States opposed tribes’ access to the Colorado River 70 years ago. History is repeating itself.

A lawyer named T.F. Neighbors, who was special assistant to the U.S. attorney general, foresaw the likely outcome if the federal government failed to assert tribes’ claims to the river: States would consume the water and block tribes from ever acquiring their full share.

This story is the sixth in our Waiting for Water series about the Colorado River. Get this and other great reporting from High Country News by signing up for our newsletter.

In 1953, as Neighbors helped prepare the department’s legal strategy, he wrote in a memo to the assistant attorney general, “When an economy has grown up premised upon the use of Indian waters, the Indians are confronted with the virtual impossibility of having awarded to them the waters of which they had been illegally deprived.”

As the case dragged on, it became clear the largest tribe in the region, the Navajo Nation, would get no water from the proceedings. A lawyer for the tribe, Norman Littell, wrote then-Attorney General Robert F. Kennedy in 1961, warning of the dire future he saw if that were the outcome. “This grave loss to the tribe will preclude future development of the reservation and otherwise prevent the beneficial development of the reservation intended by the Congress,” Littell wrote.

Both warnings, only recently rediscovered, proved prescient. States successfully opposed most tribes’ attempts to have their water rights recognized through the landmark case, and tribes have spent the decades that followed fighting to get what’s owed to them under a 1908 Supreme Court ruling and long-standing treaties.

States opposed tribes’ access to the Colorado River 70 years ago. History is repeating itself.
In 1953, a Department of Justice attorney wrote an internal memo detailing the future negative impacts that would come from excluding tribal nations from the case.
Roberto (Bear) Guerra/High Country News

The possibility of this outcome was clear to attorneys and officials even at the time, according to thousands of pages of court files, correspondence, agency memos and other contemporary records unearthed and cataloged by University of Virginia history professor Christian McMillen, who shared them with ProPublica and High Country News. While Arizona and California’s fight was covered in the press at the time, the documents, drawn from the National Archives, reveal telling details from the case, including startling similarities in the way states have rebuffed tribes’ attempts to access their water in the ensuing 70 years.

Many of the 30 federally recognized tribes in the Colorado River Basin still have been unable to access water to which they’re entitled. And Arizona for years has taken a uniquely aggressive stance against tribes’ attempts to use their water, a recent ProPublica and High Country News investigation found.

“It’s very much a repeat of the same problems we have today,” Andrew Curley, an assistant professor of geography at the University of Arizona and member of the Navajo Nation, said of the records. Tribes’ ambitions to access water are approached as “this fantastical apocalyptic scenario” that would hurt states’ economies, he said.

Arizona sued California in 1952, asking the Supreme Court to determine how much Colorado River water each state deserved. The records show that, even as the states fought each other in court, Arizona led a coalition of states in jointly lobbying the U.S. attorney general to cease arguing for tribes’ water claims. The attorney general, bowing to the pressure, removed the strongest language in the petition, even as Department of Justice attorneys warned of the consequences. “Politics smothered the rights of the Indians,” one of the attorneys later wrote.

“This grave loss to the tribe will preclude future development of the reservation and otherwise prevent the beneficial development of the reservation intended by the Congress.”

The Supreme Court’s 1964 decree in the case quantified the water rights of the Lower Basin states — California, Arizona and Nevada — and five tribes whose lands are adjacent to the river. While the ruling defended tribes’ right to water, it did little to help them access it. By excluding all other basin tribes from the case, the court missed an opportunity to settle their rights once and for all.

The Navajo Nation — with a reservation spanning Arizona, New Mexico and Utah — was among those left out of the case. “Clearly, Native people up and down the Colorado River were overlooked. We need to get that fixed, and that is exactly what the Navajo Nation is trying to do,” said George Hardeen, a spokesperson for the Navajo Nation.

Today, millions more people rely on a river diminished by a hotter climate. Between 1950 and 2020, Arizona’s population alone grew from about 750,000 to more than 7 million, bringing booming cities and thirsty industries.

