Here’s a report from Nnie Snider writing for E&E Publishing. Click through and read the whole article, here’s an excerpt:
It’s not just modern engineering that made Arizona’s desert bloom.
Thirty miles south of downtown Phoenix sits dusty land that was once farmed by one of the most advanced agricultural civilizations of prehistoric times. As far back as 300 B.C., the Hohokam people hand-dug a network of canals through the Gila River’s rich floodplains, diverting spring runoff to nourish their fields.
But by the end of the 19th century, their descendants’ fields were parched and dead, thanks to upstream diversions by white settlers.
“That era among our people is called the time of starvation,” said Gov. Stephen Roe Lewis, the top elected official at the Gila River Indian Community, home of the Hohokam’s descendants, the Pima, and the Maricopa tribe.
“Not only had our crops dried up because of lack of water, we were known as ranchers and a lot of our animals died because of lack of water,” he said. “We were really on the brink of extinction.”
Over the next century, the federal government put its financial and engineering might to work developing water projects around the reservation to benefit surrounding communities, but rarely the tribes.
Their fields dry, the Pima and Maricopa shifted from their traditional diet to a Western one, and the community’s diabetes rate skyrocketed to one of the highest in the country.
Traditional ways — weaving baskets of marsh grasses, using herbal medicines made from river sediment — were lost, too.
The painful irony: The tribes were technically the first in line for water.
Thanks to a 1908 Supreme Court ruling, tribes almost always have the most senior claim to water in the West, where water rights are prioritized based on when the resource was first put to beneficial use and reservations dot the landscape.
Rights mean little without a lawyer to defend them, though, and for generations, tribes were too poor to afford representation.
But in recent years, in part because of groundwork laid by the Native American civil rights movement, tribes are increasingly heading to court to assert their rights.
There’s a problem: While the high court was clear that tribes have rights to water, it did not say to how much.
In many cases, tribes claim a share large enough that it could crowd out neighboring cities’ and farmers’ water supplies and stanch future development.
Tribes along the main stem of the Colorado River in the Lower Basin have some of the few court-determined rights because of a 1963 Supreme Court decision covering larger battles over the river between California and Arizona. Today, just those few tribes have rights to roughly 20 percent of the Lower Basin’s flow — an amount that is more than five times the allocation for the entire state of Nevada…
Now, as booming populations and extended droughts have stoked competition for water supplies across the West, the uncertainty around tribes’ potentially massive claims to water in already overstretched river basins is posing real constraints on communities and businesses.
“It’s a very significant set of claims that tribes have on very limited and critical water supplies across the West,” said Deputy Interior Secretary Mike Connor, who has worked on tribal water issues throughout his career. “It’s uncertainty — that’s what water managers don’t want.”
But lawsuits have largely proved fruitless for all sides.
When tribes win, they receive only a legal right to the water — dubbed a “paper water right” — often without the infrastructure or funding needed to get the water to the reservation and put it to use.
Meanwhile, endless appeals offer certainty for no one.
Instead, many tribes and communities have opted to sit down at the negotiating table in an effort to hash out an agreement that can get the tribes what they most need — wet water and sometimes other support for economic development — while protecting nontribal users and absolving the federal government of liability for failing to protect tribes’ rights.
Moreover, with all parties at the table, settlements are increasingly providing an opportunity to take a holistic look at issues across the basin and address other sticky issues like endangered species management or land ownership.
“I think generally we kind of look at these things as an opportunity to figure out how water in a particular basin’s going to be used in the future because in these negotiations, everything’s on the table, everybody’s involved,” Echohawk said.
“The question is, how do we get that peace in the valley? How do we learn to live together in a sustainable basin?” he said. “It comes down to a master plan for water in a particular basin for time in eternity.”
But settlements tend to rely on an infusion of federal cash to help make the pie larger for everyone, and that funding is getting harder to fight for in Congress…
Complex legal landscape
Two legal concepts drive conversations about tribal water rights.
The first, known as the Winters doctrine, stems from a 1908 Supreme Court case, Winters v. United States, relating to water rights at the Fort Belknap American Indian Reservation in central Montana.
It holds that when Congress set aside land for an Indian reservation, it also intended to reserve the water necessary to make that land a permanent homeland. The same doctrine has also been applied to other federal reservations, like national parks.
But how much water does a homeland need?
Courts have generally looked to the purpose that Congress identified in establishing the reservation, which was often agricultural, even for tribes with no history of farming.
So to come up with a water right, experts would calculate how much reservation land could be farmed and how much water it would take to irrigate it — a complicated, time-consuming process that can result in a large amount of water for the tribe.
The second key legal concept relates to the federal government’s responsibility to tribes.
In a “trust responsibility,” the government, through the Interior Department, has a legal obligation to protect tribal treaty rights, land and other assets, and carry out federal laws relating to tribes.
Court rulings have made it clear that trust obligation includes protecting tribes’ water rights in the face of outside development — something the government frequently failed to do.
Meanwhile, some experts contend that the lack of infrastructure development for tribes is also a breach of that trust responsibility.
On the Navajo Nation, the country’s largest, poorest reservation, which spans a broad swath of Arizona, New Mexico and Utah, an estimated 40 percent of households lack access to running water.
There, families must travel dozens of miles to haul water from centralized wells or wait for the once-a-month delivery from a local church. Without water, economic development is nearly impossible.
But exactly what that federal liability means in dollars and cents is another major open question.
One of the highest-profile cases over breach of trust was a long-running class-action lawsuit relating to the Interior Department’s mismanagement of income from tribal trust lands. That case, Cobell v. Salazar, settled in 2009 for a whopping $3.4 billion.
But for water rights, there’s no solid precedent.
In part, that’s because neither side has wanted to take the risk to get a definitive answer.
For one thing, due to a 1952 appropriations rider, federal water rights like tribes’ can be adjudicated in state courts, which tribes tend to see as hostile to their interests.
Meanwhile, the country’s highest court is also seen as becoming less favorable to tribes.
The last major Indian water rights case to land before the Supreme Court was an appeal of a Wyoming state court’s decision that granted the Wind River Indian Reservation a large water right.
Then-Justice Sandra Day O’Connor recused herself from the case at the last moment, having discovered that her family’s ranch was part of a water adjudication that involved tribal water rights.
Without her, the high court reached a split, 4-4 decision that left the state court’s ruling in place.
But when Justice Thurgood Marshall’s papers were made public after his death, lawyers found a “ghost opinion” from O’Connor that would have overturned the Wyoming ruling and significantly revised the Winters doctrine.
All that leaves tribes gun-shy about a return trip to the high court.
“Tribes don’t want to be litigating these and going to the Supreme Court because they came within a whisper of losing it all in ’89, and in my view the Supreme Court has become a lot more hostile to tribal interests than the court we had at that time,” said Stanley Pollack, assistant attorney general for the Navajo Nation and a leading expert on tribal water rights.