The New Yorker - How Native Americans Will Shape the Future of Water in the West

January 27, 2023
The New Yorker - How Native Americans Will Shape the Future of Water in the West

As a child, Stephen Lewis heard stories about a river that, for the most part, no longer flowed. “How I grew up was that it was a theft, that it was stolen from us,” he told me late last year. “There was what we used to call the Mighty Gila River, and now it was just pretty much dry. There was no water.”

Lewis is the governor of the Gila River Indian Community (gric), a group that has occupied land south of Phoenix for centuries. When I met him, in the dining room of the Whirlwind Golf Club, which the tribe owns, Lewis had recently returned from Santa Fe. There, he’d attended a celebration marking the centennial of the Colorado River Compact, an agreement that continues to shape water politics in the Southwest. In Santa Fe, Lewis took note of a black-and-white photograph of the compact’s signers—white men in dark jackets, gathered around a wooden desk.

In the United States, water law is founded on the principle of “first in time, first in right”—whoever first put water to “beneficial use” can claim the right to use it now and in the future. In the 1922 compact, though, tribal nations are mentioned only in passing. “The Colorado River Compact basically just assumed that tribes were going to go away, the United States was going to figure it out, nobody had to care,” Jay Weiner, a tribal attorney from Montana, told me. Instead, in recent years, as the worst drought in more than a thousand years has seized the Southwest, the region’s tribal nations have been asserting their legal rights to the contentious, increasingly scarce commodity of water. In 2004, gric signed an agreement with the federal government that gave them the right to more than six hundred and fifty thousand acre-feet of water, much of it from the Colorado River. The settlement made gric one of the largest rights holders of Colorado River water in Arizona; the community controls more of the river’s water than the state of Nevada. Tribal nations could soon hold the legal right to about twenty per cent of the Colorado River’s flow, including unresolved claims. (Some Southwestern tribes have yet to cometo an official agreement over their water entitlements.)

“What used to happen is that the powers that be would get together and figure out what to do, and then tell everyone else what the plan was,” Lewis said. “And what’s changed is that you just can’t do that anymore. Those days are over.”

Lewis’s father, Rod, studied medieval history in graduate school, where he expressed his arch sense of humor, and his pride in his heritage, through his school assignments. “He’d write, like, ‘While in England they were living in houses insulated with excrement and running around, painting their faces blue and purple, the Hohokam were building sophisticated canal water-delivery systems,’ ” Lewis recalled, laughing.

In the nineteenth century, the Akimel O’otham, a tribe of Hohokam descendants that the Spanish called the Pima, lived among cottonwoods and willows along the banks of the Gila, a tributary of the Colorado that flows through New Mexico and Arizona. The river was central to their economic and spiritual life. The Pima directed the water’s flow through a system of ditches and culverts, and developed an extensive agricultural system, growing watermelons, beans, corn, squash, cotton, and tobacco.

Westward-bound migrants passing through the Sonoran Desert—gold-rushers, Mormon settlers, surveyors, military scouts, trappers—came to rely on the Pima lands as a crucial provisioning stop on the arduous journey, the historian David DeJong writes, in “Stealing the Gila: The Pima Agricultural Economy and Water Deprivation, 1848-1921.” The tribe found lost horses, allowed bony oxen teams to graze their fields, and established a robust business selling surplus crops and water. They acquired a reputation for being friendly, industrious, entrepreneurial. By the late eighteen-sixties, they were selling agricultural commodities in vast quantities: thirty thousand pounds of corn, a million pounds of wheat annually.

After the U.S. gained control of the area in the Mexican-American War, Pima leaders sought confirmation that their land rights would be respected, and were repeatedly assured that they would be. Army officers and government agents stationed in the region understood that the U.S. needed the Pima more than the other way around. “So far, they have been more blessed in giving than receiving, and have looked in vain for recognition by the government of the many kindnesses they have rendered our people,” one government official wrote. Another put it more directly: “It is necessary to do more than conciliate these Indians by presents. They must be secured in their possession of their lands.”