Meanwhile, the Navajo Nation is no closer to compelling the federal government to secure its water rights in Arizona. In June, the Supreme Court again ruled against the tribe, in a separate case, Arizona v. Navajo Nation. Justice Neil Gorsuch cited the earlier case in his dissent, arguing the conservative court majority ignored history when it declined to quantify the tribe’s water rights.

McMillen agreed. The federal government “rejected that opportunity” in the 1950s and ’60s to more forcefully assert tribes’ water claims, he said. As a result, “Native people have been trying for the better part of a century now to get answers to these questions and have been thwarted in one way or another that entire time.”

J.D. Reeves/High Country News and ProPublica

Three missing words

As Arizona prepared to take California to court in the early 1950s, the federal government faced a delicate choice. It represented a host of interests along the river that would be affected by the outcome: tribes, dams and reservoirs and national parks. How should it balance their needs?

The Supreme Court had ruled in 1908 that tribes with reservations had an inherent right to water, but neither Congress nor the courts had defined it. The 1922 Colorado River Compact, which first allocated the river’s water, also didn’t settle tribal claims.

In the decades that followed the signing of the compact, the federal government constructed massive projects — including the Hoover, Parker and Imperial dams — to harness the river. Federal policy at the time was generally hostile to tribes, as Congress passed laws eroding the United States’ treaty-based obligations. Over a 15-year period, the country dissolved its relationships with more than 100 tribes, stripping them of land and diminishing their political power. “It was a very threatening time for tribes,” Curley said of what would be known as the Termination Era.

Tribal water rights were “prior and superior” to all other water users in the basin, even states.

So it was a shock to states when, in November 1953, Attorney General Herbert Brownell Jr. and the Department of Justice moved to intervene in the states’ water fight and aggressively staked a claim on behalf of tribes. Tribal water rights were “prior and superior” to all other water users in the basin, even states, the federal government argued.

Western states were apoplectic.

Arizona Gov. John Howard Pyle quickly called a meeting with Brownell to complain, and Western politicians hurried to Washington, D.C. Under political pressure, the Department of Justice removed the document four days after filing it. When Pyle wrote to thank the attorney general, he requested that federal solicitors work with the state on an amended version. “To have left it as it was would have been calamitous,” Pyle said.

The federal government refiled its petition a month later. It no longer asserted that tribes’ water rights were “prior and superior.”

The letter from Gov. Howard Pyle of Arizona to Attorney General Herbert Brownell, Jr. after the U.S. filed an initial petition in Arizona v. California stated that tribal water claims are “prior and superior” to all others on the river. Western governors led by Pyle requested a meeting with the AG immediately, asking him to pull the petition, which he did.
Roberto (Bear) Guerra/High Country News

When details of the states’ meeting with the attorney general emerged in court three years later, Littell, the Navajo Nation’s attorney, berated the Department of Justice for its “equivocating, pussy-footing” defense of tribes’ water rights. “It is rather a shocking situation, and the Attorney General of the United States is responsible for it,” he said during court hearings.

Arizona’s legal representative balked at discussing the meeting in open court, calling it “improper.”

Experts told ProPublica and High Country News that it’s impossible to quantify the impact of the federal government’s failure to fully defend tribes’ water rights. Reservations might have flourished if they’d secured water access that remains elusive today. Or, perhaps basin tribes would have been worse off if they had been given only small amounts of water. Amid the overt racism of that era, the government didn’t consider tribes capable of extensive development.

Jay Weiner, an attorney who represents several tribes’ water claims in Arizona, said the important truth the documents reveal is the federal government’s willingness to bow to states instead of defending tribes. Pulling back from its argument that tribes’ rights are “prior and superior” was but one example.

“It’s not so much the three words,” Weiner said. “It’s really the vigor with which they would have chosen to litigate.”

