Arizona tribes wait for water as settlements languish in courtrooms and bureaucracy

·14 min read

Nearly everybody in the tangled web of water law and policy agrees that Indigenous people hold senior rights to water.

Yet the pipeline from a courtroom or a legislative body to clean water running out of taps in reservation homes is often clogged with broken promises, neglected funding commitments and contaminated water supplies.

Tribal water rights could be aboriginal, or "time immemorial," rights rooted in the history of a tribe and its home, or federally conferred rights, such as those affirmed by the groundbreaking Winters Doctrine, which forms the foundation of modern tribal water law, or both.

About half of tribes in Arizona have yet to resolve their water rights for various reasons. The largest case in play involves the giant Little Colorado River settlement that involves 6,000 litigants, including the Navajo Nation and the Hopi Tribe, which have some of the nation's highest rates of homes lacking water. The Hualapai Tribe, meanwhile, wants to secure a small amount of water to create jobs and ensure clean water for its people, a proposal that carries a hefty price tag.

But water is more than just a commodity to Indigenous peoples. Tribes say water is life itself for the people, plants, animal life and the land itself.

"Water is a human right," said Heather Tanana, a Navajo Nation citizen and nationally known water policy expert. "It's a necessity of life for individuals and communities to thrive."

Little Colorado: The adjudication that never goes away

The Navajo and Hopi tribes have long contended with a lack of clean water for homes. The Environmental Protection Agency said the Navajo Nation had managed to halve the number of homes with no clean water from 2003 to 2020, yet according to the agency's figures,15% of homes in the Navajo Nation still lack running water.

Some tribal members say the number is closer to 30%. And the 2000 census reported that 27% of homes in the Hopi Tribe's land base struggle without running water.

Both tribes contend with water supplies that are contaminated with uranium, arsenic or other toxic materials. Many Navajo and Hopi families must haul water, sometimes from miles away, and carefully ration each drop to make it last between trips.

Nicole Horseherder lives this reality daily. "We're in a water crisis right now," she said. "Our water table is lower than it's ever been before. A lot of the springs and the seeps all over the plateau have disappeared."

Tommy Rock fills water barrels at his family's home in Oljato, Utah, on the Navajo Nation. Rock is a researcher who specializes in studying environmental contamination and public health.
Tommy Rock fills water barrels at his family's home in Oljato, Utah, on the Navajo Nation. Rock is a researcher who specializes in studying environmental contamination and public health.

Hauling water is a dangerous and costly way to acquire water needs for a home, said Horseherder, the head of the Navajo water protector group Tó Nizhóní Ání.

The consequences of lacking abundant clean water has led to tragic consequences. Combined with overcrowded housing units and ongoing health disparities, the COVID-19 pandemic took a heavy toll on Arizona tribes, including Navajo, where communities and families were challenged to maintain hand washing and social distancing protocols.

The Navajo Nation Department of Health reported that at the middle of June, more than 1,800 tribal members had succumbed to the disease out of the approximately 170,000 tribal members who live within the reservation.

Water: Navajo Nation water shortage contributing to COVID-19 spread

Yet there is water within this arid corner of the state, flowing past both Navajo and Hopi communities on its way to the Colorado River. The challenge is that it's claimed by far more than the Indigenous peoples who frequently must go without clean water.

A view of the confluence of the Little Colorado River (above) and the Colorado River (below) in the Grand Canyon on Dec. 1, 2021.
A view of the confluence of the Little Colorado River (above) and the Colorado River (below) in the Grand Canyon on Dec. 1, 2021.

The Little Colorado River has long been the center of a dispute over how much water the two tribes should take. The nearly 27,000-square-mile watershed includes about 160,000 acre-feet of water from the eponymous river as well as the Zuni and Puerco rivers, Silver and Clear creeks and many washes. More than 50% of the basin lies out of tribal lands.

Early settlers were quick to use the water that bubbled in streams and out of wells and nearly as quickly staked water rights claims. After decades of waiting for a solution, the U.S. government and the Navajo and Hopi tribes in 1985 filed claims in what by then was a nearly 10-year Little Colorado River adjudication for their own share of water in the basin. But they had to file in state court because the U.S. Supreme Court earlier ruled that federal water rights held in trust — such as Indian water rights — were subject to state jurisdiction.

A proposed settlement offered by Arizona Sens. John McCain and Jon Kyl in 2012 was scuttled after tribal members protested during meetings where the public was excluded. Navajo and Hopi citizens were upset that, among other provisions, the bill would have required the tribes to trade historic rights to the Little Colorado River for groundwater in the "N" Aquifer under the tribal lands. They were also worried that a water supply project in the legislation would never be built.

The first part of the adjudication for the Hopi Tribe finally went to trial in 2019 in Maricopa County Superior Court.

One barrier to settling the issue either in court or in a settlement: There have been at least four new judges presiding over the settlement since 1998. And every time a new point is agreed to during any negotiations, an overwhelming volume of documents relating to the adjudications requires review.

