The Forgotten Sovereigns of the Colorado River

The resulting report confirmed much of what tribes had complained about for decades: unfinished infrastructure projects that had been promised long ago as part of federal settlements, onerous restrictions on where and how tribes could put their water to use, and some 500,000 acre-feet a year that flowed down the river without compensation. Historically, tribes pursued settlements independently. “If you know one tribe, you know one tribe,” goes an axiom Vigil and others often repeat in relation to tribal water rights. But the tribal water study also underscored the consequences of their common history: There’s a difference between having a legal right to water and having a foothold in the federal apparatus that actually manages the river.

In 2019, nearly two decades into the megadrought affecting the Southwest, the seven Colorado River states adopted a drought contingency plan overseen by the Bureau of Reclamation to manage the changing hydrology on the river. In the years since, users in the lower basin and Mexico have had their water allotments cut by close to 1 million acre-feet, a more than 10 percent reduction.

Earlier this year, as the seven basin states scrambled to come up with a compromise to cut their 2023 allocations by a further 2 million acre-feet, Amelia Flores was working with partners in the state and federal government toward another milestone. Flores is chair of the Colorado River Indian Tribes, whose lands straddle the river on the California-Arizona border. For more than 20 years, CRIT’s leaders had been pushing for legislation that would allow the tribes to lease some of their water to users outside the reservation. With senior rights to more than 700,000 acre-feet a year, CRIT is one of the largest rights holders in the basin, providing water both to commercial farmers who lease tribal land — this part of the Southwest grows the bulk of the country’s winter vegetables — and to blunt the impact of shortages across in the system. Since 2016, through agreements with the federal Bureau of Reclamation, CRIT has fallowed enough farmland to leave 200,000 acre-feet of water in Lake Mead, preventing the reservoir’s levels from dropping even faster toward the critical “dead pool” level where power cannot be generated.

On Jan. 5, President Joe Biden signed legislation freeing the tribe to lease its water to users outside the reservation for the first time. But even as the tribe pushed that bill over the line, it wasn’t party to negotiations among the states about the shape of future cuts. As the tribe’s longtime attorney, Margaret Vick, explained recently in a joint phone interview with Flores, allowing tribal participation in those talks wouldn’t require an act of Congress. “What that would require is a phone call,” Vick said.

When the Bureau of Reclamation’s Feb. 1 deadline arrived without a deal, news outlets around the country reported on the proposal that came closest to consensus: Every state but California signed onto an arrangement that would leave the Golden State, which receives some 4.4 million acre-feet, by far the largest share of Colorado River water, to absorb the bulk of the cuts. To Flores’ surprise, the deal also called for CRIT to give up 45,000 acre-feet without compensation. Asked whether she’d had any prior notice from Arizona or its counterparts, Flores was blunt: “None, zero.” For the Colorado River Indian Tribes, the river is both the center of a sacred homeland and the backbone of government services: Agriculture represents about 80 percent of the tribal government’s revenue. Uncompensated water cuts could affect everything from health care to college scholarships for tribal members.

“Still to this day we don’t believe states really understand the dynamics of tribal water rights,” Flores said. “We need to be at the table.”

This dynamic is felt most acutely in Arizona, home to 22 tribes with claims to Colorado River water. When I asked Tom Buschatzke, director of the state’s water resources department, about negotiations with tribes, he touted a state program established in 2004 to buy farmland and leave it fallow in order to create a pool of Colorado River water rights the government could assign to future tribal settlements. Unfortunately, he explained, two decades on, most of that theoretical pool of water has literally evaporated with the changing hydrology of the river.

“That makes it difficult to push forward with settlements,” Buschatzke said. “I’m not going to offer a tribe something that would only be there 5 percent of the time.” There is, of course, a more reliable pool to draw from — the water that already flushes the toilets and irrigates the golf courses of Arizona’s cities and towns — but what Arizona politician is going to propose giving tribes that water?

“Wow,” Vigil says. “There’s an opportunity to start thinking about how we feed ourselves, where we feed ourselves and all those kind of things, and that’s one of the things that’s missing.”

About 70 percent of the basin’s water is allocated to agriculture, mostly to feed cattle. “And there is no structured place that I know of where those conversations are being had. Seventy percent of the water is [for] agriculture!” he repeated. “How are we not talking about that?”

While indigenous people have held a variety of top posts at Interior Department agencies going back 20 years or more, Biden’s appointment of Deb Haaland, the first Native American secretary of the Interior, signaled a commitment to Native points of view in the upper echelons of power at the White House. It did not take long for tribes to be disappointed. In late 2021, Vigil coordinated an effort that saw the leaders of 20 tribal nations sign a letter to Haaland, outlining a list of shared demands of federal officials, including a framework for leasing privileges similar to those won by CRIT. Haaland held a listening session with the signatories the following spring, one of “more than a dozen meetings” an Interior Department spokesperson highlighted of the government’s commitment to “robust consultation” with tribes. But to Vigil, it was part of a familiar pattern: Federal agencies seem always willing to talk but never to respond to specific demands.

This past February, federal officials announced the states had missed a second deadline to make further cuts, totaling 2 million to 4 million acre-feet, and that the Bureau of Reclamation would have to make the decision instead. In April, the Biden administration sketched out its plan to meet that target, setting aside distinctions between “senior” and “junior” rights holders, and asking California, Arizona and Nevada to reduce Colorado River water usage across the board by an additional 25 percent.

To avoid the bruising politics of choosing California alfalfa over Arizona subdivisions, the administration’s proposal put cities and towns with water rights dating to the 1960s on the same footing as irrigation districts with claims dating back to the 19th century. Settled tribal rights, too, would have to flow from the same bucket. But the threat of federal officials unilaterally imposing reductions on the states for the first time in history was finally enough to compel broader agreement. With the help of a wet winter and $1.2 billion in federal funds, Arizona, California and Nevada have agreed to cuts of roughly 13 percent across the lower basin, enough to stave off the immediate crisis. The plan is expected to gain final federal approval, but it will not materially change the role of tribes in future negotiations.

When I asked Vigil if he felt he’d seen any significant inflection points in tribal participation in the river’s governance after 15 years of advocacy, there was a long pause. Finally, he said, “You know the reason why that’s a tough question? Because nothing has really changed. We don’t have a formal place in the policymaking process. … And until that happens, that means our sovereignty is not being fully recognized.”