“It is rather a shocking situation, and the Attorney General of the United States is responsible for it.”

Because states succeeded in spiking “prior and superior,” they also won an argument over how to account for tribes’ water use. Instead of counting it directly against the flow of the river, before dealing with other users’ needs, it now comes out of states’ allocations. As a result, tribes and states compete for the scarce resource in this adversarial system, most vehemently in Arizona, which must navigate the water claims of 22 federally recognized tribes.

In 1956, W.H. Flanery, the associate solicitor of Indian Affairs, wrote to an Interior Department official that Arizona and California “are the Indians’ enemies and they will be united in their efforts to defeat any superior or prior right which we may seek to establish on behalf of the Indians. They have spared and will continue to spare no expense in their efforts to defeat the claims of the Indians.”

A 1953 telegram to the Arizona Interstate Stream Commission, which prepared the state’s case against California, notifying them that “prior and superior” had been removed.
Roberto (Bear) Guerra/High Country News

Western states battle tribal water claims

As arguments in the case continued through the 1950s, an Arizona water agency moved to block a major farming project on the Colorado River Indian Tribes’ reservation until the case was resolved, the newly uncovered documents show. Decades later, the state similarly used unresolved water rights as a bargaining chip, asking tribes to agree not to pursue the main method of expanding their reservations in exchange for settling their water claims.

Highlighting the state’s prevailing sentiment toward tribes back then, a lawyer named J.A. Riggins Jr. addressed the river’s policymakers in 1956 at the Colorado River Water Users Association’s annual conference. He represented the Salt River Project — a nontribal public utility that manages water and electricity for much of Phoenix and nearby farming communities — and issued a warning in a speech titled, “The Indian threat to our water rights.”

“I urge that each of you evaluate your ‘Indian Problem’ (you all have at least one), and start NOW to protect your areas,” Riggins said, according to the text of his remarks that he mailed to the Bureau of Indian Affairs.

Riggins, who on multiple occasions warned of “‘Indian raids’ on western non-Indian water rights,” later lobbied Congress on Arizona’s behalf to authorize a canal to transport Colorado River water to Phoenix and Tucson. He also litigated Salt River Project cases as co-counsel with Jon Kyl, who later served as a U.S. senator. (Kyl, who was an architect of Arizona’s tribal water rights strategy, told ProPublica and High Country News that he wasn’t aware of Riggins’ speech and that his work on tribal water rights was “based on my responsibility to represent all of the people of Arizona to the best of my ability, which, of course, frequently required balancing competing interests.”)

While Arizona led the opposition to tribes’ water claims, other states supported its stance.

“We thought the allegation of prior and superior rights for Indians was erroneous,” said Northcutt Ely, California’s lead lawyer in the proceedings, according to court transcripts. If the attorney general tried to argue that in court, “we were going to meet him head on,” Ely said.

Department of Justice attorney William Veeder wrote this memo to get sign off from the attorney general for the revised petition that deleted the “prior and superior” language.
Roberto (Bear) Guerra/High Country News

When Arizona drafted a legal agreement to exclude tribes from the case, while promising to protect their undefined rights, other states and the Interior Department signed on. It was only rejected in response to pressure from tribes’ attorneys and the Department of Justice.

McMillen, the historian who compiled the documents reviewed by ProPublica and High Country News, said they show Department of Justice staff went the furthest to protect tribal water rights. The agency built novel legal theories, pushed for more funding to hire respected experts and did extensive research. Still, McMillen said, the department found itself “flying the plane and building it at the same time.”

Tribal leaders feared this would result in the federal government arguing a weak case on their behalf. The formation of the Indian Claims Commission — which heard complaints brought by tribes against the government, typically on land dispossession — also meant the federal government had a potential conflict of interest in representing tribes. Basin tribes coordinated a response and asked the court to appoint a special counsel to represent them, but the request was denied.

So too was the Navajo Nation’s later request that it be allowed to represent itself in the case.