The ongoing issue of replacing the thousands of acre-feet of water once used by the Navajo Generating Station and the nearby coal mine that fueled the plant is also on local residents' minds. The Bureau of Reclamation estimated that the power plant alone consumed about 18,000 acre-feet annually.

But Horseherder doesn't see much movement from governments to bring water to the parched nation.

"The Navajo Nation government is not helping," she said. "The state of Arizona could care less, they don't give a s--- that we're hauling water today because of their excessive water overuse and overpumping Navajo water."

The federal government bears some responsibility as well: "The federal government supposedly has a trust responsibility for Indian resources, to make sure that our water is never jeopardized," Horseherder said. Instead, the government failed to require mining companies find another water source at their own expense.

"It's just a continuation of the Indian wars." Horseherder said. "In 1868, it was with a bullet, but today it's slow, with water contamination and water depletion."

That neglect, she said, came at the expense of Native peoples' water supplies and infrastructure. Navajos lost not only water but a century of economic progress, she said. That's why her latest campaign seeks a just transition to renewable energy and a commitment to resolving water issues in the two tribal nations.

"We need a commitment to put some infrastructure in place that will help the communities recover the losses, not just the economic losses from the jobs and the revenue to the nation," Horseherder said.

Holding up a tribe's ability to provide drinking water is "just immoral," said Tanana, the Utah law professor and the lead author of a 2021 report on clean water access for tribes in the Colorado River Basin.

"I think no one would be going to Arizona and say, all right, we're going to shut off water to Phoenix until this is all worked out," she said. "No one would even consider doing something like that."

Hualapai waits for a tiny water settlement

The Hualapai Tribe has been waiting more than a decade to finalize and obtain just 4,000 acre-feet of water annually. Still, as Hualapai Chairman Damon Clarke said, it could be worse: “Some tribes have been waiting more than 30 or 50 years.”

But it’s been frustrating for the 2,300-member tribe, whose homeland lies along 108 miles of the Colorado River on the south side of the Grand Canyon. "We have water on our border," Clarke said, "but we can't do anything with it, we can't use it."

The water would enable the tribe to build more housing for tribal members who wish to return to the reservation. The Hualapai also want to expand their major revenue driver, Grand Canyon West, a tourism destination and a major employer in Mohave County that welcomes more than 1 million visitors per year.

Legislation to finalize the agreement and provide the estimated $170 million needed to construct a pipeline to get the water it’s needed has stalled at least once. In 2017, the Interior Department balked at the price tag to build a pipeline to bring water to the thirsty tribe.

Subsequent attempts to push the settlement and the resources needed to fulfill the settlement also fizzled out.

“We’re urging Secretary (Deb) Haaland to quickly and successfully finalize the tribe’s water rights negotiations so we can pass legislation providing water security and creating jobs," said Arizona Sen. Kyrsten Sinema, a Democrat.  ”We’re working to ensure the Hualapai Tribe has access to clean, dependable, and sustainable drinking water now and for years to come."

Arizona Rep. Tom O'Halleran, also a Democrat, introduced a new Hualapai settlement bill that was incorporated into an omnibus wildfire response and drought resiliency act. That bill was approved by the House July 29. Sinema co-sponsored a companion Senate bill with Sen. Mark Kelly as the principal sponsor.

"These settlements are critical to the tribe so that they have security of their water supply," O'Halleran said. "Anytime you can get these settlements finished, you'll find that all people involved in water, especially Colorado River water, have a sense of where where they can go now."

Clarke would like to see water flowing to his community sooner rather than later: "As you travel to the Valley you see swimming pools, you see use of water without hesitance." he said. "But we have to fight for it, we have to make sure we're using it in the right manner."

Ak-Chin sounds alarm over water quality

The first Arizona tribe to settle its water rights now is calling on water agencies to honor the terms of its settlement to provide water suitable for agriculture after more brackish water mixed with cleaner water reduced crop yields and damaged domestic water systems.

The Ak-Chin Indian Community descends from a small group of O’odham people who migrated from the desert centuries ago to settle in their current homeland in the Santa Cruz Valley about 35 miles south of Phoenix.

Ak-Chin, or “mouth of the wash,” was the perfect site for the O’odham community’s ancestral way of farming, which relied on water that collected after rain or snow. Although the 1,100-member tribe uses more contemporary means to keep water flowing to sustain its farm, Ak-Chin remains primarily an agricultural community.

“Agriculture has always played a role in our history,” said Ak-Chin Chairman Robert Miguel.

Ak-Chin Farms manager Damian Murrieta uses a soil probe to check the quality of the soil in a potato field.
Ak-Chin Farms manager Damian Murrieta uses a soil probe to check the quality of the soil in a potato field.

About 16,000 acres of the tribe’s 22,000-acre reservation is the domain of Ak-Chin Farms, which grows cotton, alfalfa, corn, barley and potatoes.

But sustaining that centuries-long tradition posed a challenge. The tribe first started negotiating to quantify its senior water rights in 1912. In a 2012 interview, former Ak-Chin Farm Board Chair Leona Kakar said she first went to Washington to advocate for the tribe’s water rights in 1969.

