Ten Tribes Partnership
Ten tribes occupy Indian reservations with claimed or vested water rights to the Colorado River. Typically, those tribes have the senior water rights on the river. The tribes comprising the Ten Tribes Partnership are: the Chemehuevi Indian Tribe; the Cocopah Indian Community; the Colorado River Indian Tribes; the Fort Mojave Indian Tribe; the Jicarilla Apache Tribe; the Navajo Nation; the Northern Ute Tribe; the Quechan Indian Tribe of the Fort Yuma Reservation; the Southern Ute Indian Tribe; and the Ute Mountain Ute Indian Tribe.
The tribes were excluded from the 1922 Colorado River Compact, which allocated water between the upper and Lower Basins, so in recognition of that exclusion, the states involved and the U.S. Congress expressly provided that nothing in the 1922 compact would affect the United States' obligation to the tribes. According to Hoover Dam documents, then-Secretary of Commerce Herbert Hoover, on behalf of the United States, commented that the provision relating to the obligation of the United States was inserted in the compact as "merely a declaration that the states, in entering into the agreement, disclaim any intention of affecting the performance of any obligations owing by the United States to Indians. It is presumed that the states have no power to disturb these relations, and it was thought wise to declare that no such result was intended."
The Hoover Dam documents also reveal that Utah's position was that the 1922 compact was designed so that the "rights of Indian Tribes are protected" and Wyoming read the 1922 compact provision relating to Indian Tribes as "advisable by reason of the fact that the United States has heretofore entered into certain treaties with the different Indian Tribes that must be respected and can in no manner be affected by any later agreement."
The use of Colorado River water by Indian tribes and tribal members began well before the 1922 compact. Since time immemorial, tribal members have made use of the river's floods to irrigate bottom lands. Congress recognized the importance of irrigated agriculture to the tribes of the Colorado River when it authorized the expenditure of $50,000 in 1867 to construct an irrigation canal on the Colorado River Indian Reservation, making this the first federally funded irrigation project in the United States. Legislation also was enacted in 1904 authorizing the United States to utilize new reclamation policies to expand irrigation on the Fort Yuma and Colorado River Indian reservations.
In the years since the 1922 compact, both the United States and the Ten Tribes have continued to increase their presence with regard to the Colorado River. Congress authorized Parker Dam and Reservoir, built in the mid-1930s, to provide water to Southern California via the Colorado River Aqueduct and also to provide water for expanded irrigation of the Colorado River reservations, as well as to control floods, improve navigation, regulate river flows, provide storage, generate electricity and other beneficial uses. Congress authorized the taking of as much of the "tribal and allotted lands of the ... Chemehuevi Reservation in California" as was necessary for the construction of Parker Dam. All of the fertile bottom lands of the Chemehuevi Reservation were condemned and all of the Indian residents of the reservation were dispossessed of their land and relocated off the reservation in order to construct the dam and create Lake Havasu. In the 1940s, Congress also authorized the Headgate Dam, again for river stabilization and the delivery of additional waters to the Colorado River Reservation.
The next significant involvement by the United States in the Indian waters of the Colorado River occurred in the 1963 proceedings of Arizona vs. California.
This litigation was prompted by Arizona's need for a determination of its share of water from the Colorado River in order to obtain federal appropriations for the Central Arizona Project. Numerous issues arose among the southwestern states, the tribes and the federal government concerning the allocation of Colorado River water. The United States intervened to assert, among other things, the reserved water rights of the five Indian reservations on the lower reaches of the mainstream of the Colorado River; the Fort Mojave Indian Tribe, the Chemehuevi Indian Tribe, the Colorado River Indian Tribes, the Quechan Indian Tribe of the Fort Yuma Reservation and the Cocopah Indian Community.
In Arizona vs. California, the U.S. Supreme Court found that the Secretary of the Interior had a statutory duty to respect the "present perfected rights" as of the date of Boulder Canyon Project Act was passed and that the water rights of the five Indian reservations were included in those "present perfected rights" entitled to priority. In addition, Arizona vs. California established the standard for quantifying those reserved water rights to which a tribe is entitled for agricultural purposes. In addition to confirming substantial water rights for the Fort Mojave Indian Tribe, the Chemehuevi Indian Tribe, the Colorado River Indian Tribes, the Quechan Indian Tribe and the Cocopah Indian Community, the court's decision brought into sharp focus the importance of tribal reserved water rights in the West.
