Tribes Struggle for Water in Colorado River Basin as Drought Sears the West

With the west in extreme drought, Lake Mead, fed by the Colorado River and formed by the Hoover Dam, reached historic lows in June. The water level continues to fall, continuing a trend that began more than 20 years ago.

The Federal government is expected to declare a water shortage in the lower basin of the Colorado River by 2022 at the latest, which will trigger mandatory water cuts in Arizona and Nevada.

These cuts will particularly impact farmers. But they are likely to hit indigenous communities particularly hard, as they have struggled to get their legal share of Colorado River water for years—even when those waters have been abundant.

"Water issues in the west are already difficult to deal with, even when the water is there," Jason John, director of water resources for the Navajo Nation, told Newsweek. "And when the water is not there, it just makes everything that much harder to deal with."

American Indians are 19 times more likely to not have access to running water, according to the Washington, D.C.-based non-profit US Water Alliance. The Navajo Nation, located in the Colorado River Basin, is the largest reservation in the United States. It is comprised of more than 17 million acres in northeastern Arizona, southeastern Utah, and northwestern New Mexico, and is roughly the size of West Virginia.

In 2020 about a third of the more than 330,000 people in the Navajo Nation didn't have running water. That made the impact of COVID-19 particularly intense, as the Nation had the highest per-capita rate of COVID-19 in the U.S. in May 2020.

"The past year has just been really difficult for many families on the Navajo Nation," John said. "Just because of the combination of the pandemic [and] the drought, [It has] really stretched families to depend on one another and depend on assistance and things like that to get through."

In Chinle Valley, Arizona, which lies within the Navajo Nation, an irrigation system fed by waters from the Colorado River normally supplies farms on the reservation.

But not now.

"This year, there's no water for them," John told Newsweek.

Drought is not the only barrier to access for the Navajo Nation or other tribes in the Colorado River Basin.

All tribes have legal reserved rights to water, however these rights are not quantified. In order to gain a quantified right, tribes need to get the state they are in to adjudicate the right. The Navajo Nation crosses three state lines: Arizona, New Mexico and Utah, so they need settlements in all three.

Currently, the Navajo Nation has a reached a settlement with New Mexico, and gained one in Utah at the end of 2020. John said they have been trying unsuccessfully for more than a decade to adjudicate their water rights in Arizona.

"By attaching state law water requirements to settlements and those kinds of things, that absolutely undermines and usurps the whole nature of sovereignty and acknowledgement," Daryl Vigil, water administrator of the Jicarilla Apache Nation, which is also located in the Colorado River Basin, told Newsweek.

Even when tribes have gained a settlement they often still can't access their water.

There are 30 federally recognized tribes in the Colorado River Basin that collectively have rights to 3.2 million acre-feet (MAF), or about 25 percent of the River's water. Yet much of this water gets left behind.

"Tribes in the Colorado River Basin don't fully utilize their right, because they don't have the resources to maximize that benefit," Aaron Payment, vice president of the National Congress of American Indians, told Newsweek, "and that is a failure of the treaty and trust responsibility of the federal government."

Building water infrastructure is quite expensive, and the federal government has rarely provided assistance to the tribes for those projects.

"The Navajo Nation has been consistently asking the federal government to live up to the promise of building out the Navajo Indian Irrigation Project (NIIP)," John said. "The 110,000 acres of it is probably about 75 to 85 percent there. It's just a lack of funding from the federal government to complete that project."

NIIP construction began in 1964 and has yet to be completed, leaving the Navajo Nation unable to use it to gain access to their full settlement.

"The more tribal water that doesn't get developed, it just means that there's more water in the system for everybody else," John said. "And when other non-tribal entities start using the water, it's very hard to take it away."

Without the infrastructure to use their settlements, some tribes want to lease their waters out. But some settlements don't allow leasing. The Colorado River Indian Tribe is currently requesting their leasing rights from Arizona. Even tribes that have leasing rights can't lease water out of state, as they are not seen under the Law of the River as being equal to states.

