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WATER POLITICS

Via KJZZ, a report on how Arizona tribes, which were left out of water decisions until 1908, negotiate today:

Arizona is home to 22 federally recognized tribes. Each is trying to tap into the state’s ever-shrinking supplies of surface and groundwater, and, most of all, the Colorado River, following decades of exclusion.

Why do tribes need water rights at all?

“Water is something that kind of tears people apart because it’s so legal,” said Native American Rights Fund staff attorney Daniel Cordalis, who is Navajo, and leading the Walton Family Foundation-funded Tribal Water Institute. “As a lawyer, you tell your clients, ‘Don’t share information, we’re in litigation.’”

This first-of-its-kind initiative at the national nonprofit, also known as NARF, is supposed to help provide legal support to tribes and develop water policy solutions.

“So I’ve talked to some tribes who are like, ‘Our legal has told us not to talk to anyone, and we’ve felt isolated for years,’” added Cordalis. “Water is one of those resources that feels like, you know, collaboration and communication between users is really important.”

But tribal users were once left out. It wasn’t until 1908 when that finally changed. The Supreme Court ruled on the Winters Doctrine, a landmark decision that guaranteed water rights to tribes, so they could survive on reservations.

“Without water, they cannot fulfill the purpose of what this federal reservation was going to be. Therefore, they needed water to do that,” Cordalis elaborated. “Tribes had rights to use the water that they basically retained, that they reserved through treaties.”

This historic legal precedent also prioritized most tribes to access water during times of shortage, especially for those residing near the drought-stricken Colorado River, which is home to seven states, two countries and 30 federally-recognized tribes.

Now, more than 40 million residents living in the U.S. and Mexico rely on the Colorado River for food production, water and energy generation, including those tribal communities, who lay claim to a fourth of its supply.

“So that’s how, basically, tribes fit into this Western water law construct, to divvy up water when there’s a scarcity of it,” explained Cordalis. “Water law is in effect, a kind of drought or water restriction law, because it tells you who gets water when there’s not enough. And a water right is not a traditional Indigenous concept.”

Why has it taken so long for tribes to begin securing them?

Although tribes now had the legal footing to fight for their water claims, citing the Winters Doctrine as the law of the land, it’s been an uphill battle since then.

Tribes are considered sovereign nations, but weren’t always treated that way. In fact, Congress even tried to abolish tribal governments by disbanding their reservations and relocating residents to urban areas in 1953.

On top of that, tribes were too preoccupied with existential threats to their ways of life, from defending tribal lands to fleeing boarding schools, to fully litigate their water claims.

The General Allotment Act, also known as the Dawes Act of 1887, dispossessed more than 90 million acres of tribal lands, later considered to be surplus lands that were sold to settlers by the end of 1934.

That division of reservation trust lands into 160-acre parcels hampered tribal economic and development opportunities for generations. This period of federal Indian policy is referred to as the Allotment and Assimilation Era and lasted for almost half a century.

“In the middle of that you have the Winters Doctrine. Things were happening,” added Cordalis, “basically breaking down the existence of tribal cultures. Tribes weren’t set up. Well, they were being broken up. After the Winters case came out, it wasn’t like there was a rush to settle water rights.”

Not until seven decades later, in 1978, when the Ak-Chin Indian Community, which resides near Maricopa, became the first tribe to settle its water rights through congressional action during the Self-Determination Era, a time when tribes really began asserting their sovereignty.

Since then, Congress has enacted nearly three dozen agreements, with recent Arizona settlements approved for the Hualapai Tribe, White Mountain Apache Tribe and Colorado River Indian Tribes in 2022.

“So now, it’s all catch-up,” said Cordalis, “and almost any tribe in the West basically needs infrastructure unless they’re kind of nestled within, you know, a domestic water supply of a local municipality.”

Finally, tribes are starting to tip the political scale. But the power that Arizona tribes wield over strained and tense water negotiations, like multi-state drought contingency plans, is widely disparate, depending on their seniority, status and clout.

Most notably, the Gila River Indian Community — upset over legislation that could cut the tribe’s share of its namesake river — threatened to derail Arizona’s Drought Contingency Plan in 2019 if state lawmakers went through with the proposal.

“Because tribes have been organizing and pushing,” explained Cordalis. “And some of them are just ready for the moment. Tribes like the Colorado River Indian Tribes and Gila River Indian Community are able to plug into federal programs better than other tribes.”

“Some tribes have a lot of sway, and they can muscle their way into the room and have a lot of influence,” added Rhett Larson, a water law professor at Arizona State University’s Sandra Day O’Connor College of Law. “Then there are other tribes that are still struggling to get themselves to the table.”

Where are Arizona’s tribes now with their water rights settlements?

Right now, 14 tribes have fully or partially resolved their water rights. Eight of the state’s tribes that are entitled to water still haven’t resolved their claims.

