Tribal leaders stood proudly in front of a row of flags from the 10 Indigenous communities whose lands converge with the Colorado River.
They spoke about their status as equal players in the future of the Colorado and the role they will play in the high-stakes negotiations to set new management protocols for the river that more than 40 million people depend upon for their lives and livelihoods.
Sitting shoulder-to-shoulder with regional water managers anda high-ranking Interior Department official, Amelia Flores, chairwoman of Colorado River Indian Tribes, and Stephen Roe Lewis, governor of the Gila River Indian Community, signed an agreement to contribute about 500,000 acre-feet of their own water to an effort to keep Lake Mead levels high enough to prevent another round of mandatory cuts.
They were part of tribal delegations from throughout the Colorado River Basin gathered in Las Vegas in December 2021 during the annual meeting of the Colorado River Water Users Association. Tribal officials were included in panels and discussions throughout the conference, where previously they had been relegated to their own panels.
This new willingness to work with tribal governments as equal partners in stewarding water diverges from more than 100 years of history, when tribes’ rightful claims as senior water rights holders were dismissed despite pivotal court rulings, legislation and federal policies.
“Historically, tribes have not been a part of the negotiations around the management of the Colorado River,” said Maria Dadgar, executive director of the Inter Tribal Council of Arizona, during a panel discussion. “But let’s say this is history, because that is no longer the case.”
Tribes played a critical role in the implementation of the Drought Contingency Plan, which was crafted in 2019 after the current river management guidelines fell short in addressing severe drought conditions in the basin.
“We are going to see that tribes are here to play an integral role in all of the Colorado River management decisions,” said Dadgar, a member of the Piscataway Tribe in southern Maryland. “We should look at tribes and think of tribes as key stakeholders.”
Tribes in Arizona and throughout the Colorado River basin have banded together to gain seats at the table as federal and state water managers develop the next drought management guidelines, replacing an interim agreement, negotiated in 2007, that expires at the end of 2025. The current interim guidelines were developed with little tribal input, a scenario the 29 basin tribes worked to change.
The message tribes are increasingly conveying to their neighbors as the Colorado River and other traditional water sources shrink: We’re all in this together, but Indigenous peoples won’t just focus on water as a commodity.
“As tribes and tribal leaders they work on approaching the negotiations for the new river management guidelines, they will be focusing on values,” Dadgar said. “There will be a spiritual and cultural aspect to their work.”
The fight to reclaim water rights
For millennia before contact with European explorers and settlers, Native peoples used what they still regard as sacred, life-giving water in the river valleys, along washes, in deep wooded areas or in dry lands that many people would reject as uninhabitable.
For many of these peoples, life changed forever when non-Native people began moving into Arizona and the Southwest, taking possession of the land and its water.
The Gila River Indian Community watched as state and local governments cut off access to water the tribe had depended on for millennia. The once free-flowing Gila River was trapped behind concrete or earthen dams, parceled out to non-Native farmers and cities. Once-prosperous tribal communities were plunged into poverty.
The community didn’t regain its rights until 2004.
Other tribes that settled their water claims have been challenged to hold agencies to fulfill what was promised to them. They have yet to see any water flowing into taps because the government has not provided the money to build infrastructure.
The Ak-Chin Indian Community is battling to maintain the water quality it needs to maintain its economy and its water systems. It has raised the alarm about rising rates of salinity in water deliveries.
Many tribes leave no doubt about what they say is a major factor holding up water settlements in Arizona: the glacial pace of quantifying water rights and competing claims. One current adjudication involves more than 6,900 parties, including several tribes.
A progression of court rulings beginning in 1905 sought to resolve tribes’ rights to water and allocate how much water they would get. At least one decision guaranteed tribes enough water to maintain traditional subsistence activities like hunting and fishing, while others, like the groundbreaking Winters Doctrine from the U.S. Supreme Court, affirmed that Indian reservation lands are entitled to sufficient water to fulfill their purpose.
Some Native peoples never lost their water, and at least one of them, the Colorado River Indian Tribes, now seeks to share the resource with other state users through leases. At least two other tribes are currently leasing part of their allocations.
Although by law or court adjudication, the 22 tribes within Arizona’s borders hold senior water rights, they have had to fight to keep or regain those rights. About half of those tribes have yet to quantify their water rights or finalize rights through negotiated agreements, adjudication or through Congress.
But even with so many tribes’ water settlements unsettled, tribes are already emerging as major players in water. The Central Arizona Project projects that about 46% of the water it supplies will be permanently allocated to Arizona tribes once all settlements are finalized.
Like other water supplies in Arizona, those settlements are challenged by the twin threats of long-term drought and a hotter, drier future brought on by climate change. Colorado River Indian Tribes and Gila River have already left part of their allocations in Lake Mead to help keep water levels from dropping too low, which likely delayed the first shortage declaration.