Arizona v. Navajo Nation

More than 60 years after Littell made his plea to Kennedy, the Navajo Nation’s water rights in Arizona still haven’t been determined, as he predicted.

The decision to exclude the Navajo Nation from Arizona v. California influenced this summer’s Supreme Court ruling in Arizona v. Navajo Nation, in which the tribe asked the federal government to identify its water rights in Arizona. Despite the U.S. insisting it could adequately represent the Navajo Nation’s water claims in the earlier case, federal attorneys this year argued the U.S. has no enforceable responsibility to protect the tribe’s claims. It was a “complete 180 on the U.S.’ part,” said Michelle Brown-Yazzie, assistant attorney general for the Navajo Nation Department of Justice’s Water Rights Unit and an enrolled member of the tribe.

Trial transcripts from an Arizona v. California hearing in 1956.
Roberto (Bear) Guerra/High Country News

In both cases, the federal government chose to “abdicate or to otherwise downplay their trust responsibility,” said Joe M. Tenorio, a senior staff attorney at the Native American Rights Fund and a member of the Santo Domingo Pueblo. “The United States took steps to deny tribal intervention in Arizona v. California and doubled down their effort in Arizona v. Navajo Nation.”

In June, a majority of Supreme Court justices accepted the federal government’s argument that Congress, not the courts, should resolve the Navajo Nation’s lingering water rights. In his dissenting opinion, Gorsuch wrote, “The government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first.” At this point, he added, “the Navajo have tried it all.”

The federal government chose to “abdicate or to otherwise downplay their trust responsibility.”

As a result, a third of homes on the Navajo Nation still don’t have access to clean water, which has led to costly water hauling and, according to the Navajo Nation, has increased tribal members’ risk of infection during the COVID-19 pandemic.

Eight tribal nations have yet to reach any agreement over how much water they’re owed in Arizona. The state’s new Democratic governor has pledged to address unresolved tribal water rights, and the Navajo Nation and state are restarting negotiations this month. But tribes and their representatives wonder if the state will bring a new approach.

“It’s not clear to me Arizona’s changed a whole lot since the 1950s,” Weiner, the lawyer, said.

Anna V. Smith is an associate editor of High Country News. She writes and edits stories on tribal sovereignty and environmental
justice for the Indigenous Affairs desk from Colorado. @annavtoriasmith

Mark Olalde is an environment reporter with ProPublica, where he investigates issues concerning oil, mining, water and other topics around the Southwest.

We welcome reader letters. Email High Country News at or submit a letter to the editor. See our letters to the editor policy.

‘Blessed to have water’: Hualapai Tribe praises historic water rights settlement

After more than a decade of negotiations, the Hualapai Tribe settled with the federal government and the state of Arizona to provide water to the tribal residents, and establish a trust fund of $312 million that can be used to develop water infrastructure on the Hualapai Nation.

The case of the Colorado River’s missing water

In the East River watershed, located at the highest reaches of the Colorado River Basin, a group of researchers at Gothic’s Rocky Mountain Biological Laboratory (RMBL) are trying to solve the mystery by focusing on a process called sublimation. Snow in the high country sometimes skips the liquid phase entirely, turning straight from a solid into a vapor. The phenomenon is responsible for anywhere between 10% to 90% of snow loss. This margin of error is a major source of uncertainty for the water managers trying to predict how much water will enter the system once the snow begins to melt. 

Although scientists can measure how much snow falls onto the ground and how quickly it melts, they have no precise way to calculate how much is lost to the atmosphere, said Jessica Lundquist, a researcher focused on spatial patterns of snow and weather in the mountains. With support from the National Science Foundation, Lundquist led the Sublimation of Snow project in Gothic over the 2022-’23 winter season, seeking to understand exactly how much snow goes missing and what environmental conditions drive that disappearance.

