River Basin are members of the Partnership.

The study, expected to be released before the end of this year, was prompted by a mutual recognition by Reclamation and the Partnership that a thorough understanding of tribal water rights is crucial as the future needs of water users are considered.

Longtime observers of Colorado River water policy said resolving the quantification of tribal water rights is an important matter that demands attention by stakeholders throughout the Basin.

“Many of the tribes have settlements that quantify their entitlements to water, but not all that water is being used. That’s a potential new draw on a river that is already substantially oversubscribed in the Lower Basin,” said Anne Castle, former assistant secretary for water and science at the U.S. Department of the Interior. “The tribes want to be able to market that unused water. That causes great heartburn to the states and other major water users.”

Nonetheless, greater utilization of tribal water seems to be inevitable.

“We are entering an era where there is a lot more interest on tribal rights and how they might be used both on the reservation and off the reservation,” said Patrick Sigl, supervising attorney for land and water rights with the Salt River Project, the Phoenix entity that reached a major agreement with the Salt River Pima-Maricopa Indian Community more than 30 years ago. “As water supplies get tighter, the non-Indian water users are recognizing that if they can work out mutually beneficial deals with tribes that are consistent with water law principles, that would be a place to acquire additional supplies.”

Lorelei Cloud, chair of the Partnership and treasurer of the Southern Ute Indian Tribe in Ignacio, Colo., said the Tribal Water Study “is very much needed because it’s going to show exactly how much water the tribes have a right to.”

“Before, we’ve been kind of discounted of what actually is the part that we have,” she said.

Yet Pollack sees an uphill fight ahead for Native American tribes, saying he believes non-Indian water users have no interest in upsetting the status quo.

“The political clout that the large water users have in Congress will likely ensure that tribal water supplies are not developed and that water-leasing mechanisms are not authorized—if tribal water can be leased, the current users of those unused supplies could be displaced,” he said.

Securing Tribal Water Rights

Writing on the matter in a 2016 report, “Tribes and Water in the Colorado River Basin,” the Colorado River Research Group, a collection of veteran Colorado River scholars, noted that “the story of tribal water use in the Colorado River Basin is checkered, with some tribes having quantified rights and functioning projects, others with clear rights but without the infrastructure needed to benefit from those rights, and still others lacking both quantified rights and the opportunity to put them to use.”

Federal Indian reserved water rights were recognized in the historic 1908 Winters v. United States Supreme Court decision, in which the Court held that when the federal government reserved land for an Indian reservation, it also impliedly reserved water rights. Since that time, water necessary for federal reserved water rights and the resolution of claims have been included in the Colorado River allocation for the state in which the reservation is located.

The Indian reserved water rights usually have a very senior priority date, meaning they take precedence to most other water users whose rights have later dates.

Sigl said the doctrine of prior appropriation, used to assign water rights in Western states, and which is based on “first in time, first in right,” developed in arid regions “because it provided a lot of certainty for water users and therefore promoted investment and economic development.” Through Winters, he added, the United States government said that “there is this other kind of water right out there that is not dependent on prior use.”

As a result, there has been a move toward quantifying tribal water rights through settlements instead of facing the reality of adjudication through courts. “Litigating these Indian water rights claims to judgment, the risk is the non-Indian water users may have to make due with less water,” Sigl said.

‘This is their water.’

Indian water rights have been on the books for decades but have been largely overlooked, said John Fleck, director of the University of New Mexico’s Water Resources Program.

“For a long time on paper the Indians had water rights, but in practice they were ignored as all the non-Indian water rights were developed,” he said. “You have a whole bunch of communities that built themselves on junior water rights and they need to recognize that if they are going to continue to use water in the way they would like to, they need to be collaborative with their Native American neighbors and recognize their prior and aboriginal rights. And if we need to have collaborative deals in which everybody reduces water, Indians will have to be compensated for that which is rightfully theirs and which for a century had been taken from them without compensation. The law says this is their water.”

