The First People, Part 2: The Reservations — Sibley’s Rivers #ColoradoRiver #COriver

Click the link to read the article on the Sibley’s Rivers website (George Sibley):

The last post here began an exploration of tribal issues in the Colorado River region, where 30 ‘First People’ nations have been put on reservations throughout the region. We looked at some of the precolumbian history in the Southwest, to emphasize the human diversity that existed in the region when European peoples invaded the continent beginning 500 years ago. ‘The Second People,’ I guess we could call the invaders – a single people instead of many like the more than 700 distinctive First Peoples; most of our ancestors seemed willing to let go of their Old World identities and assimilate to a common ‘American dream’ in the New World, e pluribus unum. This does not mean, I hasten to add, that we consistently act as ‘one people.’ But our differences today are ‘New World conflicts,’ not those stemming from ‘Old World’ distinctions between English, French, Italian, Spanish, Slavic, and the other hereditary European national stocks.

From the beginning till now, the relationships between the First and Second Peoples have been mostly ambiguous at best. Until the 20th century CE, their interactions almost always devolved into conflict and warfare, conflicts the native people always eventually lost, despite occasional battle victories, to the sheer mass of the invaders and their superior firepower, not to mention their virulent diseases unknown in the New World.

Native land loss 1776 to 1930. Credit: Alvin Chang/Ranjani Chakraborty

The conflicts were eventually settled with treaties in which the First Peoples, one by one, yielded most or all of their old hunter-forager territories to the invaders in exchange for much smaller ‘reservations’ managed through a ‘trust’ relationship with the United States government. In the best resolutions, the First People got the least desirable part of their former homeland as their reservation; in the worst resolutions, they were forcibly moved to strange and generally undesirable places beyond the settled area. Out of sight, out of mind.

In its broadest terms, a ‘trust’ is a legal arrangement between a benefactor and a beneficiary that is administered by a trustee. Given that the reservation trust arrangement had the First People giving up most of the land they had inhabited for many generations, in exchange for a small piece of that land and freedom from further invasive pressure, one wonders who should be called the benefactor and who the beneficiary.

But the trust arrangement between the First and Second Peoples was defined in 1831 by Supreme Court Chief Justice John Marshall, in deciding a suit filed by the southeastern Creek Nation against the State of Georgia. The Creek People were one of the ‘Five Civilized Tribes’ in the southern states who had tried hard to fully assimilate to European ways: taking up farming, speaking English, even dressing European – and being civilized enough to know they needed to lawyer-up in civil situations like loss of their land. But they were still ‘Indians,’ and therefore subject to the Indian Removal Act of 1830, to free up more land for white settlers.

When that suit went to the Supreme Court in 1831, Chief Justice Marshall – probably the first real ‘activist justice’ – declared that all situations involving the First Peoples should be negotiated and resolved as between nations, not within state jurisdictions. But it would not be nation-to-nation negotiations between equals. The First Peoples he declared to be ‘domestic dependent nations’ whose ‘relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their Great Father.’

There is a sad irony to the fact that this articulation of a guardian-ward relationship concluded with the ‘Five Civilized Tribes,’ who had tried to follow the ways of their ‘guardian’ nation, removed from their homes and force-marched on the ‘Trail of Tears’ to strange lands across the Mississippi. More power than kindness.

An Office of Indian Affairs was created to administer the reservation trust model; the nature of the trust relationship is indicated by the fact that OIA was in the War Department. In 1849 the Interior Department was created, and the Bureau of Indian Affairs was moved into that.

Devastated as the First Peoples were at that time by European diseases, continual conflict and retreat before the waves of ‘unsettlers’ swarming over the continent, the ‘guardian-ward’ foster-parent relationship was probably an accurate enough description of the reservation life imposed on the First Peoples: a relationship historically marked at best by what could only be described generously as tough love, too often by blatant exploitation, and most often by indifference and negligence. That they survived at all with so much of their spiritual life and heritage still burning within is a measure of the cohesive strength possible in small tight societies that mass societies can never really achieve.

