A historic interstate, inter-governmental agreement is finally institutionalizing the much-needed practice of including the six Native American Tribes of the Upper Colorado River basin in Colorado River discussions. On Monday, March 4, 2024, the Upper Colorado River Commission, a multi-state water administrative agency tasked with ensuring the states of Colorado, Utah, Wyoming, and New Mexico allocate water pursuant to the 1922 Colorado River Compact, voted to support the unprecedented agreement, called the “Memorandum of Understanding Among the Upper Colorado River Basin Tribes and the Upper Colorado River Commission.”¹
Despite the fact that Tribes are entitled to approximately a quarter of the water within the Colorado River basin, the 1922 Colorado River Compact says nothing about including Tribes in decision-making mechanisms. In fact, signatures from Tribes were not even required for the Compact to become a binding agreement.
The Memorandum provides that the six Tribes of the Upper Colorado River basin-–the Jicarilla Apache Nation, the Navajo Nation, the Southern Ute Indian Tribe, the Ute Indian Tribe, the Ute Mountain Ute Tribe, and the Paiute Indian Tribe of Utah-–and Commission, including the four upper-basin states, will meet approximately every two months.² The Memorandum institutionalizes and memorializes a practice that began in August 2022, known as the Upper Basin Tribes-States Dialogue. As part of the Dialogue, Tribes and states "collaborate and exchange information relevant to the Upper Colorado River Basin and to discuss potential collaborative action on interstate issues of mutual interest involving the Colorado River system as appropriate.”³ Per the Memorandum, the Dialogue “will not address any matters relating to the sovereign-to-sovereign relationships that exist between individual Tribes, the individual Upper Division States, and the United States, as such matters are outside the purview and authority of the” Commission.⁴
Although Tribes won't have voting rights or permanent seats on the Commission, the Memorandum is a mark of progress because it formalizes the requirement for continued discussions among Tribes and states in the Upper Basin. The Memorandum has not yet been finalized; while the Commission has approved the Memorandum, each Tribal Council must approve it on their own.
The Memorandum seems to be part of a growing recognition that tribal participation is a necessary component for sustainable use of the Colorado River.⁵ This past December, Amelia Flores, chairwoman of the Colorado River Indian Tribes, noted that “The Biden administration and Reclamation, under the leadership of Commissioner Touton, have done more than any other administration to engage tribal Nations in a meaningful way.”⁶ At the state level, Colorado created a Drought Task Force in 2023. The Task Force, which was created in part to “develop programs that address drought in the Colorado River basin,” includes a Sub-Task Force “to address tribal matters.“⁷ The Sub-Task Force includes representatives from Ute Mountain Ute and Southern Ute Tribes.⁸ Such efforts may be useful models for future efforts of institutionalizing tribal engagement.
¹ Shannon Mullane, Landmark Deal Offers Upper Basin Tribes a Long-Awaited Foothold in Colorado River Discussions, Colo. Sun (Mar. 5, 2024), https://coloradosun.com/2024/03/05/historic-deal-upper-basin-tribes-foothold-colorado-river-discussions/.
² Upper Colo. River Comm'n, Memorandum of Understanding Among the Upper Colorado River Basin Tribes and the Upper Colorado River Commission (2024), at 1, https://newspack-coloradosun.s3.amazonaws.com/wp-content/uploads/2024/03/UCRC-UB-Tribes-MOU-1.pdf [hereinafter MOU].
³ MOU at 1.
⁴ MOU at 2.
⁵ See e.g., Heather Sackett, Federal, State Officials Promise More Tribal Inclusion in Colorado River Negotiations, Aspen Journalism (July 1, 2023), https://aspenjournalism.org/federal-state-officials-promise-more-tribal-inclusion-in-colorado-river-negotiations/.
⁶ Gabriel Pietrorazio, Tribes Focus on Post-2026 Operation Guidelines for Lake Powell and Lake Mead, Fronteras Desk (Dec. 19, 2023), https://fronterasdesk.org/content/1865979/tribes-focus-post-2026-operation-guidelines-lake-powell-and-lake-mead.
⁷ Colorado General Assembly Drought Task Force Report, W. Water L. & Pol'y Rep. (Argent Commc'ns Grp., Batavia, Ill.) January 2024, at 57-58.
⁸ Colorado General Assembly Drought Task Force Report, W. Water L. & Pol'y Rep. (Argent Commc'ns Grp., Batavia, Ill.) January 2024, at 57-58.