Tribal inclusion in the Colorado River Basin today
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IGNACIO and TOWAOC, Colo. — Southern Ute and Ute Mountain Ute Tribes want the same opportunities as their non-native neighbors in accessing water from the Colorado River.
While the Colorado Ute Indian Water Rights Settlement Act of 1988 provided certainty in the amount of water available to both tribes, there’s much left to be upheld by the federal government.
“We’re tired of broken promises,” said Lorelei Cloud, vice chairman of the Southern Ute Indian Tribe.
“Enough is enough.”
The 1922 Colorado River Compact serves as the Law of the River and determines how water is divided among the seven Western states (Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada and California) and Mexico.
But the century-old agreement is based on an era of plenty with much less demand on the system. Today, there are more claims to the water, providing for 40 million people across the West.
Although Colorado River Basin states and federal partners developed new rules as recently as 2007 and 2019 in an attempt to strike a balance between supply and demand, tribes were not included in either rule-making process.
Current rules and agreements that govern the operation of the Colorado River are scheduled to expire at the end of 2026.
“The Compact came in 1922 and tribes didn't even become citizens until 1924, so we were not included in the negotiations of the Compact for the Colorado River Basin,” said Manuel Heart, chairman of the Ute Mountain Ute Tribe.
Streams originating in the San Juan Mountains of southwestern Colorado ultimately flow into the San Juan River, a major tributary to the Colorado River. Both Southern Ute and Ute Mountain Ute Tribes are dependent on these snow-fed systems for cultural, domestic, agricultural, environmental and industrial needs.
Even as the oldest inhabitants of present-day Colorado, Ute tribes were not recognized in Western water law. The Doctrine of Prior Appropriation, also known as “first in time, first in right,” is a method of regulating water rights. This system of water allocation dictates who uses how much water, the types of use allowed and when that water can be used.
None of the 30 federally recognized tribes throughout the Colorado River Basin were included in historic decisions made more than 100 years ago, shaping the river we see today.
“Tribes are sovereign in the Constitution, we need equal justice,” Heart said.
Discussions have intensified among the seven basin states as the deadline for Post-2026 Operations draws closer. These guidelines are another response to the changing hydrology of the river and will map out how water shortages will be implemented throughout the basin.
The Upper Basin tribes — Southern Ute, Ute Mountain Ute and Ute Indian Tribes, Jicarilla Apache Nation, Navajo Nation, and Paiute Indian Tribe of Utah - first assembled with Upper Basin state commissioners in August 2022.
Tribal leaders and the Upper Colorado River Commission (UCRC), an agency centered in many Colorado River discussions, gathered in April 2024 to sign a historic memorandum of understanding. This newly proposed agreement makes bi-monthly meetings with tribes mandatory for the first time in the commission's 76-year history.
“It's taken a long time to get there. It's a lack of understanding the tribes and our needs and what our relationship is with nature,” said Cloud.
“Now that we're continuing to elevate our voice, it's really important to include that tribal perspective in everything.”
“Now that we're continuing to elevate our voice, it's really important to include that tribal perspective in everything.”
The Colorado River Basin is divided into the Upper Basin and Lower Basin regions.The Upper Colorado River Basin encompasses four states including Wyoming, Colorado, Utah and New Mexico. Water from the Upper Basin drains into the Colorado River above Lees Ferry.
Located 17 miles downstream of Glen Canyon Dam in northern Arizona, Lees Ferry has long been a focal point for water disputes in the West. Here, the river crosses an invisible boundary into the Lower Basin, which spans Arizona, Nevada and California.
The memorandum of understanding is a commitment to advance inclusive water management in the Upper Basin going forward, regardless of changes in state and tribal leadership.
The tribes becoming fully embedded in the governance of the Colorado River Basin remains unknown and doing so will require an act of Congress. The federal government’s trust responsibility towards tribes means any significant changes or new obligations must be codified into law through legislation.
Of 30 Colorado River Basin tribes, 22 of them have federally recognized rights that account for 20% to 25% of the river’s water. A portion of this water access exists only on paper because the necessary infrastructure to deliver supplies to tribes isn’t in place.
The Colorado Ute Indian Water Rights Settlement Act, one of the water agreements, resulted in the construction of the McPhee Reservoir, known as the Dolores Project, and Lake Nighthorse, referred to as the Animas-La Plata Project.
McPhee Reservoir was constructed and filled in the 1980s with domestic water supplies flowing to the Ute Mountain Ute Tribe in 1994.
Construction on the Animas-La Plata spanned more than a decade due to disputes among different water user groups and project costs. Phase one of the project, which only includes water storage in Lake Nighthorse, was filled in 2011.
However, the Animas-La Plata Project lacked funding for infrastructure to deliver reservoir supplies to Southern Ute and Ute Mountain Ute reservations. Both tribes have rights to water that have been sitting in Lake Nighthorse for more than a decade.
With a reservoir at nearly full capacity, undeveloped and uncaptured water continues to flow downstream. This means the Tribe’s settled water is used by non-native groups and communities, particularly by those in the Lower Basin who’ve developed a reliance on these flows.
A 2021 analysis produced by the Water and Tribes Initiative, a non profit tribal advocacy organization, estimated that Upper Basin tribes might be using less than 40% of their allocated water.
Both Colorado Ute tribes are also restricted on how their water can be used. The Colorado Ute Settlement Act Amendments of 2000 limits uses of the Animas-La Plata Project to municipal and industrial uses only, including recreation, stock watering, fish and wildlife, and flood control.
“Right now, we just want to hold the federal government accountable for the agreement we had on Animas-La Plata,” said Heart. “Our community is growing. We too are similar to everybody else in the Colorado River Basin and the 40 million people that depend on this water.”
Former tribal leaders had also prioritized water access for their community, Cloud said.
“They [previous leadership] knew that once they settled their water, they were also settling water for their future generations, which is us today,” she said. “And as we go forward, we’re also doing that for our future generations to ensure that they have the water they need.”
Federal officials have said Colorado River water use needs to be cut between 15% to 30% annually to ensure long-term viability amid a drier future accelerated by climate change. One mechanism is providing compensation to eligible projects, as determined by the Bureau of Reclamation, that conserve water.
Among these projects in the Upper Basin are tribes participating in paid conservation programs that compensate them for the water they aren’t using. As currently written, however, the Colorado Ute’s water settlement agreement restricts them from doing so.
But a forbearance program with funds from the Inflation Reduction Act (IRA) would compensate the tribes in exchange for foregoing the development of their water for a certain number of years. The estimated $450 million in funds collected could be put towards necessary water infrastructure and reduce potential conflict between junior and senior priority tribal water development. Unused water left in the river also boosts environmental flows for ecological health.
Despite the IRA plan developed by the Bureau of Reclamation, Cloud announced in September that the federal government had retracted its commitment to make the funding available to the Southern Ute Indian Tribe.
“The Department of Interior is our Trustee, and has the trust obligation with respect to Tribes’ quantified resources,” she said. “We had something on the table until two days ago.This conversation is going to continue in other forms.”
A spokesperson for the Department of Interior said the agency proposes a “collective approach” to reach an agreement and that it also recognizes that each tribe in the Colorado River Basin is unique.
Amid the negotiations, Cloud said that the Upper Colorado River Commission’ commitment to each other remains strong.
“If we do not work together and don’t treat each other fairly, we have done nothing for our future.”
Learn more: "Colorado Experience: The Ute Water Legacy"
Learn more: "Colorado Experience: The Ute Water Legacy"