There鈥檚 only one sentence in the 1922 Colorado River Compact that even mentions Native people. It comes about two-thirds of the way through the document, after tremendous volumes of the river鈥檚 water had already been promised to seven southwestern U.S. states.
It鈥檚 article seven. The sentence reads: 鈥淣othing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes.鈥�
That鈥檚 it.
Indigenous people have lived in this region since time immemorial. Today, there are 30 federally-recognized tribes in the Colorado River basin. Combined they hold rights to a significant amount of the river鈥檚 water. Based just on that, you鈥檇 think tribes were one of the most powerful players in the river鈥檚 political landscape.
But, no.
They鈥檝e been excluded from nearly every major agreement on the river over the last century, including the Compact itself.
So while leaders across the southwest are debating how to use less water amid the region鈥檚 warming climate.
Tribes say they never got the chance to use their water in the first place. And everyone in the river basin should plan for a future where they do.
From KUNC, this is 鈥楾hirst Gap: Learning To Live With Less On The Colorado River.鈥� I鈥檓 Luke Runyon. This is episode five, 鈥淔irst In Time.鈥�
It鈥檚 a crisp winter morning on the Navajo Nation, and I鈥檓 in an SUV, driving along a muddy, snow-covered road to visit a water well in the community of Tohlakai.
LEILA HELP-TULLEY: 鈥淪o this is one place that we always have gone to haul water. We've always hauled our barrels down here.鈥�
We park on the side of the road and walk up to a large metal storage tank perched on a hill. A trough juts out from the base. It鈥檚 cold enough on this morning I can see my breath. A hard freeze here put a hairline crack in a pipe, allowing water to spill into the trough. Leila Help-Tulley brought me here.
HELP-TULLEY: 鈥淢y name is Leila Help-Tulley. [SPEAKS IN NAVAJO LANGUAGE] I am of the Bitter Water Clan, born for the Yucca Fruit on a String Clan. Those are my main clan for my mother and my father.鈥�
Hauling water home in bottles, buckets and tanks was part of daily life for Leila while she was growing up in Tohlakai. And still is the reality for many Din茅, the word Navajo people use for themselves. More than a third of those living on the Navajo Nation lack water access in their homes.
It wasn鈥檛 until Leila was six years old, and she was sent to an on-reservation boarding school that she experienced running water from a faucet. The school was part of a federal policy to assimilate Navajo people and stamp out their culture and language.
HELP-TULLEY: 鈥淭hat was my first introduction to indoor running water. I never, ever had that experience in my life. And the people that were working in the dormitories, they end up telling us, 鈥榊ou're going to have to wash up, you're going to have to take a shower.鈥� And they end up turning the water on. And that water came spraying down. And many of us young children, we cried and cried because we were afraid of that sudden pressure of water that would be coming upon us.鈥�
Leila also raised her daughter, Crystal, without running water in their home and now water has become the center of her working life.
CRYSTAL TULLEY-CORDOVA: 鈥淸SPEAKS IN NAVAJO LANGUAGE] I am Crystal Tulley-Cordova, a principal hydrologist for the Navajo Nation Department of Water Resources. I am of the Bitter Water Clan, born for the Tangle People Clan. My maternal grandfather's clan is A Yucca Fruit Strung on a Line, and my paternal grandfather's clan is the Water that Flows Together.鈥�
In her position for the tribe, Crystal is in charge of all kinds of water issues, everything from coordinating research to testing groundwater to helping negotiate the tribe鈥檚 interests on the Colorado River. She got her PhD in geology from the University of Utah, and came back to the lands where she grew up to work for the tribe. Her first research project came in the fourth grade, testing different ways to filter water at her elementary school鈥檚 science fair, which she won.
TULLEY-CORDOVA: 鈥淪o it鈥檚 been cold here lately, so what you can notice is the...鈥�
Crystal points out a date marker on the well鈥檚 base. It was drilled in 1963.
HELP-TULLEY: 鈥淎nd to this day of 2023. My family still does not have running water. We are still hauling water using our barrels to come and get water.鈥�
That鈥檚 water for everything. Drinking, bathing, hand-washing, tending to gardens, all hauled for miles from a communal well like this one back home.
We pile back into the car, drop Leila off at home, and start heading toward Crystal鈥檚 office. She agreed to show me around the Navajo Nation, and see the water challenges and successes here first hand.
TULLEY-CORDOVA: 鈥淪o what we're seeing now is the Code Talkers lateral.鈥�
Along the highway we see mile after mile of water pipes laying end to end. They were delivered recently and are still sitting on the ground, waiting to be connected.
