by John Fleck
By the summer of 2014 it was clear that the deal, historic as it was, had not gone far enough. By Arizona’s calculations, even with the new rules, and absent a string of wet years, Lake Mead could be unusably empty by the early 2020s. They had slowed the inexorable arithmetic of Fulp’s prophetic calculation, but they had not stopped it. The network had more work to do.22
CHAPTER 11
Who’s Left Out?
THE LANGUAGE OF THE 1922 Colorado River Compact regarding Indian water rights feels like an afterthought: “Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes.” Native Americans went unrepresented in the compact’s negotiations, and their water rights were left hanging. They were treated not as communities whose needs mattered, but more as a problem to be dealt with later.
Nine decades later, as the basin’s water managers came together to embark on their sweeping Basin Study, the most ambitious effort yet to grapple with the Colorado’s problems of supply and demand, it seemed that little had changed. As the steering committee was formed to shape the direction and substance of the study, Native communities were still unrepresented in a process that, in the words of the Jicarilla Apache Nation’s Darryl Vigil, “could significantly and adversely impact tribal water rights and tribal usage of water.”1
Relationships have been the common theme in our water success stories. Whether dubbed “the network,” or “institutional plumbing,” or simply human connection, formal and informal relationships among institutions and often among specific people lie at the heart of problem solving. We have seen, for example, how Bennett Raley’s decision to include environmentalist Jennifer Pitt on a 2004 Grand Canyon river trip eventually led to a breakthrough in dealing with environmental problems in the Colorado River Delta, and how brainstorming by Nevada’s David Donnelly opened breathing room to satisfy Arizona’s concerns about the 2007 shortage-sharing agreement.
You can think of these relationships as the dividends of an investment in “social capital”—an investment that is every bit as substantive and important as those made in physical facilities—the dams and canals, the pumps and pipes—that move the water. Much of it is an investment in the tools of civil society, the institutions (both formal and informal) that emerge to handle the tasks. Like physical capital, it takes time and resources, and it decays with age.
But social capital can also create barriers to success, raising questions of equity and justice as we adapt to scarcity: namely, who is left out of these processes? Who was not invited on Bennett Raley’s river trip, whose interests were therefore not represented? Which important stakeholders lack the resources to participate in the time-consuming and expensive processes through which decisions are made? How do we avoid turning this into management by and for a powerful elite, to the exclusion of those who aren’t members of the in group?
At times, the problem amounts to overt discrimination. At others, there is simply confusion about whom these decisions will affect. This includes electricity consumers who might be impacted by a change in operations at one of the basin’s big power-generating dams, as happens at Glen Canyon Dam, the Upper Basin’s big storage reservoir, when more water is sent through the Grand Canyon to enhance environmental flows. It includes the public health community in the Imperial Valley, where air-quality problems could result from changes to water management around the Salton Sea. The issue here is not so much barring people from participating in the process as it is finding the right people to invite in. How do we decide where to draw the boundaries around the problem we are trying to solve in order to ensure that all the important stakeholders are included in the decision?
The history of the last two decades of problem solving on the Colorado River suggests progress is being made on this issue, especially in including environmental interests and the nation of Mexico in the decision-making process. But over and over, those trying to sort out the Colorado River’s problems find that they’ve drawn the boundaries at the wrong place, and that something done within the river-management community has an impact on some group, interest, or issue that has been left out.
Whitehorse Lake
On a blindingly sunny January day a few years ago, I stood outside Chee Smith Jr.’s house as he opened the spigot on a new faucet poking up in his yard. Quickly, the president of the Navajo Nation’s Whitehorse Lake Chapter shut the valve. The high desert community is far from pretty much everything. It is, for example, an hour’s drive from Grants, New Mexico, the city with the nearest laundromat. That matters because Whitehorse Lake for years has also been far from the nearest reliable supply of water. The new flow, from the first running water his little community has ever had, was precious. “Water is gold out here,” Smith said. “It’s our life.”2
People argue about what might be considered the most water-stressed community in the United States, but Whitehorse Lake and other Navajo chapters on the fringes of the Indian nation’s sprawling 27,000-square-mile reservation are certainly contenders. In all directions—Phoenix to the southwest, Albuquerque to the east, Farmington to the north—non-Indian communities were built and prospered on the back of Colorado River Basin water, subsidized by the nation’s taxpayers. But White-horse Lake, and much of the Indian world that surrounds it, was left out.
Water barrels behind a sheep pen at the Navajo community of Whitehorse Lake (© John Fleck).
