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 come to 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.”