TULLEY-CORDOVA: 鈥淵ou see the pipes that have been prepared and delivered on these areas coming through Yah-ta-hey, New Mexico. And a lot is going on. A lot of people are working on the Navajo-Gallup Water Supply Project.鈥�
The pipes are a piece of the Navajo-Gallup project. It鈥檚 been decades in the making. 300 miles of pipes. 19 pumping stations. And new water treatment plants. All in an attempt to help address some, but definitely not all, of the Navajo Nation鈥檚 water supply challenges. The water comes from the San Juan River, a major tributary to the Colorado. When it鈥檚 fully built out by 2028, the project鈥檚 water will flow through faucets on the Navajo Nation, in the city of Gallup, New Mexico, and provide water to a neighboring tribe, the Jicarilla-Apache Nation. Money to complete the project has come in fits and starts. The latest burst of funding was set aside in the Bipartisan Infrastructure and Jobs Act. The tribe itself is funding a portion of its construction.
One thing to keep in mind here is just how big the Navajo Nation is. By land area the reservation is larger than the state of West Virginia. It鈥檚 incredibly arid, and its borders intersect with three states -- Arizona, New Mexico and Utah. Because it鈥檚 so expansive, Crystal says, the reasons for the tribe鈥檚 water supply problems vary across that geography.
TULLEY-CORDOVA: 鈥淲hen you look at why that exists, like putting on my technical hat as a scientist, it really breaks down to where is the population, where are they populated? I mean, there are sparse living conditions, when we drive throughout the Navajo Nation in between houses there might be hundreds of feet, there might be miles. And so that also provides a challenge for water development.鈥�
So the fact that the reservation is so rural presents one problem. It鈥檚 really expensive to run water lines far distances. But in addition, she says, the water that is available now isn鈥檛 always usable. Much of the Navajo Nation relies on pumping groundwater. In some areas wells only tap into water too salty to drink or to grow crops.
TULLEY-CORDOVA: 鈥淚n other areas we have legacy mining issues, so we have uranium and arsenic issues. If you know anything about the Clean Water Act, you know that if you have elevated levels above maximum contaminant level, like what do you get in return if you drink that water? You likely get health issues in the future.鈥�
Or the groundwater is disappearing all together. Some aquifers have dropped rapidly during the two-decades of drier than normal conditions here, leaving some people to either spend money to dig a deeper well, or haul water from a communal well miles away.
ROLAND TSO: 鈥淔ood鈥檚 almost ready, you guys are here right in time. Hi, Roland.鈥�
LUKE RUNYON: 鈥淣ice to meet you, Roland.鈥�
Those are problems Roland Tso knows all too well.
TSO: 鈥淢y name is Roland Tso. I serve as a grazing official with the community of Many Farms. This is going to be my 23rd year working with the community of Many Farms.鈥�
We met Roland at the Many Farms Chapter House, a community center, with a conference room, and a communal well where, for a price, people can fill up their tanks for use in their home or to water their gardens. He wore cowboy boots and leather armbands.
Roland's job is to help farmers and ranchers make it through times when water is scarce, keeping an eye on wells, and the levels at the reservoir nearby. That鈥檚 getting harder and harder to do.
TSO: 鈥淪o during times of drought, it really hits their wallet because they'd have to get rid of the livestock, some of it. The other thing is they start hauling water.鈥�
And when farmers start hauling water, they鈥檙e not making any profit from livestock, Roland says. It鈥檚 just enough to keep the animals alive.
TSO: 鈥淥ur reservoir has gone dry twice within the last three years.鈥�
Groundwater is also on the decline in his community. And as the water table drops, the quality often does too. Roland says he鈥檚 had to shut down some wells because of elevated levels of arsenic, which is hazardous to drink or give to livestock. And Navajo families suffer.
TSO: 鈥淵es, we are subsistence farmers. Because of the amount of water, you know, our people really are conservative. We don't pump thousands of gallons of water to irrigate. So to, say, grandma's plants out there. And she uses a coffee cup to plant to water just the corn that she's growing. So they conserve a lot of resources.鈥�
The dry conditions have hit the tribe at exactly the time when they鈥檝e needed water the most. The Covid-19 pandemic brought a new sense of urgency toward providing clean water access to homes across the Navajo Nation. The tribe experienced some of the highest mortality rates in the country from the disease. Lack of water infrastructure was exacerbating a public health crisis. How do you tell people to wash their hands 10 times a day when water is so scarce?
All this scarcity, all these real world effects, have forced the Navajo Nation to focus on securing more water for its people. Whatever it takes.
SHAY DVORETZKY: 鈥淭he United States thinks that it alone decides whether it has made good on its promises. But that's not how promises work.鈥�
And sometimes you have to go all the way to the Supreme Court to do it. That鈥檚 coming up after the break.