Resolution of outstanding Indian tribal water rights claims is important because it allows states in the Upper Basin—Colorado, New Mexico, Utah and Wyoming—to plan for future demand, said Amy Haas, executive director of the Upper Colorado River Commission.

“Because a tribe’s claim is counted against a state’s allocation under the 1948 Upper Colorado River Basin Compact, having certainty that a tribal claim, along with all other uses in the state, will be within a state apportionment is critical,” she said. “And while some tribes have not fully developed their rights, in the Upper Basin we account for those rights in the demand schedules for each … state.”

Lower Basin users are cognizant of the need of tribes to access their water from the river, as well as the opportunity to partner with them in further water marketing ventures.

“Native American tribes have the opportunity to put their water rights to beneficial use on their lands,” said Jeff Kightlinger, general manager of the Metropolitan Water District of Southern California. “Metropolitan Water District supports and has a history of establishing mutually beneficial partnerships with tribes.”

Launched on the heels of the signature 2012 Colorado River Basin Study, the Tribal Water Study aims to explore what effects future water supplies and the future development of tribal water could have on the Colorado River System, using a scenario planning process, said Pam Adams, Native American affairs program manager with Reclamation’s Lower Colorado Region.

In preparing the study, Reclamation noted that the tribes of the Ten Tribes Partnership “hold a significant amount of reserved water rights and unresolved claims to Colorado River water” and Basin stakeholders should be aware of the effects if a “substantial amount” of the presently unused or unquantified tribal water is used by the tribal water rights holders prior to 2060.

The Ten Tribes Partnership consists of the Chemehuevi Indian Tribe, Cocopah Indian Tribe, Colorado River Indian Tribes, Fort Mojave Indian Tribe, Jicarilla Apache Nation, Navajo Nation, Quechan Indian Tribe, Southern Ute Indian Tribe, Ute Mountain Ute Tribe and Ute Indian Tribe of the Uintah and Ouray Reservation.

Seeking Tribal Settlements

For tribes, meeting their own water needs can be a challenging proposition. Funding is scarce and assistance from the federal government usually requires coming up with matching funds. “For a few reservations, there is a lack of infrastructure and a lack of funding for the infrastructure to get the water to where it needs to be,” said Cloud, with the Ten Tribes Partnership.

According to Reclamation, 13 federally recognized tribes located within the Basin have some or all of their claims still unresolved. Tribes have pursued quantification of their water rights through both litigation and negotiated settlements. The settlements involve negotiation between tribes, the federal government, states, water districts and private water users.

“Over the last 50 years, negotiated settlements have been the preferred course for most tribes because they are often less lengthy and costly than litigation,” according to Indian Water Rights Settlements, a 2018 report by the Congressional Research Service. “Additionally, many stakeholders have noted that these negotiated agreements are more likely to allow tribes not only to quantify their water rights on paper, but also to procure access to these resources in the form of infrastructure and other related expenses, at least in some cases.”

Tribes with reservations in the Colorado River Basin have quantified rights to divert about 20 percent of the Basin’s annual average water supply, based on an annual flow of 14 million acre-feet, according to the Colorado River Research Group. That 20 percent “is a significant amount of water compared to what everybody else has,” Cloud said.

Under the standards for federal reserved water rights the courts have mostly used, the criterion applied is whether a reservation could use water on “practically irrigable” acreage, said Robert Glennon, professor of law and public policy at the University of Arizona in Tucson.

“It works beautifully for the Gila River Indian Community,” he said. “It is low-level land, you get the water and apply it. That doesn’t work so well in canyon country for the Hopi and Navajo, who are in some places thousands of feet above the river.”

Sigl noted that the Arizona Supreme Court, in its quantification of federal reserved water rights, concluded that the reservations “were intended as permanent homelands” and that factors such as tribal history, culture, geography, topography, natural resources, economic development and past water use are components of quantifying a tribal water right.

For their part, tribal council members believe there is a sense of urgency in resolving long-standing claims because of the concern that if they don’t use their water, someone else will.

