Tribal nations fight for influence on the Colorado River

Indigenous nations in the basin are making a stand for their water — and upsetting the river’s power structure.

This story was reported and produced in collaboration with Grist. 

In early November, the U.S. Supreme Court agreed to hear a case brought by the Navajo Nation that could have far-reaching impacts on tribal water rights in the Colorado River Basin. In its suit, the Navajo Nation argues that the Department of Interior has a responsibility, grounded in treaty law, to protect its future access to water from the Colorado River. Several states and water districts have filed petitions opposing the Navajo Nation, stating that the river is “already fully allocated.” The case highlights a growing tension in the region: As water levels fall and states face cuts and a two-decade-long megadrought, tribes are working to ensure their water rights are fully recognized and accessible.

 

On average, 15 million acre-feet of water used to flow through the Colorado River every year. (For scale, one acre-foot of water can supply one to three households annually.) A century ago, states reached an agreement to divide that water among themselves. In recent decades, the river has supplied closer to 12 million acre-feet, but scientists say water managers need to plan for closer to 9 million acre-feet per year due to climate change and aridification, a 40% decrease in a water source that supports 40 million people.

No states have made plans to accommodate this drop. Meanwhile, tribal nations are legally entitled to between 3.2 and 3.8 million acre-feet of ground and surface water from the Colorado River system.

There are 30 federally recognized tribes in the river’s basin, and 12 of them, including the Navajo Nation, still have at least some “unresolved” rights, meaning the extent of their rightful claims to water have yet to be agreed upon.

scotus-water-tribes-22-8-jpg
Data reflects resolved and partially resolved water rights for surface and groundwater among tribes in the Basin as of 2018. Data reflects a 15-million acre-foot scenario. *Arizona holds some rights in the upper basin.
Source: Babbitt Center for Land and Water Policy’s Colorado River Basin GIS Open Data Portal, Womble et al. 2018.

Ultimately, Indigenous nations in the Colorado River Basin could be serious power brokers in crucial water negotiations to come — but they face historical, legal and practical obstacles. The Navajo Nation, for example, has rights to almost 700,000 acre-feet of water annually across New Mexico and Utah, along with unresolved claims in Arizona. Owing to a lack of infrastructure, however, up to 40% of Navajo households don’t have running water. For the Navajo Nation and other tribes with allocations in the Basin, building and improving infrastructure means providing citizens with access to a fundamental human right: water. 

The Colorado River winds below an overlook at Dead Horse Point State Park, Utah.
Tyana Arviso

But tribal water use is taken out of state allocations, meaning the more water tribes use, the less states have. It also means that states have less incentive to work with tribal leaders or recognize pending water rights claims. This conflict is not new. It has been built into a century of policies that have excluded Indigenous nations. 

Tribes often hold senior water rights, meaning their allocations are the last to be cut in a shortage, and Colorado River Basin states are beginning to reckon with this fact. A fundamental shift in how the river is governed — to a system that acknowledges tribes’ sovereignty and gives them greater say — will be key to sustainably and equitably distributing water in the years to come.

Tribes “need to be included in every one of those conversations and considered just like a state or the federal government.”

Source: Babbitt Center for Land and Water Policy’s Colorado River Basin GIS Open Data Portal, Womble et al. 2018

Tribes “need to be included in every one of those conversations and considered just like a state or the federal government,” Southern Ute Tribal Council Member Lorelei Cloud said at the annual Colorado River District Seminar in September. “You cannot discount us.”

One barrier to equitable distribution is a glaring information gap: There is no definitive source of data on water usage among tribes in the Colorado River Basin. Historically, federal surveys have ignored tribal water use, and though tribal-led studies have begun to fill the gaps, the lack of data makes planning for a future river with shrinking flows impossible. 

“If you know how much water everyone has or is allocated, then you can come up with a comprehensive solution — not just management of the river but responses to climate change,” Heather Tanana (Diné), a professor of law at the University of Utah, said in an interview.

Nancy Bitsue, an elderly member of the Navajo Nation, receives her monthly water delivery in Thoreau, New Mexico.
Spencer Platt/Getty Images

 

In Arizona, for example, nearly 70% of the state’s water allocation belongs to tribes, and nearly all the tribal nations with unresolved water rights in the Basin have at least some territory in the state. According to a joint study by tribal nations and the federal government, 10 tribes in the basin, which hold the bulk of the recognized tribal water rights, are diverting just over half of what they’re entitled to — most of which is used for agriculture. It’s unclear what water availability would look like if these tribes had basic infrastructure to get water to their citizens, or if all the tribes with unresolved rights settled their cases.