JOHN ROBERTS: 鈥淲e will hear argument this morning in Case 21-1484, Arizona versus the Navajo Nation, and the consolidated case. Mr. Liu.鈥�
FREDERICK LIU: 鈥淭hank you, Mr. Chief Justice, and may it please the Court...鈥�
Back in March, the Navajo Nation鈥檚 water challenges found their way to the U.S. Supreme Court. At issue in Arizona versus the Navajo Nation are foundational questions about the relationship between tribal nations and the federal government when it comes to water. The government鈥檚 lawyer, Frederick Liu, said there鈥檚 no disputing that the tribe is entitled to some water from the Colorado River.
LIU: 鈥淭he dispute here is about something different, whether the United States owes the Navajo Nation a judicially enforceable affirmative duty to assess the tribe's water needs, develop a plan to meet them, and then carry out that plan by building water supply infrastructure on the reservation. The answer to that question is no.鈥�
The facts in this case reach back as far as 1868 when a treaty between the tribe and the U.S. government established the reservation. And at its core, the case is about what duty the federal government has in helping the Navajo, or potentially any other tribe in the Colorado River basin, to develop, and eventually use its water rights. The feds say the agreement provided the tribe with a 鈥渂undle of sticks,鈥� meaning it gave certain rights to natural resources -- timber, minerals and water. But it didn鈥檛 force the government to help the tribe make best use of those sticks.
The tribe says the government is duty-bound to help secure the water, and should help assess and plan for their future needs. Realizing the cost that could come with that duty, the government says it doesn鈥檛.
The Navajo Nation鈥檚 lawyer, Shay Dvoretzky, framed the dispute as one more broken promise in a long history littered with them.
DVORETZKY: 鈥淚n the 1868 treaty, the United States promised the Navajos a permanent homeland. Both parties understood that in promising the Navajos their land, the United States was also promising them the water it needed to sustain life in the arid southwest. Those treaties are specific sources of law that give the Nation rights to water and impose duties on the government to secure that water. But for years, the United States has failed to fulfill that promise.鈥�
He ended with this.
DVORETSKY: 鈥淭he United States thinks that it alone decides whether it has made good on its promises. But that's not how promises work. A promise is a solemn duty, and the United States' duty is to see that the Nation has the water it needs and the United States promised.鈥�
The case has been working its way through lower courts for years, and comes to the Supreme Court at a time when the Colorado River is receiving unprecedented national attention. See, the tribe has been able to settle some of its water rights, in Utah and in New Mexico. But in Arizona, where the vast majority of the reservation lies, the tribe鈥檚 water is not settled, leaving big, unanswered questions about just how much water the tribe might end up using from the Colorado River. And that uncertainty ripples through the basin.
Along the river, every drop is already being used, and then some. By farmers, by cities, by states. There is no slack in the system. It鈥檚 overdrawn already. Meaning any additional use will be felt by someone somewhere in the watershed. And because tribal water rights are often tied to the creation of the tribe鈥檚 reservation, they鈥檙e some of the oldest and most valuable rights in the basin, pre-dating almost everyone else, farmers, ranchers, and cities. Las Vegas and Phoenix were barely on the map when tribal treaties were being drawn up.
When the justices began peppering the lawyers with questions, it was clear water is not an innately partisan issue. What was unclear is exactly how the Court would end up deciding this case. Take this exchange between the government鈥檚 lawyer, Frederick Liu, and Justice Neil Gorsuch.
NEIL GORSUCH: 鈥淣ow let's say, as a matter of state contract, I promise you a permanent home and that you'll be able to raise animals there and you'll be able to conduct agriculture there. Would it not be a breach of contract to then provide a home where none of those things is possible? Is that a permanent home?鈥�
LIU: 鈥淚 -- I -- I -- I -- I think -- I think everyone agrees that the permanent homeland comes with the bundle of sticks that I said at the outset. One of those sticks --鈥�
GORSUCH: 鈥淚f you'd just answer my question. Could I bring a good breach of state contract claim for someone who promised me a permanent home, the right to conduct agriculture and raise animals if it turns out it's the Sahara Desert?鈥�
LIU: 鈥淚 don't think you would be able to bring a breach-of-contract claim.鈥�
GORSUCH: 鈥凌别补濒濒测?鈥�
LIU: 鈥淚 -- I think -- I --鈥�
GORSUCH: 鈥淵ou don't think that's a breach of good faith and fair dealing?鈥�
The justices are expected to release their decision early this summer. If they side with the Navajo Nation, it鈥檚 not as if suddenly the tribe will be flush with new water supplies. But it could force the federal government to provide a new level of support in the tribe鈥檚 desire to secure its water rights and to begin to use them.
And if the justices see this as a foundational aspect of the relationship between the U.S. and tribes, it could have far reaching effects, not just for the Navajo Nation. Here鈥檚 Justice Samuel Alito asking the government lawyer Liu a question during the oral arguments.
