Native American Leaders Want to See Protection of Their Senior Water Rights

An elevated view of the Gunnison River carving its path through the cliffs of the Black Canyon of the Gunnison National Park.
The Gunnison River runs through the Black Canyon of the Gunnison National Park on its way to the Colorado River. / Photo by Michael Rummel for Law Week Colorado.

As negotiators work to come to an agreement over the sharing of a steadily declining Colorado River, Native American leaders are working to ensure that their voices are heard in the process. 

Gov. Stephen Roe Lewis of the Gila River Indian Community recalled that last year, at the 2023 Getches-Wilkinson Center Conference on the Colorado River, he and his fellow leaders called on the U.S. to establish a forum where the basin tribes, states and the U.S. government could discussing the post-2026 guidelines respectfully. 

“We now have that forum, and I call it the 38 sovereigns,” said Lewis. “[The Bureau of Reclamation] calls it the federal tribes states working group. Whatever you call it, it’s historic nonetheless, especially if you compare the 2006 interim guidelines process to the post-2026 EIS process.” 

Lewis noted that he thinks the reason the U.S. established this now is that the current administration understands the federal trust responsibility to tribes. 

“Now, tribal water rights are different than non-Indian water rights, they have a special status,” said Lewis. “And for example, in 2004, 20 years ago, the Gila River Indian Community’s water settlement was approved by Congress. And in that federal legislation, our water rights became federal trust resources that the United States has a duty to protect.”

But on the actual front of negotiations, Dwight Lomayesva, vice chairman of the Colorado River Indian Tribes, said that the 30 sovereign governments were not participants in the ongoing negotiations and that their engagement is secondhand at best. He added that while he appreciated the strides made regarding communications and access, their level of engagement is nowhere near sufficient. 

“Given that our water, our livelihoods, our people’s future is at stake, being on the outside looking in is not befitting to a sovereign whose ancestors were living along the river and putting water to beneficial use long before European settlers even discovered the Colorado River,” said Lomayesva. 

Lorelai Cloud, vice chairman of the Southern Ute Indian Tribe and vice chair of the Colorado Water Conservation Board, told the conference that the upper basin tribes and sovereign states have been meeting formally for two years, and recently came out with a memorandum of understanding that they will operate as a collective in the upper basin when making decisions on what happens with the water. 

While the MOU is a step forward, Cloud said it doesn’t give them a formalized seat in the process, which is something they’re working toward. Ultimately, Cloud said the tribes need to have a formalized seat so they can make the decisions about their own water. 

“I’m asking everybody in here to normalize tribal voices being at the decision-making table, letting us make those decisions that affect our people,” said Cloud. 

A Desire to Help, But a Wariness of Being Taken Advantage Of 

“We’re trying to do our part,” said Lomayesva. “We’re participating, but we want to make sure that people recognize our rights.” 

Lomayesva explained to the conference the work already being done by the Colorado River Indian Tribes. He said the tribes at one point fallowed around 1,600 acres of cropland, and then fallowed a further 10,825 acres to create 205,000 acre-feet of system conservation storage in Lake Mead. 

We want to be part of the solution, but recognize our rights.” — Dwight Lomayesva, vice chairman of the Colorado River Indian Tribes.

Yet here we are not at the table. Instead, we are totally dependent upon our trustee, the United States government, to protect our interest,” said Lomayesva. “The concern we have right now, at least one of them, is that our trustee has many different interests. Interests that pull in very different directions, having to evaluate and contemplate many actions that may place our senior water rights at risk.”

Lomayesva said that his tribes opposed anything that would set aside the concept of prior appropriation. 

“Being at the table would allow us to move this dialogue away from the dangerous ground of involuntarily taking water rights to one of working with tribal nations who have senior rights to be part of the solution,” said Lomayesva. “We want to be part of the solution, but recognize our rights.” 

An example of that involvement and engagement in the solution to the crisis, according to Lewis, was the 38 sovereigns forum. But Lewis noted there had been pushback from non-native interests in the basin now that tribes have been more engaged. 

“Of course, nothing public, but there are whisper campaigns from some of you trying to undermine tribal positions and efforts to try to pit tribes against one another,” said Lewis. “The old divide and conquer strategy, and I’m not the only one who notices.” 

Moving forward, Lewis emphasized that tribal leaders cannot get divided. He noted the federal government has a sacred trust responsibility to protect tribal land and water. 

“During westward expansion, we were conquered by the divide and conquer strategy,” said Lewis. “We can’t let that happen here again in the midst of what we’re dealing with in regards to water policy.” 

What it Means to Include Tribes 

Cloud told the conference that water has to be hauled to parts of their reservation, and families are forced to make decisions on a daily basis on whether they’re going to shower or wash their clothes. She said that she doesn’t believe it’s a sustainable practice for some water users to use an amount of water because the law says they can. 

“It’s not right for those suffering to continue to suffer or make those harder decisions, to make decisions to cut back when we know others aren’t willing to do that,” said Cloud. “So I think when we talk about tribal inclusion, tribes have to be part of the solution … to be able to make the decisions that are best for our people.” 

Lewis noted that tribes, when given the opportunity and resources, can bring innovation to the water system. One example of that innovation was his tribe putting solar panels over canals, which he added was the first time that had been done in the Western Hemisphere. 

“We have almost 200 miles of canals that we could potentially ramp up solar panels that would protect against evaporation and that would really realize a goal that I have for our community to be the first net-zero community in the United States,” said Lewis. “Now, that type of innovation? That is something that tribes really have to have the pathway for.” 

He added that certain tribes have limited resources, and it’s incumbent on the federal government to provide technical assistance opportunities to tribes so they can pursue innovation in solving these problems. 

Changing the way the government views and deals with tribes is important to Cloud. 

“There’s all these different barriers that have got to be addressed in order for tribes to be able to put their water to use that is in the best benefit for their own people, and tribes are the only ones that can make those decisions,” said Cloud. “We can’t rely on somebody else to make those decisions for us. It’s the parental aspect of the government, keeping the native people as wards of the state.” 

Cloud said that in order to create something for the future, the past must be recognized and those barriers will have to be fixed. 

“We’re not going anywhere,” said Cloud. “We will continue to be here and we will continue to fight and continue to voice our opinion until it’s normalized for us to be part of those decisions.”  

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