Water Policy
Tribal Inclusion in Colorado River Governance is a Win-Win
Tribal perspective and participation are good politics and good policy for everyone.
Co-authored by Max Robinson
In August 2021, a first-of-its-kind water shortage was declared by federal officials on the Colorado River, a critical water source for the southwestern United States and northern Mexico. The declaration triggered water delivery reductions to Arizona and Nevada, as well as to Mexico, under a temporary policy called the Drought Contingency Plan (DCP). Policymakers have already begun negotiating new guidelines to take the DCP’s place in 2026, recognizing that climate change-induced water shortages will necessitate even stricter water management in the future. However, these policymakers have largely ignored another “critical uncertainty” that could undermine efforts to achieve water sustainability in the Colorado River Basin: Tribal water rights.
There are 30 federally-recognized Indian Tribes in the Colorado River Basin, twenty-two of whom hold rights to over 20% of the river’s average annual flow. Because Tribal water rights are granted under a unique set of federal rules, they are typically more secure than water rights held by most other users, meaning they’re more likely to be fulfilled in times of shortage in the over-allocated Colorado River system. Additionally, several Tribes hold priority rights to portions of the basin’s groundwater, a water source on which users are becoming increasingly reliant as the basin becomes dryer. Taken together, Tribes in the western U.S. hold rights to around 10.5 million acre-feet of water annually, exceeding most of the western states’ individual withdrawals.
Yet, many Tribes are unable to access and use their water rights due to issues associated with long-standing political disenfranchisement and socio-economic marginalization. For instance, twelve Tribes in the Colorado River Basin have disputed water rights claims that remain unresolved today. And, even when Tribes can gather the resources necessary to enter into expensive and uncertain litigation processes to “quantify” their water rights, they may receive only “paper water.” This means that, despite holding enforceable water rights, a Tribe lacks the means to access and use part or all of their entitlement, contributing to high rates of water insecurity on reservations among other issues. Other water users directly benefit from these injustices, especially during times of shortage, by claiming “unused” Tribal water for their own needs.
Fortunately, many Tribes have begun to quantify their water rights via settlements, which allow them to negotiate with the federal government, states, water districts, and private water users to better control the outcome of their water rights. As settlements have become the go-to mechanism for quantification, federal settlement funding has steadily increased.
As of 2019, authorized settlement funding totaled approximately $5.2 billion; however, in 2016 it was reported that $1 billion in settlement funding had gone unfunded even though previously authorized. More recently, the newly passed HR 3684 $1.2 trillion “Infrastructure Investment and Jobs Act” includes funding to “satisfy long-neglected water rights obligations to Native American tribes.” The actual value of these planned funds is currently unknown, but previous trends indicate a seemingly promising future for rectifying disputes involving Tribal water rights through settlements.
Additionally, while Tribes have been historically excluded from most water policymaking processes, many are already positioning themselves as critical players in the future of the Colorado River Basin. For instance, although Tribes were not formally included in the process used to develop the DCP, they played a pivotal role in helping the states in the basin reach agreement on a plan. Specifically, Tribes agreed to lease water to states and conserve water by temporarily fallowing some of their agriculture in exchange for compensation to help prop up system reservoir levels. Now, Tribal coalitions, such as the Ten Tribes Partnership, are advocating for more formal inclusion of Tribal voices in a plethora of Colorado River decision-making venues. This could include actions like creating a seat for Tribes on the Upper Colorado River Commission and employing the types of sovereign-to-sovereign consultation processes used in other governance situations involving Tribes.
With more severe water shortages on the horizon, continuing to leave Tribal water issues unresolved not only perpetuates historical injustices, but also exacerbates uncertainty and increases the risk for policymakers, water managers, and other water users. The emerging Colorado River renegotiation process provides a critical opportunity to upend policies and practices that have excluded Tribal voices for far too long. Fortunately, the trend toward negotiated settlements for Tribal water rights and enhanced Tribal influence in recent policymaking provides guidance for how this could be achieved.
These slow, but important changes also emphasize that addressing long-ignored Tribal water rights issues is a win-win for all stakeholders in the Colorado River Basin: it can reduce water supply uncertainty, garner federal funding, open new pathways for communication and collaboration, catalyze the development of innovative and flexible water management strategies, and — most importantly — begin to rectify a history of injustice and disenfranchisement of Tribal communities in the western U.S.
