Tribes hold wild card in high-stakes supply game

By Annie Snider | 12/22/2015 01:10 PM EST

Thanks to a 1908 Supreme Court ruling, Native American tribes almost always have the most senior claim to water in the West, but while the high court was clear that tribes have rights to water, it didn’t say how much. And that’s a big problem. In many cases, tribes claim a share large enough to crowd out neighboring cities’ and farmers’ water supplies and stanch future development.

First of two stories on tribal water rights.

It’s not just modern engineering that made Arizona’s desert bloom.

Thirty miles south of downtown Phoenix sits dusty land that was once farmed by one of the most advanced agricultural civilizations of prehistoric times. As far back as 300 B.C., the Hohokam people hand-dug a network of canals through the Gila River’s rich floodplains, diverting spring runoff to nourish their fields.


But by the end of the 19th century, their descendants’ fields were parched and dead, thanks to upstream diversions by white settlers.

"That era among our people is called the time of starvation," said Gov. Stephen Roe Lewis, the top elected official at the Gila River Indian Community, home of the Hohokam’s descendants, the Pima, and the Maricopa tribe.

"Not only had our crops dried up because of lack of water, we were known as ranchers and a lot of our animals died because of lack of water," he said. "We were really on the brink of extinction."

Over the next century, the federal government put its financial and engineering might to work developing water projects around the reservation to benefit surrounding communities, but rarely the tribes.

Their fields dry, the Pima and Maricopa shifted from their traditional diet to a Western one, and the community’s diabetes rate skyrocketed to one of the highest in the country.

Stephen Roe Lewis
Gila River Indian Community Gov. Stephen Roe Lewis proclaimed 2015 the year of water — his first act after taking office. He has been focused on building a plan that puts the tribe’s water right to use in a way that brings not just financial benefits to its members, but also nourishes its culture. | Photo courtesy of Gila River Indian News/Communications & Public Affairs Office.

Traditional ways — weaving baskets of marsh grasses, using herbal medicines made from river sediment — were lost, too.

The painful irony: The tribes were technically the first in line for water.

Thanks to a 1908 Supreme Court ruling, tribes almost always have the most senior claim to water in the West, where water rights are prioritized based on when the resource was first put to beneficial use and reservations dot the landscape.

Rights mean little without a lawyer to defend them, though, and for generations, tribes were too poor to afford representation.

But in recent years, in part because of groundwork laid by the Native American civil rights movement, tribes are increasingly heading to court to assert their rights.

There’s a problem: While the high court was clear that tribes have rights to water, it did not say to how much.

In many cases, tribes claim a share large enough that it could crowd out neighboring cities’ and farmers’ water supplies and stanch future development.

Tribes along the main stem of the Colorado River in the Lower Basin have some of the few court-determined rights because of a 1963 Supreme Court decision covering larger battles over the river between California and Arizona. Today, just those few tribes have rights to roughly 20 percent of the Lower Basin’s flow — an amount that is more than five times the allocation for the entire state of Nevada.

And in one recent attention-grabbing case, Oregon regulators decided the Klamath tribe’s treaty right to salmon and other fisheries in Oregon’s deeply contentious Klamath River basin meant it had a right to in-stream flows dating to "time immemorial."

Attempting to head off another massive fish die-off like one that occurred a decade earlier, the tribe in 2013 issued a call on the river after a gripping drought set in. The move cut off water to hundreds of cattle ranchers and farmers in the heart of the state’s agricultural breadbasket and sparked protests in the rural communities.

Such events turned heads.

"Everyone stood up and took notice, particularly the states and Western business," said John Echohawk, executive director and co-founder of the Native American Rights Fund, which has worked on tribal water rights since it was founded in 1970. "They saw that the tribes were asserting senior water rights, and if the claims were allowed, we would have the ability to displace business in times of shortage."

Tribal water rights map
Many Indian reservations are located in or near contentious river basins where demand for water outstrips supply. | Photo courtesy of the Texas Real Estate Commission.

Now, as booming populations and extended droughts have stoked competition for water supplies across the West, the uncertainty around tribes’ potentially massive claims to water in already overstretched river basins is posing real constraints on communities and businesses.

"It’s a very significant set of claims that tribes have on very limited and critical water supplies across the West," said Deputy Interior Secretary Mike Connor, who has worked on tribal water issues throughout his career. "It’s uncertainty — that’s what water managers don’t want."

But lawsuits have largely proved fruitless for all sides.

When tribes win, they receive only a legal right to the water — dubbed a "paper water right" — often without the infrastructure or funding needed to get the water to the reservation and put it to use.

Meanwhile, endless appeals offer certainty for no one.

Instead, many tribes and communities have opted to sit down at the negotiating table in an effort to hash out an agreement that can get the tribes what they most need — wet water and sometimes other support for economic development — while protecting nontribal users and absolving the federal government of liability for failing to protect tribes’ rights.

