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
  • ENVIRONMENTAL JUSTICE ASSOCIATE
    Job Announcement: Environmental Justice Associate Announcement date: June 18, 2021 Applications will be reviewed on an ongoing basis and first review will begin: July 13,...
  • COMMUNICATIONS ASSOCIATE
    Job Announcement: Communications Associate Announcement date: June 18, 2021 Applications will be reviewed on an ongoing basis and first review will begin: July 13, 2021...
  • COMMUNITY ENGAGEMENT DIRECTOR
    Colorado Wild Public Lands (COWPL), based in Basalt, is an exciting nonprofit working to keep public lands open and accessible. Our growing organization is seeking...
  • BUSINESS SUPPORT ASSISTANT (PART-TIME)
    High Country News, an award-winning media organization covering the communities and environment of the Western United States, seeks a part-time business support assistant to provide...
  • SOCIAL MEDIA AND DIGITAL ADVERTISING SPECIALIST
    The Southern Utah Wilderness Alliance (SUWA), Utah's largest conservation organization, has an immediate opening for a full-time Social Media and Digital Advertising Specialist. This position...
  • SPRING-FED PARCELS ON THE UPPER SAC RIVER
    Adjacent parcels above the Upper Sacramento river, near Dunsmuir. The smaller is just under 3 acres, with the larger at just under 15 acres. Multiple...
  • DEVELOPMENT COORDINATOR
    Greater Yellowstone Coalition seeks a development professional to coordinate the organization's individual giving program. The position description is available at http://greateryellowstone.org/careers Please email a letter...
  • IDAHO STATE DIRECTOR
    The Wilderness Society is seeking a full time Idaho State Director who will preferably be based in Boise, Idaho. At least 8-10 years of experience...
  • COMMUNICATIONS MANAGER AND BEARS EARS EDUCATION CENTER MANAGER
    Conservation nonprofit Friends of Cedar Mesa in Bluff, Utah is hiring for two positions. We seek a Communications Manager to execute inspiring and impactful communications...
  • EXECUTIVE DIRECTOR
    Wilderness Volunteers Wilderness Volunteers (WV), a 24-year leader in preserving our nation's wildlands, is seeking a motivated person with deep outdoor interests to guide our...
  • HECHO POLICY AND ADVOCACY MANAGER
    Hispanics Enjoying Camping, Hunting, and the Outdoors (HECHO) was created in 2013 to help fulfill our duty to conserve and protect our public lands for...
  • FISHERIES BIOLOGIST
    Under the direct supervision of the Director of Shoshone-Paiute Tribe's Fish, Wildlife & Parks, in coordination with the Tribal Programs Administrator and the Tribal Chairman,...
  • REGIONAL EXECUTIVE DIRECTOR NORTHERN ROCKIES, PRAIRIES & PACIFIC REGION
    Founded in 1936, the National Wildlife Federation has grown into America's largest and most trusted grassroots conservation organization with 53 state/territorial affiliates and more than...
  • STEWARDSHIP MANAGER
    STEWARDSHIP MANAGER Job Vacancy and Description Posted June 2, 2021: Open until filled The New Mexico Land Conservancy (NMLC) is a non-profit, regional land trust...
  • KSJD - MORNING EDITION HOST/REPORTER
    KSJD is seeking a host/reporter. Please see for www.ksjd.org for more information. EEO compliant.
  • ON THE EDGE OF CEDAR MESA/BEARS EARS
    Quiet, comfy house for rent in Bluff, Utah. Walk to San Juan River. Bike or hike to many nearby ruins and rock art sites. Beautiful...
  • CARPENTER AND LABORER WANTED.
    Come to Ketchikan and check out the Rain forest on the coast, Hike the shorelines, hug the big trees, watch deer in the muskeg meadows,...
  • POEM+ NEWSLETTER
    Start each month with a poem in your inbox by signing up for Taylor S. Winchell's monthly Poem+ Newsletter. No frills. No news. No politics....
  • OUTDOOR PROGRAM - ASSISTANT DIRECTOR
    St. Lawrence University seeks to fill the position of Assistant Director in the Outdoor Program. To view the complete position description, including minimum qualifications required,...
  • FOR SALE
    Yellowstone Llamas Successful Yellowstone NP concession Flexible packages