The Second Treaty Era
In 1908, Montana farmers who had been diverting water upstream from the Fort Belknap reservation appealed an injunction from the federal government. Ultimately, the Supreme Court ruled in the case Winters v. United States that Indian reservations included an implicit right to water. Reasoning that one of the foremost reasons for the reservation system was the assimilation of Native Americans through agriculture, the court ruled that it was illegal to deprive the Gros Ventres and Assiniboine peoples of sufficient water to achieve that purpose. The resulting "Winters doctrine" was at once a momentous decision for Native Americans and something that went ignored practically for the rest of the century.
Western water law for settlers hews to the principle of beneficial use -- use it or lose it. Winters rights follow an entirely different logic. If reservations include a right to as much water as is necessary for productive agriculture, who is to say how much water that is? There is a potentially significant difference in water consumption for growing different crops in the same area. The open-ended nature of the ruling proved an awkward fit for the dominant water regime based on prior appropriation.
A Supreme Court decision in 1964, regarding a lawsuit between Arizona and California over Colorado River water, brought the Winters doctrine closer to the fore for the issue of water in the West. In the meantime, however, the experience of the Utes in the Uinta Basin was not unusual -- reclamation projects developed water at the expense of Native Americans, often inundating the most fertile lands in the river bottoms to build reservoirs for settler farmers. The Army Corps of Engineers's Pick-Sloan Project (designed in a partnership with the Bureau of Reclamation) is a particularly egregious example. Lakota scholar and activist Vine Deloria, Jr. called the project, "without doubt, the single most destructive act ever perpetrated on any tribe by the United States." The project inundated over 200,000 acres of reservation land and forced the relocation of one-third of the population.
The Supreme Court's inclusion of the Winters rights of American Indian Tribes in the Colorado River Basin required more specificity, and in a subsequent 1983 decision (issued for another Arizona v. California case), the Court ruled that the water rights of the Tribes must be quantified. In other words, the formerly open-ended water rights must be given a number.
This kicked off what political scientist Dan McCool calls the second treaty era, comparing the quantification of Western Tribes' water rights to the establishment of reservations through treaties in the late 1800s. As with the reservation system, the quantification of water rights is something of dubious value. On the one hand, reservations gave (certain) Native American nations a land base, even if the federal government frequently abrogated treaties and shrank reservation borders. A more critical view is that the treaty process helped to turn the Indigenous relationship to land into one based on property, a process fully realized through allotment. Once Indian land became property, it could be traded or sold. In a similar way, the quantification of water rights has given tribes more water, but it has also led to a situation in which much of Indian water exists solely to be traded away. As Diné geographer Andrew Curley writes, "In the western states, water was turned into a commodity in ways that are similar to how land was made accessible to settler-colonists and denied to Native peoples."
The quantification of these Winters rights often results in tribes' rights to "paper water," rights which cannot be exercised and thus only exist on paper. This is currently a very hot issue in the Colorado River Basin especially, as about 20% of water rights in the basin belong to tribes, though a majority of that is paper water. I want to stress here, given that this is a live situation with significant consequences for communities that I am not a part of, that I am merely trying to inform rather than weigh in with my opinion for what to do about this going forward.
Turning paper water into wet water over the last four decades can be attempted through litigation, though tribes, at the encouragement of state governments and the federal government, often opt for settlements. This way, tribes may trade away some of their water rights in exchange for the water infrastructure necessary to make use of their allotted water and thus secure at least some of their rights. It also avoids a costly legal battle that can take decades and which must be pursued through state rather than federal courts -- a truly dicey proposition especially in the West. However, Dan McCool points to a reduction in overall federal funding for Native Americans since the Reagan administration, suggesting that the expense of settlement comes out of money that might have otherwise flowed to them. And yet Indian water projects are still slow to be completed. McCool's book, published in 2002, contains a chart comparing water promised in settlements versus new diversions. Only two communities out of fifteen had any new diversions, and the combined award of 2,814,856 acre-feet/year had only manifested 72,000 acre-feet of wet water.
McCool identifies what he calls a de facto "no-injury-to-whites" rule, imposed through the courts since the late twentieth century via funding restrictions, but which has been present in some form since the beginning of Indian irrigation. McCool shares an opinion from an official in the Department of the Interior, that "most of the cost [in settlements] is to mitigate impacts on Anglos."
Andrew Curley offers an illustration of this dynamic with Arizona's 2005 settlement of San Juan River rights. Arizona Senator John Kyl blocked an agreement between New Mexico and the Navajo Nation that would have provided potable water for Navajo communities in order to squeeze a settlement with Arizona out of the Tribal government. The resulting settlement put restrictions on the usage of the water rights, allowing for commercial agriculture but not for increased municipal and industrial usage, effectively limiting the growth of those communities on the Navajo Nation. As part of the broader project of water settlements, Andrew Curley interprets these sorts of agreements as a method of resolving "the spectre of Indigenous water claims upsetting decades of settler-colonial diversions and appropriations, which would jeopardise the continuation and expansion of capitalist practices in the region."