Per capita water use on the Navajo Nation is half of that in neighboring non-Indian communities, in large part because 40 percent of Navajo homes lack full indoor plumbing, defined by the US Census Bureau as running water, a shower or bathtub, and a toilet. The comparable number for the United States as a whole is 2 percent. You can’t use water that you don’t have. Instead, those Navajos without plumbing haul water, filling big tanks on the back of their pickup trucks, a process that comes at a staggering cost in time, money, and health (because of water-quality issues) that their non-Indian neighbors don’t have to face.3
Whitehorse Lake got its name from water that used to pool behind a hand-built earthen dam, long since gone. Similarly, there are no lakes at the community of Seven Lakes, down the road. But the names show how much water matters in this largely treeless high country stretching north from the sacred Mount Taylor—Tsoodził, the turquoise mountain. New Mexico State Route 509, the two-lane paved road from the south that is the main connection to the outside world, crosses the barely noticeable crest of the Continental Divide just south of the Whitehorse Lake Chapter House. As a result, the community falls squarely within the Colorado River Basin—a crucial fact for its future.
Averaging less than nine inches a year of precipitation,4 this is far from the driest place in the United States. Though it technically counts as a desert, the Colorado River and its tributaries pass through places that are far drier as the river system drops from the high country of the Rocky Mountains westward through the great desert lowlands on its way to the sea. But the residents of Whitehorse Lake and many other communities scattered across the Navajo nation have three strikes against them that other Colorado Basin communities facing similar precipitation shortfalls do not have: they lack an accessible supply of groundwater; they are far from the Colorado River or any of its tributaries; and they lack the affluence and political power needed to overcome their communities’ geographical and hydrological shortcomings.
Most houses scattered across the Whitehorse Lake community have an outhouse and, less noticeably, a collection of buckets and barrels for hauling water. Residents drive to the nearby chapter house to fill the buckets at the community’s small potable water well for indoor water use. Windmills that pull lower-quality water from the ground are used to fill larger barrels that are carted home for the livestock, often goats, that are central to the Navajo community way of life. But it’s no secret that people sometimes drank that water too, lower quality or not.
By virtue of having been here first, the Navajo are, on paper, among the most water-rich people
in the region. But if, as Smith said, water is gold out here, the Navajo Nation has had a hard time cashing in. For decades, the water-management community has paid lip service to honoring an obligation to the Navajo, but in practice the big, expensive, federally subsidized plumbing has channeled the water elsewhere.5
In November 2012, twenty-four homes in the Whitehorse Lake community got their first running water. In December 2013, water service was extended to another twenty-one, including the home in which Chee Smith Jr. grew up. Down the road from Smith’s house is a rickety mobile home with a basketball hoop where his niece now lives. She moved back to the ancestral homeland from an off-reservation city, drawn by the fact that the community finally has running water.6
Indians and the Basin Study
The uneasy relationships between Native communities and the federal bureaucracy are painfully apparent in the Bureau of Reclamation’s “Colorado River Basin Water Supply and Demand Study.” The study, completed in 2012, represented the first comprehensive effort to reconcile the Colorado River’s dwindling supply in an age of climate change with the increasing demands of basin water users. As such, it marked a major milestone in coming to grips with scarcity. But from the beginning stages of the study’s planning, Native communities—who hold huge but in many cases unquantified rights to Colorado River water—were left out.
It is the latest episode in a long and ugly history. In the allocation of the West’s water, Indians have often been left behind—pushed off their land and onto reservations, often violently, and then left without enough water to use the land set aside for them.
On paper, their rights to water have long been well established. In 1908, the US Supreme Court ruled in the case of Winters v. United States that the federal government had an obligation to protect the water rights of the Native community of the Fort Belknap Indian Reservation, which were established when land for the reservation was set aside in the winter of 1887–88. Anglo settlers diverting water upstream could not deprive the Indians of their due, the court ruled.7
The Winters decision included a critical precedent by sidestepping the state-based doctrine of prior appropriation. Unlike the settlers, who had to put water to beneficial use to claim priority rights, the Indians were presumed to have the rights to the water they needed to make use of their land at the time the reservation was created, even if the water had not yet been put to full use.
This has left significant uncertainty hanging over water-rights allocation throughout the Colorado River Basin ever since—an uncertainty largely ignored in the rush to develop the dams and canals needed to put the water to use.
For the first half of the twentieth century, the Winters decision “lay dormant,” to borrow the odd language of the lawyers.8 That’s a fancy way of saying that, as the vast Colorado River plumbing system was being built across the West, Native American rights to water, and the plumbing needed to deliver it, were largely ignored.
The question of Native water rights lurked in the legal background until the US Supreme Court addressed it in the 1963 decision that it handed down in the case of Arizona v. California. While much of the public attention focused on the settlement of the conflict between Arizona and California, the court also advanced the rights of Indians to water in ways that continue to reverberate half a century later. The Winters decision established Native American rights to water, but it left unsettled the question of how much.