Although Ak-Chin was the first U.S. tribe to settle its water rights through congressional action in 1978, Kakar said the first “wet water” didn’t flow to the community until 1988, four years after a bill in 1984 allowed Ak-Chin to use its water for any purpose. That legislation and several amendments guaranteed that Ak-Chin would receive “water suitable for irrigation.”

The tribe takes its 75,000 to 85,000 acre-feet allocation from the Central Arizona Project Canal through the Santa Rosa Canal, which is shared by farmers in Pinal County.

When river allotments from the CAP Canal were cut following the first shortage declaration by the U.S. Bureau of Reclamation, local non-Indian farmers were the first to face cuts. Two irrigation districts began pumping groundwater and delivering it using the same canal. But that water contains higher levels of dissolved solids and sodium and when mixed in with the CAP water, made Ak-Chin's water saltier and dirtier as well.

Potatoes are particularly susceptible to increased salts, and the crop yield has decreased.

Goodyear farmer Ron Rayner knows well how salinity and other dissolved solids in both water and soil affect crops.

“We grew potatoes on our farm here in Goodyear, about 1966," he said. "We gave it up a short time later because the water salinity was just too high and it got even higher after that.”

That’s why his farm, A Tumbling T Ranches, turned to forage crops like sorghum, which can tolerate high levels of salt.

Salty water affects more than just crop yields. Too much salt breaks down plumbing and water treatment plants. Washing machines rust. Icemakers clog and cease to work.

Miguel said the tribe’s water treatment system is also at risk. It was designed for optimum performance using the agricultural-quality water the settlement guaranteed. As the water mains and pipelines corrode and break, the water treatment plant requires more and more expensive repairs. And, he said, the tribe has had to resort to irrigating about 20% more than previously to flush salts from sensitive crops.

After attempts failed to resolve the water quality issue, including an attempt to persuade CAP to do more to ensure that non-CAP water sent to them would meet the same standards they had been promised, the tribe took the two irrigation districts to court.

Ak Chin has already won one court battle to keep its water settlement intact.

The Central Arizona Project declined comment because, a spokesperson said, it "involves legal settlements."

State's stance on water settlements

Arizona's position on tribal water settlements is that tribes shouldn't get water unless they pledge to use the state's preferred method to obtain land.

The state believes that tribes should promise to only seek to place private land into trust status — which means adding land to their reservations — through Congress and not through the Department of the Interior's administrative process when pursuing water settlements. That's despite the fact that the agency's process still allows for state input into the process.

Because states are typically part of tribal water settlement negotiations, they can exert leverage over how smoothly the land acquisition process goes.

Tom Buschatzke, director of the Arizona Department of Water Resources, said the policy has been in place for nearly 20 years.

"The Department of Interior are not elected officials, but appointed officials," he said. "Going through Congress allows state and local entities to work directly with their elected representatives in Washington, D.C., to have a voice in the outcome of that issue."

The state relies on a 1918 law that says that creating or adding to reservations can only occur through Congress.

Rhett Larson, associate professor of water law at Arizona State University's Sandra Day O’Connor College of Law, said there's a practical reason for their insistence: "Arizona is always going to be worried about Interior's ability to take state land and make them trust lands because they don't want to lose a tax base.”

Although some tribes can and do navigate through a gridlocked Congress to obtain new lands, other cash-poor tribes are reluctant to use precious resources to pay for lobbyists and frequent travel to Washington to push legislation when an administrative process exists that provides for state and local government input.

One former state legislator said the state's stance is slowing down some settlements.

"The conditions the state has made as part of these settlements seem unreasonable," said former state Sen. Kirsten Engel, who resigned her position to run for the congressional seat held by the retiring incumbent Ann Kirkpatrick. "We are the only state relying on a provision of federal law that no one else is following."

At least one federal court decision seems to complicate the state’s stance. In 1990, the Jicarilla Apache Tribe sued New Mexico after the state attempted to apply the 1918 law to the tribe's attempt to add onto its reservation. A federal district court ruled that a later law, the Indian Reorganization Act of 1934, superceded the older law.

Longtime water attorney Stanley Pollack said there is a possible road out of the morass, stemming from an Arizona Supreme Court decision known as “Gila V.” The court noted that water is too valuable to the environment to become a political pawn in settling water conflicts between tribes and settlers in the West.

“While (fighting over water rights) remains true in parts of Arizona,” wrote state Supreme Court Justice Thomas A. Zlaket, “it is our hope that interested parties will work together in a spirit of cooperation, not antagonism.”

Debra Krol reports on Indigenous communities at the confluence of climate, culture and commerce in Arizona and the Intermountain West. Reach Krol at debra.krol@azcentral.com or at 602-444-8490. Follow her on Twitter at @debkrol

Coverage of Indigenous issues at the intersection of climate, culture and commerce is supported by the Catena Foundation.

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This article originally appeared on Arizona Republic: Arizona tribal water settlements stall in courtrooms, agency offices