“Of course, we have heard about the Navajo Nation, Hopi Tribe and San Juan Southern Paiute proposed settlement and hope that will be settled here within the next year or so,” said Cora Tso, who is Navajo, and a senior research fellow at Arizona State University’s Kyl Center for Water Policy.

This month, the Navajo Nation Council announced a proposed $5 billion settlement. The council has called it the Northeastern Arizona Indian Water Rights Settlement Agreement.

Part of that tentative deal would allocate $1.75 billion to fund a pipeline from Lake Powell, which would need to be constructed by the U.S. Bureau of Reclamation before the end of 2040.

Settlement terms also set aside 47,000 acre-feet of water from the Upper Basin and another 9,500 acre-feet from the Lower Basin for the Navajo and Hopi annually. Additionally, the Navajo Nation would receive the right to draw 40,780 acre-feet from the Little Colorado River.

“But thinking about the remaining tribes,” added Tso, “you do have this geographically diverse community of tribal nations that are looking to partner with the state of Arizona and the federal government as well, to fully realize their claims.”

The Secretary’s Indian Water Rights Office, under the U.S. Department of the Interior, has established negotiation teams that are actively working on 22 water settlements with 34 tribes in nine states across Indian Country.

That includes 10 tribes in Arizona: the Havasupai Tribe, Tonto Apache Tribe, Pascua Yaqui Tribe, Tohono O’odham Nation, Yavapai-Apache Nation, Navajo Nation, Hopi Tribe, San Juan Southern Paiute Tribe, San Carlos Apache Tribe and Gila River Indian Community.

Drawing any Colorado River water would directly come from Arizona’s annual allocation. Yet Tso suggested that the state has a good working relationship with tribes today.

“But this is a product of, I think, shifts in those who hold political offices,” said Tso, “how they want to manage their water resource, and what they’re willing to either offer or concede to make a final agreement.”

What is Hobbs’ stance when engaging in tribal water talks?

Last month, Gov. Katie Hobbs stood along the banks of the Colorado River beside U.S. Secretary of the Interior Deb Haaland and the Colorado River Indian Tribes Chairwoman Amelia Flores at the BlueWater Resort and Casino near Parker.

Together, they signed a historic trilateral agreement.

“It comes at a critical time in Arizona,” said Haaland, “as the state continues to deal with extended drought and the impacts of the climate crisis.”

Now, the Colorado River Indian Tribes, or CRIT, is allowed to lease its surplus water, in addition to exchanging storing, or conserving decreed water entitlements in Arizona for off-reservation users.

Farming is an essential part of their way of life. Roughly a fourth of CRIT’s 300,000-acre reservation contains arable lands for farming. And CRIT Farms, a tribally-owned enterprise, oversees 33,000 acres of land.

Alfalfa and cotton are two of the most popular cash crops. Between 4 and 6 acre-feet of water is needed per each acre of alfalfa during the growing season. About 60%t of CRIT’s commercial farmlands are set aside for alfalfa production.

“We are tied spiritually. We are tied culturally, and historically. And of course, economically. The Colorado River is part of us. It is our beginning,” said Flores. “This river flows through us, and so on this special sacred day, we celebrate the empowerment of our rights to make our own decisions, with who, when and how our water resources may be used.”

CRIT is a senior water rights holder following the establishment of its reservation through an executive order issued by Abraham Lincoln in 1865. This community’s claims the predate the 1922 Colorado River Compact and construction of the Central Arizona Project, which commenced in 1973.

“History has shown us that we must be vigilant,” said Flores, “in protecting our resources, and our rights.”

“Everybody has a responsibility to jointly work together in the same room,” she added, “to respectfully listen and hear from those of us who hold senior water rights and who can be a part of the real solution to save our river.”

Sen. Mark Kelly, also in attendance, sponsored the Colorado River Indian Tribes Water Resiliency Act. The bill passed through both chambers of Congress and President Joe Biden signed it last year. Without Kelly championing that legislation at the federal level, CRIT wouldn’t have total autonomy over its own water supply today.

“We started with a simple idea that a tribe could move their water, wasn’t easy to get this across the finish line,” said Kelly. “But now, we are securing our water future.”

Kelly insisted that with these rights and additional funding to develop water infrastructure on their tribal lands, CRIT has been given the capacity to contribute to water resilience and mitigation efforts, in partnership with state and federal users, in the midst of sustained droughts in the Southwest that diminish the steady flow of the Colorado River.

“This is an important recognition of [CRIT’s] sovereignty, and the role that they play as a critical steward of this resource,” added Kelly. “We’re going to need that kind of collaboration to protect the river that we all depend on.”

Tones have certainly changed over time since the Winters Doctrine. Instead of exclusion, the U.S. government has, within the last half century, shifted its stance toward inclusion.

“To me, tribal governments are fairly young in a lot of ways,” added Cordalis, “because we haven’t been given the tools to be self-sustaining, but for 50 years.”

Within the last decade or so, Cordalis expressed that “tribes have been able to kind of assert our voices in better, more powerful ways than we have in the past,” adding that the federal government and states, in particular, are “becoming more accustomed or willing to kind of work with tribes in that way.”

