Tribal nations hold some of the best water rights in the West

But to use them, tribes often must negotiate settlements that need federal approval.

 

Tens of thousands of people on the Navajo Nation lack running water in their homes. But that could change in the coming years, as the Navajo-Gallup Water Supply Project goes into effect. It’s expected to deliver water to the reservation and nearby areas by 2024, as part of a Navajo Nation water rights settlement with New Mexico, confirmed by Congress in 2009.

Survey work begins for the Navajo-Gallup Water Supply Project on the Navajo Nation.
U.S. Bureau of Reclamation

Three other Native water settlements currently await congressional approval. They arise from federal legal decisions recognizing that many tribes in the West hold water rights that largely pre-date — and therefore override — the water rights of non-Native settlers.

Many tribal nations are currently asserting those rights as a way to ensure economic vitality, affirm sovereignty and provide basic services that some communities lack. In many places, however, Native water rights have yet to be quantified, making them difficult to enforce. Settlement is usually the preferred remedy; it’s cheaper, faster and less adversarial than a lawsuit, and can include funding for things like pipelines or treatment plants. With settlements, “the tribes are able to craft solutions that work for them and that can be more flexible than anything that could be achieved through litigation,” says Kate Hoover, a principal attorney for the Navajo Nation Department of Justice water rights unit.

Once negotiations are complete, Congress has to confirm the settlements. Here are the three introduced in the Senate this session:

Pipes are laid for the Navajo-Gallup Water Supply Project on the Navajo Nation.
Northwest New Mexico Council of Governments

THE SETTLEMENT: Hualapai Tribe Water Rights Settlement

THE TAKEAWAY: This settlement allocates 4,000 acre-feet of Colorado River water per year from the Central Arizona Project to the 2,300-member Hualapai Nation. It also authorizes federal spending for a water pipeline to Peach Springs, the reservation’s main residential community, and Grand Canyon West, an economically important tourist destination featuring a horseshoe-shaped “skywalk” jutting out over the canyon.

WHY IT’S IMPORTANT: The legality of Native water rights settlements stems from a 1908 U.S. Supreme Court case involving agricultural irrigation. Winters v. United States established that when reservations were created, they included an implied right to water.

Subsequent legal decisions confirmed that so-called “reserved water” could also be used for livestock, drinking water and even commercial purposes. That’s crucial for this settlement, because the Hualapai Nation plans to use a portion of their water to expand Grand Canyon West — and their economy. “We have done everything possible to provide jobs and income to our people in order to lift them out of poverty — but the lack of a secure and replenishable water supply on our Reservation is our major obstacle to achieving economic self-sufficiency,” wrote Damon Clarke, chairman of the Hualapai Nation, in testimony to the U.S. Senate Committee on Indian Affairs.


THE SETTLEMENT: Navajo Utah Water Rights Settlement

THE TAKEAWAY: This settlement affirms the Navajo Nation’s right to 81,500 acre-feet of water each year — enough to serve about 160,000 households — from the Utah portion of the San Juan River, a Colorado River tributary. In addition, it would establish funds for treating and transporting drinking water. 

WHY IT’S IMPORTANT: In many Native water rights settlements, tribes agree to give up a portion of the water to which they’re entitled — often allowing other groups to continue using that water, which might otherwise have been cut off — in return for expensive water projects, typically built by a federal agency.

The Navajo Utah settlement is different: It would transfer money directly to the tribe for water infrastructure. During a U.S. Senate Committee on Indian Affairs hearing in December, Russell Begaye, the president of the Navajo Nation, explained why the tribe, rather than the U.S. government, should lead the work: “It’s important as a sovereign nation that we are able to do that — employ our people, use our laws — in order to build and construct any kind of construction that may take place.”


THE SETTLEMENT: Kickapoo Tribe in Kansas Water Rights Settlement

THE TAKEAWAY: This settlement confirms the right of the Kickapoo Tribe in Kansas to pull 4,705 acre-feet of water per year from the Delaware River Basin in northeastern Kansas. It would be a milestone in resolving long-standing disagreements over how to ensure the tribe has reliable water, even during droughts. 

WHY IT’S IMPORTANT: Kansas, like much of the West, is prone to drought. This settlement would help the Kickapoo deal with dry periods by allowing the tribe to store more than 18,000 acre-feet of water in a reservoir that has yet to be built, but that has been contemplated for at least 40 years. A dispute over how to acquire the private land that the reservoir would flood led to a 2006 lawsuit, and, eventually, to settlement negotiations, which concluded in 2016.

