As negotiations continue over the future of the critical Colorado River system, the 30 tribal nations that depend on its water are demanding a seat at the negotiating table — from which they’ve been excluded for a century.

Together, the tribal nations in the basin hold senior rights to about a quarter of the river’s water. Few, however, can access all the water they own because of lack of funding for infrastructure or ongoing legal processes.

Their inaccessible water instead flows downstream to other users.

The tribes have sought greater inclusion and sway in decision-making on the Colorado River for decades. They are once again demanding a formal role in decisions about how water supply cuts should be made before the current set of operating guidelines for the river expire at the end of 2026. As flows shrink, the seven states in the basin dominate negotiations about the river, which provides water for 40 million people in the West.

More tribal involvement is happening — slowly — but tribal, state and federal leaders have said much more work needs to be done.

Tribes should be seen as equal players at the negotiating table with state representatives and federal officials, said Lorelei Cloud, the vice chairman of the Southern Ute Indian Tribal Council and the first tribal member of the Colorado Water Conservation Board. She said Native American perspectives on the river’s future must be taken seriously.

“We’re the first inhabitants of this entire river,” she said, noting her ancestral homeland included a large swath of the Colorado River basin.

A formal agreement signed in April between the Upper Colorado River Commission and the six tribes with land in the Upper Basin has sparked hope for further inclusion. That commission is made up of representatives from Colorado, New Mexico, Utah and Wyoming, as well as a federal appointee.

Tribal, state and federal leaders have called the agreement historic.

“I think it’s worth emphasizing that this is the first and, so far, the only formal mechanism for including tribes in decision-making in the Colorado River basin,” said Anne Castle, the federal appointee to the Upper Colorado River Commission, during a commission meeting on June 26.

Peter Ortego, general counsel for the Ute Mountain Ute tribe, said in an interview that his tribe was grateful for the opportunity to participate more formally in the Upper Colorado River Commission.

“We need a place at the table,” he said.

A history of exclusion

The exclusion of the tribes dates back a century to the signing of the 1922 Colorado River Compact — the first document formally apportioning the river’s water among the seven basin states and Mexico. No tribal representatives were invited to the negotiations and the tribes are mentioned only in a single sentence: “Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes.”

The tribes were still sidelined in 2007, when the states and the federal government created the most recent set of operating guidelines. The tribes own many of the oldest and most senior rights on the river, which means they must be fulfilled before more recent rights can be.

“And yet they don’t have a seat at the table with us,” New Mexico’s negotiator, Estevan Lopez, said at the recent commission meeting.

Becky Mitchell, Colorado’s top official on the river, has advocated for better tribal inclusion and made protecting tribal water rights one of her post-2026 negotiation priorities. The agreement between the tribes and the Upper Colorado River Commission was long overdue, she said during the meeting.

“We still have much work to do, at the federal government, as state governments, as tribal governments across the basin,” she said.

The Upper Colorado River Commission agreement with the six Upper Basin tribes — the Jicarilla Apache Nation, the Paiute Indian Tribe of Utah, the Navajo Nation, the Southern Ute Indian Tribe, the Ute Mountain Ute Tribe and the Ute Indian Tribe — sets a meeting between the groups at least every two months.

Before the agreement, there was no formal engagement between the Upper Colorado River Basin tribes and states. The two tribes in Colorado — the Southern Ute Indian and the Ute Mountain Ute — maintained relationships with state water leaders, Cloud said. Mitchell, especially, had made an effort to build a relationship, she said.

But it wasn’t until August 2022 that formal conversations began in the Upper Basin. The first discussions were difficult, Cloud said, but eventually morphed into the memorandum of understanding, which will stay in place regardless of tribal and state leadership changes.

“In 2024, you would have thought that those conversations were normalized between tribes and state representatives,” she said. “That was unheard of prior to August of 2022.”

Post-2026 tribal goals

Leaders from at least six of the seven basin states agreed at a conference last month that more tribal inclusion was critical to the process. (Wyoming’s representative was absent.) Multiple states have appointed tribal members to water leadership positions, including Cloud’s position on the Colorado Water Conservation Board. The federal Bureau of Reclamation has also convened a series of meetings open to all basin tribes and states.

“Tribal nations have worked really hard for a decade to be seen and be part of the solution in the basin,” said Celene Hawkins, Colorado River tribal partnerships program director at The Nature Conservancy.

The tribes, like the states, have the opportunity to submit their proposals for the river to the Bureau of Reclamation, multiple state leaders said. Ultimately, it is the bureau’s responsibility to ensure the tribes have a say on the future of the river, JB Hamby, California’s negotiator, said at the conference.

Nineteen of the tribes, including the two in Colorado, in March sent a letter to the Bureau of Reclamation outlining their goals for the river after 2026. They set out three key principles: Protect tribal water rights. Create tools for the use and leasing of tribal water rights. And create a permanent, formal structure for tribal participation in Colorado River policy and governance.

At minimum, the letter states, anytime the Bureau of Reclamation is legally obligated to consult with the basin states, the federal government should be required to consult with the tribes.

The Gila River Indian Community in Arizona submitted its own operations proposal because it didn’t agree with the plans from either the upper or lower basins.

“This is the first time that any tribe has been sufficiently involved in a Colorado River negotiation process to be in a position to present its own alternative,” the tribe’s governor, Stephen Roe Lewis, wrote in the March 29 letter. He called that “a milestone in the inclusion of tribes in a government-to-government process that deeply affects all tribes in the Basin.”

Each tribe is unique, with its own specific water rights and needs, but they generally agree on at least one principle, said Ortego, the Ute Mountain Ute general counsel.

“What the tribes are saying is that since we’re the senior water rights, our water needs to be protected,” he said.

Ultimately, Cloud would like to see each of the Upper Basin tribes have a formal position on the Upper Colorado River Commission, though that would take congressional approval.

“We hope that this memorandum of understanding is going to be long-lasting and that it showstribes and states can work together as a collective for the same goal,” Cloud said. “If six tribes and four states can agree, so can everyone else in the basin.”

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Originally Published: July 3, 2024 at 6:00 a.m.