“Those that plan on and base a lot of their growth on the excess water going down the river, pretty soon, that’s not going to take place,” Timothy Williams, chair of the Fort Mojave Indian Tribe, said in a presentation to the Colorado River Water Users Association last year. “There is going to be no excess water from the tribes because we are working harder than ever to ensure that we protect our own selves by utilizing every drop of water that we possibly can. It’s going to be used for what it was originally intended for—on the reservation.”

But the path toward getting water to the reservation is uncertain. Pollack, the Navajo Nation attorney, said the drive by tribes to get water on their lands for irrigation and drinking runs into the political reality of negotiating the necessary financing.

“You always have that question of ‘Can you get funding for water development and, if so, what are the political consequences?’” he said. “I think a lot of people don’t really appreciate just how difficult it is to develop water in a political sense. If a tribe has unlimited resources, then the politics are not quite as big an issue. But it’s very difficult to wrest water away from communities that have been relying on it and using it.”

The report by the Congressional Research Service noted that courts generally have held that many tribes have a reserved right to water “sufficient to fulfill the purpose of their reservations” and that this right took effect on the date the reservations were established within the context of first in time, first in right. “Many tribes have water rights senior to those of non-Indian users with water rights and access established subsequent to the Indian reservations’ creation.”

Resolving the matter means determining whether Congress should approve new Indian water rights settlements, and whether it should fund—and, in some cases, amend—existing settlements.

“Some argue that resolution of Indian water rights settlements is a mutually beneficial means to resolve long-standing legal issues, provide certainty of water deliveries, and reduce the federal government’s liability,” the report said. “Others argue against authorization and funding of new settlements, either on general principle or with regard to specific individual settlements and activities.”

Because of issues such as tribal sovereignty and the desire to retain confidentiality, there is a degree of separation between tribes and state and federal governments regarding tribal water issues.

“Part of this is rooted in a historic and well-earned distrust,” said Fleck, director of the University of New Mexico Water Resources Program. “Native communities have been deeply, profoundly and strikingly mistreated. They have every reason to be mistrustful of non-Indian America because of the way they’ve been treated and so they have every reason to be cautious in their approach to this. They hold the best hand—senior water rights.”

And that is the challenge Indians face as they seek to access their water to provide service and sanitation to homes and to irrigate farmland. There is also the possibility of leasing water rights to nontribal users to provide tribes with economic development, depending on the terms of individual settlements or court decrees.

Pollack likened the scenario to the resolution of the Arizona/California water conflict of 50 years ago in which Arizona achieved “a very large, substantial victory” over California, but the water came at a price: The state subordinated its water priority to California to help secure the federal backing for the Central Arizona Project.

Water marketing agreements between tribes and other water users are already a part of the landscape in the arid West. In July 2018, officials in Gilbert, Ariz., approved a $31.2 million water lease with the San Carlos Apache Tribe to give the town access to about 6,000 acre-feet of water annually. (An acre-foot typically is enough water to serve two to three households for a year.) Two years earlier, the city of Chandler agreed to pay the Gila River Indian Community about $43 million for rights to a portion of the tribe’s water from the Central Arizona Project, which delivers Colorado River water to the Phoenix and Tucson areas.

The agreement stems from a sweeping 2004 tribal water settlements act in Arizona that, among other things, provided the Gila River Indian Community with an annual water budget of 653,500 acre-feet.

“Arizona has already addressed tribes gaining more access to water with the … water settlement act,” said Warren Tenney, executive director of the Arizona Municipal Water Users Association. “The Phoenix area cities have the opportunity to work with the Gila River Indian Community and other tribes on water resources issues because the tribes now have certainty about their water. The Gila River Indian Community has been more than willing to work with the state and municipalities on water issues facing Arizona.”

‘Water is our common ground’

What’s likely a turbulent water future in the Colorado River Basin means everyone, including tribes, will have to increase their level of involvement as an even greater level of cooperation is needed to meet the challenges, most notably the struggle by the anchor reservoirs of Lake Powell and Lake Mead to reliably provide water to the Lower Basin states.

