In the mid-2000s, seven states, the federal government, and Mexico negotiated critical rules for the Colorado River that determined how its water would be divided in a severe drought like the one now looming.
Thirty Indian tribes – with rights to about a quarter of all water in the river – were excluded from these talks.
Tribes want to make sure that something like this doesn’t happen again. The effort presents new challenges for the seven Colorado River basins and the Biden government, which has repeatedly pledged to be broader in regulatory efforts that affect Native Americans.
“It’s fair to say tribes were not involved in negotiating the 2007 guidelines,” said Anne Castle, a former home secretary for water and science during the Obama administration. “This time the tribes will be at the table negotiating the next set of rules. The question is what that looks like? And that has not yet been worked out.”
The 2007 guidelines expire in 2026 and determine how shortages will be distributed across the catchment area. The Colorado River, which supplies 40 million Americans, is currently in the grip of more than 20 years of “mega-drought,” and federal officials declared a shortage for the first time in August, meaning Arizona, Nevada and Mexico are cutting their supplies in the country next year (Green wire, August 16).
The river’s diminishing rivers due to climate change and drought have placed great importance on tribal water.
Negotiations on new operating guidelines are currently in progress. There is widespread agreement that they will be harder than the last lap because the pool is grappling with a drying river. Simply put, there is less water to run around.
The tribes have rights to at least 3.2 million acres of river water, and by some estimates 1 million to 1.5 million acres of it are currently unused. An acre-foot is roughly 326,000 gallons, roughly the amount that a Los Angeles family of four uses in a year.
This has led to a rush to build capacity for the tribes to contribute meaningfully to the negotiations.
Untapped tribal water could be an important buffer for cities like Phoenix, for example, if agreements are made to fairly compensate the tribes.
There is also an urge for a wider realization that tribes may have better ideas on how to use the river.
“They have a group of at least 30 tribal chiefs in the Colorado River basin who have lived sustainability there for thousands of years,” said Daryl Vigil, water administrator for the Jicarilla Apache Nation, at the recent Natural Resources, Energy, and Conference hosted by the Getches-Wilkinson Center Environment at the University of Colorado.
“We are having these conversations about sustainability and resilience, why don’t we talk to the people who are still here, who were resilient and who lived sustainably?” said vigil.
“We didn’t try hard enough”
The absence of tribes in negotiating the current operating guidelines has spurred many mea culpas from the Bureau of Reclamation, the Interior Ministry’s western water administrator.
“Did we get everyone involved, especially the tribes, as we should have or should have wanted? No,” Terry Fulp, a former claims officer, said at the same conference.
“We tried but we didn’t know enough about how to try and we didn’t try enough,” said Fulp.
But it didn’t stop there. After the operational guidelines were finalized in 2007, Reclamation conducted a drainage basin study on the river’s hydrology. Again, the tribes were largely left out of this 2012 report, said Bidtah Becker, an assistant attorney for the Navajo Tribal Utility Authority.
It wasn’t until 2018 that Reclamation finished a new study looking at tribal water rights in the basin. The nine-chapter “Tribal Water Study,” co-authored with the Ten Tribes Partnership, states that tribal treaty rights are subject to state laws and even the Colorado River Compact, the 1922 document that made assignments under the seven Basin states are superior.
And it highlights significant challenges as the river’s rivers decrease and the tribes try to use more of the water they have rights to.
“Tribes in the basin have a significant right to a considerable amount of water that they want to fully develop and use, but which is currently being used by younger users,” the press release said called“Once the Partnership Tribes fully exploit and develop their reserved water rights, these young water users will be affected.”
In other words, if the tribes were to use all of the water they are entitled to – at least 3.2 million acre-feet – it would mean significantly less water for cities and states.
“If you know a tribe, you know a tribe”
The Biden government has pledged to work more closely with the tribes in the upcoming negotiations.
“There was continued emphasis on greater involvement and involvement of the tribes,” said Carly Jerla, a senior water resource manager at Reclamation, at the same conference, “and engaging the tribes in more meaningful ways.”
But that’s more complicated than it seems.
There’s a saying in the pool that “if you know a tribe, you know a tribe.” Tribes often have very different priorities for their water rights.
The picture gets even more complicated: According to a paper by the Water & Tribes Initiative, up to a dozen basin tribes have not fully clarified or quantified their water rights.
“When we talk about these questions, how do these things work, where exactly do the pieces fit in,” said Jay Weiner, a water law attorney at Rosette LLP, “it gets really very tribe-specific based on the geography where it is in the quantification process whether the rights are quantified by comparison or decision and whether they are also in development. “
The Water & Tribes Initiative closed that full quantification and resolution of tribal water claims “will likely increase the total percentage of tribal water directly in the basin”.
There are also capacity issues. Vigil, who co-directs the Water & Tribes Initiative with former Obama administration official Castle, said the tribes are expected to quickly develop the same expertise as the state governments that have been around for a century Fighting river waters.
“After almost 100 years not being part of the structure, we are expected to sit at the table and make the same contribution as everyone else,” said Vigil. “I think that’s an unrealistic expectation, but the tribes had to go.”
Some tribes are in favor of taking a seat at the negotiating table. The Southern Ute Indian Tribe, whose reservation is in southern Colorado, owns rights to nearly 129,000 acre-feet of water on the river.
Spokeswoman Lindsay Box said the previous operating guidelines failed to take into account their rights and those of other tribes.
“Once the tribes start using their full water allocations, the impact will be felt by downstream water users who have become accustomed to the tribes having unused water supplies,” Box said in an email. “The Southern Ute Indian Tribe will protect the water rights of the tribes that were part of the Tribes Treaties with the United States of America.”
Vigil said there are guiding principles that many of the tribes agree on, particularly within the Ten Tribes Partnership, which includes Box’s Southern Ute Indian Tribe. They involve a spiritual reverence for the water to be sacred.
But in the short term he emphasized that the tribes are looking for a basic recognition that has long been lacking in the basin.
“Part of the process we’re looking for is inclusion. It’s just a basic, basic inclusion, ”he said. “This includes respect and recognition of tribal sovereignty and the ability to self-determine.”