The Future of Indian Water Rights in the West


May 22, 2017 | EDR Blog

By Nils Lofgren for EDRBlog.org

Water is an important and essential commodity for people living in the western United States today. Water is just as important for Indians living on reservation lands in the western states. As the importance of water increases a new trend has begun in the west, Indian tribes are creating settlements with state and federal governments to relinquish a substantial portion of their water rights in exchange for large financial compensation.

In his Colorado Law Review article, David H. Getche described the importance of water to Indians as,

Water remains the most vitally important resource of nearly all Indian tribes… When tribes were confined to reservations, water became vital to their survival there. Some were no longer able to roam and hunt over vast areas, others were restricted in their traditional fishing opportunities. They had to make the most of reservations where much of the land was barren and dry, and where water for fishing or crop irrigation was scarce. It is clear that for centuries Indians have had their essential needs sustained by the waters available to them. And it is also clear that the future of Indian reservations as permanent homelands depends on water. Indian economic survival today depends on having enough water for irrigation, industry, and domestic use; on having water clean enough to sustain fisheries and spiritual needs; and, indeed, on having the ability to sell water to non-Indians for off-reservation uses.

Recently, Senator Orrin Hatch and Representative Jason Chaffetz proposed a bill to finalize an agreement between the Navajo Nation and the State of Utah regarding the tribe’s Colorado River water rights. This settlement agreement results in a combined $206.3 million dollar ($198.3 in federal funds and $8 million in Utah funds) payment to the Navajo Nation in exchange for certain water rights, including current pipelines and water treatment plants. This settlement agreement came after 13 years of talks and negotiations between the parties.

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Representatives from both sides of the issue have declared this a “win-win”  for their respective sides. Utah now has access to much needed water that is a commodity with ever increasing importance in the west. The Navajo Nation feel as though they can better the lives of their people with the financial payout while still retaining the water they require.

Utah is not the first state, and likely not the last, to create such a settlement agreement with an Indian tribe over water rights. In April of 2005, New Mexico also entered into a settlement with the Navajo Nation to decide who controlled the water flowing through the state. I believe this is only the beginning of such settlements between states and Indian tribes over who has the right to use local water. Other Indian tribes will see how much money the Navajo Nation will receive from the state and federal governments, and will want their own payouts. States will be eager to negotiate these water rights as the race for water in the west continues to heat up. The combination of the two motives will lead to an increase in such negotiated agreements.

However, just because parties in the Utah and New Mexico scenarios were able to reach settlement agreements does not mean that this will be the case in all circumstances. We may see tribes asking for larger and larger payouts as the scarcity of water grows in the west. This could lead to states or federal representatives challenging the Indian tribes’ claims to water in an effort to avoid paying out large sums of cash and because the water is actually needed for non-Indian land purposes. Trials can be lengthy, difficult, and costly for all involved, yet states or the federal government might see it as more desirable than paying out hundreds of millions of dollars for water that is largely unused by the Indians yet growing more and more scarce in western states.

As populations grow and water becomes more and more insufficient, we will see an increase in settlements similar to this agreement between the Navajo Nation and Utah.  These settlements will eventually break down in future negotiations, however, and we will likely see the Indian water rights challenged and possibly altered in future courts.

 

Bio:

Nils Lofgren is currently a dual degree student at the University of Utah where he plans on receiving both a J.D. and Master of Real Estate Development in Spring 2018. He is currently working with the EDR Program through a legal fellowship. Nils is from Salt Lake City, where he enjoys spending time with his wife, skiing, camping, and hiking.