New Colorado River agreement stops short of giving tribes a seat at the table

The Upper Colorado River Basin states approved a memorandum of understanding with six tribes on Monday.

(Trent Nelson | The Salt Lake Tribune) The Colorado River flows next to Kane Creek Boulevard in Moab on Thursday, July 27, 2023.

The 1922 Colorado River Compact, a foundational interstate agreement that informs the management of a river that serves 40 million people, did not settle Native American tribes’ water rights. Tribes are barely mentioned in the document.

Many tribes have senior water rights — in other words, the oldest and highest priority water rights in the West. In the century since the compact was written, 30 tribes across the Colorado River Basin have been fighting not only for a say in how the river is managed but also for the water they are entitled to.

On Monday, the Upper Colorado River Commission — an interstate agency composed of one federal representative and commissioners from the Upper Colorado River Basin states of Colorado, New Mexico, Utah and Wyoming — took a step toward greater collaboration between the states and the tribes.

The commission unanimously approved a memorandum of understanding (MOU) with six Colorado River tribes: the Jicarilla Apache Nation, Navajo Nation, Ute Mountain Ute Indian Tribe, Southern Ute Indian Tribe, Ute Indian Tribe and the Shivwits Band of Paiutes.

The agreement states that the Upper Colorado River Commission and the six tribes will meet about every two months to discuss shared interests on the Colorado River. Other tribes are welcome to join the agreement.

The MOU does not give the tribes a permanent seat on the Upper Colorado River Commission, like the states and federal government.

“The Southern Ute, along with many other tribes, have been asking for greater inclusion in Colorado River discussions and decision making,” said Vanessa Torres, a member of the Southern Ute Tribal Council, at the 306th special meeting of the commission on Monday.

“Although this will not give the tribe any decision-making authority, it is a great first step in assuring tribal participation in Upper Basin discussions,” Torres continued.

The most important Colorado River discussion right now centers on how to operate the river and its reservoirs after 2026, when current operating agreements expire. The tribes hope to have a greater voice in these current negotiations.

The MOU “formalizes these important relationships by providing a cooperative structure for coordinating the work that lies ahead in creating post-2026 Guidelines to support the sustainable and equitable operation of Lake Powell and Lake Mead,” Ute Mountain Ute Indian Tribe Chairman Manuel Heart said in a statement.

The MOU now heads to the respective tribal councils for consideration. The commission hopes to fully execute the MOU at a meeting in April.

(Upper Colorado River Commission) A group of state and tribal representatives met to discuss shared interests on the Colorado River at the Utah State Capitol.

The Upper Colorado River Commission called the MOU “historic” in a news release. But while more tribal input in Colorado River discussions is a good thing, according to Zach Frankel, executive director of the nonprofit Utah Rivers Council, the MOU isn’t exactly revolutionary.

“This is great. Let’s have an MOU for collaboration,” he told The Salt Lake Tribune. “But I would imagine the tribes are trying to have their water rights satisfied. It’s less about this [MOU] and more about the individual negotiations which may or may not be happening between a tribe and a state.”

Frankel referred to the fact that though several tribes have water rights in the Colorado River Basin, they haven’t seen the water.

Given that extreme drought and climate change have reduced the Colorado River’s flows by 20% since the turn of the century, there is less water to go around — making for complex water negotiations. Tribal water rights are taken out of states’ allocations of Colorado River water.

A 2021 policy brief by the Center for Natural Resources and Environmental Policy at the University of Montana outlines recognized and unresolved tribal water rights in the Upper Colorado River Basin.

Twenty-two out of the 30 tribes use 3.2 million acre-feet of Colorado River per year — about a quarter of the river’s annual supply — according to the brief. For reference, one acre-foot is enough water to support two households for a year. Still, 12 tribes have unresolved water rights.

Three of the six tribes included in the MOU so far can be found in Utah.

The Shivwits Band of Paiutes is based in Washington County and the Ute Indian Tribe’s Uintah & Ouray Reservation — the second-largest Native American reservation in the U.S. — is located in northeastern Utah. The portion of the Navajo Nation that lies within Utah is in San Juan County.

According to the policy brief, the Ute Indian Tribe has recognized rights to just under 180,000 acre-feet of Colorado River water per year. However, the tribe is still trying to secure about 370,000 acre-feet of the river’s water through litigation.

“Our concern up here at the Ute Tribe is consultation,” said Ute Indian Tribe Councilmember Emmett Duncan at Monday’s meeting. “I appreciate everybody sitting down to finally have this talk … water is very precious to the Ute Tribe and we try to protect everything we have.”

In 2020, Utah settled its water rights with the Navajo Nation through the Navajo Utah Water Rights Settlement Agreement. The Navajo Nation is entitled to deplete 81,500 acre-feet per year from Utah’s annual allocation of Colorado River water.

Gene Shawcroft, Utah’s Colorado River commissioner, expressed support for the MOU on Monday. He said that collaboration between the states and tribes has resulted in “important and honest and, at times, perhaps uncomfortable conversations.”

“As we look to the efforts that have been put forward by the states and tribes, Shawcroft said, “we’ve reached a point where we can have shared optimism that we can and will work better in the future.”