How Cattle Ranchers in the West Cut Off Indigenous Water Rights

Big Ag has demanded billions of federal dollars to reduce its water usage.

How Cattle Ranchers in the West Cut Off Indigenous Water Rights

Perspective Law & Policy Policy

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The Colorado River is the largest water source in the western United States, supporting 40 million people across Wyoming, Colorado, Utah, New Mexico, Arizona, Nevada and California. Residents of its watershed are facing an historic water shortage as the river dries up at an alarming rate. Many dub this a ‘drought,’ or a temporary condition that will, in time, return to normal. Some experts, however, say the term ‘drought’ is inaccurate in this context. They predict that a combination of climate change and overuse will make the water shortage irreversible. 

Lakes Mead and Powell, which are located in Nevada and Arizona and contain dammed Colorado River water, are at historic lows, prompting intervention from the federal Bureau of Reclamation to reduce Colorado River water usage across the board by 15 percent in 2023. Tribal nations have responded generously to the bureau’s mandate, yet the animal agriculture industry has done the exact opposite. In fact, in exchange for reducing their usage, agricultural districts are demanding billions of federal dollars.

The question of who has the right to use Colorado River water is determined by law. Allocations are determined according to priority — but some users have rights to more water because they have older rights or were awarded higher priority. 

A 1908 U.S. Supreme Court decision established what became known as the Winters Doctrine, which recognized that tribes should have the right to enough water to establish a permanent homeland within their reservation boundaries. When interpreted fairly, this means Native tribes have some of the most senior rights to Colorado River water. 

In practice, however, tribes have been granted a mere fraction of these rights. Historically, water settlements in the American West have been used as an instrument to coerce tribes to give up potentially huge water claims in exchange for federal dollars towards development on tribal lands. Once signed by a U.S. president, these water settlements are irreversible, which means tribes can never renegotiate a higher allocation, even if their needs increase in the future.

Industrial agriculture — particularly livestock production — is in fact the biggest water user with the most rights to the Colorado River. That’s right, when it comes to the Colorado River, cattle farmers have more rights than sovereign tribal nations.

The Winters Doctrine joined the canon of U.S. water law around the same time that ranchers pioneered modern cattle feeding in the Imperial Valley of California. California secured an annual 4.4-million-acre-feet of Colorado River water when it signed the 1922 Colorado River Compact, making the state the river’s top user. Approximately 65 percent of that allocation is diverted to produce agricultural commodities like alfalfa for feed in California’s Imperial Valley.

Imperial Valley agriculture is an economic juggernaut for California. According to a 2019 report, livestock and field crops made up approximately half of the total $2.015 billion gross value of agricultural commodities produced that year. Livestock is the second most profitable commodity. Beef cattle feedlots comprise most livestock in the Imperial Valley, making beef one of the top income producers for the entire area and California the nation’s sixth highest producer.

The term ‘field crops’ refers to an agricultural crop grown on large areas. Alfalfa is the leading field crop grown in the Imperial Valley, comprising 40-45 percent of its total yield. Along with grass, alfalfa occupies almost 75 percent of the half million cultivated acreage in Imperial County. The alfalfa grown there is harvested for livestock feed demand and supply, making it a vital part of livestock production. Not surprisingly, alfalfa uses the vast majority of imported Colorado River water in the Imperial Valley.

The Imperial Valley Water Authority was recently called a drought profiteer for refusing to reduce its water usage following intervention from the federal government. The region’s water authority cited its bottom line as its reason: it wants to keep making figures like $4.4 billion, which is what agricultural commodities raked in during 2019. Compare this figure to the $310 million that the Hualapai tribe received to build out a water delivery system when president Joe Biden signed a bill earlier in January granting the tribe a fourth priority right to the Colorado River, a mere drop of its Winters rights.

When state and federal lawmakers favor Imperial Valley profits over ever-diminishing tribes’ Winters rights, these choices jeopardize Indigenous peoples’ livelihoods in lands they cared for long before cattle — or settlers — arrived in this region. 

For example, the world watched as the Navajo Nation endured some of the highest COVID-19 infection rates early in the pandemic. In a nation where about thirty percent of residents do not have access to safe running water, the lack of water infrastructure may have increased the risk of infection for Navajo citizens without access to proper sanitation and routine hand washing. 

Federal funds for water infrastructure on reservations are tied to the water settlement process in the West. If tribes invoke their Winters rights or otherwise refuse to accept what are often bad faith settlements, they never see funds for water development projects like the kind that might have curbed the spread of COVID-19 in the Navajo Nation.

Under the U.S. constitution, tribes are nations with sovereign rights. But sovereignty is only as good as the ability of a nation to build a home in its homelands, something the Winters Doctrine was designed in part to address. Yet it has been all but ignored when it comes to the Colorado River. In fact, the history of the Colorado River reveals a disturbing pattern: when the rights of tribes interfere with white settlement and development in the West, water settlements routinely favor the latter. 

Tribes are more willing today to work in solidarity with other users to protect the river — and those who depend upon it — than profiteering agricultural districts like the IVWA. The Colorado River Basin Tribal Coalition formed in early 2021 to advance a whole-basin approach to water management in the Colorado River system that emphasizes sustainability, collaboration, equity and stewardship to ensure the river’s future vitality for everyone.

Had the U.S. followed its own laws and allocated Winters Doctrine rights to the 22 tribal nations along the Colorado River, these tribes might have curbed the current crisis by implementing stewardship and conservation efforts to the benefit of all. Perhaps it is time to overturn bad faith tribal water settlements, reduce industrial animal agriculture and reinstate tribes with their full Winters rights. The future of the entire region depends on it.

Sentient Media’s Indigenous Voices for Saving Animals and Earth is a collection of essays illuminating important perspectives from Indigenous peoples, including traditional knowledge from the past and proposed solutions for the future. Edited by Jessica Scott-Reid, this project tackles land and water sovereignty, factory farming, food systems, veganism, colonialism, reconciliation and more, through a variety of Indigenous lenses.

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