TRIBAL WATER RIGHTS

First in Right, right? The history of Tribal water rights policies

More contemporary views of tribal water management incorporate principles of sovereignty and work towards the securement of water rights and funding for water infrastructure projects. In response to centuries of environmental injustice, the Colorado River Basin Ten Tribes Partnership (formed in 1992) was able to put together a Tribal Water Study in 2012 that documented how participating tribes used their water, how future water development could occur, and the potential effects of future water development on the Colorado River System. [17] The objectives of the study were reflective of broader goals of Indigenous nations as a whole. The Ten Tribes Partnership Tribal Water Study wanted to ensure that each Partnership Tribe has settled their water rights claims, had the ability use its water, benefitted from water infrastructure projects, and that the federal government protected the Partnership Tribes’ reserved water right. [18] It should be said though that there’s a lot of variation in what Tribal communities want to do with their water rights, once secured. Each tribe has their own specific needs; there’s damage that comes in lumping Tribes together, which is why “Tribes need to be at the decision-making table,” says Daryl Vigil, water administrator for the Jicarilla Apache Nation in New Mexico. [19] Empowering Tribal nations to maintain their sovereignty while also engaging in conversations with the federal and state policy makers and water managers is vital for the continued success of the Tribes and their relationship with the River.

The University of Montana Water & Tribes Initiative enhances tribal capacity to engage in policy decisions and address water-related issues. In doing so they have compiled a series of policy briefings, the first of which was published in 2019 and considers what the road to sovereignty looks like when it comes to water management in the Colorado River Basin. “Policymakers and water managers cannot make deliberate, well informed decisions without tribes at the table, and tribes face serious risks of marginalization if they are not part of these conversations.” [20] Each Federally recognized tribe (and tribes not formally recognized by the federal government) operates independently as a sovereign nation, so the voices of each Tribe should be represented at the decision-making table. Tribes are all in different places in their journeys to developing, quantifying, and settling water rights claims, and only 22 or the 30 tribes along the Colorado River have established rights. [21, 22] Despite their differences in culture, language, spirituality, and journey with securing and quantifying water rights, Tribes have found that they have a stronger voice when unified at the negotiation table (when invited). [23] In fact, fourteen Tribes have sent a letter to the Bureau of Reclamation Commissioner Camille Touton petitioning for inclusion in the negotiation of potential water cuts for stakeholders in the Colorado River Basin. [24]

It’s easy to put the onus on the Tribes to unify and work with the states and big cities to renegotiate water rights allocations, however Amelia Flores, Chairwoman for the Colorado River Indian Tribes is correct when she says, “ultimately the United States has its obligations to protect our resources” [25]. While the Biden Administration is calling on states to drastically reduce their water use in efforts to prevent deadpool, cuts to water delivered to states like Arizona disproportionately reduce Tribal water allocation since they still don’t have a seat at the table on a national scale. [26] It is vital that the United States federal government prioritizes open water rights litigation cases and pushes funding through for infrastructure projects like the $123 million Navajo-Gallup Water Supply project. [27]

Where do we go from here?

The Colorado River Basin is a contentious ground for water rights, a complex issue in and of itself. Basin states and stakeholders are currently negotiating terms of the Colorado River Treaty, reallocating water and cutting water use primarily for water districts, farm operators, cities, and tribes. [28]First in time, first in right means Indigenous communities should not only get their current and future water needs met, but also that they should have a seat at the table when decisions are being made about water resource management for water sources on their land. Echoing the sentiments of David Hebart-Coleman following the recent UN 2023 Water Conference, it’s not enough to talk about the need for inclusivity in water conversations. [29] It’s vital that we invest in mechanisms for capacity strengthening programming, equitable infrastructure, and decision making roles for Native folks.