Tribal Water Rights Update

The 30 federally recognized Tribal Nations in the Colorado River Basin collectively hold rights to nearly one quarter of all the water in the Colorado River Basin. However, their presence at negotiating tables and ability to access water is nearly as diminished today as it was one hundred years ago. 

A complex web of interstate compacts, case law, settlements and state law govern how Tribes are allocated water and how they receive it; but layers of colonization and bureaucracy have severely limited access Tribes have to water. (For an overview of Native American water rights in the Colorado River Basin, read this blog.)

Myriad examples exist, and one of the most tangible is 11 of the 30 Tribes have unresolved water rights; making social and economic improvements nearly impossible. Further, Tribes who reside on reservation lands straddling multiple states have to navigate federal and multiple state water law systems in order to quantify their water rights, efforts which are often blocked by states protecting their own interests.

Tribes have also not been sufficiently recognized for the amount of water they do hold rights to. Despite the vast amount of senior water rights the 30 Tribal Nations collectively hold, they are not able to use all the water, and therefore other entities such as states and private irrigation districts have been using it for centuries without any compensation for Tribes. These examples demonstrate how Tribal Nations are pitted against other water users and continually deprioritized when it comes to federal resources in the Colorado Basin. 

However, there are notable events in the past year that demonstrate some changes in how Tribes and their water are being considered in the Colorado River Basin, ranging from Supreme Court cases to collaboration. 

Tribes participate in compensated conservation programs to reduce water use in Lower Basin 

Whitewater Rafting on the Colorado RiverIt should not come as a surprise that the over-allocated Colorado River is taxing the system’s two largest reservoirs: Powell and Mead. Both storage reservoirs dropped to record-low levels in 2021 and 2022 and water users and the Federal Government began scrambling trying to find solutions to use less water to stave off disaster. Last year’s abundant winter provided some breathing room to negotiate, however, it is a reminder how dire of a situation the river and those who depend on it are in.  

As part of the solution, in 2023 Congress passed legislation allocating four billion dollars to help curb water use in the Colorado River Basin. Funding will be used for system improvements, conservation or fallowing projects, drought resilience projects, and improving infrastructure. Projects proposed by Tribes have been some of the most impressive projects funded by the Department of Interior, both in terms of flexibility and amount of water saved. 

The Gila River Tribe, located in Arizona, will receive $233 million over three years from the federal government to conserve water that will be left in Lake Mead. $83 million will be allotted for a pipeline project that will reuse 20,000 acre-feet of water and the Tribe will receive $50 million per year for three years to not use 125,000 acre-feet per year. That water will be used to help prop up levels in Lake Mead.

The Quechan Tribe of the Ft. Yuma Indian Reservation has also participated in federally compensated programs, where farmers leave fields unplanted and water is left in Lake Mead. 

While these programs and funding are only temporary, it is a good step to see the federal government provide funding to Tribes for their valuable water saving efforts.

Arizona v. Navajo Nation 

Dewey Colorado RiverThe 16-million-acre Navajo Nation is the largest Native American Reservation in the country, spanning lands in Utah, Arizona, and New Mexico. Given this vast area, the Nation has to contend with multiple states, basins, and other water interests in order to settle or quantify their water rights. Notably, one-in-three Navajo homes lack access to running water. 

Navajo Nation water rights from the San Juan River in New Mexico and Utah are settled in court. First, in 1962 for just over half a million acre-feet per year for the Navajo Indian Irrigation Project, and in 2005 as part of the San Juan Navajo Water Rights Settlement.

However, the Navajo Nation has yet to settle or litigate their water in Arizona. The Tribe has been working on settling these claims for over 60 years, both by litigation and with a settlement agreement. Litigation via the Supreme Court can lead to more water, but is costly, extremely time-consuming, and risky. Settlements, which are developed as legislation, are passed through Congress and generally lead to less water than what could be won through litigation, but include more money for infrastructure and occur in a quicker time frame.

The Navajo Nation first sued the federal government in 2003 in Interior v. Navajo Nation; accusing the federal government of not upholding their trust responsibility to the Tribe by helping to quantify water rights from the Colorado River. In 2022, the 9th Circuit Court sided with the Navajo Nation, suggesting a positive outcome for the case. Yet, the Department of Interior appealed to the Supreme Court in Arizona v. Navajo Nation, who, in 2023, overruled that favorable decision.