Moreover, with all parties at the table, settlements are increasingly providing an opportunity to take a holistic look at issues across the basin and address other sticky issues like endangered species management or land ownership.

"I think generally we kind of look at these things as an opportunity to figure out how water in a particular basin’s going to be used in the future because in these negotiations, everything’s on the table, everybody’s involved," Echohawk said.

"The question is, how do we get that peace in the valley? How do we learn to live together in a sustainable basin?" he said. "It comes down to a master plan for water in a particular basin for time in eternity."

But settlements tend to rely on an infusion of federal cash to help make the pie larger for everyone, and that funding is getting harder to fight for in Congress.

Meanwhile, longer, deeper droughts and ongoing development in river basins across the West stand to make settlements more difficult in the future.

Experts say the longer the questions go unresolved, the more expensive the solutions become.

Complex legal landscape

Two legal concepts drive conversations about tribal water rights.

The first, known as the Winters doctrine, stems from a 1908 Supreme Court case, Winters v. United States, relating to water rights at the Fort Belknap American Indian Reservation in central Montana.

It holds that when Congress set aside land for an Indian reservation, it also intended to reserve the water necessary to make that land a permanent homeland. The same doctrine has also been applied to other federal reservations, like national parks.

But how much water does a homeland need?

Courts have generally looked to the purpose that Congress identified in establishing the reservation, which was often agricultural, even for tribes with no history of farming.

So to come up with a water right, experts would calculate how much reservation land could be farmed and how much water it would take to irrigate it — a complicated, time-consuming process that can result in a large amount of water for the tribe.

The second key legal concept relates to the federal government’s responsibility to tribes.

In a "trust responsibility," the government, through the Interior Department, has a legal obligation to protect tribal treaty rights, land and other assets, and carry out federal laws relating to tribes.

Court rulings have made it clear that trust obligation includes protecting tribes’ water rights in the face of outside development — something the government frequently failed to do.

Meanwhile, some experts contend that the lack of infrastructure development for tribes is also a breach of that trust responsibility.

On the Navajo Nation, the country’s largest, poorest reservation, which spans a broad swath of Arizona, New Mexico and Utah, an estimated 40 percent of households lack access to running water.

There, families must travel dozens of miles to haul water from centralized wells or wait for the once-a-month delivery from a local church. Without water, economic development is nearly impossible.

But exactly what that federal liability means in dollars and cents is another major open question.

One of the highest-profile cases over breach of trust was a long-running class-action lawsuit relating to the Interior Department’s mismanagement of income from tribal trust lands. That case, Cobell v. Salazar, settled in 2009 for a whopping $3.4 billion.

But for water rights, there’s no solid precedent.

In part, that’s because neither side has wanted to take the risk to get a definitive answer.

For one thing, due to a 1952 appropriations rider, federal water rights like tribes’ can be adjudicated in state courts, which tribes tend to see as hostile to their interests.

Meanwhile, the country’s highest court is also seen as becoming less favorable to tribes.

The last major Indian water rights case to land before the Supreme Court was an appeal of a Wyoming state court’s decision that granted the Wind River Indian Reservation a large water right.

Then-Justice Sandra Day O’Connor recused herself from the case at the last moment, having discovered that her family’s ranch was part of a water adjudication that involved tribal water rights.

Without her, the high court reached a split, 4-4 decision that left the state court’s ruling in place.

But when Justice Thurgood Marshall’s papers were made public after his death, lawyers found a "ghost opinion" from O’Connor that would have overturned the Wyoming ruling and significantly revised the Winters doctrine.

All that leaves tribes gun-shy about a return trip to the high court.

"Tribes don’t want to be litigating these and going to the Supreme Court because they came within a whisper of losing it all in ’89, and in my view the Supreme Court has become a lot more hostile to tribal interests than the court we had at that time," said Stanley Pollack, assistant attorney general for the Navajo Nation and a leading expert on tribal water rights.

Motivation for negotiation

That complex legal playing field, coupled with the decadeslong process that water rights cases can face, heightens the interest in negotiations.

To be sure, negotiating isn’t easy, either.

By definition, no one gets everything he or she wants in a settlement. And compromise can be difficult for tribal leaders, who often face fractured constituencies at home that have long memories of unfulfilled promises.

"Indian Country only gets one try to be able to get this right with respect to their settlement because there’s no coming back after you do it," said Michael Bogert, who served as Interior Secretary Dirk Kempthorne’s negotiator on tribal water rights settlements during the George W. Bush administration.

"It’s the most difficult decision for tribal leaders to make, to say, ‘This is as good as it’s going to get, and we need to move on,’" he said.

After years of litigation over water rights at the Gila River Indian Community south of Phoenix, Lewis, the community’s top elected official, said the reservation ultimately came to see settling its claims as an opportunity to improve life on the reservation, where the per-capita income still hovers below $10,000 a year and eight young people recently committed suicide over the course of a single year.

