Native American tribes in the Colorado River basin already have legally quantified rights to roughly one-fifth of the river’s flow, according to a new report from the non-partisan Colorado River Research Group.
CCRG said that tribal water rights are a misunderstood and underpublicized facet in dealing with water shortages in the Southwestern United States.
Of the seven Colorado River basin states, signatories to the Compact of 1922, the so-called Law of the River, only California and Colorado have larger paper rights to water than the tribes. The compact more or less canonized the “first in time, first in line” principle of water usage, meaning that the first jurisdiction to have claimed the water has the most senior rights.
But, according to the CRRG report, the U.S. Supreme Court first recognized tribal reserved water rights in a 1908 decision, Winters v. United States, some 14 years prior to the compact. The Court ruled that the rights came into existence with the formation of the reservations because, without water, much of the territories included would not have been habitable as permanent homelands.
The 1922 compact acknowledged tribal water rights, but made no specific allocations. In 1963, the Supreme Court ruled that water consumed under tribal rights be counted as part of the allocation made to the state in which the reservation is located. That’s a bigger deal in Arizona and other lower basin states than it is in Colorado.
While tribal rights “concern many non-Indian water users, especially those already reliant on unused tribal allocations, the reality is that many tribes have long expressed an interest in exploring novel ways to benefit from those rights in ways that limit impacts to other users or ecosystems,” said Doug Kinney, director of the Western Water Policy Program at the University of Colorado Law School and a CRRG member.
Specifically, the tribes have discussed leasing and forbearance agreements, as well as dedicating some rights to instream flows. “That’s a long overdue conversation,” Kinney said.
Only two of the basin tribes are located in Colorado, the Southern Utes and the Ute Mountain Utes, and their diversion rights are relatively small compared to the total of tribal rights. The Southern Utes have access to 137,090 acre feet per year and the Ute Mountain Utes have 88,358 acre feet. Tribes in Arizona, by comparison, have diversion entitlements to 614,806 acre feet per year.
“Moving forward with efforts to provide the Colorado River tribes with the water needed to sustain communities and build economies is both a legal and moral imperative,” the CRRG study states. “The challenge is to do so in a way that embraces creative, flexible, and efficient uses of water, often in partnership with non‐Indian water users.”
Some 40 percent of residents on the sprawling 27,000-square mile Navajo Nation in Arizona, New Mexico and Utah don’t have running water in their homes, as an example. The Navajo-Gallup Water Supply Project, approved in 2009, will bring some relief, but it is based on the tribe’s water rights on the San Juan River. The Navajo still have unresolved claims to the Little Colorado and the main Colorado, said the CRRG’s Larry MacDonnell.
An ongoing study by the Ten Tribes Partnership and the U.S. Bureau of Reclamation was cited as a promising example of such cooperation.
The river system has been stressed by ongoing drought. Annual flows that averaged 15 million acre-feet during the years prior to 2000 averaged about 12 million between 2000 and 2010, a decline of 20 percent, analyses have shown.