Tribal nations push for seats at the table in Colorado River negotiations

Since the Bureau of Reclamation and the seven basin states agreed to those guidelines in 2007, megadrought conditions coupled with overconsumption have endangered the Colorado River’s two key reservoirs: Lake Powell and Lake Mead. 

With so much at stake for the entire system and for the indigenous populations that have long relied on this resource, the region’s 30 federally recognized tribes — who collectively have rights to about a quarter of the basin’s waters — are pushing for equal footing in determining the river’s future. 

“Tribes must be involved, they have to be involved, at the very beginning. At the very beginning — not after decisions have been made, and those decisions being forced upon tribes,” Gov. Stephen Roe Lewis of the Gila River Indian Community told The Hill.

“Tribes have substantial water supplies that are essential to a successful conclusion of the guideline process,” Lewis added.

Of the 30 tribes in the basin, 22 have recognized rights to consume 3.2 million acre-feet of system water annually, according to a policy brief from the Water & Tribes Initiative in the Colorado River Basin. 

That total is equivalent to 22 to 26 percent of the basin’s average water supply, per the policy brief, written with the support of the University of Colorado Law School’s Getches-Wilkinson Center for Natural Resources, Energy, and the Environment.

The over-tapped Colorado River Basin — which serves 40 million people — is split into a lower and an upper basin, which respectively include California, Arizona and Nevada, and Colorado, Wyoming, Utah and New Mexico. Many of the 30 tribes cross state lines. 

A 1922 compact granted annual water allocations of 7.5 million acre-feet to each basin, while a 1944 treaty then gave an additional 1.5 million acre-feet to Mexico. For reference, a typical suburban U.S. household uses about an acre-foot of water each year. 

Within these broader allocations is a “water rights” system — often referred to as “first in time, first in right” — that stems from the mid-19th century homesteading and gold rush era. Farmers and miners were able to secure and divert water in the order of their arrival in a region, rather than according to their proximity to a given river.

Tribal nations were only recognized as a part of this system when a 1908 Supreme Court case, Winters v. United States, established that the priority date for water rights on Native American reservations took precedence over those of most existing users.

And even after that recognition, it wasn’t until almost a century later that tribes began recovering these rights. Through settlements with state and federal officials, some tribes have in the past few decades obtained annual water allocations — although not necessarily from the original river to which their rights applied. 

As it stands today, 11 of the 30 tribes in the Colorado River region still have unresolved water rights claims, which, if resolved, could increase their collective share to about 24 to 29 percent of the basin’s annual water supply, the Water & Tribes Initiative policy brief found. 

“That remains this untold story of how tribal water has helped prop up the system for at least a decade or so,” said Daryl Vigil, co-director of the initiative’s Water & Tribes in the Colorado River Basin program and water administrator for the Jicarilla Apache Nation. 

Striving for ‘parity of sovereignty’ at the negotiating table

What the tribal nations are seeking ahead of the post-2026 talks is “a sovereigns approach,” in which the negotiations table includes 38 sovereigns: seven basin states, 30 tribes and one federal government, Lewis explained. 

The Gila River governor expressed cautious optimism about the prospects of such an arrangement, as Department of Interior Secretary Deb Haaland in March 2022 “committed to including tribes at the table in developing the post-2026 guidelines.”

Vigil offered a mix of hope and skepticism, noting that Indigenous people are often “propped up for lots of hope” but end up disappointed. Nonetheless, he is continuing to steer federal officials toward accepting a structured framework that would recognize “parity of sovereignty” among the seven states and 30 tribes. 

“There’s a whole lot of forward movement,” Vigil said. “But I’ll celebrate the day that that’s structuralized.”

There are certain “big picture principles” on which the tribes’ leaders tend to agree, according to Jason Hauter, a tribal rights attorney and member of the Gila River Indian Community. But he stressed that “tribes are not this monolithic thing.”

The nature of each tribe’s water rights is different, as is their physical proximity to water resources and infrastructural capacity, noted Hauter, a partner at the law firm Akin Gump Strauss Hauer & Feld, which serves as outside counsel for the Community.

“The biggest benefit of having a seat at the table is understanding what’s being discussed among the basin states, United States, earlier in the process rather than as a kind of afterthought,” he said. 

The Gila River Indian Community has extensive experience engaging with both federal and state officials. That engagement led Congress to pass the Arizona Water Settlements Act in 2004, under which the tribe gained the single largest entitlement to water from the Central Arizona Project, a massive conduit that transports water from the Colorado River across Arizona each year. 

A judicious participant in regional water management, the Community in 2010 launched a strategic initiative to sell a portion to neighboring users, while also unveiling a network of underground storage sites to maintain a stable supply at home.  

Cementing their influence in the basin, Gila River leaders played a key role in formulating Arizona’s 2019 drought contingency plan. In exchange for storing water in Lake Mead through 2026, the Community receives money from the Arizona Water Bank and the Bureau of Reclamation.  

Hauter recalled a planning process in which the Community “had to be very engaged” due to “the threat of cuts and real costs” to high-priority water users. 

“Our water was going to be the first to be cut,” Lewis said, noting that tribal leaders therefore pushed their federal trustee — the U.S. government — to act in their best interest.

“Because of the significance of our water settlement, and the amount of water in our settlement, we use that as a leverage point,” Lewis said.

This past April, the Community agreed to leave more water in Lake Mead over the next three years, in return for up to $150 million from the federal government. The Interior Department also invested $83 million in a Community pipeline project that seeks to expand water reuse.

