Arizona’s Tribal water rights settlements status

For over 60 years, the Navajo Nation, Hopi Tribe and San Juan Southern Paiute Tribe have been engaged in a legal effort to secure their water rights. In May, these Tribes and other parties announced a landmark settlement. If affirmed by Congress, the agreement will end the Tribes’ long struggle for water security.

Cora Tso, senior research fellow with the Kyl Center for Water Policy at Arizona State University’s Morrison Institute, talks with the Arizona Water Innovation Initiative’s research communication director, Faith Kearns, about the status of the Northeastern Arizona Indian Water Rights Settlement Agreement and related issues.

Faith Kearns (FK): You've put together a thorough explainer, and held an excellent webinar, on the Northeastern Arizona Indian Water Rights Settlement Agreement. Can you give an overview of the settlement agreement?

Cora Tso (CT): Yes, thank you. Earlier this year, in May, the Navajo Nation, the Hopi Tribe and the San Juan Southern Paiute Tribe approved the proposed Northeastern Arizona Indian Water Rights Settlement Agreement (NAIWRSA). If implemented, this agreement would settle the three Tribal nations' water rights claims to the Colorado River, the Little Colorado River and groundwater resources in northeastern Arizona. This agreement also includes 36 additional parties, including the state of Arizona, the United States, other municipalities in northeastern Arizona, state agencies and private users within the area. 

This settlement is historic because it enhances water access for thousands of residents in northeastern Arizona, and it also contributes to closing the water access gap that these Tribal communities have faced for decades and continue to face.

The settlement is a comprehensive strategy to achieve “wet water” access for these communities. What’s unique about a settlement is that it goes beyond what some call “paper water” -- meaning legally settled or decreed rights -- and adds to that with agreements for funding and infrastructure projects to actually get these communities access to their water. 

In other words, this settlement would both settle water rights and support access in terms of infrastructure and funding. This is why these parties have petitioned Congress – to approve funding and authorization for projects to physically bring that water to communities.

FK: If NAIWRSA is affirmed by Congress, where would this leave the status of Arizona’s overall Tribal water rights settlements? 

CT: NAIWRSA is, of course, with the U.S. Congress right now. It has gone through some legislative hearings in both the House and Senate, and it's being earmarked and amended, and those changes are being negotiated by the different parties as we speak. What's interesting about the nomenclature of our explainer and the webinar we hosted is that this is a proposed agreement. The 39 parties have all agreed to certain terms, and now we await the decision of Congress.

Whatever Congress decides may change the proposed agreement. Ultimately, whatever comes out of Congress will have to come back to those 39 parties and be agreed upon by a certain number of them to be approved by the state court in Arizona. 

Of course, we don't know what Congress will do, but we have seen in the past that some Indian water rights settlements have passed during lame duck administrations. 

As for the overall status of settlements in Arizona, we have 22 Tribal nations in Arizona and 14 have either fully or partially resolved their water rights, leaving eight remaining unresolved tribes. With NAIWRSA, if it’s settled, the three that are included there would be complete, and then we'd have a total of 17. There is also a Yavapai-Apache settlement sitting with Congress, and if that is approved as well, we would be left with four remaining Tribes with fully unresolved water rights. 

There are two other Tribes who have partially resolved their water rights claims and who have water rights beyond the Colorado River mainstem, so it’s a bit more complicated. For instance, the Tohono O’odham Nation and the San Carlos Apache Tribe have partially resolved claims. So, if you want to look at the full picture, there would be six remaining Tribes in need of full resolution.

FK: You mentioned the Yavapai-Apache Nation settlement that is also with Congress right now. What is the status of that agreement? 

CT: We are working on a full explainer on that as well, but I can provide an overview at this time. The Yavapai Apache Nation (YAN) is located in central Arizona, in the Verde Valley. They currently have legislation in the U.S. Congress and have had hearings, similar to the Navajo, Hopi and San Juan Southern Paiute Tribes. Their claims are a bit unique in that they come from different water sources in Arizona, but they’re also pursuing a single Tribal settlement, which makes things slightly easier. 

With this settlement, the YAN water rights claims would be fully resolved with regards to the Verde River, as well as other sources of water, including the Little Colorado River as well as some Colorado River water. This would also be a comprehensive settlement and includes not only the resolution of their water rights, but also projects that would be funded by the federal government to import water from already established reservoirs and help proactively manage the pumping of groundwater within the Verde Valley.

The Tribe has made tremendous progress with neighboring communities. It's been exciting to see the collaboration and that all the communities want to sustain the Verde River. 

I will also note that at this time I've heard about 12 pieces of legislation related to Indian water rights settlements are pending in Congress right now, including our Arizona Tribes’. It’s important to realize that when we're dealing with Tribal water law and policy, it’s not just about state water law, it’s the ripple effects of changes within Indian law across the country as well.

FK: How has the explainer that you've written been received?

CT: From what I've heard so far, it's been a value not only to the community here in the Phoenix area, but also across Arizona. We've heard that the Navajo Nation water team has found the resource helpful and appreciated that the university has highlighted this important settlement for their communities in northeastern Arizona. 

We also heard that people appreciated the diversity of perspectives with the webinar we organized on the explainer. We were intentional about inviting the Tribal nations involved to participate in the conversation and speak for themselves about the benefits they would receive from the settlement being approved. 

We also made sure we were highlighting the benefits for non-Tribal communities like the City of Flagstaff. In addition, we invited the Governor's office speak to the importance of the settlement and why they prioritize the settlement of Indian water rights claims within Arizona. 

Personally, I will say that many folks at ASU who are from these Tribal communities want to know what's going on back home. Students who come from the Navajo, Hopi and San Juan Southern Paiute Tribes want to know what happens with their water rights and if Tribes will get water access and feel some relief. I know from my own personal story of coming off the reservation to go to university, I always thought about how state and federal policies affected my community back home. 

I also think ASU is a phenomenal place to highlight this work for Tribal communities. We have a comprehensive Indigenous scholarly and research community, and what I love about ASU is that in the charter, we explicitly orient toward a north star that focuses on inclusion. That means we need to highlight the issues that our Tribal communities across Arizona face, as well as highlighting the capacity that Tribal communities have. Sound water policies are important to all Arizonans and are made stronger when everyone is included.

Colorado River Policy Water security