Tribal communities in the Colorado River Valley are restoring riparian zones and estuary lands, which not only support tribal cultural pursuits but may also help save river water.
Tribes with agricultural interests throughout the state are saving water by fallowing fields and adopting innovative irrigation methods. And Gila River is banking on both conservation and groundwater storage to help tide itself and some of its neighbors over through a time of reduced water supplies.
The inequities in water policy
First in time, first in right.
In water law, those six words mean that if you claim the water first, you can use it first. They form the foundation of water use across the West.
But to Indigenous peoples, water is more than who gets to use it first.
Water is life.
The body of federal water laws and regulations should have ensured that the first water users in the Southwest would continue to have their share of water — first in time, first in right — but in practice that hasn’t always been the case.
Since European settlers arrived, the people who first used water in the Southwest have fought a difficult — and at times heartbreaking — road to asserting their rights.
That core belief that water is essential to all living things forms a foundational element of virtually all Indigenous peoples’ cultures and religious beliefs. If the planet’s waters were to completely disappear, the Earth would become as lifeless and dead as the moon.
The COVID-19 pandemic drew a stark image of what happens when there’s no water. The Navajo Nation endured one of the nation’s highest death rates during the pandemic as families, who normally survive on just a few gallons of water per day hauled in by truck, found themselves unable to practice the simplest of preventive measures to keep the virus at bay: wash their hands frequently.
But the struggle to affirm the right to water and to build the systems to bring clean water to Native people has revealed long-standing inequities in water policy. Tribes lacked the political power to advocate for their fair share of the water they had used for centuries. Policymakers allocated water from the Gila, Colorado and Salt river systems to non-Indian farmers, miners and city builders with no thought or concern for the needs or the legal rights of their Native neighbors.
When the federal government and seven states gathered 100 years ago to divide the largest source of water in the West in the document known as the Colorado River Compact, tribes were virtually shut out.
After the courts finally forced states, cities, towns and counties to share the water with tribes, settlements would take decades to negotiate and gain congressional approval.
In one case, the Little Colorado River settlement is still under litigation after more than 40 years. It involves more than 6,000 parties, including the Navajo Nation and the Hopi Tribe, battling over 160,000 acre-feet in the watershed that drains into the Colorado River at the east end of the Grand Canyon.
Securing the funding to turn so-called “paper” water into “wet” water flowing out of faucet can take even longer, leaving tribal communities in no better position and still with no running water.
“To hold up a tribe’s ability to provide potable drinking water to its citizens is just immoral,” said Heather Tanana, assistant professor at the S.J. Quinney College of Law in the University of Utah and a member of the Navajo Nation. “I think no one would be going to Arizona and say, ‘All right, we’re going to shut off water to Phoenix until this is all worked out.’ No one would even consider doing something like that.
“But that’s essentially what’s happening in Indian Country,” she said. “Trying to tie up infrastructure projects is part of water settlements which are clearly subject to this kind of political maneuvering.”
And while tribal families make do with scant supplies, nearby off-reservation towns irrigate lush landscaping and fill crystal-clear swimming pools.
Tribes look to courts to affirm rights
For millennia, Indigenous peoples have found ways to use the desert’s scarcest and most precious resource. From the famed canals built by the Huhugam in the Salt River Valley to the Ingenious agricultural practices of the Hopi, Native peoples depended on water for life.
These ties to ancestral practices in using water form the basis of what’s known as aboriginal water rights, said Heather Whiteman Runs Him, the director of the Tribal Justice Clinic at the University of Arizona’s James E. Rogers College of Law.
“Aboriginal water rights tie back to the priority of time immemorial,” she said. Those rights include pre-contact usage like irrigating crops, cultural uses, or sustaining another resource like fish that depend on a habitat with a certain amount and quality of water.
The federal government has wrestled with quantifying tribal water rights since the mid-19th century. The first tribe in Arizona to have its water rights spelled out was the Colorado River Indian Tribes, known as CRIT.
The tribe, which occupies a 300,000-acre reservation along the Colorado straddling Arizona and California, maintained a centuries-long farming tradition and was guaranteed annual rightsto more than 662,000 acre-feet of the river’s flow in the mid-19th century on the Arizona side and more than 56,800 acre-feet on the California side after their reservation was established in 1865 and before the seven states divided up the rest of the water.
The other Colorado River Valley tribes’ allocations were also decided in the late 19th and early 20th century as their reservations were created. Like CRIT, the Quechan, Fort Mojave and Cocopah tribes, and the Chemehuevi Tribe in California, hold deep agricultural and subsistence roots in the ruddy waters of the Colorado.
Despite these longstanding water rights, the allocations for the four Arizona tribes and the Chemehuevi Tribe were not legally decreed until 1963 in the case Arizona v. California, which settled a dispute between lower Colorado River basin states over how much of the river each was entitled to. The tribal water allotments came out of the Lower Basin’s share.
The federal government intervened to ensure that the tribes’ water rights that had been reserved when their reservations were established would be included as the U.S. Supreme Court divvied up the water.
