Tribal Water Rights to Play Role in Colorado River’s Dry Future

Tribal water rights are emerging as one of the biggest wild cards in resolving the water shortage in the drought-stricken Colorado River Basin, one of the West’s most pressing water supply and environmental justice challenges, water law experts say.

Tribes say they want a prominent seat at the table as states come together this week at the Colorado River Water Users Association conference in Las Vegas to discuss how states can cut water use in the increasingly dry Colorado River Basin.

“We are trying to be part of the decision-makers and what’s happening,” said Manuel Heart, chairman of Colorado’s Ute Mountain Ute Tribe, speaking Thursday at the conference. “We, too, have needs.”

Manuel Heart, chairman of the Ute Mountain Ute Tribe, speaks to the Colorado River Water Users Association in Las Vegas on Dec. 15, 2022.

Photographer: Bobby Magill/Bloomberg Law

Authorities from the federal government, tribes, and the seven basin states are debating how they’re going to adapt amid a 23-year megadrought that has left the river’s two main reservoirs—lakes Mead and Powell—at historically low levels.

“All of this water is for our use, and we need to use it. There is going to be a give-and-take,” Heart said. “We need to come to the table. Time is of the essence.”

But as water in the Colorado River diminishes, nobody knows yet how much of it belongs to the the Navajo Nation and other regional tribes, since their water rights have never been quantified. There already isn’t enough water for all the Colorado River Basin’s 40 million people, and tribes could be entitled to as much as 25% of it, according to the multistate, multitribe Water & Tribes Initiative.

“It would be difficult to overstate the importance of tribal water rights as a wild card. They’re very significant,” Jason Robison, a law professor at the University of Wyoming who is affiliated with the Water and Tribes Initiative, said before the conference.

Forcing the Issue

Tribal water rights are being debated as states scramble to agree to water cuts amid the drought. The Interior Department in October took the first steps to consider mandating water use cuts in the basin for 2023 and 2024 if the states don’t first come up with a plan to keep enough water in lakes Mead and Powell to ensure their hydroelectric dams can continue to operate properly.

But long-term water use across the seven basin states—Colorado, Wyoming, New Mexico, Utah, Nevada, Arizona, and California—hinges on tribal water rights that remain unquantified a century after the river’s governing document, the Colorado River Compact, was signed in 1922.

Tribes have senior water rights—their water uses are prioritized over all others once they’re quantified—because they were in the West first.

But many tribal water rights in the basin have been left undefined because it took decades for federal courts to declare that tribes could even hold water rights, Robison said.

Agreements to define some tribes’ water rights were first struck in 1978, but 12 tribes, including Arizona’s portion of the Navajo Nation, still have unresolved rights.

That means that farmers, cities and other non-tribal water users have been using water for free that rightfully belongs to a tribe, and that has gone unrecognized, said Jay Weiner, of counsel at Rosette LLP who serves as water counsel for the Quechan Indian Tribe and the Tonto Apache Tribe.

It’s a regional challenge, Robison said, because “we don’t know how much additional water use might be authorized under those unrecognized tribal water rights.”

The implications of that are stark: Some people in the West are going to have to get by with using less, or even no water, from the Colorado River, Weiner said.

Few Resources

Some of the water rights that have been recognized haven’t been used because many of the basin’s tribes don’t have the resources or the infrastructure to tap that water and use it, Robison said.

“The things we take for granted are nonexistent on many reservations,” he said. “Water for cooking, bathing, drinking—fulfillment of the basic human right to water—is left undone on many reservations.”

The Navajo Nation, the largest Indian reservation in the US, didn’t respond to a request for comment.

Heather Tanana, a law professor at the University of Utah who is Navajo, said tribes’ lack of resources to tap Colorado River water for their residents has had devastating public health consequences.

As many as 40% of Navajo residents don’t have access to running water and have to haul it to their homes, which created a public health crisis on the Navajo Reservation during the Covid-19 pandemic, she said.

“If their water rights had been settled and quantified, and actually delivered, then hundreds—thousands—of lives would be saved during the pandemic,” Tanana said. “It’s a life or death matter connected to public health.”

The need for tribal water rights agreements is urgent because tribes need to be able to use the water they’re entitled to and the states need to know how much water they can use as the West dries up, Weiner said.

The longer tribes have to wait to develop their water, the more politically difficult it will become for them to do so even though they have senior water rights, he said.

Consensual resolution among the tribes and states will be difficult “particularly where the states decide their role is more about protecting non-Indian users than trying to find truly equitable solutions,” Weiner said.