Even in Arizona. Plus, political leadership like that of Haaland from inside Biden’s Cabinet has helped bring tribes to the table.

“Tribal water issues are hard,” Cordalis admitted. “They take work, a lot of understanding of the system and a big degree of expertise that not everyone has and a willingness to engage in them.”

Despite some promising signs of progress, tribes are still often seen as political adversaries when it comes to water planning, rather than friendly partners with the federal and state governments.

But Hobbs is trying to change that perception.

“We should all applaud this step forward, away from an outdated framework that has only held us back,” said Hobbs. “The celebration today is the beginning of a new chapter for tribal sovereignty and self-determination, where tribal leaders have the freedom to manage their resources, and by extension, their futures.”

Flores sits on the Governor’s Water Policy Council as one of four tribal representatives, alongside Gov. Stephen Roe Lewis of the Gila River Indian Community and Chairman Robert Miguel of the Ak-Chin Indian Community.

“And I hope to show you how truly grateful I am by continuing this partnership for years to come and working together on issues outside of just water,” added Hobbs. “More meaningful progress can be made when we allow tribes to sustain themselves, rather than being beholden to support from the federal government.”

But under previous governors, most recently Republican Doug Ducey, the state had required tribes to essentially waive their rights to expand their reservations through taking additional lands into trust in exchange for inking water settlements in Arizona.

“This was the standing informal policy, in a sense that it wasn’t written, but it was formal in these negotiations as the active state party stance,” Tso explained. “This led to a stall in negotiation discussions with most tribes. I would even go as far as saying all tribes, because no tribe would want to limit their nation-building or their community’s ability to gain land back.”

“And this was a direct constraint on tribal development, which in turn, you know, goes back to the purpose of Winters,” added Tso, “in recognizing that with the reservation of land, tribes also reserve the right to have water to establish a permanent homeland.”

How permanent is the state’s current negotiating approach?

This approach had been the state’s long-standing unwritten negotiating principle, guiding how Arizona governors navigate tense water talks with tribes, until recently.

The Arizona Department of Water Resources, or ADWR, said this stance was quietly rescinded under the Hobbs administration sometime late last year.

It’s unclear how many tribes, particularly those with unsettled claims, were informed about this significant procedural shift toward settling water negotiations since ADWR didn’t publicize this decision or notify tribes.

But ADWR also told KJZZ News that its legal team believes the Navajo Nation, Hopi Tribe, Yavapai-Apache Nation, Tonto Apache Tribe and San Juan Southern Paiute Tribe may be aware of this change.

“It might be a strategic decision in how the governor’s administration is communicating this message, in part, the relevance,” said Larson. “The political importance of getting the message out to some of these tribes may explain why some are more aware of it than others.”

He specifically cited the possible Navajo and Yavapai-Apache settlements as state priorities, with the Northeastern Arizona Indian Water Rights Settlement Agreement dealing with mainstream tribes along the Colorado River and the Verde River as a vital tributary, not only for the Yavapai-Apache Nation, but for the entire Valley.

Gov. Katie Hobbs celebrates with the Colorado River Indian Tribes on the reservation before signing a historic water agreement in April 2024.
Gabriel Pietrorazio/KJZZ
Gov. Katie Hobbs celebrates with the Colorado River Indian Tribes on the reservation before signing a historic water agreement in April 2024.
Whereas other tribes might not have that same urgency to settle, instead of litigate.

“I do think it would be a strategy of the state,” added Tso, “given the politics of the governor’s office, and ADWR as a product of state government, they’re also dealing with other parties that are non-tribal users, who may or may not want tribes to have that ability.”

Yet, between Hobbs and even Biden, Larson shared that the time to secure tribal water rights settlements is now, before hundreds of millions of dollars in federal funding from the Bipartisan Infrastructure Law and Inflation Reduction Act suddenly dry up.

“I think right now, the opportunity that we have with this current governor, and the current administration at the federal level is unprecedented,” added Tso. “There’s just this increased support for tribal water rights settlements across the board, and you can definitely see that positive shift.”

She’s not sure whether this is because the Biden administration is grappling with the growing threats of climate change or trying to strengthen tribal sovereignty.

Either way, these federal efforts, coupled with sympathetic state collaborators, have been the reason why, in part, there’s such a sudden spurt of tribal water settlements being signed within the last few years in Arizona under the Biden administration.

“It could be interpreted in different ways, but it definitely is a unique time to see so many parties at the table,” said Tso. “This shift in policy at the state level is a very important and critical factor for the progress of Indian water rights settlements in Arizona.”

So that’s the state’s stance, at least for now. It all depends on who’s sitting at the governor’s desk.

“I don’t know that’s been so much an official policy, so much as it’s been political exigency. I would not count on this policy change holding,” said Larson. “The same political reasons that existed in the past to tell tribes you’re not going to get any more land will still exist in the future, so it would not shock me if future governor administrations revert to that policy again.”