WATER POLITICS

In Arizona, tribes face a state system that often aligns with business interests over Indigenous water rights. Arizona has regularly assisted in the pursuit of water for agriculture, farms and utilities in the state, building dams and the Central Arizona Project. But it has taken the opposite approach when tribes seek water. “Any time water is involved and any time a tribe is trying to lay claim to some water, the historical approach has been to immediately obstruct that effort,” said Dylan Hedden-Nicely (Cherokee), professor of law at the University of Idaho.

 “Any time water is involved and any time a tribe is trying to lay claim to some water, the historical approach has been to immediately obstruct that effort.”

Given the complexity of water settlements — which can include multiple amendments, litigation and side deals — the full scope of corporate involvement is difficult to track. But a review of decades of settlements by High Country News and ProPublica found that mining companies benefited from at least six out of 14 tribes’ water settlements in Arizona. Other settlements forced tribes to contend with corporations, utilities and other nongovernmental entities to acquire the water they’re legally entitled to, creating protracted negotiations that delayed their ability to secure their share. They also had to make concessions — including dropping objections against mining companies and giving up the right to future litigation.

THAT RELATIONSHIP between the state of Arizona and business interests was recently on display in Arizona v. Navajo Nation, which went in front of the Supreme Court in March. The case focused on the Navajo Nation’s claims that the federal government has a treaty-based responsibility to protect its future water interests, since the nation still does not have settled water rights in Arizona. The state opposed the Navajo Nation, arguing that water from the Lower Colorado River is “already fully allocated.”

Courts can be a risky venue for tribal water claims, and they force people to choose sides. In the Navajo Nation’s case, business interests have sided with the state of Arizona, creating a united front of 27 trade groups, mining associations, farm groups and irrigation districts from Colorado River Basin states and across the West. These businesses and organizations have filed a brief in support of Arizona’s position, arguing that a ruling favoring the Navajo Nation “would have severe negative consequences for Arizona, its residents, its businesses, and its agricultural and industrial sectors.” The court sided with the state, saying the federal government did not have to secure water rights for the tribe.

“A big piece of all of this is just how unethical it is to make tribes give up something in order to fulfill a basic human right like water access, and how water has been over-appropriated in the basin at the expense of tribes,” said Heather Tanana (Diné), assistant professor at the University of Utah’s law school.  While tribal nations have rights to about 25% of the Colorado River Basin’s annual water supply, it’s taken years of negotiations to secure those rights; many tribal citizens still don’t have access to actual water. Historically, when it comes to shaping water policy in the basin, Tanana said that “(tribes) haven’t been involved, and the federal government has done a poor job of protecting those interests.”

And, if the companies and corporations do give up water, they want something in return: A review of every water settlement in the Colorado River Basin showed that settlement terms often guarantee water contracts for the companies, as well as some protection from future litigation. In the Hualapai Tribe’s settlement of 2022, Freeport-McMoRan negotiated the ability to sever its water rights from one parcel of land and transfer them to another in order to supply its Bagdad Mine — an open-pit copper and molybdenum mining complex — a concession that the U.S. Department of Interior had previously objected to. In the San Carlos Apache Tribe’s settlement, mining company Phelps Dodge received right-of-way permit extensions through 2090.

“A big piece of all of this is just how unethical it is to make tribes give up something in order to fulfill a basic human right like water access, and how water has been over-appropriated in the basin at the expense of tribes.”

By the end of the Tohono O’odham’s settlement, which became law in 1982, the San Xavier and Schuk Toak Districts were awarded 66,000 acre-feet of water per year via the Central Arizona Project. That system, built to distribute Colorado River water, didn’t deliver water for 18 years, after the cost and a lack of demand by agricultural users in the region delayed construction.

In an update to the settlement in 2004, Asarco and Farmers Investment Company agreed to reduce their groundwater use. Up to a quarter of a million dollars was made available for Asarco to conduct a land exchange study. In addition, Tucson agreed to pay for sinkhole repairs on the reservation.

But the nation was denied a buffer zone around its land, where it wanted pumping curtailed, and the San Xavier District was allowed to pump just 10,000 acre-feet for its own use. (One acre-foot per year can support up to three single-family households in the West.) In order to get Asarco to use Colorado River water instead of cheaper groundwater, the nation had to drop all groundwater litigation against the company.

“We certainly did not get everything we set out for in those negotiations,” Nunez said. But, “we believe we got the best we could.”

Water settlements also play a part in the extraction of coal from tribal lands to fuel non-Native economic and population growth. In Arizona, the Salt River Project — a public utility that manages water and power for most of Phoenix — has had a central role in that dynamic. In a settlement between the Pueblo of Zuni, the Salt River Project and others that was passed by Congress in 2003, Zuni was able to guarantee 10,000 acre-feet for wetland restoration on their reservation lands in Arizona. The Salt River Project, meanwhile, emerged from the settlement with rights to up to 21,000 acre-feet of groundwater to fuel its coal-powered generating station.

WHEN TRIBES AND COMPANIES reach an impasse, it can stall or sink negotiations, as happened with a Navajo-Hopi settlement in 2012, ultimately delaying access to water. That settlement tied reservation drinking-water access to renewing land and operational leases for a Peabody Western Coal Company mine and the Salt River Project’s power plant. The settlement failed, in part because it included the demands made by the corporation and utility, and the two tribal nations are still working to quantify their water rights. But as more time passes, less water becomes available: The amount of water in the Colorado River is shrinking due to drought and aridification linked to climate change.

“Every second that passes, it’s harder and harder for tribes to get water that’s already over-allocated and in shorter and shorter supply,” said Andrew Curley (Diné), assistant professor of geography at the University of Arizona.

“Every second that passes, it’s harder and harder for tribes to get water that’s already over-allocated and in shorter and shorter supply.”

Tribes have gained at least some concessions from the corporations in return. In the San Xavier Reservation case, Asarco — which opened its first smelter in Arizona in 1912, the same year as statehood — agreed to buy some water from the tribe as part of the settlement. The five companies involved in the settlement also contributed a combined $1 million to a fund for the nation. For decades, Asarco and other companies used water that belonged to the Tohono O’odham Nation without compensating the tribe — a demonstration of the financial and political power nongovernmental entities have long held over access to water in the region.  (Grupo México, Asarco’s parent company, did not respond to requests for comment. Neither did Freeport-McMoRan.)

When the Tohono O’odham first asserted their water rights in the San Xavier District in the 1970s, businesses pushed back. Agribusinesses said that a settlement favorable to the senior-most water-rights holder in the region — one protected by treaties and federal law — would cost them water and money. “This is a raid on a portion of water for agriculture,” a representative of the Arizona Farm Bureau told the Arizona Republic at the time. Today, the Farm Bureau is one of the organizations opposing the Navajo Nation in the Supreme Court case. The Tohono O’odham, meanwhile, argued that maintaining the status quo would cost them their homeland.

Nearly five decades later, agriculture is the largest water user in the Colorado River; in Arizona, it uses about 74% of the water supply. Meanwhile, the rest of the Tohono O’odham Nation still does not have settled water rights. Instead, it remains tied up in a nearly 50-year-long water adjudication with over 30,000 other parties, including the Salt River Project, Freeport and Asarco.