Experts say it’s not unusual for settlements to take years or even decades to complete, and that securing congressional approval requires balance. “Ultimately, these settlements are political instruments,” says Steven Moore, a staff attorney at the Native American Rights Fund and an advisor to the Kickapoo Tribe in Kansas. “You really have to work these settlements out so that it’s a win-win for everybody.”

Emily Benson is an assistant editor at High Country News

High Country News Classifieds
  • SEASONAL SAN JUAN RANGERS
    Seeking experienced crew members to patrol Colorado's most iconic mountain wilderness.
  • ENDANGERED SPECIES STAFF SCIENTIST
    The Center for Biological Diversity seeks a staff scientist to advocate for the conservation of endangered species. General position overview: The position will involve working...
  • STAFF ATTORNEY - ENVIRONMENTAL HEALTH PROGRAM
    The Center for Biological Diversity - a national nonprofit organization dedicated to the protection of imperiled plants, animals and wild places - seeks a dynamic...
  • STAFF ATTORNEY
    The Center for Biological Diversity seeks a Staff Attorney to join our team of attorneys, scientists, campaigners who are working to protect America's public lands...
  • SOUTHWEST CONSERVATION ADVOCATE
    The Center for Biological Diversity seeks a Southwest Conservation Advocate to join our team of attorneys, scientists and campaigners who are working to protect America's...
  • OCEANS PROGRAM CAMPAIGNER
    The Center for Biological Diversity seeks an experienced campaigner for its oceans program. The aim of the position is to campaign for the protection of...
  • CLIMATE LAW INSTITUTE ATTORNEY
    The Center for Biological Diversity's Climate Law Institute is looking to add an attorney to its team and will consider applicants at both staff attorney...
  • FULL-TIME CAMPAIGN DIRECTOR
    The Center for Biological Diversity seeks a full-time Campaign Director in our Climate Law Institute to join our campaign for progressive, urgent government action to...
  • WESTERN WATER PROJECT MANAGER
    National Wildlife Federation is hiring NM-based position focused on riparian corridors, watershed health. Learn more and apply online: https://www.nwf.org/about-us/careers
  • ASSOCIATE PROGRAM DIRECTOR
    Position Title: Associate Program Director Location: New Mexico; flexible in state Position reports to: Senior Program Director Position Closes: March 13, 2020 GENERAL DESCRIPTION: The...
  • DEAN, W. A. FRANKE COLLEGE OF FORESTRY AND CONSERVATION, UNIVERSITY OF MONTANA
    Dean, W. A. Franke College of Forestry and Conservation, apply http://bit.ly/2548umjobs. AA/EEO/ADA/Veterans Preference Employer
  • GRAPHIC DESIGNER
    Western Resource Advocates (WRA) seeks a creative and driven graphic design professional to design high quality print and digital collateral. The Graphic Designer will bring...
  • STEWARDSHIP SPECIALIST
    San Isabel Land Protection Trust seeks experienced person to manage its 133 conservation easements in south-central Colorado.
  • CAMPAIGN REPRESENTATIVE
    Sierra Club's Beyond Dirty Fuels Campaign is hiring an experienced campaigner to lead our work challenging the oil and fracked gas industry on the Gulf...
  • AG LANDS PROGRAM DIRECTOR
    Oregon Agricultural Trust (OAT) seeks passionate relationship builder experienced in coordinating agricultural conservation easement transactions.
  • REMOTE SITKA ALASKA FLOAT HOUSE VACATION RENTAL
    Vacation rental located in calm protected waters 8 miles from Sitka, AK via boat with opportunities to fish and view wildlife. Skiff rental also available.
  • FINANCE DIRECTOR
    Mountain Studies Inst (MSI) is hiring 4+ positions: Finance Director; Coms/Engagmnt Mngr; Dev/Engagmnt Dir; Americorps vol
  • COMMUNICATIONS AND ENGAGEMENT MANAGER
    Mountain Studies Inst (MSI) is hiring 4+ positions: Finance Director; Dev/Engagement Dir; Coms/Engagement Mngr; & Americorps volunteer
  • SEASONAL TRAIL CREW LEADERS
    Lead the nation's premier volunteer-based trail crew programs on the spectacular Pacific Crest National Scenic Trail. This is a great career-building opportunity for rising professionals....
  • ORGANIZING AND TRAINING COORDINATOR
    Is this your dream job? Are you looking to join a nationally recognized organizing network, live in a spectacular part of the West, and work...