SAMUEL ALITO: 鈥淲hat would be the nationwide impact of such a ruling?鈥�
LIU: 鈥淲ell, there are 500 or so tribal reservations. The government has entered into about 30 or so water agreements since the late 1970s. There's ongoing litigation in -- in courts across the country. I think this would impose on the United States a sort of amorphous duty to take a -- take another look at all those issues.鈥�
Back on the Navajo Nation, in Crystal Tulley-Cordova鈥檚 Department of Water Resources office, those broad legal questions about trust relationships and contract law feel another world away.
On a wall across from her desk is a collection of photographs of the lands where she grew up -- of flowing creeks, lakes and enormous thunderclouds. Next to the photos is a poster that reads, 鈥淲ater Is Life.鈥� Another says 鈥淲ater is our strength.鈥�
Those are English translations of Navajo teachings Crystal has heard from her parents, and her grandparents.
TULLEY-CORDOVA: 鈥淎nd these cultural teachings, although they sound just kind of like, oh, words of wisdom on a wall to motivate me to do something. It's really about to push you to support, you know, using these cultural teachings to think about the next generation.鈥�
Many states and cities will come up with 40 year or 50 year plans for their water supplies. Crystal says that鈥檚 not how she thinks about this issue for her tribe.
TULLEY-CORDOVA: 鈥淟ike, I don't have grandchildren right now of my own, I have children, but I think about my grandchildren and my great grandchildren, and I want them to have a secure water future.鈥�
Crystal has pushed to get a spot at the table for conversations about the river鈥檚 management, and she鈥檚 made some progress. As an example, take a recent reservoir operations plan, which involves multiple states and the federal government. 10 years ago it鈥檚 likely tribes wouldn鈥檛 have been meaningfully included in crafting that plan.
TULLEY-CORDOVA: 鈥淏efore what had occurred is: 鈥楢 decision is made. We're informing you of that decision.鈥� I mean, what more can you do at that point to react?鈥�
And even though they鈥檝e had some recent successes, she says tribal leaders still don鈥檛 have an equal seat at the negotiating table, alongside the seven U.S. states that rely on the river.
TULLEY-CORDOVA: 鈥淚 mean, we're nowhere in a stage where if we thought that everything would be equitable, that we are there, we're not there. Because tribes are not, were not signatory, are not signatory to operations of the reservoirs in the Colorado River basin. But we are more included now than we ever have been in the past.鈥�
Involving tribal voices and perspectives in all future agreements is one way to begin to ensure the river鈥檚 water is distributed fairly and justly. Even Crystal says that won鈥檛 be easy. The Navajo Nation is one of 30 tribes in the Colorado River basin. Each tribe has a unique cultural and spiritual relationship to the river and its many tributaries. Each tribe has its own unique economy. And each has its own water needs.
TULLEY-CORDOVA: 鈥淚 think with the Colorado River Basin, the challenge is that many people think that things are etched in stone. And when you have that mentality of things that are etched in stone, it's like, 鈥極h, things are not able to change from the past.鈥� And it's thinking like, 鈥榃ell, it's worked the past 100 years. It should always work.鈥欌��
Making sure everyone is at the table, and is heard, isn鈥檛 important just for tribes, Crystal says. Because the watershed is so tightly connected, and managed, getting a clear picture of what tribes need should be top of mind for everyone -- all 40 million people -- who rely on the Colorado River.
Next time on Thirst Gap, we end at the river鈥檚 end in Mexico.
AIDA NAVARRO: 鈥淲e're like the last front of the fight against climate change. And we have to prove that we can make these ecosystems resilient again.鈥�
The Colorado River Delta -- where the river is supposed to meet the Pacific Ocean -- is the ultimate collateral damage from our over-reliance. The once lush estuary has been reduced to a giant, dusty plain. But some life is returning, and we鈥檒l meet the people making it happen.
CARLOS DE LA PARRA: 鈥淭hroughout the world, two countries agreeing to share water to the benefit of their shared ecosystem has never happened. Never.鈥�
That鈥檚 in episode 6, 鈥淲here the River Ends.鈥�
Thirst Gap is a production of KUNC, brought to you by the Colorado Water Center and the Colorado State University Office of Engagement and Extension, with additional support from the Walton Family Foundation and the Water Desk at the University of Colorado Boulder. It was written and reported by me, Luke Runyon. Editing by Johanna Zorn. Our theme song was composed by Jason Paton, who also sound designed and mixed the episode. Ashley Jefcoat, Jennifer Coombes and Natalie Skowlund are our digital editors. Sean Corcoran is KUNC鈥檚 news director. Tammy Terwelp is KUNC鈥檚 president and CEO.
Special thanks to: Alex Hager, Elliot Ross, Stephanie Daniel, Desmond O鈥橞oyle, Robert Leja, Kim Rais, and Jen Prall.
To learn more about the Colorado River, go to kunc.org/thirstgap or check out the show notes for a link.