In a 5 to 4 decision, the Supreme Court found that the federal government does not have a trust obligation to help the Navajo Nation quantify water rights from the Colorado River. However, the Court did agree that Tribes have water rights under the 1908 Winters Doctrine, but that it was just not up to the federal government to qualify or secure those water rights.

In a dissenting argument, Justice Neil Gorsuch stated that the U.S. Government owes the Tribe, “at least that much,” finding it hard to believe that confining a Tribe to a reservation or “permanent home” does not include assisting them in securing water they are legally entitled to. 

The federal government expressed concern that if this case was successful, then other Tribes may also follow suit and file lawsuits, leading to additional complexities in the already chaotic Colorado River negotiations.

Given uncertainly with litigation, the Navajo Nation has also been pursuing a settlement agreement for their lands and waters in Arizona called the Northern Arizona Indian Water Rights Settlement. This would secure water rights for the Tribe on the Colorado and Little Colorado Rivers, Gila River and some groundwater. After being approved by the Navajo Nation, this settlement legislation will head to Congress. The Hopi Tribe and San Juan Southern Paiute Tribe is also included in the settlement, and would have some of their water rights adjudicated.

Other parties to the settlement include entities include the federal government, Arizona, as well as water agencies and surrounding municipalities. In the agreement, Navajo Nation would receive 44,700 acre-feet and Hopi would receive 2,300 acre-feet from Arizona’s allocation of Upper Colorado River Basin water (Arizona has two allocations from the Colorado since it straddles the two basins.) Water from the Little Colorado River and groundwater is also included for both Tribes.

Following on the heels of the disappointing Supreme Court case, it is positive the Nation has another possible route to securing water rights.

Agreement to formally include Tribes in Upper Basin negotiations

Rapids on the Colorado River Rafting TripsIn 2022, six Tribes with land and water in the Upper Basin states of Colorado, Wyoming, Utah, and New Mexico were finally invited to be included in meetings with the Upper Colorado River Commission. These Tribes include the Jicarilla Apache Nation, Southern Ute Indian Tribe, Ute Mountain Ute Indian Tribe, Ute Indian Tribe, Paiute Indian Tribe of Utah and Navajo Nation. The Upper Colorado River Commission is an interstate water administrative agency established at the time of the enactment of the 1948 Upper Colorado River Basin Compact. The Commission’s responsibilities are to ensure the appropriate allocation of water from the Colorado River to the Upper Basin states and ensure compliance with the 1922 Colorado River Compact.

While centuries overdue, the timing of the inclusion of six Tribal Nations overlaps with important new negotiations before the 2026 Colorado River Operating Agreement, which outline how Colorado River storage reservoirs (primarily Powell and Mead) will be operated under various hydrologic scenarios. Currently, the Upper and Lower Colorado River Basin states are negotiating with each other and the federal government to decide how inevitable future cuts will occur between the Upper and Lower Basin States, including 30 Tribal Nations.

By ensuring regular meetings with the six Upper Basin Tribes are mandatory, it demonstrates the Upper Basin States’ commitment to Tribal interests. While this agreement is by no means enough to fix many of the entrenched issues of Tribal water rights such as clean drinking water, funding for infrastructure, and compensation for not using their water, it is the beginning of better inclusion. Notably, the development of this agreement, which has been ongoing since 2023, would still not position the six Tribal Nations as voting members of the commission; as that would require an act of Congress.

The Colorado River Basin as a whole has much more work to do in including Tribes in Colorado River discussions. When the Colorado River Compact was signed in 1922, Native Americans were not even citizens — yet policies have not changed to reflect the growth in society. Nora McDowell, a leader from the Fort Mojave Indian Tribe in the Lower Basin said: “We continue to not have a voice and not have a seat, and not have a chance to help think about these things, and to take into consideration the cultural, the spiritual, and the health and the environment of that river.”

While this country still has mountains to climb in terms of better Tribal inclusion in the Colorado River Basin, this agreement in the Upper Basin is a welcome first step in developing better trust, communication, and relationships that can hopefully translate into better resources to fix some of the larger structural issues and injustices.

 

Rica-Fulton-HeadshotRica Fulton is from beautiful southwest Colorado and was raised in the canyon walls of the Colorado River Basin. She enjoys rowing boats, laughing, reading books, getting lost outside, and writing about rivers and public lands in the West. She is also the Upper Green River Keeper! Check back here for more musings from Rica.