In 1859, Congress established the Gila River Indian Reservation, which included both the Pima and their neighbors, the Maricopa, also known as the Pee Posh. But whatever security this decision ostensibly provided was quickly undermined by federal legislation encouraging westward development, which gave settlers deeds to land as long as they irrigated and cultivated their acreage within three years. Newcomers claimed land upstream of the reservation and diverted the river for their own use. The Pima’s agricultural system, which had been carefully managed based on the tribe’s understanding of the Gila’s cyclical flows, began to falter. By the turn of the century, the Pima were irrigating only a quarter of the acreage they had forty years earlier. The community, which had been famous for its mercantile abundance, was now marked by deprivation. In 1900, a Chicago Tribune headline summed up the situation succinctly: “Indians Starving to Death.”

With the decline of their traditional staples, the community increasingly relied on provisions from the federal government: subsidized sugar, subsidized flour. In the nineteen-sixties, researchers from the National Institutes of Health came to study the community. They concluded that it had one of the highest recorded rates of Type 2 diabetes in the world.

A few years later, the American Indian Law Center established a summer pre-law program to encourage more young Native people to become attorneys. Rod Lewis was one of the program’s first students. He went on to graduate from U.C.L.A. Law School and became the first Native American attorney in Arizona. When Stephen Lewis was a child, the family took a trip to J. C. Penney to get his father a black suit. Rod had a case coming up in front of the Supreme Court. He won it, becoming the first Native attorney to argue—and to win—a case before the Court.

As a student of history, Rod Lewis was aware that water was key to his community’s self-sufficiency. In 1978, he became gric’s general counsel—the first tribal member to serve in that role—and turned his attention to water rights. Because of its agrarian past, the community had a strong case. By the late nineties, it had a further advantage. The city of Phoenix was sprawling south, which made gric’s land increasingly valuable to developers. The golf club where I met Stephen Lewis is surrounded by a luxury outlet mall, embellished with touches of Southwestern flair, and a resort complex of hotels and casinos. Because gric was well resourced, the tribe could afford the protracted legal wrangling that eventually led to its water settlement.

Although the settlement ostensibly gave gric substantial water rights, it didn’t immediately change the dynamics of water politics in Arizona. “There’s a difference between having a piece of paper that says you have water and actually being able to put that water to use,” Tom Buschatzke, the director of the Arizona Department of Water Resources, told me. “And the way Western water law developed, you can get the right to use water, but, if you don’t use it, the next person down the line can use it instead.”

A few years after the settlement, the community took steps to make use of its entire water entitlement. It invested in hundreds of miles of canals to channel about two hundred thousand acre-feet of water to the reservation—which was used mostly to irrigate crops. (gric is working to line these canals with solar panels, a project that’s the first of its kind in the Western Hemisphere.) They also took a further step, slogging through the complex bureaucratic and logistical process required to store the rest of their water underground. Arizona law incentivizes underground water storage, which replenishes the state’s aquifers, by allowing those who do it to sell water credits on the open market to developers and municipalities. (Arizona requires that new development has access to a hundred-year “assured water supply”; water credits can serve this purpose.) “They essentially turned their water rights into a marketable asset,” Sharon Megdal, the director of the University of Arizona’s Water Resources Research Center, said.

According to gric’s outside counsel, Jason Hauter, this move shook things up in Arizona: “In 2010, when we started storing our water, that upset assumptions, especially in the ag community, the home-building community”—two sectors that might have been able to use the water if gric hadn’t. “I think there was an assumption that, ‘Oh, they’re dumb Indians, they can’t use that water; they won’t know what to do. Well, no.’ ”

Hauter is a tall, resolute man who graduated from the same pre-law summer program as Rod Lewis. After lunch, he drove Stephen Lewis and me farther into the reservation. “We had these vast mesquite bosques,” Lewis said, looking out at the dry, flat scrubland. “But when we didn’t have water and we couldn’t farm, we had to cut down the bosques and sell the wood. That’s why you see a lot of these areas are just deforested. But we’re trying to bring the habitat back.”

The Southwest’s protracted drought has put a strain on an already arid environment. In 2007, the states that got water from the Colorado agreed to reduce their use. But, as the drought wore on for another decade and was exacerbated by climate change, it became clear that more reductions were needed to keep Lake Mead, which supplies water and hydroelectricity to millions of people, from declining to dangerously low levels. The negotiations about who would bear the brunt of those cuts were extensive and thorny. “In so many political issues, you kind of have two sides,” Buschatzke said. “In water, you have fifty sides—it’s exponentially more challenging. And, in a lot of political issues, people may have wants or needs. In water, they have legal rights.”

