It is difficult to imagine more extreme conditions for negotiating a monumental water compact, but that’s where we find ourselves. A pandemic, now entering its third year, has economically and culturally stressed communities up and down the river. A drought, now in its second decade, has sapped the Colorado River of its once-dependable snowpack and thus its water flow. And America’s history of excluding Indigenous nations from river management talks, now in its second century, has left tribes with little time and few options to ensure that their people have the permanent homeland so many in Indian Country are seeking to rebuild.
Standing squarely in the middle of these ongoing crises is Daryl Vigil, water administrator for the Jicarilla Apache Nation and co-facilitator of the Water and Tribes Initiative. Vigil has been at the forefront of Indigenous water rights in the U.S. for nearly a quarter-century. During a recent conversation with HCN, as he took stock of the renegotiations from his home in Dulce, New Mexico, Vigil offered an urgent yet calming reminder: The tough place Indigenous nations are in isn’t new; what is new is that they finally have the opportunity to do something about it.
This interview has been edited and condensed for length and clarity.
High Country News: Tribes have been fighting for decades to fortify their position as water and drought policy leaders. What does that mean in the simplest terms?
Daryl Vigil: (The) Biden administration has made some incredible commitments, verbally. Some of these processes still need to be built (while) imagining ourselves, tribal sovereigns, as partners in helping to create that. There is no formally recognized institutional place for tribal sovereigns to say we’re trying to participate in the policymaking process for the Colorado River. That place does not exist.
There’s an assumption that the seven (Colorado River) Basin states and the federal government are going to speak and protect and advance tribal water rights. That’s just fantasy. And so, where we’re at right now is incredibly critical — talking about creating a new framework of operational management for the Colorado River Basin as a whole.
HCN: In the past, you’ve spoken about the core ideological differences in how the tribes and the U.S. value water on the Colorado River, between viewing water as a delivery system and addressing matters issue by issue, versus addressing the cultural, environmental, traditional values of the river. Were you able to integrate those two mindsets in negotiations?
DV: The structure doesn’t accommodate that at all. With the Water and Tribes Initiative, in 2019, we did a tribal water study, and not wanting to let the momentum drop after two years in the last administration, (we) really wanted to get a feel of where our people are. So we’ve created a document called Toward a Sense of the Basin, the result of close to 100 interviews that we did across the basin: tribes, NGOs, Mexico, agriculture groups, municipalities, water providers, the federal government. What we found when we asked the first question, “What is your personal and professional relationship to the river?” almost consistently, across the board, everybody wanted to see a healthy, living, sustainable Colorado River. That was revealing, because it showed that people really do value those things. That was a huge part of the work (of) the Ten Tribes Partnership through the Tribal Water Study and their mission to educate, collaborate and communicate about tribal water rights in the Colorado River Basin.
Everybody wanted to see a healthy, living, sustainable Colorado River. That was revealing, because it showed that people really do value those things.
HCN: What’s on the horizon for the Water and Tribes Initiative?
DV: Part of what we’ve done is to inform the broader base and engage in a series of policy briefs. We developed a document that listed the current status of all the 30 tribal sovereigns in the Colorado River Basin (showing) the history (and) where they’re at now. Another policy brief we’re working on is around “flexible tools.” We started this particular policy brief almost two years ago and called it “Water Sharing,” but the (political) climate really wasn’t conducive to have that conversation then. Now it is. We’re saying, “Let us have access to those flexible tools.” Things like forbearance agreements, water banking, interstate marketing, compensated forbearance, access to conservation programs.
People don’t understand what is happening in the Upper Basin. There’s almost half a million acre-feet of unused tribal entitlement that’s just going down the river for free that we don’t get compensated for, and nobody wants to address that issue. (At the Bureau of) Reclamation, that’s the big elephant in the room right now. They don’t want to address this because that’s been their security all this time, and that somebody else gets to utilize that unused entitlement as some problem-solving issue, that’s just got to stop. All we’re asking for is (to) either be compensated for those things, or to acknowledge that we’re going to put those to development. And therein lies the collapse of a conversation, because they say, “Well, no, if the tribes develop that half a million acre-feet in the Upper Basin, what’s going to happen?” It will be that the tribe actually gets to use its own water.
HCN: What does the lease agreement between the Jicarilla Apache Nation and the state of New Mexico mean for economic development?
DV: Jicarilla just recently completed a transaction two years in the works with the state of New Mexico and The Nature Conservancy. Jicarilla is going to lease water to the state of New Mexico for the strategic water reserve. And we had to create that from scratch, because we were no longer able to lease a huge portion of our water from Navajo Dam because of shutting down coal-fired power generation. And so we were able to create this transaction that actually empowers the sovereign-to-sovereign relationship between the state and the tribe — the first of its kind.
Each year for the last three years, we’ve had about 25,000 acre-feet of water flowing down the river without any compensation, without any credit, and no ability to develop that in any shape or form given the geographics of where our water is stored. Two years later, two water evaluations and a whole bunch of engagement and work (later), we were able to pull that off.
HCN: How are tribes holding up under the current drought contingency plans, and are you optimistic about good outcomes when the Colorado River Interim Guidelines expire in 2025?
DV: It’s not written anywhere that we’re on an equal basis to be able to participate in all the federal subgroups of the drought response operation agreement, like the state is. So no matter how much they say they’re going to take (tribes) into account, we can’t count on that. We need something more formal, absolutely pushing the federal government to make sure that they understand what we’re saying, because we keep telling them what we want, and they keep coming back doing the “What do you want?” Hopefully, (we’re) making some headway in that process. I have a direct line of communication with the Upper Basin regional director, and these connections and these relationships are absolutely vital, because they didn’t exist before. And my hope is that once we build those relationships (on) a real human level, it’s a lot easier to execute policy.
Understanding that there hasn’t been a good track record but being incredibly hopeful and optimistic that people will do the right thing — I think that’s the spirit that tribes are bringing to the table. It’s touched me so much. I’m part Jemez and Zia Pueblo, and I was listening to the governor at Acoma Pueblo talk about the sacredness of water and the springs that they go to still to get water, and sometimes when those springs haven’t produced very much, they’ll leave it for everything else to drink out of that. So they’ll go thirsty, so other life-forms can get what they need. That is just so beautiful to me.
HCN: A lot has been covered in the news around the drought and the Colorado River Basin in the last year, particularly as it concerns the projected snowpack and water flow for the coming years. What do you think is still missing from that conversation?
DV: The (1922 Colorado River) Compact called for equal distributions of (the river’s) 16.5 million acre-feet. That (number) was based on, it’s been acknowledged, false hydrology. They went with a higher number. We’re still trying to operate on the premise that the (river’s water flow) is going to support these complex compact obligations in terms of the deliveries, and it can’t. And so there’s talk about, “What is a realistic number?” (It) kind of shifts to (about) 12 million acre-feet. That’s what we need to divvy up. And if we’re going to divvy up that, tribes absolutely need to be at that policymaking table.
I think there’s finally a recognition of the need to create that certainty by the inclusion of tribes, and it’s taken 10 years of yelling and screaming and doing whatever we need to do. This has to be driven by the tribes themselves — and (the) investments; the momentum that’s taken place in terms of our participation. Every time tribes have participated in any of these processes, it’s been meaningful, it’s been impactful, it’s been a positive thing.
Christine Trudeau, Prairie Band Potawatomi, is a contributing editor for the Indigenous Affairs desk at High Country News, and the Indigenous Investigative Collective’s COVID-19 project managing editor. Follow @trudeaukwe
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