When they were banished to reservations by encroaching settlers and the U.S. cavalry, the West's Indians received small compensation--water rights.
The water, it was thought, would help integrate the Indians with society. Indians would become farmers and would irrigate their mostly barren lands. That never happened; instead, water rights became the Indians' savings account, piling up assets while the Indians did nothing but wait for the payoff.
The payoff is at hand.
With major cities such as Phoenix, Los Angeles, and Albuquerque, N.M., clamoring for more water, and white ranchers and farmers bitterly complaining about losing their cheap irrigation water to the urban areas with political clout, Indian tribes are in a position to broker their liquid gold for cash and power.
"Indian water is a totally new element in the equation," said Jeris Danielson, former state engineer of Colorado who served as point man in water negotiations with his state's tribes.
"Tribes on the lower Colorado River have a right to a million acre-feet of water, but they haven't been exercising that right. I think their claim to it is going to come more rapidly than we think."
That means the Indians will decide either to use it for their own economic benefit by developing their natural resources--such as coal reserves--with it, or sell it to the highest bidder. The ripple effect could be greater shortages of water for traditional uses, such as for irrigation and for use by municipalities, and therefore higher costs.
For instance, the annual average flow rate for the Colorado River is about 13.5 million acre-feet, but the allotment totals 15 million feet. The river already is far oversubscribed, and when the Indians begin claiming all their rights, somebody's going to come up short. (One acre-foot is the amount needed to flood an acre to a depth of one foot--about 325,851 gallons.)
Danielson recently attended a meeting in which representatives of the seven states in the Colorado Compact were trying to figure out how to get even more water out of a river that is already overcommitted.
"I looked around the table and all the state bureaucrats were sitting there without any answers," Danielson said. "Then I looked around the room and all the Indian tribes were sitting against the wall with over 1 million acre-feet of water for sale. I thought, 'This is crazy. Why aren't those guys at the table?' "
Colorado recently ended five years of negotiations and 10 years of hard talk with the state's two tribes--the Southern Utes and Ute Mountain Utes--so progress could proceed on the $611-million Animas-La Plata water project near Durango.
"Our whole thrust was to get a settlement that the Indians are entitled to without demolishing the whole economy," the state engineer said. "The Indians have been extremely patient and we need to go forward with this so that the Indians don't say to us, 'Look folks, you've lied to us one more time and we still don't have our water.'
"That could mean they'd sell their water rights to downstream users, and that could be a serious threat to agriculture."
Danielson said it behooves all Western states to negotiate with Indian tribes as neighbors with a precious resource needed by everybody.
"Some states take the approach that if you ignore the Indians, they will go away," he said. "Well, they won't. That's a cowboy mentality. But unfortunately, in states like Wyoming, the Indian wars aren't over in their minds."
To the Indians of the American West, before the white man came, water was something that directly sustained life. They drank it, their animals drank it, their crops died without it. It carried some tribes from place to place; others settled beside it and never left their own river bank. They took what they needed and left the rest. It came from the unknown, it flowed on to the unknown.
After they were confined to reservations, Indians didn't use much water even if it was there, because developing an irrigation system wasn't compatible with traditional lifestyles and was horribly expensive.
The tribes' federally mandated water rights became an obscure legal footnote ignored by the white power structure. After passage of the National Reclamation Act in June, 1902, the West became the most sophisticated hydraulic society in the history of the world. To date, the Bureau of Reclamation has spent nearly $17.2 billion in 17 bone-dry states west of the 100th meridian.
"Because 90% of all Western water is used for irrigation, that means the federal government has gone out and subsidized billions and billions of dollars of water for non-Indian use," said Charles Wilkinson, a law professor at the University of Colorado and a Western water expert. "There has been very little irrigation for Indian use, as there should have been, to fulfill the trust agreement."
But Indian tribes, helped by the 20-year-old Native American Rights Fund based in Boulder, Colo., recognized that they needed to exert their water claims on behalf of tribal well being.
"I think the tribes' movement to re-establish their tribal sovereignty, by any standard, has been one of the most striking political and economic movements in modern times," said Wilkinson, who worked as a lawyer for NARF during the 1970s, when the group won its first landmark water law cases. "They have come farther than perhaps any group because they started so far down.
"Water has been an area in which a great deal of energy has been expended over the last 30 years, and the tribes have organized reasonably well on a national level because there have been a lot of cross-pollination of ideas and strategies," Wilkinson said. "But each tribe is a separate government and culture. It's like states' rights--states do coordinate. But the rubber really hits the ground within each tribe."
These days, everybody is seeing everybody else in court. Because of oversubscription of water, and the skewed nature of Western water law, which allows acre-feet to be bought and sold like real estate, litigation has become as common as turning on the tap to get a drink.
But Indian tribes win more often than not because their reserved water rights were established by the U.S. Supreme Court as far back as 1908, in Winters vs. United States.
Some tribes aggressively litigate to claim their place at the Western trough; others do so reluctantly. But since 1985, according to NARF, Indians have won rights to 2.4 million acre-feet of water annually, and $277.9 million in one-time cash compensation.
By asserting their claims, the tribes can either sell the water to non-Indian users and take the cash for tribal needs, or they can develop their own natural resources with it. Either way, the Indians benefit.
"Touch water, and you touch everything," Wilkinson said.