Through time, the undercurrent of vengeance leached out of the trust relationship, but a full legal definition of the trust remained somewhat ambiguous, and the treaties on which the trusts were based had varying degrees of legal explication. And until well into the 20th century, the reservation trust relationship was rooted in a belief – a benefactor belief, of course – that the best resolution for all concerned was total cultural assimilation of the First Peoples – essentially, elimination of them as distinct peoples: it was no longer ‘kill the Indians,’ but ‘kill what’s Indian to save the people.’ This included measures like the 1887 Dawes Act that ‘subdivided’ the reservations into individual plots to make the Peoples understand the blessings of private property, and laws that moved children from their families to boarding schools where they were given haircuts, immersed in industrial culture, and punished for speaking their own language. This was all done with a virtuous sense of Christian duty to the heathen.

The 20th century also saw some of the worthless land the First People had been relocated to turn out to have valuable deposits of oil and gas, uranium, and other basic industrial resources. The Peoples were of course judged to be unable to develop and manage these resources themselves, so that was done under the trust by the BIA and other Interior agencies, with all the revenues supposed to go to the Peoples of the reservation exploited: some into tribal funds, and some into individual funds where the reservation had been successfully subdivided – funds to be kept separate from other expenditures and revenues associated with regular reservation activity.

This was a daunting accounting challenge, but the BIA seemed to go above and beyond the challenge in messing it up. By the 1990s, it was obvious that this was a complete mess,  and a $100 billion class action suit was filed in the mid-1990s on behalf of all the tribes and half a million individuals who should have been getting resource revenue, but weren’t. Investigation showed an array of misdirection of funds, malfeasance on the part of some of the private contractors holding back funds, some money just going into the general treasury funds, but mostly it was just terrible non-management of the trusts.

The judge who evaluated the $100 billion suit came up with a figure of only $455 million. Faced with the probability of a court appeal, keepng a truly embarrassing situation in the public mind longer, Interior offered a settlement of $1.4 billion in direct payments, plus $2 billion to try to unsnarl some of the Dawes Act reservation fragmentation, and a $60 million scholarship fund to educate reservation youth.

But – meanwhile, what about the most important western resource for the reservations: water? (You knew I’d eventually get around to it.) In 1908, the U.S. Supreme Court rendered a seminal decision on water for reservations, to resolve a Montana water situation, that was really the first government action showing empathy for a First People trying to make a life in circumstances made difficult both by antipathy from the larger society around them and by the always ambiguous trust relationship with the government.

Early in the 20th century, Montana settlers had began using water from the Milk River above the Fort Belknap Indian Reservation (north of the Missouri River, primarily Gros Ventre People). The settlers were told to stop because it was taking water needed by the First People in their own efforts to become ‘civilized’ farmers. The settlers – faced with the possible loss of their own land, worthless [without] the water – sued, Winters v. the United States; and the case went to the Supreme Court.

The Court affirmed that the water the settlers was using belonged with the reservation, even though the Indians were not using all of the water yet, and had filed no appropriation claim on it. When the federal government reserved land for some purpose, the Court declared, such as the settling and ‘civilizing’ of a People, the reservation of a sufficient quantity of water to carry out that purpose was implicit in the reservation of land. The water thus reserved, with creation of the reservation, was to be exempt from appropriation under the laws of the state in which the reservation was located; and the appropriation date for thatreservedwater would be the date of creation of the reservation, whether the water was yet being used or not. Given that most reservations were created before their former land was opened to settlers, these became very senior water rights – and the right didn’t even require the water to immediately be put to beneficial economic use; it was to be there whenever the reservation People were ready to learn to use it.

One can imagine the shockwave this sent through the arid West where appropriation law was foundational to practically all development – first come, first served for the use of water, so long as the claim was properly filed and adjudicated. Now the federal government, which still owned most of the Interior West and Southwest, was being given, by the highest court in the land, the prerogative of elbowing its way to the front of the line by reserving land for specific purposes thar required a quantity of water.

The Supreme Court that issued the Winters decision may have engaged in a little judicial activism – taking upon itself something that would have been more properly addressed by Congress. But the Court essentially argued that its decision was obviously implicit in the Congresssional ratification of each reservation: Congress would surely not ‘take from [a First People] the means of continuing their old habits, yet not leave them the power to change to new ones’; therefore the reservation of the water along with the land was surely presumed by Congress. This may be a more idealized view of the rationality and integrity of Congress than many people then or now have, especially where the First People were concerned, but so the Court decreed. It was basically a majority of justices making a judgment call on behalf of equity, fairness and decency: how could the nation take away the free-ranging hunter-forager way of life from the people of another nation, and not give them the wherewithal to forge a new, more ‘civilized’ way of life?

