Thursday, November 10, 2011

The Failed Promise of Indian Water Settlements, Pt. 1

If you know me, or know this blog well, you might be aware that I work for an Indian tribe in Arizona.  While my views expressed in this blog post are clearly informed by my work with that tribe, they in no way express the views of the tribe itself and I write this not as an advocate for any specific tribe but to shed light on some challenges for tribes in Arizona, specifically, but my observations may have applications outside Arizona.

I will try to present this story in two parts - there's too much for one post, maybe too much for two, but that remains to be seen.  I'll start by laying out the history and rationale behind the existing water rights settlements (focusing on Arizona because that's what I'm familiar with) in this post, then explaining why they amount to failed promises in the next.

In my work I have been involved in the implementation of one very significant water rights settlement, as well as participating in negotiations for another settlement being sought by this same tribe.  I have learned a great deal about how such settlements work and how they are developed.  I have also learned that the promise of those settlements - intended to compensate these tribes, who were in Arizona, using water to support their communities, economies, and cultures for hundreds (if not thousands) of years before the arrival of non-Natives and their boundless thirst for water to support their farms, mines, and cities - is currently proving to be yet another of many empty promises made by the U.S. government to tribal sovereign nations over the past 200 years.

The Arizona Water Settlements Act (AWSA) was enacted in 2004 (but not actually implemented until 2007).  It is a complex, often cumbersome piece of legislation that attempted to resolve, in a single legislative action, several lawsuits (via negotiated settlement agreements that became part of the legislation), several pending Federal reserved water rights claims in the largest surface water adjudication (this link goes to a webpage with all relevant documents in the adjudications) in Arizona, the repayment obligations of the State of Arizona to the federal government for construction of the Central Arizona Project (CAP) and the reallocation of hundreds of thousands of acre-feet of Colorado River water that had been under long-term contract to several irrigation districts in Arizona.  What is truly amazing is that most of that was actually accomplished.

The tribes that received settlements through this legislation were the Gila River Indian Community and the Tohono O'odham Nation (the links provided go to the Arizona Dept. of Water Resources website, which has comprehensive summaries of each settlement), and to a minor extent, the San Carlos Apache Tribe.  The Gila River tribe received a water entitlement that totaled over 650,000 acre feet of CAP water, groundwater, effluent, and other surface water sources.  The Tohono O'odham received 66,000 acre feet of CAP water plus rights to 13,200 acre feet of groundwater.  The legislation authorized use of money from the Lower Colorado River Basin Development Fund (sort of a slush fund for lower basin projects left over from the Colorado River Basin Project Act) to pay for much of the cost of the CAP water that was included in the settlements, as well as for construction of irrigation projects to put that water to use.

The intent of the settlements was to compensate the tribes for the fact that their surface and groundwater supplies were taken, over many years, to support the growth of Anglo communities.  The settlements incorporated both water and money - the water intended to provide the tribes with a resource for economic development; the money to enable purchase of the water (and development of things like farms to use the water).  The money was necessary because, in most cases, the water included in the settlements was Colorado River water, delivered by the CAP.  The delivery costs for this water are significant.  This water source was necessary because the surface water previously relied on by tribes is long gone and groundwater was well on its way to being in the same state.

In exchange for agreeing to these settlements the tribes were giving up all future claims to water as compensation for what was lost.  They were supposed to be getting water and the ability to use that water to compensate them for the considerable lost economic opportunity that resulted from having their water taken previously.

These are the things that were promised to the tribes in return for settling their water rights claims.  In the next post I'll lay out why I think the government may soon fail to deliver on that promise.


Eric said...

I have not commented here before but am very interested in the topic.

My first question is 'What legal jurisdiction is relevant and why?'
My second question is 'What settlement is "fair" to both sides and why?'
My third question is 'Is there a settlement that will stay settled for decades?'


Chris Brooks said...


Those are not very easy questions. The third is probably easiest so I'll tackle that first. I believe the settlement that was embodied in the Arizona Water Settlements Act will stay settled for decades. Mostly because it's so complex and was so difficult to enact, nobody really wants to re-open it. The tribes might be unhappy with parts of it, but they are unlikely to do better with a second chance. I could be wrong about that, but my view is that was a once in a lifetime settlement.
Your first question is more complicated. The jurisdiction over the settlement is largely federal because it was implemented through federal legislation. But the settlement had to be approved by state courts - namely the adjudication court because it settled the tribal claims in that forum. It also settled various court cases that were generally filed in federal courts or removed to federal courts because of the substantial federal interest.
Your second question is really tough. Mostly because it contains a strong normative component. The easy answer is that a settlement that both sides are willing to agree to is fair. The more complicated answer is that because these settlements take so long to complete and implement, and are based on certain assumptions at the time the settlement is reached the concept of fairness to each side is a moving target. Hence the editorial I referenced in my later post and the points I plan to bring up in my next post on this topic.
I don't know if those responses answer your questions? More likely they only provoke more questions.