“My experience of negotiating water rights settlements in Arizona is that the state of Arizona very much approaches them as a zero-sum game,” said Jay Weiner, water counsel for the Quechan Indian Tribe as well as for the Tonto Apache Tribe, which has been in settlement negotiations since at least 2014. That combative approach, he said, has persisted regardless of governor or political party. “It is something that seems to be deeply embedded in the fabric of Arizona and how it approaches Indian water rights settlements.”

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Data reflects water diversions from 10 tribes in the Colorado River Basin. Data was largely self-reported and does not reflect annual water-use averages.
Source: Ten Tribes Partnership Tribal Water Study

IN FEBRUARY, THE FEDERAL GOVERNMENT announced $1.7 billion for tribes to use for water settlements. That means more tribal citizens and communities could have access to water. It also means that states will have to work with tribes to plan for the future and adapt to climate change. 

In some places, tribes and communities have already begun moving in that direction, working together to find place-based solutions that use the resources and infrastructure at hand. The Pascua Yaqui Tribe and the city of Tucson, Arizona, have an intergovernmental agreement for Tucson to store and deliver potable water for the tribe, which lacks the infrastructure to do so on its own. Such partnerships will only become more essential as drought and aridification continue to stress the region. “If folks work together and partner together, the opportunity to solve the problem, I think, is enhanced,” said Robyn Interpreter, an attorney who represents the Pascua Yaqui Tribe and the Yavapai-Apache Nation in their water-rights claims.

“Now there’s a greater desire to be able to work together. So I’m encouraged by that.” 

The federal Navajo-Gallup Water Supply Project, which is building $123 million in infrastructure, is another promising example. Its goal is to construct water plants and a system of pipes and pumps that will deliver water to the Navajo Nation, the Jicarilla Apache Nation and the city of Gallup, New Mexico. Crystal Tulley-Cordova, a principal hydrologist for the water management branch of the Navajo Nation Department of Water Resources, said in an interview that there is a new willingness to collaborate, owing to both the severity of the situation and non-tribal water users’ realization that they must work with tribes. “Now there’s a greater desire to be able to work together. So I’m encouraged by that,” she said. 

Meanwhile, tribal nations are also making progress in securing their access to water. In May, the Navajo Utah Water Rights Settlement Act was finalized, granting the Navajo Nation 81,500 acre-feet of water in Utah and authorizing $220 million in federal funds for water infrastructure projects. “Our families celebrate this moment in history after decades of fighting for the Navajo Utah Water Rights Settlement,” Navajo Nation Council Delegate Charlaine Tso said in a statement at the time. “It is clear drought conditions are affecting water levels across the country. Many of our elders haul drinking water from miles away while we work to get proper water infrastructure projects completed. This settlement allows us to begin connecting our water lines to the most rural areas.”

Conduit pipes for the Navajo Gallup Water Supply Project sit alongside Highway 461 in 2013.
ZUMA Press, Inc./Alamy Stock Photo

However, tribes still have no direct means of governance over the river, and, as seen in the Navajo water-rights case currently headed to the Supreme Court, states continue to fight tribal communities seeking access to water. 

Last fall, more than 20 tribes signed a letter to Interior Secretary Deb Haaland in which they pressed for direct, sustained involvement in renegotiating the guidelines that manage the river, which are set to expire in 2026. In Albuquerque, New Mexico, last March, Haaland and Bureau of Reclamation leadership met with tribal leaders and “committed to transparency and inclusivity for the Tribes when work begins on the post-2026 operational rules,” according to a spokesperson for the Department of the Interior.

“It’s the job of political imagination to see what’s possible,” Andrew Curley (Diné), an assistant professor of geography at the University of Arizona, said in an interview. “That’s something that we collectively, not just Native nations but led by Native nations, can start to articulate. What is a different vision of the river than what has been put into law and these congressional acts and Supreme Court decisions over the years?”   

Data visualizations by Jessie Blaeser with assistance from Amelia Bates.

Anna V. Smith is an associate editor for High Country News. She has placed in the Native American Journalists Association’s Native Media Awards in the category of Best Coverage of Native America three times. Joseph Lee is an Aquinnah Wampanoag writer who lives in New York City. Jessie Blaeser is a data journalist who lives in New York City. Email High Country News at [email protected] or submit a letter to the editor. See our letters to the editor policy.