The Winters decree did leave the First Peoples with a couple of difficult challenges, however, and no instruction on how to address them. They had to get their water rights quantified, in order to begin planning their development – and how much water did it take in the desert to convert a whole people to agricultural and industrial civilization? Then they had to figure out how to finance the development of their rights. And they had to do both of these things in a larger water-culture environment less than happy with the whole Winters decision.

This is where the ‘trust’ relationship with the federal government, through the Bureau of Indian Affairs, should have worked better than it in fact has. Next post, we will look at some of the trials and tribulations the First Peoples in the Colorado River region have experienced in working through those two challenges – a struggle most recently manifested in June this year, with a new Supreme Court decision declaring that, the Winters decision notwithstanding, nothing else  about the trust relationship can be considered implicit in the fumbling-forward effort to work out the whole relationship of the First Peoples and the Second People. If something like assisting in determining a People’s basic rights isn’t explicit in the century-old establishing treaties, then no trust responsibility for that exists.

Reclamation announces 2024 operating conditions for #LakePowell and #LakeMead #ColoradoRiver #COriver #aridification

The current water level of Lake Mead behind the Hoover Dam July 2023. Photo credit: Reclamation

Click the link to read the release on the Reclamation website:

Significant improvement for Lake Mead due to improved hydrology, ongoing conservation efforts. Operating guidelines in effect until Reclamation finalizes SEIS, including analysis of consensus-based state conservation agreement.

August 15, 2023

BOULDER CITY, Nev. – The Bureau of Reclamation today released the Colorado River Basin August 2023 24-Month Study, which determines the tiers for the coordinated operation of Lake Powell and Lake Mead for 2024. These operating conditions, which are based on existing agreements under the 2007 guidelines and lower basin Drought Contingency Plans, will be in effect until the near-term guidelines from the Supplemental Environmental Impact Statement (SEIS) are finalized. Reclamation is currently analyzing the consensus-based Lower Division States proposed alternative for the SEIS.

Based on projections in the 24-Month Study, Lake Powell will operate in a Mid-Elevation Release Tier with a 7.48 million acre-feet release in water year 2024. Consistent with existing agreements, Lake Mead will operate in a Level 1 Shortage Condition – an improvement from the Level 2 Shortage Condition announced last year – with required shortages by Arizona and Nevada, coupled with Lower Basin Drought Contingency Plan water savings contributions. Mexico’s water delivery will be reduced consistent with Minute 323.

Lake Mead’s release in 2023 is projected to be the lowest in 30 years, approximately one and half million acre-feet lower than an average normal year, reflecting extensive, ongoing conservation efforts in the Lower Basin states funded in part by President Biden’s historic Investing in America agenda, above-normal inflows in the lower basin below Hoover Dam, and conservation in Mexico.

Investments in system conservation and improved hydrology this year have provided an opportunity to recover some reservoir storage. At the same time, the Colorado River system continues to face low elevations, with Lake Powell and Lake Mead at a combined storage of 36%.

“The above-average precipitation this year was a welcome relief, and coupled with our hard work for system conservation, we have the time to focus on the long-term sustainability solutions needed in the Colorado River Basin. However, Lake Powell and Lake Mead – the two largest reservoirs in the United States and the two largest storage units in the Colorado River system – remain at historically low levels,” said Reclamation Commissioner Camille Calimlim Touton. “As we experience a warmer, drier west due to a prolonged drought, accelerated by climate change, Reclamation is committed to leading inclusive and transparent efforts to develop the next-generation framework for managing the river system.”

The Development of Near- and Long-Term Guidelines

Reclamation is simultaneously developing both near- and long-term guidelines for Lake Powell and Lake Mead operations. The supplemental SEIS in progress focuses on near-term actions, which would be applicable from 2024 through 2026 based on potential changes to limited sections of the 2007 Interim Guidelines. Reclamation temporarily withdrew the SEIS so it could fully analyze the consensus-based Lower Division States proposed alternative and will publish an updated draft SEIS for public review and comment with the consensus-based proposal as an action alternative later this year.