“The tribes are going to have to be part of the solution over the long term to building sustainable, economically vibrant communities both on and off the reservations and that’s really what drought drives—ingenuity,” said Sigl with the Salt River Project. “We are all in this together and everybody that has an asset and resource that can be dedicated to solving the water supply problem will have to be part of the solution.”

Castle, the former Interior official who now is with the Getches-Wilkinson Center for Natural Resources, Energy and the Environment at University of Colorado Boulder, said she believes tribes will have to move from their “relative lack of participation” to a more robust role in the overall discussions of Colorado River management.

“The states control the diversions within each state and that includes the tribal rights, so it’s understandable and appropriate that it’s the states that are the ultimate decision-makers about overall use,” she said. “But the tribes’ collective share of water exceeds that of some of the states, and with the increasing tightness in the system, the tribes have got to be part of the highest-level discussions. A significant barrier to be overcome is that the tribes don’t speak with one voice and there are 25 or so different tribes. …. It’s hard to have that many people involved in those high-level discussions.”

Writing in the Arizona Journal of Environmental Law & Policy this summer, Glennon, the University of Arizona law professor, noted that while “Yogi Berra warned against making predictions, especially about the future … I hazard to predict that the future holds more settlements involving water exchanges, sales and leases.”

The numbers bear this out, he wrote. The Colorado River Indian Tribes, which he deemed “the proverbial 800-pound gorilla,” have adjudicated diversion water rights to 662,402 acre-feet of Colorado River water for its reservation lands in Arizona.

“A rhetorical question is, if you have a community like CRIT, with a very small population with rights to 720,000 acre-feet in Arizona and California, and some of that water they are not using and the rest is being used to grow alfalfa, what do you think is going to happen a generation out?” he told Western Water.

For its part, the Colorado River Research Group, in its 2016 tribal water report, noted that providing Colorado River tribes with the water needed to sustain communities and build economies “is both a legal and moral imperative,” and must be done “in a way that embraces creative, flexible and efficient uses of water, often in partnership with non‐Indian water users.” The way forward, they said, is through negotiated settlements, especially those that empower the tribes to lease water to off-reservation users.

In New Mexico, the Navajo Nation agreed to receive less water than they believe they were entitled to in return for an agreement that the federal and state governments would provide the infrastructure to bring water to the Navajo communities where it was needed.

“That’s the way these deals work,” Fleck said. “That’s why they are called settlements. It’s because the Indians agreed to settle for less than they might get, which is a benefit to the non-Indian water users.”

Not all non-Indian water users agree. After an appeals court allowed the Navajo Nation settlement to proceed in April 2018, Victor Marshall, an attorney for more than 20 community water and irrigation districts in New Mexico, vowed to press on, telling the Albuquerque Journal that the appeals court decision “destroys New Mexico’s remaining water supply.”

Cloud said tribes are expecting to engage nontribal users in a conversation about what the fulfillment of their full water rights means.

“That is where this tribal water study really comes into play because it will have the data to back that up,” she said.

While progress for the tribes will be a slow grind, Pollack said, declining water levels at Lake Powell and Lake Mead and the impending threat of water cutbacks for Arizona and Nevada will likely “create a different paradigm on the river.”

“They are talking about a 50-50 chance of a shortage in 2020 and once these shortages start kicking in and start having their effect on existing water supplies, folks are going to start looking around and saying, what are all the tools that we have in the toolbox?” Pollack said. “They [major water users] have been using a number of tools, such as the drought contingency plan, but I think at some point they are going to realize that tribes need to be a part of the solution and the tribes need to have their assets be part of the toolbox.”

While the Ten Tribes Partnership includes many different people across a wide geographic swath, it is unified in its desire to get all the water it is entitled to.

“That’s what drives our partnership,” said Cloud, the partnership’s chair. “We do realize that each tribe, they govern themselves differently; they have different traditions and different uses for their water. But the water is our common ground. We all have the same voice that we want to protect the water. We value the water—the spirit of the water. It’s a driving force for us as tribes coming together as one.”