The United States in recent years has begun the process of securing reserved water rights for the other five tribes in the Colorado River Basin. Each of these actions has been designed to quantify Colorado River water rights and to provide the tribes with economic resources so as to permit development of their reservations, including development of their water resources. For example, in 1962 Congress authorized the Navajo Indian Irrigation Project (NIIP) and, at the same time, the San Juan-Chama Project. The Navajo Nation is still in the process of quantifying the remainder of its water rights that were not part of NIIP.
In 1988, Congress enacted the Colorado Ute Settlement Act, which quantified all of the water rights of the Southern Ute Indian Tribe and the Ute Mountain Ute Indian Tribe. Some of those water rights are in direct stream flow and others in storage projects such as the Pine River Project and the Dolores Project. For example, under the Dolores Project, the Ute Mountain Ute Tribe is developing 22,500 acre-feet for the irrigation of agriculture - probably the last significant irrigated agricultural project to be developed in the Upper Basin, except for continuing development at NIIP.
A critical component of the Colorado Ute Indian settlement is the construction of the Animas-La Plata project to, among other things, provide water supplies for both tribes for irrigation and municipal and industrial purposes. Under the settlement, each tribe received a development fund to assist in reviving their impoverished economies.
In 1992, Congress enacted the Jicarilla Apache Tribe Water Rights Settlement Act. This settlement, like the Colorado Ute Indian settlement, but unlike the authorization for NIIP, represents a full and final settlement of the future use water rights claims of the Jicarilla Apache Tribe to the waters of the Colorado River. Under the Jicarilla Apache settlement, the secretary of interior is to make available to the tribe up to a 32,000 acre-foot depletion from the Navajo Reservoir, Navajo River and San Juan-Chama Project. This water, like waters secured to the Colorado Ute Indians, may be used for a variety of purposes including leasing of water that is otherwise compatible with applicable law. The Jicarilla Apache Tribe was provided with a development fund in recognition of historic claims against the United States and others for use in strengthening its reservation economy. That fund will not be activated, however, until the tribe completes settlements of its historical and existing reserved rights claims in the Rio Chama and San Juan basins with the United States and the state of New Mexico.
The 1992 Ute Indian settlement provided the Northern Ute Tribe with a substantial development fund to compensate for the failure of the federal government to complete Central Utah Project storage facilities for the Northern Ute Tribe. The act provides substantial economic benefits to the tribe in an effort to place it on the same footing that it would have enjoyed had there been construction of the facilities contemplated in the 1985 deferred agreement which permitted construction of the Strawberry collection system of the Bonneville unit. The act also provides Congress' consent to the 1990 Ute Water Compact, which quantifies the tribe's reserved water right. The act recognizes that the compact also must be approved by the tribe and the state of Utah, neither of which has done so.
These actions carry forward the United States' trustee obligation to assist the tribes of the Colorado River in fully developing their resources. The tribes believe that is the meaning of the phrase in the 1922 compact,"...nothing in this compact shall affect the obligations of the United States to the Indian tribes."
In 1992, the Ten Tribes formed the Colorado River Basin Tribes Partnership for the purpose of strengthening tribal influence over the management and utilization of Colorado River water resources. This lead to active participation by the Partnership in negotiations with the seven states and, during 1996, the Ten Tribes Partnership formally joined the Colorado River Water Users Association, with three of its members serving on the CRWUA board of trustees.
Since 1992, the Ten Tribes have worked with the seven basin states, the United States, and CRWUA to develop and promote solutions to areas of mutual concern. Two principal areas thus far addressed have been the establishment of a water marketing format and the coordination of state and tribal efforts to minimize the impact caused by the federal implementation of the Endangered Species Act on the use of Colorado River water rights. In addition, the tribes have actively participated in the ongoing business of CRWUA, serving on various committees and assisting in the development of CRWUA resolutions.
The tribes believe the future management of Colorado River water resources will necessarily involve changes in policy and use that will be significantly different from past practices. As demand increases, members say, the need for greater flexibility in expanding the economic uses of the water supplies will require new ways of using this unique and valuable resource by all the parties on the river. The tribes believe that their involvement in CRWUA, one of the most respected water users organizations in the Colorado River Basin, will assure a more beneficial and profitable utilization of Colorado River water resources for all parties.
Compiled and written by Jessica R. Aberly Esq., Nordhaus Haltom Taylor Taradash & Frye, Albuquerque, New Mexico; and The Law Office of Daniel H. Israel Esq., Carefree, Arizona.