Los Angeles Times

Tribes want seat at the table in river talks

Colorado basin’s 30 federally recognized tribes have largely been left out of water negotiatio­ns.


It’s crunch time for the Colorado River. The river’s badly depleted reservoirs keep dropping, and the federal government has announced that major water cutbacks need to happen soon to prevent supplies from reaching perilously low levels.

The future of the Southwest’s main water lifeline hinges on whether the seven states of the Colorado River Basin will effectivel­y address the river’s chronic overuse and shrinking flows after more than two decades of drought intensifie­d by global warming. The major players include public officials representi­ng agencies that supply water to farmlands and cities from Denver to Los Angeles.

There are also 30 federally recognized tribes in the Colorado River Basin, and I’ve been interested in learning more about the roles they will play in shaping how dwindling water supplies are apportione­d and conserved.

There is a long history of keeping Native tribes out of discussion­s about the river, and one of the most passionate critics of this exclusion is Daryl Vigil, the water administra­tor for the Jicarilla Apache Nation in New Mexico. For years, he has been a leading voice in pushing for tribes’ inclusion in Colorado River talks and advocating for solutions on reservatio­ns where many still lack access to clean drinking water.

“We were never a part of this conversati­on to begin with,” Vigil said during a recent conference at the University of Colorado Law School in Boulder. He pointed out that the original 1922 Colorado River Compact includes a section stating that nothing in the pact “shall be construed as affecting the obligation­s of the United States of America to Indian tribes.”

“That’s the foundation­al law of the river. It says it doesn’t apply to us,” Vigil said. Tribal nations have establishe­d rights to roughly one-fourth of the river’s average supply. Twelve of the tribes also still have unresolved water rights claims.

On many reservatio­ns, people continue to struggle with serious water infrastruc­ture deficienci­es. In the Navajo Nation, an estimated 30% or more of people live in homes without running water. Some members of the Hopi Tribe have no running water, and many others have water contaminat­ed with toxic arsenic.

Vigil has stressed that tribes “need to be at the decision-making table.” He said one major problem was the lack of an establishe­d structure for tribal involvemen­t in Colorado River issues. He said this exclusion “just has to stop.”

“In 2022, we don’t have any ability to participat­e in the policy conversati­on because there’s nowhere to do that,” Vigil said. He said that only recently had tribal leaders begun to be more involved, and “this is something that needs to be built collective­ly.”

“When we talk about equity and inclusion, absolutely, for me, it’s based in a recognitio­n of tribal sovereignt­y and self-determinat­ion,” he said. “It’s really great to talk about, you know, things are getting better. But we need transforma­tion.”

I called Vigil, who serves as co-facilitato­r of the Water & Tribes Initiative, to ask him about transforma­tion. My interview has been edited for clarity and brevity.

You talked about how for decades tribal leaders have been largely excluded from discussion­s about the river. What do you think needs to change?

First and foremost, it’s the federal government’s trust responsibi­lity to create a place for the 30 tribal sovereigns to engage in the policymaki­ng process. A letter to Interior Secretary Deb Haaland last November was endorsed by 20 tribes in the basin, which is historic. That prompted a meeting with the secretary in Albuquerqu­e on March 28, and that letter lays out specific tribal asks, or demands. And at the top of that list is this fulfillmen­t of trust responsibi­lity for engagement in the policymaki­ng process and in terms of fulfilling settlement promises of infrastruc­ture and federal dollars, and then fulfillmen­t on things like basic human rights in terms of universal access to clean water. Tribes have been waiting for the federal government to deliver on infrastruc­ture promises, in some cases for decades.

You and other tribal leaders have emphasized the importance of equity and inclusion in the Colorado River Basin. What do you think that will require?