Furthermore, the settlement provided federal funding for the Navajo-Gallup Water Supply Project, a project that mostly benefited non-Navajo users. The tactic is known as the "Indian blanket" -- garnering congressional support for a development project by attaching a dubious benefit to Native American communities. It is a disgraceful echo of the Reclamation Service days in which reclamation poached Indian irrigation funds in order to promote settlement of Indigenous lands.
Senator Kyl's maneuver of blocking the Navajo Nation's agreement with New Mexico becomes especially devious in light of the astounding lack of running water in many Diné households. As many as 40% of households on the Navajo Nation lack running water. Native American households across the US are 19 times more likely than white households to lack indoor plumbing. Here in Utah, the small community of Westwater is finally slated to get running water to its homes in 2024. The town, which is not reservation land but which is owned by the Navajo Nation, finally got electricity in 2022. Meanwhile, the state is actively pursuing a multibillion-dollar Lake Powell Pipeline, which would transfer water from Lake Powell near the Navajo Nation across the state to the rapidly growing Washington County, mostly to secure water for the growth of the St. George area's ornamental turf and golf courses. The proposed pipeline would draw on Colorado River water that the other states in the Upper Basin claim Utah has no right to.
This comparison, to be fair, is not quite apples to apples. Municipal infrastructure is not the same as a pipeline which conveys tens of thousands of acre-feet of water. The lack of indoor plumbing on the Navajo Nation can be attributed, to some degree, to the jurisdictional complexities of an Indian reservation which spans three states, nominally sovereign but also under the plenary authority of the federal government. But when taking a broad view, a pattern emerges. If there is an iron law of water in the West, it is: "Don't let Native Americans have it." As legal scholar Lloyd Burton writes, "Only if the Indians are barred from claiming more water in the future can non-Indians proceed with some confidence to develop what little water there is in the west that remains unappropriated or to sell existing rights whose seniority and quantity have been called into question by tribal reserved-rights litigation." Even when it comes to possibility of Native Americans using the unique status of Winters rights to lease water to non-Indian communities out of state, former head of Utah Department of Natural Resources Dee Hansen remarked to Dan McCool, "We could tie it up in court for at least twenty years."
The paternalism and contempt of non-Indigenous officials who oversee Indian affairs has survived with little alteration from the nineteenth century. One of the attorneys who worked on the Central Utah Project Completion Act, Marcus Faust, shares his view of things in an oral history from 2013. He dismisses the idea that Native Americans are treated unfarily, characterizing their attitude as, "We're always the downtrodden. We're always the ones that got screwed." With regard to the unbuilt Indian Units of the Central Utah Project, which ultimately led to the Northern Ute Tribe's rescinding of their cooperation with the project, Faust asserts, "We did want to build their units, but at the end of the day they wouldn't give us permission." He also claims, "We tried to authorize a complete restoration of the Ute Indian irrigation so that they could have really modern agriculture." But, according to Faust, "They didn't want it, because they don't want to farm. [...] That's work. They'd say, "Hey why do we want to build pivots out here and work the thing, when just [sic] give us more money.'" Compare Faust's perspective to nineteenth-century views of Utah's Native Americans. Indian superintendent Jacob Forney claimed, "Indians are proverbially lazy, and only the pinchings of hunger will drive them to work; so much white labor has heretofore been employed to do the work for them, and they have not been sufficiently taught that their subsistence depends upon their own labor." Brigham Young stated, "The idea of cultivating the earth for a subsistence gains slowly among them, for it is very adverse to there [sic] habit of idleness." The persistence of such a belittling view of Indigenous people -- especially with the benefit of hindsight displaying centuries of unambiguous injustice -- only confirms the need for Native American nations to be wary of any attempts by Western states to do things for their benefit.
References:
Dan McCool, Native Waters: Contemporary Indian Water Settlements and the Second Treaty Era (Tucson: University of Arizona, 2002).
Andrew Curley, "Unsettling Indian Water Settlements: The Little Colorado River, the San Juan River, and Colonial Enclosures," Antipode 0 no 0 (2019): 1-19.
Lloyd Burton, American Indian Water Rights and the Limits of Law (Lawrence: University Press of Kansas, 1991).
Marcus Faust, interview by F. Ross Peterson, April 5, 2013, transcript, Central Utah Project Collection FOLK COLL 56, Utah State University, Merrill-Cazier Library, Special Collections and Archives.
Read more:
A Short History of Water in the US West
The Agrarian Foundations of the Western Water Crisis (1620 - 1902)
The 100th Meridian: Where "Free Land" Requires "Free Water" (1862 - 1923) How (Not) to Make the Desert Blossom as the Rose (1847 - 1860)Free-for-All in the Uinta Basin (1879 - 1920)
Race to the Bottom -- The Law of the River
The Sinful Rivers We Must Curb
Our Last Major Water Resource -- The Central Utah Project
The Case of Uphill Flowing Water
Water for City and Country in the Late 20th Century