Indian Water Rights: How Arizona V. California Left an Unwanted Cloud Over the Colorado River Basin

Abstract

The Colorado River is one of the most important rivers in the world. The river’s 1,400-mile journey from the Rocky Mountains to the Sea of Cortez takes on waters from seven states and from the reservations of twenty-eight Indian tribes along the way, 244,000 square miles of river basin in all. The Colorado River is also heavily managed: Its waters are allocated through a complex body of laws collectively referred to as the “Law of the River,” which includes an international treaty, two interstate water compacts, numerous federal and state statutes, and more than a dozen Indian water rights settlements. For thousands of years before the Law of the River, however, American Indians lived and irrigated within the Colorado River Basin, making due with its characteristically seasonal rains and difficult growing conditions. Today, in a cruel but all-too-common twist for tribes, twelve of the basin’s twenty-eight tribes have not had their water rights completely quantified, leaving many of the basin’s oldest inhabitants without a legally secure source of water. This begs the question of how the Law of the River developed such that the Colorado River is already over-allocated but Indian water rights are to a large extent unaccounted for, and tribes--occupying and using water in the basin since time immemorial--are left struggling for whatever remaining drops they can squeeze out of the basin. And, perhaps more to the point, the question arises how Arizona v. California recognized this exact issue in the Lower Colorado River Basin and could not to fully resolve it. This article finally takes the position that tribes, the states, and the federal government must work together to settle Indian water rights claims to provide certainty to all Colorado River basin water users amidst growing undertainty from polulation growth and climate change.