‘Water was stolen from us’
The Akimel O’odham, or River People and their neighbors, the Pee Posh, or People Who Live Toward the Water, were also firmly embedded in agricultural traditions. For at least 2,000 years, the O’odham were a farming powerhouse in Arizona. At one time, the O’odham and, later, the Pee Posh were prosperous farmers, supplying wheat to the U.S. Army and growing food and Pima cotton using water from the Gila and Salt rivers.
Then in the 1880s, the Gila stopped flowing after upstream farmers dammed the river. The lack of water impoverished the tribe.
“For over 150 years ago, the Gila River water was stolen from us and diverted,” said Gila River Indian Community Gov. Stephen Roe Lewis. “We know full well what happens when your water is taken from you.”
Two early 20th century cases form the legal underpinnings of tribal water rights. In a 1905 case known as Winans, the U.S. Supreme Court ruled that tribes retained their rights to fishing, hunting and other such activities.
In 1908, the Supreme Court issued a ruling that has come to be known as the Winters Doctrine. The case affirmed that tribes have the rights to sufficient water to fulfill the purpose of a reservation as a tribal homeland.
Some tribal water rights were also based on a term called “practicably irrigable acreage,” or enough water to sustain tribal agriculture.
Early in its history, Arizona adopted the doctrine of prior appropriation to manage surface water use, based on the “first in time, first in right” principle. Under that doctrine, the party who first makes use of water for a beneficial purpose, such as irrigating fields, acquires senior water rights.
Later laws required a state-issued permit to use water.
But, as the diversion of the Gila River to non-Indian farmers and communities cut off access to the O’odham and Pee Posh shows, that doctrine failed to acknowledge tribal water rights.
While the U.S. government has the trust responsibility to uphold those rights on tribal lands, it hasn’t always honored that responsibility. For example, when the Colorado River Compact was enacted in 1922 to allocate rights to the river’s flow, tribes were left out, except for a small reference to federal reserved water rights.
The Ak-Chin Indian Community was the first to negotiate a tribal water settlement, in 1978, though the tribe had to return to ask Congress to reaffirm the settlement. Other tribes soon followed suit. Currently, about half of tribes in Arizona now have settled water allocations.
Since 1990, Indian water settlements have been developed under the guidelines of a George H. W. Bush administration-era policy that emphasizes negotiated settlements over litigation.
Gov. Lewis’ father, the late water attorney Rod Lewis, led the effort to reclaim water rights for the 14,000-member tribe’s water rights.
The 2004 Gila River Water Settlement was one of the nation’s largest, and settled not only the Gila River tribe’s claims but resolved an issue with a sister tribe, the Tohono O’odham Nation. It also addressed funding for upper Gila River and Central Arizona projects, and most importantly, created a funding mechanism for future Indian water rights settlements and water infrastructure.
Negotiations — and sometimes, litigation — continue to dominate Indian water settlements.
“I think after a lot of high-profile wrangling between state governments and the federal government over rights to the Colorado River, the reality that tribes and other federally reserved rights were going to play a significant part of the picture of managing the Colorado River started to really come become clearer to everybody,” said the UA’s Whiteman Runs Him.
Tribes’ access to legal assistance to advocate for asserting, protecting and quantifying their water rights has increased over the past 50 years as the Native American Rights Fund and other such organizations were founded.
More attorneys have been trained, she said, as federal Indian law specialists to represent tribal interests in courts.
Arizona’s experience with the conflict over tribal water rights is not unique.
“A big part of that is states’ reluctance to deal with the substantial rights held by tribes within their boundaries,” Whiteman Runs Him said.
Indian water rights are federally reserved rights often backed by treaty, which she said makes them the supreme law of the land.
“They are not subject to a lot of the limitations that we would see under the terms of state law or other state-based water rights.”
A century after the Colorado River was portioned out with little consideration to the tribes who hold the water’s first and most senior rights, Indigenous leaders are stepping up to be full and equal partners in its ongoing and future management.
The road to full tribal engagement is not without speed bumps. On July 22, a group of 15 tribes in Arizona, New Mexico and Utah sent a letter to the Interior Department expressing concerns that Indigenous leaders were not being consulted in discussions about potentially deeper cuts in water use sought by U.S. Reclamation Commissioner Camille Touton.
Any decisions made by the seven states would affect the tribes, the leaders wrote, reminding Interior officials of their responsibility to work with tribal leaders to protect water rights.
Some tribes have affirmed their rights to water, some haven’t. Others with water rights have yet to turn their “paper water” into “wet water” and ensure their people’s futures.
All of the tribes of Arizona and the Southwest know too well the consequences of empty taps to economies, communities and life. Armed with that knowledge, tribes are prepared to be part of the solution to dealing with shrinking water supplies caused by drought and climate change.
Follow Debra Krol on Twitter: @debkrol.
Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation.