The Law of the River refers to the laws that govern the Colorado River, primarily founded on the Colorado River Compact. The Compact was agreed upon in 1922 by the basin states. The Compact splits the river into lower and upper basins and dictates how much of the river water is apportioned to each of the states.

The business committee of an Indian tribe takes exception to that aspect of the Law.

"Given that the tribal water right is a direct apportionment of the river share, and as a result Tribes have equal status to states in the management and operation of the river, and the fact that Indian tribes' water right are presently perfected rights, upper basin Indian water rights should be allowed to lease to downstream water users," The Ute Indian Tribe (UIT) business committee wrote to Newsweek.

Vigil, the water administrator of the Jicarilla Apache Nation, said the group that drew up the original Law of the River was far from representative.

"If you've ever seen that picture of the kind of the group that was responsible for the Colorado River Compact it's just a group of like 12 older white gentlemen," Vigil said. "And you know that picture really hasn't changed. There's a whole bunch of inherent bias, injustice, racism built into the systems that exist, in terms of the allocation to tribal sovereignty."

In 2007 due to the declining levels of Lake Mead, the Colorado River Interim guidelines were created and put into effect. Those guidelines are currently under review.

"Negotiations [for the interim guidelines] are starting again, and the state of Arizona continues to be very protective of other interests in the state," John said. "So it doesn't seem like much is changing when it comes to water in the West."

In 2019, the seven basin states along with Mexico agreed on The Drought Contingency Plan. Arizona, California, Nevada and Mexico all took voluntary cuts. As to Native American representation, only the Gila River Indian Tribe and Colorado River Indian tribe participated in the drafting of the plan, and only because they fought to be at the table.

"There has not been any meaningful inclusion and consultation related to the operation and management of the Colorado River," the UIT Business Committee wrote to Newsweek. "In as far as serious consultations and participation with the federal government and the states, the management and operations of the River has continued to be a red line where Indian Tribes are not allowed."

And UIT continues to be denied a seat at the table, the Committee said.

"In fact, the UIT, being a major water apportionment holder in the Upper Basin of the Colorado River, has requested to be a participating member of the Upper Colorado River Commission," they said. "Thus far, the UIT request has been met with deaf ears."

The Biden administration and the Department of Interior have both put climate change and Indigenous consultation at the forefront of their policies. Biden issued an executive order in January that gave all departments 90 days to engage in tribal consultation. According to Payment, it worked—his schedule was packed with consultations after the order went out.

"I'm excited with the respectful nature of this administration and the reach out back to tribes, and so I think there's a lot of hope," he said.

On the California- Oregon border, the Klamath basin is also experiencing a drought. The New York Times reported that farmers have been protesting water cuts at the entrance to the gates to the basin. Many farmers are threatening to breach the gates by force. The last time the Bureau of Reclamation cut off water to farmers there was in 2001, that is exactly what they did, and the Bureau relented and released some water.

The Associated Press reported that at this time there simply isn't enough water in the Klamath Basin to meet all the demand.

The Colorado River Basin, unlike the Kamalth Basin, is not quite at a breaking point.

"There are agreements and mechanisms in place to protect the reservoir from hitting critical levels," Patti Aaron, the external affairs officer for the Bureau of Reclamation lower Colorado region office, told Newsweek. "So, although it's concerning, it is not at a critical level."

If the federal government declares a Tier One shortage for the lower basin of the Colorado River, the Central Arizona Project (CAP) will cut its water delivery by 70 percent.
CAP is a series of canals in Arizona that delivers water from the Colorado River. Farmers will feel the cut the most, as their water allocation from CAP will be cut by 65 percent.

"During a [time of] limited resources, that's where conflict flares up right. And so states are not going to want to share those resources," Payment said. "But irrespective of the drought, tribes are still entitled to their reserved rights and fully entitled to their reserved rights, and that also would include any additional infrastructure to help them to gain access to those rights."

But the UIT insisted that the water shortage is unlikely to lead to violence.

"There should be little or no fear of water-related violence similar to that of the Klamath River in the Colorado River, especially if Secretary Haaland takes a bold and asserted initiative that is inclusive of the major Colorado River share of water holders including the Tribes, the states and the federal government," the Committee said.