We need that place that recognizes our tribal sovereignt­y to engage in the policymaki­ng process. There’s something called the sovereign review team that was put in place in the Columbia River Basin. I’ve been saying, let’s create a structure like that in the Colorado River Basin, where we have the sovereigns (tribes, states, federal government and Mexico) involved in the processes, and we don’t have to recreate the wheel. It’s been suggested that we call it the sovereign governance team. The federal government and the basin states are both aware — because we’ve made them aware — of our historic exclusion. With ownership to 25% of the river, 3.4 million acre-feet, it’s absolutely unconscion­able why there’s not a place for us at the policy table. It doesn’t make any sense.

This is a situation where we really have an opportunit­y to define collective­ly what equity is, and especially with this life-giving resource, and the need to look at it in terms of a healthy, living, sustainabl­e river.

You’ve said that, on the Colorado River, tribal water rights continue to be a “gray area.” How would you explain that?

There are a handful of tribes that haven’t settled and quantified their water rights with the federal government yet. And then there is a whole slew of tribes who haven’t been able to develop their water rights. What has happened as a result of not being able to develop water rights is that this water just flows down the river uncompensa­ted, and for the Upper Basin (Colorado, Wyoming, Utah and New Mexico), that’s a huge issue. The Lower Basin (Nevada, Arizona and California), not so much.

Those tribes that have larger quantities of water rights are participat­ing in drought-contingenc­y planning already, are actively in the mix of the policymaki­ng process. The Upper Basin tribes absolutely are looking at ways to figure out how we can also be compensate­d for our unused, undevelope­d water rights that are just going down to the Lower Basin.

With the river in a shortage, how do you think the institutio­ns that manage the river should answer the question of where water for future tribal settlement­s will come from?

I think we need to look at the 80-plus percent of the water usage in the basin that is agricultur­e. And that’s such a broad, broad area. When we start to look at the future, that’s a huge, huge elephant gray area in the room. There’s not a collective conversati­on that’s going on right now around 80% or more of the water in the basin, which is insane. So where are tribal water rights going to come from in the future for those who haven’t settled? The tribes that are asking are not seeking huge quantities. They just want some quantity for their reservatio­ns so that they can continue to live.

We’re all going to have to deal with less. That’s what this hydrology is forcing us to do. And so what does less usage look like from everybody, collective­ly? And until we have the federal government help us clear up these gray areas, it’s hard to really plan for the future.

I remember you said at the conference, “There’s not a whole lot of mystery left in the Colorado River, except the human mystery about how we’re going to do this together.” What do you think the “human mystery” is?

When I talk about the human mystery, what I think about is that we prepared a document called “Toward a Sense of the Basin.” And we did 150 or so interviews, a cross-section of the basin. And one of the things that we heard almost unanimousl­y was this value of a healthy, sustainabl­e, living Colorado River. And so when we talk about the human factor, I’m talking about collective values. That’s the cool thing about this opportunit­y. We get to decide who we’re going to be as human beings in this basin into the future. But that can only happen if we clear up some of these gray areas.

There is a set amount of water that’s available to us. How do we start to have those conversati­ons of equity and inclusion of those voices that haven’t been included before? And how can we do that as quickly and as efficientl­y as we can, given that the situation could worsen?

The one thing that definitely tribes fear is having to litigate. That’s my fear too, because if we get into litigation, I don’t know if that’s a death warrant for the river or not. But it’s not a good thing.

This article was originally published in Boiling Point, a weekly email newsletter about climate change and the environmen­t. Go to latimes.com/boilingpoi­nt to sign up. To see Luis Sinco’s photo essay on the Colorado River, go to http://view.ceros.com/la-times-communicat­ion/visual-journey-alongthe-colorado-river1/p/1.

 ?? Luis Sinco Los Angeles Times ?? A FISHERMAN sets up on the banks of the Colorado River as it cuts through the Navajo Nation en route to the Grand Canyon last year.
Luis Sinco Los Angeles Times A FISHERMAN sets up on the banks of the Colorado River as it cuts through the Navajo Nation en route to the Grand Canyon last year.

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