WASHINGTON - The fate of long-contested Arizona tribal water rights is now
resting in the hands of Pres. George W. Bush. These rights, the focus of
the historic Arizona Water Settlement Act, were granted final Congressional
approval on Nov. 17 and were passed on to the president for his signature.
The president has indicated that he will sign the remarkable bill.
This hallmark settlement is the culmination of years of intensive
negotiation between state, federal, tribal, municipal, and private parties.
COMPONENTS OF THE SETTLEMENT
Title I of the bill finalizes an agreement between the U.S. government and
the state of Arizona concerning the repayment of $1.65 billion to the
federal government for its construction of the Central Arizona Project
(CAP), a burden that will be carried by Arizona water and power users.
It also approves an agreement under which agricultural districts are
expected to relinquish long-term entitlements to CAP water in exchange for
relief from the Reclamation Reform Act, debt relief totaling $73 million,
avoiding costly and lengthy litigation with Indian tribes, and the use of
excess CAP water at favorable prices until the year 2030. Finally, it calls
for the reallocation of 65,647 acre-feet of municipal and industrial CAP
water to various water companies and communities, including 7,115 acre-feet
per year for the city of Mesa; 2,981 for Scottsdale; 3,053 for Glendale;
8,206 for Phoenix; and 8,206 for Tucson.
Title I also deals with the division of 1.5 million-acre feet of CAP water,
allocating 47.2 percent to Indian tribes to settle their claims. The
remainder, approximately 53 percent, will go to non-Indian users. This
portion of the bill represents a new approach for funding Indian water
settlements that allows revenue to be used for fixed operation,
maintenance, and replacement costs for CAP deliveries to Arizona tribes. It
also provides for the costs of future Indian water settlements within the
Title II of the bill, which is being hailed as the most expansive water
settlement in U.S. history, concerns an agreement with the Gila River
Indian Nation, effectively settling their water disputes with all other
parties, including those in the state of New Mexico. It also will assure
the states of their priority and quantity of rights to the Salt, Verde, and
Gila rivers as well as CAP allocation to benefit future planning by the
states. In exchange, the Gila River Nation will waive all pending water
rights claims and injuries.
Title II also authorizes tribes to lease water to Arizona cities, but
prohibits the lease or sale of CAP water outside of the state. It certifies
that neither the federal government nor the Gila River Tribe will object to
the claims of either party to the agreement, nor to existing legal uses of
water by farmers and users in the Central Valley basin. The approval of
water leases between the tribe and the cities of Chandler, Glendale, Mesa,
Peoria, Phoenix, Scottsdale and other Arizona cities are also addressed in
Title III of the bill initiates a settlement in the case of pending
litigation by the Tohono O'odham Nation against the city of Tucson and
other water users in the Upper Santa Cruz Basin. In addition, it specifies
benefits for the San Xavier District, including rehabilitation and
expansion of the existing Cooperative Farm.
Twenty-eight thousand, two hundred acre-feet of CAP water is to be
allocated to the Tohono O'odham after the dismissal of the litigation.
CONGRESS COMPELLED TO ACT
Congress was compelled to act in the approval of the settlement in order to
confirm the monumental agreement between the Central Arizona Water
Conservation District and the United States, as well as the settlements
between the federal government, tribes, states, local communities and
private parties. Additionally, in order to adequately fund the terms of
this settlement, several federal laws may have to be amended by Congress.
THE WEST AND WATER: A BRIEF HISTORY
In the American West, water has now replaced gold as the most sought-after
natural resource. Prior to the increased resource development of Indian
lands which began in the mid-1900s, the Supreme Court supported the
preservation of reserve lands and their resources for future Native
development. However this support was continuously contested during the
years of termination and assimilation that followed. The concurrent push
for state's rights was manifested in legislation such as the Mining Act
(1866) and the Federal Reclamation Act (1902) which sought more state
control in reclamation decisions.