Touting the benefits of basinwide collaboration, Lewis said he hopes federal officials will recognize that tribes “can bring very innovative, very thought out, sophisticated approaches.”

Negotiating a resource amid uncertainty over rights

Partnership among Colorado River stakeholders, according to the experts, will be essential to the negotiations process that the Interior Department launched in June. The talks will specifically focus on drafting new rules to replace the outdated 2007 Colorado River Interim Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake Powell and Lake Mead. 

The Interior Department’s announcement came just weeks after the seven Colorado River Basin states resolved a year of conflict over short-term water consumption cutbacks, submitting a proposal to the Bureau of Reclamation offering to conserve about 13 percent of their total river allocations by the end of 2026.

The Bureau of Reclamation has yet to officially approve the plans, which would provide temporary stabilization for the basin until the post-2026 terms materialize. 

As those long-term discussions begin, the Interior Department said regulators will start gathering feedback, including new strategies to account for the current and projected hydrology of the Colorado River system. 

But to make accurate hydrological projections, Michael Kotutwa Johnson, a University of Arizona indigenous resilience expert, said he believes all the outstanding cases concerning tribal water rights need to first be adjudicated. 

“Then we can move on to a more sustainable future because we know what each party has,” added Johnson, who is also a member of the Hopi Tribe. “We know that the tribes have reserved water rights, but we don’t know how much their reserved water rights are.”

Seventeen tribes have recognized water rights in the Lower Basin, with the biggest shares held by the Colorado River Indian Tribes and the Gila River Indian Community: 662,400 acre-feet from Arizona and 56,846 acre-feet from California for the former, and 653,500 acre-feet from Arizona for the latter, per the policy brief. 

In the Upper Basin, five tribes currently have recognized water rights, with the largest allocation belonging to the Navajo Nation: 606,660 acre-feet from New Mexico and 81,500 acre-feet from Utah. 

The Navajo Nation is also one of 11 tribes that has unresolved claims — and its path toward realizing its rights in Arizona may have become more difficult. 

The Supreme Court ruled last month that the U.S. does not have a trust duty to take “affirmative steps” toward securing water for the Navajo Nation, whose population is struggling to access clean water.   

Even tribes with recognized rights often lack the infrastructure necessary to make the most of them, the Water & Tribes Initiative found. 

Eric Edwards, an assistant professor of agricultural and resource economics at North Carolina State University, and his colleagues recently published a study showing that tribal nations are likely only using a fraction of their entitlements — and are thereby sacrificing hundreds of millions of dollars in revenue each year. 

But as basinwide demand has begun to surpass reliable supply, other users have grown anxious about what further development of tribal rights could mean for them, according to the Water & Tribes Initiative.

The idea that states would “suffer tremendously” from an expanded recognition of tribal claims may be “a red herring,” however, as many users simply “don’t want to cut back on their development,” Johnson said.  

“The tribes can also bring a different value system too — the whole value of what water really is,” added Johnson, who himself practices traditional Hopi dry farming.  

While it might be ideal to settle all the outstanding water rights settlement cases before embarking on negotiations, Hauter said he believes “it would be impossible” to settle all of the cases immediately and that the result of the talks “isn’t going to change the ability of tribes to ultimately reach settlement.” 

Vigil agreed that settling the claims is important, as these resolutions will determine “access to basic infrastructure and the ability to build economies.” But he also stressed that the choice to move forward is “up to each individual tribe.” 

Edwards, the North Carolina economist, agreed that settling the remaining cases now would be advantageous, but said that such a scenario is unlikely. 

“Negotiations are going to have to go forward, and 2026 is kind of a long ways off, maybe, in the political cycle,” he said. “But in terms of tribal water negotiations, that’s like a blink of the eye.”

‘Stewards of the land and the water’

If the 30 tribes do assume their seats at the table, there won’t be a one-size-fits-all approach to the development of individual tribal water rights and conservation strategies, the experts agreed. 

But for many communities, such tactics could include pivoting toward more durable infrastructure, boosting operational efficiency in agriculture and improving access to clean water, according to Hauter. 

An additional option for certain tribes could involve taking bigger sums of financial resources in lieu of larger allocations of water, Vigil said.

Other creative possibilities include leasing water to neighbors or leaving water in Lake Mead in exchange for payment, similar to the Gila River Indian Community’s approach to its allocations from the Central Arizona Project, added Edwards. 

“We’re in a new age of Colorado River water allocations,” he said. “There may be the opportunity to view the tribes’ water rights differently.” 

Tribes could potentially keep full autonomy over their water rights while engaging in agreements that “honor that autonomy and also free up some water,” Edwards added. 

What will be most critical, however, is the promotion of a consensus-based approach in which tribes are “at the table, as equal partners,” according to Lewis, the governor of the Gila River Indian Community. 

Yet at the same time, Lewis stressed that there’s no “silver bullet that’s going to address all the needs and concerns of every tribe.”

Looking toward the upcoming talks, Vigil said he remains “absolutely hopeful that we get to that proverbial table,” expressing pride in the fact that the tribes have built their stature themselves. 

Hauter, meanwhile, said he perceives “a willingness for shared sacrifice,” while noting that “the details of how that’s shared is really where the conversations get difficult.” 

Looking back at the journey thus far and toward what lies ahead, Lewis said he had previously thought of himself as a water protector but now also sees himself as a “water diplomat.”

“There are traditional indigenous value systems about protecting the water,” the governor continued. “We’re just translating what we call our O’otham Himdag — we’re translating that into a present day and future approach of being caretakers and stewards of the land and the water.” 

“That’s what’s important to our people. That’s what we want to show as an example,” he added.