"This is a small part of righting all the wrongs that came out of that," Lewis said.

"Without our water, we were almost completely dependent on the federal government, and using our water settlement as a leg to come out of this, to start to heal ourselves through our water, through bringing back our water to us and all that it means — not just from an economic standpoint, but from a social, cultural, spiritual as well — it is very important," he said.

Major players in Arizona water were also highly motivated to reach a settlement.

The Salt River Project, which supplies the lion’s share of water and power to the Greater Phoenix area, had been worried about the tribes’ rights since the 1970s.

Water managers there knew that the Gila River Indian Community had a strong case for what could be a massive amount of water, and they wanted to at least know what they were dealing with so they could plan for the future.

"The threat was, if we went to litigation, they might be able to prove a right — a very substantial right — to that water supply," said Dave Roberts, senior director for water resources at the Salt River Project. "That would have a substantial impact … on the state of Arizona as a whole."

But generations of animosity got the talks off to a rocky start.

"Oh my goodness, we started in the late ’80s and we were at each other’s throats," Roberts said.

But over time, the framework of a deal began to come together.

Arizona was helped by a powerful asset that few others in the West have: extra water.

The Central Arizona Project, a 336-mile-long canal completed in 1993, is designed to bring about 1.5 million acre-feet of Colorado River water to central and southern Arizona.

In a deal related to repaying the federal government for the project, the state ultimately agreed to set a portion of that new Colorado River water aside to resolve Indian water rights claims. That allows tribes’ water rights to be fulfilled without taking water away from nearby farmers and cities.

The Gila River Indian Community ultimately agreed to a right of just over 650,000 acre-feet of water a year, a little more than a quarter of what it had originally argued for, plus $200 million in federal funding. Roughly half the water in the deal comes from the Central Arizona Project — enough to make the community the single largest recipient of water through the project and a major player in Arizona water.

Adversaries become partners

Once a deal is reached, a fundamental shift occurs.

Suddenly, people who had spent years on opposite sides of the negotiating table find themselves on the same side, needing to persuade Congress to approve and fund their settlement.

Because settlements involve tribes taking rights to less water than they otherwise could have claimed, Congress has to sign off. Lawmakers also must approve deals that require federal involvement in new infrastructure projects.

"Getting a settlement like this through Congress is very, very difficult," Roberts said. "So while we were very contentious opponents early on, we became very close and had mutual respect both ways."

So much respect, in fact, that after the deal was approved as part of the Arizona Water Settlements Act in 2004, the Gila River Indian Community turned to the Salt River Project for help with what came next.

It would take decades to build some of the key infrastructure necessary to put the newly won water to use on the reservation’s farms, and the community wanted to find a way to benefit from it in the meantime.

The settlement agreement allowed the community to market its water, either by leasing it out to nearby communities or by banking it in underground aquifers — activities the Salt River Project had deep expertise in.

At the same time, returning the flow to at least parts of the river was hugely important to the community for cultural reasons.

The solution they came up with: diverting Colorado River water into the Gila River’s dry bed to re-create stretches of the river’s flow, then choosing spots where the soil is right to percolate the water down into the aquifer for storage. This "banking" creates credits that can then be sold to nearby water users.

The pair of once-adversaries even created a joint business venture for the project, Gila River Water Storage LLC.

The effort is still in its early stages, but both sides say it could bring a major revenue stream to the tribe, which is hoping to build up a cash reserve in anticipation of higher costs for delivering the Colorado River water to the reservation due to new environmental regulations that could affect the price of its coal-fired electricity.

The banking and other deals the community has struck with the Salt River Project also offer a buffer to neighboring users during times of drought. That’s good both for those other users and for the community, which could otherwise see overpumping threaten its reserves.

"We do accept with this settlement a larger civic involvement within the community of helping to solve problems, not becoming a problem," Lewis said.

Now the partnership between the two entities stands to grow even more. The community and the Salt River Project are in talks about energy opportunities on the reservation, including solar power and other green technologies, as well as potential transmission corridors that could touch the reservation.

Roberts, who has worked on a number of tribal water rights settlements for the Salt River Project, said the relationships that form through the process are invaluable.

"In every one of these water settlements, we’ve had some relationships develop over time that have been mutual, respectable relationships that lead to bigger things," he said. "That’s the best thing about these settlements."

To mark the 10th anniversary of the settlement’s enactment last December, Lewis proclaimed 2015 the year of water — his first act after taking office.

The settlement, he said, is a "game changer" for the community that allows it to take back control over its own destiny.

A turning point came when the water first flowed into the Gila River during tests of the banking system, he said.

"Our elders had the opportunity to see the water actually, physically come back," Lewis said. "Not only did the water settlement guarantee it, but they could actually see it, smell it. Because all they’ve known is that reality that we’ve been denied this water and we are less than."