Project lead Jessica Lundquist stands inside a freshly dug snow pit near Gothic’s Rocky Mountain Biological Laboratory outside of Crested Butte, Colorado.
Bella Biondini

“It’s one of those nasty, wicked problems that no one wants to touch,” Lundquist said. “You can’t see it, and very few instruments can measure it. And then people are asking, what’s going to happen with climate change? Are we going to have less water for the rivers? Is more of it going into the atmosphere or not? And we just don’t know.”

“Are we going to have less water for the rivers? Is more of it going into the atmosphere or not? And we just don’t know.”

The snow that melts off Gothic will eventually refill the streams and rivers that flow into the Colorado River. When runoff is lower than expected, it stresses a system already strained because of persistent drought, the changing climate and a growing demand. In 2021, for example, snowpack levels near the region’s headwaters weren’t too far below the historical average not bad for a winter in the West these days. But the snowmelt that filled the Colorado River’s tributaries was only 30% of average.

“You measure the snowpack and assume that the snow is just going to melt and show up in the stream,” said Julie Vano, a research director at the Aspen Global Change Institute and partner on the project. Her work is aimed at helping water managers decode the science behind these processes. “It just wasn’t there. Where did the water go?” 

As the West continues to dry up, water managers are increasingly pressed to accurately predict how much of the treasured resource will enter the system each spring. One of the greatest challenges federal water managers face — including officials at the Bureau of Reclamation, the gatekeeper of Lake Powell and Lake Mead — is deciding how much water to release from reservoirs to satisfy the needs of downstream users. 

While transpiration and soil moisture levels may be some of the other culprits responsible for water loss, one of the largest unknowns is sublimation, said Ian Billick, the executive director of RMBL.

“We need to close that uncertainty in the water budget,” Billick said. 


Right, Eli Schwat records his observations. The team set up more than 100 instruments in an alpine meadow just south of Gothic to measure the processes that drive snow sublimation.
Bella Biondini


Doing it right 

The East River’s tributaries eventually feed into the Colorado River, which supplies water to nearly 40 million people in seven Western states as well as Mexico. This watershed has become a place where more than a hundred years of biological observations collide, many of these studies focused on understanding the life cycle of the water. 

Lundquist’s project is one of the latest. Due to the complexity of the intersecting processes that drive sublimation, the team set up more than 100 instruments in an alpine meadow just south of Gothic known as Kettle Ponds. 

“No one’s ever done it right before,” Lundquist said. “And so we are trying our very best to measure absolutely everything.”  

Throughout the winter, the menagerie of equipment quietly recorded data every second of the day — measurements that would give the team a snapshot of the snow’s history. A device called a sonic anemometer measured wind speed, while others recorded the temperature and humidity at various altitudes. Instruments known as snow pillows measured moisture content, and a laser imaging system called “Lidar” created a detailed map of the snow’s surface.  

“We are trying our very best to measure absolutely everything.” 

From January to March, the three coldest months of the year, Daniel Hogan and Eli Schwat, Ph.D. students who work under Lundquist at the University of Washington, skied from their snow-covered cabin in Gothic to Kettle Ponds to monitor the ever-changing snowpack. 

Their skis were fitted with skins, a special fabric that sticks to skis so they can better grip the snow. The two men crunched against the ground as they made their near-daily trek out to the site, sleds full of gear in tow. It was a chilly day in March, but the searing reflection of the snow made it feel warmer than it was. When Hogan and Schwat arrived, they dug a pit into the snow’s surface, right outside the canopy of humming instrumentation.


Daniel Hogan and Eli Schwat tow a sled of gear out to the Kettle Ponds study site this March.
Bella Biondini


The pair carefully recorded the temperature and density of the snow inside. A special magnifying glass revealed the structure of individual snowflakes, some of them from recent storms and others, found deeper in the pit, from weeks or even months before. All of these factors can contribute to how vulnerable the snowpack is to sublimation. 

