The Colorado River Can’t Be Divvied Up Without Indigenous People at the Table

The Colorado River Can’t Be Divvied Up Without Indigenous People at the Table
Nancy Bitsue, an elderly member of the Navajo Nation, receives her monthly water delivery in the town of Thoreau, New Mexico. (Photo: Spencer Platt, Getty Images)

Percy Deal lives in Black Mesa, a bowl-shaped region in northeastern Arizona that’s part of the Navajo and Hopi reservations. The mesa is situated along the Colorado River and two of its tributaries, the Little Colorado and San Juan. Yet Deal, like some 40% of Navajo people, doesn’t have running water in his house.

“So what we do is we go to a watering facility, which is located, for me, 20 minutes away, one way, 64 km [64 kilometers] round trip,” he said.

Deal, a 72-year-old community activist whose family has lived on this land for 500 years, usually loads up two 208 l drums with water at the pumping station, then drives them home and siphons them out into two more empty drums that he keeps on his porch. He does this every few weeks.

His experience and the fate of the Colorado River are intimately connected. Last month, the government declared the first-ever water shortage for the Colorado River watershed, the largest water source in the West, triggering mandatory cuts for water usage. The new rules will affect millions, with the harshest restrictions imposed on Arizona farmers. But Indigenous communities, which already have issues obtaining water, are concerned that if officials don’t give them a seat in water negotiations, not being written into the rules will come with dire consequences for the entire watershed.

Two Supreme Court decisions from the early 1900s, United States v. Winans and Winters v. United States, mandate that Indigenous reservations receive enough water for tribal members. There are 29 federally recognised in the Colorado River basin to whom these rights apply, including 22 in Arizona. In 2018, the Bureau of Reclamation published a report that found if these obligations were taken seriously, those tribes would hold the rights to 20% of all water in the Colorado River watershed.

Yet those rights have not come to fruition because when representatives from the seven states in the watershed drew up the 1922 Colorado River Compact, they acknowledged that “the obligations of the United States to American Indian tribes” include water rights, but didn’t actually allocate any water to Indigenous communities.

“Treaties and creation of reservations just created paper water rights,” said Colin Campbell, an attorney representing the Hopi tribe. “But now if you want to actually get water, you generally have to agree to a settlement of your rights.”

Campbell is representing the Hopi tribe in its water settlement negotiations with the state of Arizona. Settlements are the process by which the water claims of major water rights holders are decided in the Colorado River basin. States are allocated a specific amount of water, and settlements allow individual parties to draw quantified amounts of water from that allocation. But settlements can be difficult to reach, requiring years of negotiation. Since they often also include money for water infrastructure, settlements regularly require approval from Congress. Just 14 of the 22 tribes have completely or partially settled such agreements in Arizona. Neither the Hopi nor the Navajo are among them.

The Navajo Nation is spread across Arizona, New Mexico, and Utah, meaning the tribe needs to negotiate three separate agreements. Though it has done so with New Mexico and Utah, the tribe hasn’t yet reached an agreement with Arizona despite its attempts and the fact that the vast majority of the nation is in Arizona.

“Navajos and Hopis, we’re primarily in Arizona, [but we] don’t even have water rights in Arizona,” said Nicole Horseherder, an activist from Black Mesa.

In 2007, when officials last set operating guidelines for water usage from the Colorado River, no Indigenous communities weren’t invited to the negotiations. Now, those guidelines are up for review. Tribes whose water rights have not been fully adjudicated want to be part of the discussion that could set the tone for an increasingly water-constrained era.

The Colorado River watershed is in a historic megadrought made worse by climate change. River flows have decreased by nearly 20% compared to the 20th-century average.

These dry conditions have affected the entire region, but they’ve taken a particular toll on Indigenous people in the Black Mesa region. Deal could once give water to his cattle using a rain catchment system. But with no precipitation, he’s had to go to the filling station to get water for the animals. And Horseherder, who is a farmer, has also seen the devastating effects of drought firsthand.

“We have some of the heartiest corn. It’s corn that’s made for the high desert climate,” she said. “But it can’t grow in this kind of hot and dry climate, this kind of weather just stops them … in their growth tracks.”

Hopi farmers have experienced similar hardships as the corn that has played a central role in their culture fails to take root and grow amidst the parched soil.

While the climate crisis is contributing to the drought, there’s another human problem afoot on the ground: The first compact over-allocated the river’s resources because it was based on a few years of data where the watershed had plentiful rainfall. Deal said that water is being doled out by officials with their priorities all wrong, allocating water to coal mines and power plants and allowing urban development to continue mostly unabated.

“Water has been given to the extractive industries, the industries that have power, not to individual people like myself … and not at all to the Navajo and Hopi tribes,” he said.

Meanwhile, Deal said, Indigenous people have been struggling to obtain water for basic needs like drinking and bathing as well as livelihoods tied to agriculture.

In June, an official with the Bureau of Reclamation, the federal agency that oversees the Colorado River, told the Nevada Independent that the agency wanted the upcoming negotiations to be an “open and inclusive process.” That will hinge on how — or if — the agency welcomes tribes into the discussions.

“Native Americans should be at the table from here on out because that’s the only way that a true resolution will come,” said Deal.

If they’re given a place at the table, Deal hopes his community can win access to the water that was until recently used for the Navajo Generating Station coal-fired power plant, which closed in 2019. The plant was responsible for 63% of the groundwater use from the Navajo Aquifer.

“Now that they’re closed and gone, the Navajo Nation is trying desperately to make use of that water,” he said.

Campbell said Indigenous representatives can advocate not only for a specific amount of water, but also that the water come from reliable sources. Amid unreliable surface water supplies due to drought, tribes have become increasingly reliant on aquifers. But in settlement negotiations, Arizona officials have said the Hopi tribe should be limited to using a single aquifer, the Navajo Aquifer, even though other ones run beneath their land. Overused aquifers can get filled with sediment, which impacts water availability and quality. Allowing tribes to diversify their water sources could ensure the Navajo Aquifer has time to recharge.

A true resolution for Deal wouldn’t just be about divvying up the water rights, though. It would be about seeing water for what it is: Not a commodity or endless resource, but something more.

“Water is the most important thing to the Native American,” he said. “It’s a sacred element, a living element that we use as part of our ceremonies.”

If Indigenous representatives are given a place at the upcoming water negotiations, Horseherder said it could be beneficial not only for tribes but also for everyone who relies on the Colorado River. Climate change coupled with the various inefficient systems (both political and physical) that deliver western water have left the region vulnerable to even more severe shortages down the road. Climate change is projected to increase the risk of megadrought this century, and the impacts on both humans and natural systems could be catastrophic. What’s needed isn’t just a new agreement on water, but a holistic rethinking of how to share water in the West.

“They need people at the table who aren’t just thinking about how to make sure people have water, but also who know that the wildlife, the plants, everything needs water,” she said. “The state needs to understand that all of this is connected.”