Congressional Empowerment of the Colorado River Indian Tribes

By: Blythe Pabon

Historic Congressional bills expand the power of Indian Tribes over the infrastructure and water rights of the Colorado River. The Colorado River provides drinking water for over 40-million people in the United States and Mexico and supports “1/12 of the total U.S. gross domestic product,” but the River’s water levels continue to drop amid a 20-year drought.[1] Management plans of the drought, including a 2019 Contingency agreement between seven states, have proven unsuccessful in preventing further damage,[2] which prompted Congress to pass three historic bills on December 23, 2022[3] Which were signed by President Biden on January 5, 2023.[4] The bills would allow the Colorado River Indian Tribes (CRITs or Tribes) to exercise increased control over their water resources to support drought affected communities.[5]

Who are the CRITs and Why are These Bills Historic?

The CRITs control 113 miles along the Colorado river and are made up of four distinct tribes, the Mohave, Chemehuevi, Hopi, and Navajo.[6] The River serves as “the life-sustaining cultural and economic focal point of the community.”[7] The Mohave, the native occupants of the land, have cared for the River for over 12,000 years and maintain an extensive historical, spiritual, and cultural connection with the location.[8] The Tribes have a long history of utilizing the River’s water for agricultural uses, illustrated by their maintenance of the extensive Colorado River Irrigation Project (CRIP) since its development in the 1870s.[9]

Despite their historical use of the water, the Tribes have fought a long legal battle with the United States since 1931 that resulted in the 2006 Supreme Court Decision, Arizona v. California, also known as the 2006 Consolidation act.[10] The 2006 Consolidation Act specifically provides for the amount of water CRIT is allowed to divert from the River and granted the Tribes present perfected water rights,[11] which give the Tribes priority over the water for specific uses, projects, and in specific land areas.[12] The Tribes use most of their water for agriculture and for “private and commercial farming enterprises.”[13]

However, the CRIP is an old system with inefficient water transportation that costs the Tribes precious water.[14] The inefficiencies in the CRIP system require the Tribes to question whether to repair the CRIP, at to the CRIP, or install new, more efficient systems. All of those options are complex and extremely expensive.[15] The cost of updating the irrigation system is prohibitive for the Tribes due to a shortage of “both financial and human capital.”.[17] The 2006 Consolidation Agreement, while establishing water rights, does not allow the Tribes to create “water leasing or storage agreements with jurisdictions off the reservation” without Congressional action.[18] This limitation prevents the Tribes from raising the necessary funds to afford the CRIP updates.[19]

What Exactly Would the Bills Do?

The three bills passed by Congress would empower Native American Tribes in different ways, but they all work to improve tribal infrastructure. The first bill, S. 3308, grants the CRITs the power to lease their River water to jurisdictions outside of the reservation.[20] The CRITs control one of the most secure allocations of the River, which means the S. 3308 opens significant access to water for those dependent upon the River. S. 3308 further empowers the CRITs to reinvest the revenue expected revenue to bolster their water infrastructure, likely providing necessary funding to update the CRIP.[21]

The second bill, S. 4104, settles the Hualapai Tribe’s Colorado River water claim and gives them $180 million to develop the infrastructure to deliver water “to the tribes main tourist center . . . and to residents.”[22] Finally, the third bill, S. 3168, amends a 2010 water rights settlement with the White Mountain Apache Tribe to authorize additional funding for their rural water system and dam.[23]

All three of the bills would allow further conservation of water amid the historic drought, and strengthen tribal finances and water rights.[24] The bills directly address major challenges with Tribes’ full exercise of water rights and constitute a major shift in Congressional oversight of Tribal water rights.[25] The Colorado River drought crisis requires updated action and given Native Tribes’ historic stewardship of the river, they are the ideal people to trust with conservation.[26]

[1] Colorado River Basin, Drought.gov: National Integrated Drought Information System, https://www.drought.gov/watersheds/colorado, (last visited Dec. 30, 2022).

[2] Id.

[3] Kellie Lunney, Congress Clears Bill Empowering Tribes to Tackle Drought (1), Bloomberg Law (Dec. 22, 2022, 1:16 PM), https://news.bloomberglaw.com/environment-and-energy/congress-clears-bill-empowering-tribes-to-help-tackle-drought.

[4] Felicia Fonseca, Amid Unrelenting drought Biden Signs Water Bills Benefiting 3 Tribes in Arizona, PBS (Jan. 6, 2023, 2:52 PM).

[5] Lunney, supra note 3.

[6] U.S. Dep’t of the Interior, Ten Tribes P’ship, and U.S. Dep’t of the Interior: Bureau of Reclamation, ch. 5, Colorado River Basin Ten Tribes Partnership Tribal Water Study 1 (Dec. 2018), https://tentribespartnership.org/wp-content/uploads/2020/01/Ch.-5.8-CRIT-Current-Future-Water-Use-12-13-2018.pdf.

[7] Id.

[8] Id. at 4.

[9] Id.

[10] Lunney, supra note 3.

[11] U.S. Dep’t of the Interior, supra note 6 at 4.

[12] Arizona v. California, 547 U.S. 150, 154 (2006) (“’Perfected right’” means a water right acquired in accordance with state law, . . . exercised by the actual diversion of a specific quantity of water that has been applied to a defined area of land or to definite municipal or industrial works, and in addition shall include water rights created by the reservation of mainstream water for the use of federal establishments under federal law whether or not the water has been applied to beneficial use.”)

[13] U.S. Dep’t of Interior, supra note 6 at 4..

[14] Id. at 11-12.

[15] Id.

[16] Id. at 12-13

[17] Id.

[18] Lunney, supra note 3.

[19] U.S. Dep’t of the Interior, supra note 6 at 11-12.

[20] Associated Press, Water Bills for Tribes in Arizona to Head to President Biden, Arizona’s Family (Dec. 23, 2022 at 10:35 AM) https://www.azfamily.com/2022/12/23/water-bills-tribes-arizona-head-president-biden/; Lunney, supra note 3.

[21] See Lunney, supra note 3.

[22] Id.

[23] Associated Press, supra note 21.

[24] See Lunney, supra note 3.

[25] See Eric Edwards et al, Beyond “paper” water: The complexities of fully leveraging tribal water rights, Fed. Rsrv. Bank of Minneapolis (May 3, 2022) https://www.minneapolisfed.org/article/2022/beyond-paper-water-the-complexities-of-fully-leveraging-tribal-water-rights.

[26] See U.S. Dep’t of the Interior, supra note 5.