This would be just one of many pits dug as snow continued to blanket the valley. If all of the measurements the team takes over a winter are like a book, a snow pit is just a single page, Hogan said.

“Together, that gives you the whole winter story,” he said, standing inside one of the pits he was studying. Just the top of his head stuck out of the snowpit as he examined its layers. 

Lundquist’s team began analyzing the data they collected long before the snow began to melt. 

They hope it will one day give water managers a better understanding of how much sublimation eats into the region’s water budget — helping them make more accurate predictions for what is likely to be an even hotter, and drier, future.

The wind tears snow from the top of Gothic Mountain. Wind is one of many factors driving snow sublimation.
Bella Biondini

Bella Biondini is the editor of the Gunnison Country Times and frequently covers water and public lands issues in western Colorado. We welcome reader letters. Email High Country News at or submit a letter to the editor. See our letters to the editor policy.

The Colorado River flooded the Chemehuevi’s land. Decades later, the tribe still struggles to get its share of the river

The opposite side of the reservoir is dark and so quiet that water lapping on the shore and bats clicking overhead can be heard over the distant hum of boat engines. This is the Chemehuevi Indian Tribe’s reservation in California. The water that rose behind Parker Dam to create Lake Havasu washed away homes and flooded about 7,000 acres of fertile Chemehuevi land, including where tribal members grazed cattle.

This story is the third story in a series about the Colorado River. See the rest, as well as other great reporting from High Country News by signing up for our newsletter.

The communities across the reservoir reflect the vast divide in economic opportunities between Indian Country and the rest of the West, which has been perpetuated, in large part, by who received water and who did not.

Note: Boundaries of Native American reservations and trust land are from the 2018 U.S. census.
Lucas Waldron/ProPublica

In 1908, the U.S. Supreme Court ruled that the federal government owed tribes enough water to develop a permanent home on their reservations, and that their water rights would hold senior priority, meaning they trumped those of others. In the Colorado River Basin, most tribes, even during a drought, should get water before Phoenix, Las Vegas, Los Angeles and elsewhere.

More than a century later, only a few basin tribes have benefited from this system. Of those that have, some live near federally funded canals and pipelines that can deliver water to their land; others received money to build their own water systems; and some negotiated for the right to market their water to other users. The Gila River Indian Community, for instance, recently struck a deal with the federal government to forgo using some of its water in exchange for up to $150 million over the next three years, depending how much water it conserves, and $83 million for a new pipeline.

But most of the basin’s 30 federally recognized tribes have faced seemingly endless barriers to accessing and benefiting from all of the water to which they’re entitled. The Chemehuevi Reservation fronts about 30 miles of the Colorado River, yet 97% of the tribe’s water remains in the river and ends up being used by Southern California cities. The tribe never receives a dollar for it.

The Colorado River and Lake Havasu delta, with Lake Havasu City in the background.
Russel Albert Daniels/High Country News and ProPublica

The water that has already been guaranteed to basin tribes but remains unused totals at least 1 million acre-feet per year — nearly one-tenth of the Colorado River’s flow in recent years and nearly four times the Las Vegas metro area’s allocation. If sold outright, this water would be valued at more than $5 billion, according to a ProPublica and High Country News analysis. For the Chemehuevi, a tribe with about 1,250 members, that means the amount of water it has on paper but doesn’t use would have a one-time value of at least $55 million.

Steven Escobar, the Chemehuevi’s tribal administrator, says it has been a struggle for the tribe to get the same help from the federal government to access water as others have.
Russel Albert Daniels/High Country News and ProPublica

Steven Escobar, the Chemehuevi’s tribal administrator, grew up testing his mettle against the Colorado River’s currents, swimming across its cold waters upstream of the reservoir. He still thinks of the river in terms of struggle. But now, it’s a struggle for the tribe to get the same help from the federal government to access water as others have, or, if not, to get compensation for what’s legally theirs.

“All that development and governmental support that they provide every state, that should be the same thing they provide to tribes,” Escobar said. “We’ve had to fight for everything out here.”

