Tribes Set to Consider MOU Regarding Water Rights

By Isaac White.

A Memorandum of Understanding (MOU) has been proposed among the Upper Colorado River Basin Tribes and the Upper Colorado River Commission (UCRC) to foster collaboration in the management and preservation of the Colorado River.

Established through legislative actions by five state legislatures and Congress in 1948, the Upper Colorado River Basin Compact created the Upper Colorado River Commission (UCRC). This interstate water management agency is tasked with distributing Colorado River water fairly among the Upper Division States of Wyoming, Colorado, Utah, and New Mexico.

It also ensures these allocations comply with the obligations set forth in the 1922 Colorado River Compact, which affects the Lower Division States of Nevada, Arizona, and California, as well as the Republic of Mexico.

The UCRC’s mission extends to fostering good relationships between states, preventing disputes, and promoting the conservation and development of water resources for agricultural and industrial use in the Upper Basin. The Commission consists of representatives from each Upper Division State, appointed by their respective Governors, and a federal representative appointed by the President of the United States.

The signatories include the Jicarilla Apache Nation, the Navajo Nation, the Southern Ute Indian Tribe, the Ute Mountain Ute Tribe, the Ute Indian Tribe, the Paiute Indian Tribe of Utah, and the UCRC, representing Colorado, New Mexico, Utah, and Wyoming. This MOU recognizes the spiritual, cultural, ecological, and vital importance of the Colorado River and its waters.

Since August 2022, these parties have engaged in the Upper Basin Tribes-States Dialogue, aimed at enhancing cooperation and information exchange about the river basin’s issues. The agreement outlines intentions to continue these dialogues every two months or more frequently if agreed upon, to exchange information, and to collaborate on interstate issues related to the Colorado River system. Meetings will be hosted alternately by each party, who will also provide support for these gatherings.

A Framework developed in October 2022 outlines the Dialogue’s shared priorities and objectives, which will be revisited annually. The MOU specifies that it does not address sovereign-to-sovereign relationships between the Tribes, the Upper Division States, and the United States, and is open to all Tribes wishing to join.

The agreement will remain effective until a new or amended MOU is established, and allows for any signatory to opt out at any time. It emphasizes that the MOU should not affect the trust responsibility of the United States to the Tribes, nor should it be seen as a waiver of sovereign immunity by any party or alter any legal rights or obligations under existing laws.

Vice-Chair and Colorado Commissioner Becky Mitchell, “When we started the journey with our Tribal partners, hosted by the Southern Ute Indian Tribe in Ignacio, Colorado, we collectively acknowledged that our meetings and discussions were historic but that they shouldn’t be. I am pleased that the UCRC took this step today. I also want to acknowledge that after more than 100 years since the Compact was signed – it is time to more fully engage and collaborate with our Tribal partners. We also acknowledge there is more work to be done: it is time that we support the Upper Basin Tribal Nations in realizing benefits from their settled but undeveloped water supplies.”

One significant debate surrounding the Colorado River is how to manage the river and its reservoirs once the present operating agreements end in 2026. The tribes are hoping to participate more actively in these latest talks.

There is less water to go around since the Colorado River’s flows have decreased by 20% since the year 2000 due to severe drought and climate change, necessitating difficult water discussions. States’ allotments of Colorado River water are withheld to protect tribal water rights.

A 2021 policy brief published by the University of Montana’s Center for Natural Resources and Environmental Policy lists the acknowledged but unresolved Indigenous water rights in the Upper Colorado River Basin.

According to the short, 22 of the 30 tribes utilize 3.2 million acre-feet of the Colorado River annually, or about 25% of the river’s total annual supply. As a reference point, two homes can be supplied with water for a year using one acre-foot. Twelve tribes still dispute their rights to water.

Chairman Manuel Heart of the Ute Mountain Ute Indian Tribe, “The Ute Mountain Ute Tribe appreciates the open communication that has developed between the UCRC and the Upper Basin Tribes over the past two years. We thank Colorado Commissioner Becky Mitchell and Commissioners from the other Upper Basin States for consistently engaging the Tribes. The UCRC-Upper Basin MOU formalizes these important relationships by providing a cooperative structure for coordinating the work that lies ahead in creating post-2026 Guidelines to support the sustainable and equitable operation of Lake Powell and Lake Mead. The Upper Basin Tribes are entitled to approximately 25% of the water rights in the Upper Basin and are working diligently to exercise and benefit from these rights. The alignments between the UCRC and the Upper Basin Tribes provide an important foundation for making sure that we all benefit from the negotiations that lie ahead. The Ute Mountain Ute Tribe approves the MOU as an important step forward, and a basis for building on and advancing our working relationships in the best interests of all partners in this agreement.”

Vice Chairman Lorelei Cloud of the Southern Ute Indian Tribe – “As Mouache and Kaputa, we have stewarded the lands and waters of the State of Colorado since time immemorial. This MOU is a testament to our enduring connection to this sacred resource and a recognition of the critical role Tribal voices play in its protection. Together we are united in ensuring that the Colorado River flows, today and for generations to come.”

The individual tribal councils will now consider passage of the MOU as the next step in the process of strengthening Tribal input for Colorado River water allocation.