Simon Rifkind, a lawyer tasked by the court with sorting out the mess, suggested an answer that would extend the Winters decision. If the goal of establishing Indian reservations had been to create agricultural communities, Rifkind argued, then the Indians needed enough water to do it. Arizona had argued that the Indians’ water rights should be narrowly construed, matching the amount of water to the number of people on the reservation. But Rifkind’s conclusion was much broader: “The magnitude of the water rights created by the United States is measured by the amount of irrigable land set aside within a Reservation, not by the number of Indians inhabiting it.”9 Rifkind’s recognition of the potential future needs of the community, rather than simply those of the people there at the time the reservation was formed, was crucial. “It must have been apparent,” he wrote, “that unless the United States reserved water for the land at the time of withdrawal, there might be no water left to appropriate at the time that the land was needed for the purposes for which it was withdrawn.”10
The Supreme Court bought Rifkind’s argument, and then extended it in an important way. Whether the court meant this extension or not is a subject of debate, but the court’s muddy language indicated that, while agriculture may have been the federal government’s reason for establishing some reservations, it need not be the only one. Native Americans, the court’s ruling seemed to suggest, might be entitled to enough water for other things as well.11
But while in principle the decision in Arizona v. California seemed to substantially advance Native American water rights, the practice turned out to be more difficult. The process that led to the Arizona v. California decision also demonstrated the extent of the problem. Repeatedly, the tribes attempted to formally intervene in the proceedings to defend Native water rights. The court repeatedly refused to give them standing.12 In what is arguably the most important forum for Colorado River Basin decision making, Native communities were once again left on the outside, barred from formal entrance to the process.
Despite the tribes’ absence, the court allocated important water rights to some tribes. The court, for example, awarded the Colorado River Indian Tribes senior rights to enough water to farm 108,000 acres of rich Colorado River bottomland, primarily on the Arizona side of the border south of the town of Parker. The land today is a blanket of green, dominated by alfalfa, cotton, and durum wheat, with a sprinkling of fruit and winter vegetables.13
The Colorado River Indian Tribes are among twenty-two tribes that have had their rights quantified either through court action in the Arizona v. California case or negotiated settlement in the years that followed. But there are twelve tribes whose water rights remain undefined and are likely not being met with current supplies. The result is an uncertainty that, in the words of Native legal scholars Amy and Daniel Cordalis, has “left an unwanted cloud over the Colorado River Basin.” It leaves the tribes, among the poorest communities in the nation, without the water they need to strengthen their communities and economies, and leaves non-Native water users unsure about how much may eventually be diverted for Indian use.14
Among those still lacking clarity about their rights, and water for their people, is the Navajo Nation. In 2009, Congress ratified an agreement allocating a big chunk of Colorado River water to Navajo land in northwestern New Mexico, water that would come from New Mexico’s share of the river’s Upper Basin allocation. It was that agreement that also finally brought Chee Smith Jr.’s community of Whitehorse Lake and others like it in the arid, rural country under the same umbrella of federally funded water infrastructure that non-Indian communities across the Colorado River Basin have long enjoyed. But litigation quickly followed, as non-Indian water users complained about the deal.15 And because water rights are allocated state by state, the Navajos’ claims in Arizona still remain unsettled, leaving little water and great uncertainty for members of the Navajo Nation within Arizona, including those living on the reservation’s northwestern fringe, communities every bit as water-short as Whitehorse Lake.
Mexico
The second major constituency left out of Colorado River networks for much of the last century has been the nation and people of Mexico. The negotiations that enabled the 2014 environmental pulse flow through the Colorado River Delta marked an important step toward solving this problem. But this cannot erase a long history of exclusion of one of the most important groups of stakeholders on the river. Nowhere was this problem more clearly on display than in the All-American Canal.
Stretching from Imperial Dam to the Imperial Valley in the southeastern deserts of Califor
nia, the canal passes through great fields of sand dunes. Unlined through most of its history, the canal had always leaked. Adding a concrete lining had long been seen as a way to save water and reduce the allocation flowing to Imperial without reducing acreage being farmed. But lining would come with a price. The canal seepage was refilling an aquifer that flows south into Mexico, where Mexicali farmers had come to depend on the flow. The seepage also fed some of the few wild wetlands left in the delta region.
The decision to line the canal was far easier because an international border, and the history, politics, and law associated therewith, blocked one of the most important impacted parties from having a seat at the table when the deals were being made.
Canal lining has long seemed like the lowest-hanging fruit in Colorado River Basin water-conservation management. The network of massive unlined canals that move water through the desert from the river to the farmers of the Imperial and Coachella valleys always leaked. In the 1970s, this was the first place water managers looked to squeeze some extra out of the system to meet overall delivery obligations, lining a forty-nine-mile stretch of the Coachella Canal, which carries water along the northern edge of the Salton Sea to the date orchards, citrus groves, and golf courses of the Coachella Valley.
This made sense. Seepage from the canal was essentially lost for human use, mingling with high-salinity groundwater and eventually ending up in the Salton Sea. But the next major canal-lining project was not so clear in terms of winners and losers, and the losers—Mexican residents of the Mexicali Valley—were excluded from the decision-making process.
In 1988, Congress authorized lining the All-American Canal. The deal came as part of a larger package aimed at settling water rights and federal obligations in the region, but because it was US legislation aimed at US water management, it left out the Mexicans entirely. Formal discussions were launched between the US and Mexican governments, but they were largely limited to the US government’s insistence that the seepage had always been US water, to which the users across the border in Mexicali had no legitimate claim.16