In addition to several agreements that have already been finalized, a consensus-based proposal – agreed upon by the three Lower Basin states earlier this year – commits to measures to conserve at least 3 million-acre-feet (maf) of system water through the end of 2026, when the current operating guidelines are set to expire.

The long-term guidelines, informally referred to as Post 2026 Operations, will revisit the 2007 Interim Guidelines in full, as well as other operating agreements that expire in 2026, including Drought Contingency Plans and Minute 323. In June, Reclamation initiated the formal process to develop the long-term operating guidelines.

Reclamation is committed to an inclusive and transparent process that enhances meaningful Tribal engagement as well as collaboration with all stakeholders in the basin. In response to Tribal feedback, the Department of the Interior established the first-ever Federal-Tribal-State partnership to promote equitable information-sharing and discussion among the sovereign governments in the Colorado River Basin. All 30 Colorado River Basin Tribal Nations and the seven U.S. basin states were invited to participate in this new group. The group met for the first time last week with Deputy Secretary Tommy Beaudreau, Commissioner Touton, and other Department leaders. The formation of this new group does not replace any independent consultation with either Tribes or states.

2024 Operations of Lake Powell and Lake Mead

Until the updated near-term guidelines are finalized once the supplemental SEIS is complete, Reclamation will continue to implement the plans developed over the past two decades that lay out detailed operational rules for these critical Colorado River reservoirs through 2026:

  • Lake Powell Mid-Elevation Release Tier: The 24-Month Study, with an 8.23 maf release pattern in October – December 2023, projects Lake Powell’s January 1, 2024, elevation to be 3,568.57 feet – about 130 feet below full and about 80 feet above minimum power pool. Based on this projection, Lake Powell will operate in the Mid-Elevation Release Tier in water year 2024 (October 1, 2023, through September 30, 2024). Under this tier, Lake Powell will release 7.48 million acre-feet in water year 2024 without the potential for a mid-year adjustment in April 2024. Under the most probable scenario, and with a 7.48 maf release pattern in October – December 2023, Lake Powell’s projected elevation on January 1, 2024, is 3,573.68 feet.
  • Lake Mead Level 1 Shortage Condition: The 24-Month Study projects Lake Mead’s January 1, 2024, elevation to be 1,065.27 feet – about 10 feet below the Lower Basin shortage determination trigger of 1,075 feet and about 25 feet below the drought contingency plan trigger of 1,090 feet. This elevation is based on a 7.48 maf release from Lake Powell in water year 2024. Based on this projection, Lake Mead will operate in a Level 1 Shortage Condition for calendar year 2024 (January 1, 2024, through December 31, 2024). This is a significant improvement from the Level 2 Shortage Condition announced last year. The required shortage reductions and water savings contributions under the 2007 Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations of Lake Powell and Lake Mead, 2019 Lower Basin Drought Contingency Plan and Minute 323 to the 1944 Water Treaty with Mexico are:
    • Arizona:  512,000 acre-feet, which is approximately 18% of the state’s annual apportionment.
    • Nevada:  21,000 acre-feet, which is 7% of the state’s annual apportionment.
    • Mexico:  80,000 acre-feet, which is approximately 5% of the country’s annual allotment.

Lower Basin projections for Lake Mead include updated water orders to reflect additional conservation efforts and new completed system conservation agreements under the Lower Colorado River Basin System Conservation and Efficiency Program.

President Biden’s Investing in America Agenda

System conservation and efficiency programs in the Colorado River Basin are being strengthened by President Biden’s Investing in America agenda and will invest in long-term durable system efficiency improvements that result in quantifiable, verifiable water savings in the Basin.

The Investing in America agenda represents the largest investment in climate resilience in the nation’s history and is providing much-needed resources to enhance Western communities’ resilience to drought and climate change, including protecting the short- and long-term sustainability of the Colorado River System. Through the Bipartisan Infrastructure Law, Reclamation is investing a total of $8.3 billion over five years for water infrastructure projects, including water purification and reuse, water storage and conveyance, desalination and dam safety. The Inflation Reduction Act is investing an additional $4.6 billion to address the historic drought.

To date, the Interior Department has announced the following investments for Colorado River Basin states, which will yield hundreds of thousands of acre-feet of water savings each year once these projects are complete:

Credit: Reclamation
Credit: Reclamation