Tribes that use the Colorado River want a say in negotiations that will reshape how the river’s water is shared. Eighteen of those tribes signed on to a letter sent to the Bureau of Reclamation, the federal agency that will finalize new rules for managing the river after 2026, when the current guidelines expire.
In the memo, tribal leaders urge the federal government to protect their access to water and uphold long-standing legal responsibilities.
The letter comes as other groups have also been sending the feds their ideas for managing a river that supplies 40 million people across the Southwest but is shrinking due to climate change. Reclamation is considering input from different Colorado River users, including competing proposals from two camps within the seven states that use its water.
The river’s Upper Basin states of Colorado, Utah, Wyoming and New Mexico banded together to send a proposal, and the Lower Basin states – California, Arizona and Nevada – did the same. A coalition of environmental nonprofits sent their own, and a group of high-profile water researchers published another.
The tribes’ letter aims to make sure that Indigenous people, who used the Colorado River before white settlers ever occupied the Western U.S., are not left behind as Reclamation considers those proposals.
“If you are not at the table, you are on the menu,” Jay Weiner, a water lawyer for the Quechan Indian Tribe, said.
Weiner, who helped craft the letter, said it aims to answer the complicated question: What do tribes want?
Each tribe in the Colorado River basin is unique and has interests that make it hard to land on one clear answer to that question, Weiner said, but this memo aims to coalesce a “critical mass” of tribes around broader ideas that are important to tribes.
“This is very much part of the effort of trying to be at the table and engaged so that there are meaningful opportunities for input, for engagement, for dialogue and, frankly, for fighting, when it comes to it,” Weiner said.
Three key principles
In the memo, the co-signing tribes address three main principles.
First, they ask the government to uphold its “trust responsibility” to the tribes.
This goes back to the very foundation of laws that guide relationships between the United States and tribes. When the federal government took property and assets from tribes, it also created a special designation for the tribes, calling them “domestic dependent nations.”
That designation also comes with the “responsibility to do right by those tribes forever,” explained Jenny Dumas, legal counsel on water for the Jicarilla Apache Nation and another architect of the tribal principles letter.
“The tribes gave up a lot of things when they entered into treaties with the federal government,” she said, “But what they did not give up was their right to a sufficient supply of water to provide for their people forever and ever in perpetuity.”
The letter urges federal water managers to fulfill that responsibility by rejecting any new water rules that would encroach on the government’s obligation to make sure tribes have access to water, and to adequately compensate any tribes that are forced to take water cuts in times of shortage.
Lorelei Cloud, vice chairman of the Southern Ute Indian Tribe, listens during a panel at the Colorado River Water Users Association conference in Las Vegas on Dec. 13, 2023. Tribes hold rights to about a quarter of the river’s flow, but many lack the funding and infrastructure to use their full allocations and instead leave it in the river. The letter lays out a few specific ways the U.S. government could help change that. (Alex Hager/KUNC)
The letter also asks the feds for better ways to financially benefit off of the water they own.
Tribes hold rights to about a quarter of the river’s flow, but many lack the funding and infrastructure to use their full allocations and instead leave it in the river. The letter lays out a few specific ways the U.S. government could help change that.
One of those ways is to “maximize” tribes’ ability to participate in conservation programs. Armed with a $4 billion pool of money from the Inflation Reduction Act, the federal government has been funding programs to pay water users – often farmers and ranchers – to pause water use and leave some extra water in reservoirs. Some tribes are already receiving conservation payouts, but the letter advocates to expand tribal participation.
In addition, the memo asks feds to make it easier for tribes to market or lease their water rights to water users that reside outside of tribal land. That could open the door to new revenue streams, participation in conservation programs or the construction of new water infrastructure.
Finally, the letter asks the U.S. government to establish a permanent, formalized way for tribes to participate in talks about water use during ongoing negotiations and any other time Colorado River policy is discussed in the future.