As demand on the Colorado River far exceeds its supply, tribes worry that they’ll never receive the water they’re owed.

The Chemehuevi are left in a bind: The tribe doesn’t have the pumps or other infrastructure necessary to deliver its full allotment of river water to its reservation. While the federal government gave the tribe a grant to build a small reservoir, neither it nor the state of California has allocated money to build a larger delivery system.

“All that development and governmental support that they provide every state, that should be the same thing they provide to tribes.” 

Even as a backup option, the tribe is unable to lease its water to other users, such as rapidly growing cities, or earn money by leaving it in the river to preserve the waterway. Antiquated laws and court rulings typically allow tribes to be paid to conserve only water they previously used. Any changes to how a tribe could market its water would take an act of Congress.

“This is a long-standing problem,” said Mark Squillace, a professor at the University of Colorado’s law school. “From the perspective of the people using that water, why would they pay when they’re already getting it for free?”


The Chemehuevi Reservation in the foreground, with Lake Havasu City in the background. The reservation fronts about 30 miles of the Colorado River, yet 97% of the tribe’s water remains in the river.
Russel Albert Daniels/High Country News and ProPublica


The Law of the River at work

A half-century ago, the Bureau of Reclamation began construction on a massive canal called the Central Arizona Project to send the waters that flooded the Chemehuevi’s land 336 miles across the desert to Phoenix and Tucson. The pumps that power the system, which help deliver the state’s share of the Colorado River, are the largest single consumer of electricity in the state.

Meanwhile, the Chemehuevi rely on a single diesel pump to draw water six stories up to the plateau where they live above Lake Havasu.

For at least 50 years, the river’s decision-makers have recognized this disparity in water access. In 1973, a body called the National Water Commission submitted a report to Congress: “In the water-short West, billions of dollars have been invested, much of it by the Federal Government, in water resource projects benefiting non-Indians but using water in which the Indians have a priority of right if they choose to develop water projects of their own in the future.”

For tribes, the first challenge is securing their water rights. After the Supreme Court’s 1908 decision confirming tribes’ right to water, two paths emerged to quantify and settle the amount and details of those rights. Tribes could, with the backing of the Department of the Interior, negotiate with the state where their reservation is located. Or they could go to court. Fourteen basin tribes are still in the midst of this process, but either path they choose presents trade-offs.

Tribes that negotiate typically need to trade some of the water they believe they’re owed in exchange for money to build water-delivery infrastructure. They can also trade their water priority — leaving them more susceptible when allocations are cut, a reality that’s already threatening to curtail their water amid the West’s ongoing drought.

For tribes that choose to go through the courts to get their water, there’s no opportunity to negotiate for funding for canals, pipes and pumps, meaning there’s no way to move the water they’re awarded onto a reservation.

“It’s not enough to have the right to the water,” Squillace said. “You also have to have the infrastructure.”

“It’s not enough to have the right to the water. You also have to have the infrastructure.”

The Gene Pumping Plant near Lake Havasu lifts water hundreds of feet to the Colorado River Aqueduct system, which delivers it to Los Angeles, San Diego and other cities. Southern California gets about 25% of its water from the Colorado River via the aqueduct.
Russel Albert Daniels/High Country News and ProPublica

Highlighting the difficulties in converting rights to water on paper into actual water on a reservation, tribes around the West that secured a negotiated settlement only increased their agricultural land use by about 9% and saw no increase in residential or industrial development, according to estimates from a recent study published in the Journal of the Association of Environmental and Resource Economists.

And if a tribe can’t move water, it often can’t monetize it.

Laws passed between 1790 and 1834, known as the Indian Non-Intercourse Acts, have the effect of prohibiting tribes from leasing water beyond the borders of their reservations without congressional approval. Settlements also typically bar them from permanently selling their water and often prohibit them from leasing it.