Three principles comprised the framework for future tribal water rights
that were eventually outlined in a Supreme Court opinion issued in the case
of Winters v. U.S., 207 U.S. 564 (1908), also known as the Winters'
Doctrine. The court found that a tribe's right to water use began on the
day their reservation was established. In addition, the tribe's unlimited
right to water use for the expressed purpose of reservation development was
found to be an inherent part of reservation land ownership. However one
principle that would have a great deal of impact of tribal water rights in
the distant future was the notion that use of water was granted to the
United States by the prior appropriation holders American Indians.
Furthermore, in the case of Worcester v. Georgia (1832), the Supreme Court
affirmed these rights stating, "All resource-development rights, not
specifically surrendered by the tribes in treaties or agreements, are
considered as having been retained by the Indians."
The upshot of the 1908 Winters decision was the confirmation of a tribe's
"first rights" to water. First rights are based on the prior appropriation
rule, or put quite simply, first come, first serve. Since most reservations
were established before white settlement in the area, tribal water rights
most often predated non-Indian rights. The Winters opinion also reaffirmed
that tribal water allocations may be reserved for future development use
and that the right to water was understood as being attached to land
In spite of the Supreme Court's opinion, federal reclamation projects were
aimed at satisfying non-Indian water users. For example, the All American
Canal project, began in 1917 and completed in 1940, was undertaken in an
attempt to control Mexico's use of Colorado River waters using the prior
appropriations rule. In 1922, the Colorado River Compact altogether ignored
the water rights of Indian tribes. Nevertheless, an important factor in the
1922 compact was the statement, "Nothing in this compact shall be construed
as affecting the obligations of the United States to Indian Tribes."
For more than a quarter of a decade, controversial reclamation plans such
as the Boulder Canyon project (1928), Hoover Dam (1935), Colorado River
Storage Project (1937), and the Colorado Big Thompson Project (1938), all
favored non-Indian development. During this time extensive work in the
Colorado River Basin, which included the construction of the Glen Canyon
Dam in the 1950s, took place.
Indian water rights were not considered again until the Arizona tribes
entered into the battle for water between the states of Arizona and
California in 1963. Those tribes, the Ak Chin, Fort McDowell, Gila River,
Papago and Salt River were approved for 900,000 acre-feet of Colorado River
water. The Navajo Indian Irrigation Project (NIIP) which was under
construction by the Bureau of Reclamation at the time was expected to
increase available waters by some 500,000 acre-feet annually.
However, charity was not the prime motivation of the state of Arizona. The
act of support was more a means to an end. California held the winning
position in the battle for Colorado River water through the prior
appropriation rule and Arizona had to demonstrate that its need for water
was greater. Arizona justified its need by returning to the Winters'
Doctrine and the principle of reserved water rights. By reminding
California that tribes grant water rights to the state in which the
reservation was located, Arizona was able to validate its large irrigation
projects. The San Juan/Chama Project (1962) and the Central Arizona
Project, or CAP (1968), were authorized to satisfy the needs of a growing
economy and fulfill the federal trust responsibility.
The construction of these and many other projects, clarified the fact that
the development of Indian water was tied to politically powerful non-Indian
interests. Using the federally-assured allocations of those five tribes,
Arizona gained access to Colorado River water on behalf of Indian water
rights while controlling the allocation of that water on behalf of state
development. The tribes received only a mere fraction of the promised CAP
water. The NIIP was never completed, and by 1967 the tribes were using only
I percent of the allocated water supply.
For the next 35 years Indian water claims were first disputed then debated.
On Sept. 24, 2002, U.S. Senators Jon Kyl and John McCain, introduced
historic legislation, the Arizona Water Settlements Act of 2002, that they
hoped would eventually settle the matter. According to Kyl, finding a
resolution would "bring certainty to cities and communities planning their
growth and development," and would "bring the disparate groups together to
come to a settlement."