Tribes have long been pushing for better representation in negotiations about the Colorado River. Indigenous people were excluded from talks that set the foundation for how water is shared in the Southwest over a century ago, and tribes say they’re still being left out now.
In the letter to Reclamation, tribal leaders wrote that river negotiations in 2007 had a “lack of formal tribal inclusion,” and reminded federal water managers that in 2023, federal officials made it a stated goal to enhance engagement and inclusion of tribes going forward.
The tribes are asking for something specific. Certain steps in negotiations about Colorado River water trigger the federal government to talk to states that use its water. The tribes want to make sure they are also consulted any time that trigger is hit.
Ultimately, the letter’s authors say tribes—and the legal infrastructure that governs tribal water use—are unique in a way that has to be considered when drawing up new rules that could have a big impact on the cities and farms of the Southwest.
“Tribal water rights are different,” Dumas said. “They’re not the same as non-Indian water rights. And for that reason, they deserve different protections and special treatment. And that’s what we’re asking for in this letter.”
‘Tribes have survived a whole lot worse’
While exclusion of tribes has been an undercurrent of Colorado River negotiations for at least a century, tribal leaders say times are changing.
Jason Hauter, legal counsel on water issues for the Gila River Indian Community who helped craft the letter, said the U.S. government faces “billions of dollars of potential liability” without the buy-in of Gila River and other tribes and that having unwilling water users could slow down the authorization and implementation of new water rules.
“Tribes are a key stakeholder,” said Hauter, who is a member of the Gila River Indian Community. “The days of being able to politically roll tribes and them not being sophisticated enough to put up strong challenges to federal rulemaking are over.”
Even after the letter’s submission, the number of tribes adding their support has grown. An early version of the memo was co-signed by 16 tribes. That number now stands at nineteen.
One of the late additions was the Gila River Indian Community, which holds lands in the Phoenix area. The tribe has been among the most prominent in Colorado River negotiations, and has become a high-profile partner to Arizona and the federal government in recent conservation programs.
Len Necefer, a member of the Navajo Nation, walks through Glen Canyon on April 10, 2023. This area used to be entirely submerged by Lake Powell. Management of the nation’s second-largest reservoir is a major focus of efforts to re-negotiate Colorado River management. The Navajo Nation is not among the tribes that signed a recent letter to the Bureau of Reclamation. (Alex Hager/KUNC)
In March, Gila River’s governor, Stephen Roe Lewis, announced the tribe did not support the Lower Basin proposal that Arizona signed on to, and that it planned to file its own. Instead, the community joined as a co-signer of the tribal principles letter in late April.
Indigenous leaders are quick to point out that each tribe is unique, and common ground can be hard to find amid the geographical, political and financial differences between them. This letter, however, is designed to focus on ideas so broad that they can find consensus among nearly two-thirds of all tribes that use Colorado River water.
“The goal should be having a stable system, not necessarily picking winners and losers,” Hauter said. “There’s a lot of posturing between the Upper and Lower Basin, and without really focusing on the ultimate goal: How do we make a better system? Given what the basin is facing, a recognition that there has to be shared pain among the basin states and among tribes. Finding ways to do that in a fair way, in a way that can make sense, that’s the challenge we all face.”
Conversations about Colorado River management have, for the past couple years, largely focused on the re-negotiation deadline in 2026. While it has been framed as a momentous juncture in the timeline of Western water management, tribes and their representatives say they’re focused on a longer view.
Jay Weiner, water lawyer for the Quechan Indian Tribe, said even if climate change makes the Southwest unpalatable for white people and other settlers, tribes plan to stay in their historic homelands.
“None of these things are single, one-off immutable events,” he said, “Because tribes have survived a whole lot worse than anything we’re gonna see coming out of post-2026 guidelines.”
This story is part of ongoing coverage of the Colorado River, produced by KUNC in Colorado and supported by the Walton Family Foundation. KUNC is solely responsible for its editorial coverage.