In 2018, Arizona formed a steering committee to come up with a plan, with delegates from gric and two other tribes, as well as farmers, developers, lawmakers, and environmentalists. During one meeting, Stefanie Smallhouse, the president of the Arizona Farm Bureau, made an impassioned speech on behalf of Arizona’s agricultural interests. A hundred and fifty years ago, she said, men like Jack Swilling, a prospector and a Confederate veteran, had settled in the area and begun to irrigate the desert. “There wasn’t anybody else here,” she said. “There were relics of past tribal farming, but he was pretty much the starter.”

Stephen Lewis spoke a few minutes later, managing to keep most, but not all, of the anger out of his voice. “I think we sell ourselves short when we talk about one hundred and fifty years, three hundred and fifty years,” he said. “We’ve been farming for over a thousand years.” gric also knew what it was like to have water taken away. “We have family stories of the devastation,” he said. “The social, medical, historical trauma that is still with us today.” Because of that history, the community saw itself as a kind of moral compass for the ongoing negotiations. “We could say, ‘We’re not going to take cuts, we’re going to fight everything, we have superior rights because of our history of water use, because of who we are,’ ” Lewis told me later. “We’re not doing that. We’re willing to sacrifice—it just has to be a shared sacrifice.”

After years of negotiations, Arizona came up with a drought contingency plan that relied, in substantial part, on gric’s willingness to leave two hundred thousand acre-feet of water in Lake Mead. The community was compensated about two hundred and fifty dollars an acre-foot for part of the water they left in the reservoir (they left fifty thousand acre-feet available for uncompensated conservation); if they had instead withdrawn the water and sold the credits on the open market, they would have fetched about twice as much, Hauter estimated. “There’s an opportunity cost, but having a stable system, even if it means having to sacrifice, makes sense to the community,” he said.

But the Southwest’s water woes have not been solved. Last year, the Bureau of Reclamation announced that Colorado River basin states and tribes would have to come up with an additional two to four million acre-feet of reductions to avert disaster—substantially more than they’d managed to agree to during the past two decades of tense discussions. What that plan will look like is still being worked out, but, as negotiations progressed last summer, Lewis grew worried that the community’s willingness to compromise would result in it being taken advantage of. Frustrated that more progress wasn’t being made, gric briefly pulled out of discussions. “We are aware that this approach will have a very significant impact on the ability of the State of Arizona to make any meaningful commitment to water reductions,” Lewis wrote in a statement, “but we cannot continue to put the interests of all others above our own when no other parties seem committed to the common goal of a cooperative basin-wide agreement.” Shortly afterward, encouraged in part by the Inflation Reduction Act, which allocated four billion dollars to improving water infrastructure, gric returned to the negotiating table. Still, the community’s point seems to have gotten across. “I know that they dont want to be characterized as a source of water that will solve the state’s problems,” Buschatzke told me.

Amid all the water-wrangling and water-politicking, one of Stephen Lewis’s goals as governor was to restore part of the Gila River ecosystem; he wanted to show me the result. We walked down a dirt path edged by willows toward a thin ribbon of river, lined with cattails. It felt like another world after those miles of stark scrubland. A bird swooped low, and we were surrounded by the thrum of insects.

This restored riparian zone, which goes by the unromantic name Managed Aquifer Recharge 5, was part of gric’s water-storage project. Storing the water underground—that is, pumping it here and essentially allowing it to seep into the aquifer—not only supplied the community with marketable water credits, it had also radically transformed this small patch of desert. “It’s the best example I’ve seen of a fully integrated water-management plan,” Megdal, of the Water Resources Research Center, told me later. “They take care of the economy, the environment, the water management. It’s all there.”

I stood on a metal grate and tried to make sense of the system of concrete culverts, pumps, and diverters that had made this small oasis possible. The river was more infrastructure than nature—but most of them are, these days. And there’s nothing like the rich smell of water in the desert.

-Rachel Monroe

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