Daniel Leivas, Chemehuevi farm manager, at the Chemehuevi agriculture plot.
Russel Albert Daniels/High Country News and ProPublica

“This is what’s left”

Politicians packed a conference room at the Arizona Capitol in April, where they unveiled an agreement to pay the Gila River Indian Community millions of dollars to leave its water in Lake Mead. Officials took turns at the lectern extolling tribes for their role in preserving the Colorado River.

“We don’t have any more important partners in this effort than in Indian Country,” Deputy Secretary of the Interior Tommy Beaudreau said.

When the Gila River Indian Community negotiated its water rights, the Central Arizona Project had begun carrying Colorado River water near its reservation south of Phoenix, and the tribe had some political clout after spending millions of dollars on lobbying. Those advantages allowed the tribe to negotiate tens of millions of dollars for infrastructure to deliver its water and the right to lease tens of thousands of acre-feet to nearby cities and a mining company. Its settlement has now made the tribe a well-compensated partner in conservation efforts.

“These are truly historic investments in directly tackling the challenge presented to our state and our region by the historic drought,” Gila River Indian Community Gov. Stephen Roe Lewis said during the April news conference announcing the deal to trade more water for money. The tribe declined requests for additional comment, as it is negotiating further water deals.

The Chemehuevi, by contrast, can’t access or lease most of their water. Their rights were quantified and settled via the courts in the 1960s, at a time when the tribe didn’t have federal recognition. So it didn’t receive infrastructure funding.

Colorado River Indian Tribes farmland. The tribe recently got a bill through Congress that will allow it to make millions of dollars from leasing its water.
Russel Albert Daniels/High Country News and ProPublica

Escobar, the Chemehuevi’s tribal administrator, would prefer to use his tribe’s water, not lease it. He wants to expand pumping capacity and construct a cascading series of reservoirs. Once the Chemehuevi access the water, they could use it for more houses to bring enrolled members back to their land, new businesses to provide jobs and increased farming to grow the reservation’s economy.

Escobar talked about his dreams and the difficulty in developing Indian Country as he drove past the frames of unused greenhouses, evidence of a failed venture. Near a field where the tribe’s single tractor was working the soil, Escobar described the Chemehuevi’s agricultural plans. Behind him, Lake Havasu covered soil that could have been productive fields or pastureland. In front of him stretched sandy desert where the federal government said the tribe should harvest crops.

“We want to be a benefit to the system, but right now, they’re making it hard.” 

“This is what’s left,” he said of the tribe’s potential farmland that wasn’t submerged by the reservoir. “It’s sad.”

After the once-nomadic Chemehuevi fought for recognition of their tribe and their reservation, they partnered with the University of Southern California to develop a plan to farm 1,900 acres using the 11,340 acre-feet of water per year, about 3.7 billion gallons, that the government allotted them — at least on paper. But, in a good year, the Chemehuevi farm only 80 acres, growing melons for food, devil’s claw for basket weaving and cottonwoods for a riparian restoration project.

If it can’t transport more water to expand the farm, Escobar said, the tribe could accept leaving water in the river in exchange for compensation. “We want to be a benefit to the system,” he said, “but right now, they’re making it hard.” Many non-Indigenous people and a few tribes around the basin earn money limiting their water use, whether by fallowing farm fields or ripping out lawns.

Why shouldn’t all tribes be paid? Escobar asked.   

Housing on the Chemehuevi Reservation. The tribe has about 1,250 members.
Russel Albert Daniels/High Country News and ProPublica

Anna V. Smith is an associate editor of
High Country News. She writes and edits stories on tribal sovereignty and environmental
justice for the Indigenous Affairs desk from Colorado. @annavtoriasmith

Mark Olalde is an environment reporter with ProPublica, where he investigates issues concerning oil, mining, water and other topics around the Southwest.

Umar Farooq is an Ancil Payne Fellow with ProPublica, where he reports on national issues. @UmarFarooq_

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