Tribal nations were once excluded from Colorado River talks. Now they're key players
PHOENIX, Ariz. — This Spring, a high level delegation met inside the Arizona Governor's office to announce a huge water conservation deal.
The crowd was a who's who of the western water world, including top Biden administration officials, the head of Arizona's powerful water department, the state's Governor Katie Hobbs, and its senior Senator Kyrsten Sinema.
But the man at the center of the announcement was someone who probably wouldn't have even been invited to this type of event not too long ago: Governor Stephen Roe Lewis of the Gila River Indian Community.
In a blue suit, bolo tie and white Nike shoes, Lewis beamed when it was his turn to step to the microphone. After saying hello in his native language, he called the moment historic: "In the worst drought in over 1,200 years, we're trying to make this moment into a movement, a movement of water conservation," Lewis said to applause.
His community near Phoenix will get $233 million for irrigation projects. In exchange, the tribe agreed to keep a huge amount of its legally entitled water in Lake Mead, in order to save the nation's largest reservoir from drying up.
After the speech, Lewis told NPR the moment was historic for bigger reasons too.
"We were historically excluded from the table, now we're being key players," Lewis said.
It's a "different picture" today than it was in 1922
It's been almost exactly 100 years since the first "law of the river" - the Colorado River Compact - was negotiated among the seven basin states: Colorado, Wyoming, New Mexico, Utah, Arizona, Nevada and California.
Back then there were no Native people in the room, let alone even near it.
"Progress is being made," says Heather Tanana, a Navajo Nation citizen and University of Utah law professor. "You look at the photos of the 1922 compact, they're all white males from the federal government and from the basin states. You flash forward now to these meetings and it's a different picture."
Indeed, the April announcement in Phoenix came as tribes in the basin are getting an unprecedented seat at the table as the White House tries to reset the water sharing agreement for the shrinking river. The Biden administration has ordered states to figure out how to cut their use by upwards of a third of the traditional flow of the river, which is imperiled by overuse and a 23 year megadrought made worse by climate change.
Today, some tribes like the Gila River have recently brokered substantial water settlements with the federal government and just being at the table negotiating is historic.
It took a long time for a 1908 Supreme Court Case to take hold
Back in 1922, western historians say the U.S. Government was operating mostly on a policy to dismantle reservations and tribal culture.
At the University of Colorado, historian Patty Limerick says there was barely even a mention of Indian Country when it came to the river, which she finds puzzling. That's because just fourteen years earlier, there had been a landmark Supreme Court decision known as the Winters Doctrine.
It had affirmed that all tribes had a legal water right.
"Was it just that they only had, as we would say now, only so much bandwidth, or were they purposely ducking?" Limerick asks. "And what in heaven's name were they teaching in law schools about water law in the West if they weren't doing the Winters Doctrine?"
That doctrine tied a tribe's water right to the date that its reservation was established. Most were created in the 1800s, meaning today many tribes under western water law actually hold senior water rights to the river. They're first in line for water even in this megadrought.
But it's not that simple. Many tribes aren't nearly as far along as the Gila River community in negotiating a settlement with the U.S. government, according to Daniel Cordalis, a former Biden administration water attorney who's also Diné.
"That's the common story really with tribes is we have what we see is a lot of 'paper' water," Cordalis says. "But a lot of that, we can't develop. We don't really have the resources to develop it."
For Cordalis, who's now at the Colorado River Sustainability Campaign, an environmental group, "paper water" means that tribes may have a legal right but they have no actual means - such as a pipeline or canal - to bring it to reservations. Throughout history it has been gulped up by a myriad of interests outside Indian Country.
Tribes now control upwards of 25% of the river
Still, of the 30 tribes in the Colorado basin, 22 now have completed or partially completed settlements with the U.S. government. That means they technically now control more than a quarter of the average flow of the Colorado.
Heather Tanana at the University of Utah says that gives them a lot of bargaining power, as the river continues to shrink.
"It's big on the part of tribal nations that they prevailed," Tanana says. "They have held strong to their culture and beliefs to survive today and they're rebuilding their governments."
Experts say the U.S. government wanting more conservation deals is probably more pragmatic than some high minded mission to right the wrongs of the past. The river is simply over-promised to farms, cities, and increasingly tribes. Vague "paper" water rights complicate negotiations over how to divide the Colorado, while negotiate settlements like the one with Gila River provide more certainty by specifying the exact amount of water to which they're entitled.
Back at the Phoenix event, a beaming Gila River Governor Stephen Lewis said his tribe's long fight to get its senior water rights - first settled in the early 2000s - is finally paying off. The U.S. is now helping them - a sovereign nation - build a solar panel-covered irrigation canal, a water recycling system and with other conservation measures.
He said society has a lot to gain when tribes are at the table fighting to protect the Colorado.
"You see today we're leading in this historic moment and we've got to make this a movement," Lewis said.
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