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Ute Water

For Colorado's two Indian tribes, the long-awaited promise of water fulfilled at last, brings hope for continued economic growth


by Gail Binkly

Manuel Heart remembers the days before the Dolores Project brought drinking water to the Ute Mountain Ute Indian Reservation in far southwestern Colorado and northern New Mexico. “We had a water truck going to Cortez and filling up two, three, four times a day. It would go around the community, and whoever had their water jugs out would get them filled up,” recalls Heart, a member of the Ute Mountain Ute tribal council who has served as tribal chairman, vice chair, treasurer and secretary. “It was like a Third World country. We had electricity but no plumbing. A lot of people would go to Cortez to do laundry or even take showers.”

Even 20 years ago, the 910-squaremile reservation south of Cortez had little commercial activity. There were two small farms plus a sewing factory and a pottery factory. Tourists driving past the turnoff to the reservation on Highway 160/491 saw mainly clumps of grass and rabbitbrush.

But when the Dolores Project brought water to the Ute Mountain Utes in 1994, the reservation blossomed like the desert after a spring rain. Today it is home to a thriving casino and restaurant, a 90-room hotel, a truck stop/travel center, an RV park and a 7,700-acre farm. The Ute Mountain Utes are the largest employer in Montezuma County, providing some 1,580 jobs. Their Weeminuche Construction Authority is a major firm in the area and
helped build the 47-mile canal to bring Dolores Project water to the reservation from Cortez.

“It did really boost the Ute Mountain Ute Tribe,” says Heart. “Now we have treated, running water all the way from the Cortez treatment plant.”

And with the completion of the $513 million Animas-La Plata Project near Durango— also built by the Weeminuche Construction Authority—the Ute Mountain Utes and the Southern Utes adjoining them on the east have each gained an additional 33,050 acre feet of the West’s most precious resource. But it was a long and tortuous path to obtaining that water.

A Tribal Right
Around 1300 A.D., shortly after the Ancestral Puebloans had left the Four Corners area and scattered to regions farther south, the native peoples now known as the Utes were a loose confederation of 13 huntergatherer bands roaming some 130,000 square miles of Colorado, eastern Utah and
northern New Mexico. When the Spanish arrived with their horses in the late 1500s, the Utes swiftly became master horsemen and achieved even greater dominion over the region through their new mobility. But with the inexorable expansion of white settlers into the West, the Utes were eventually forced to give up the largest and best portions of their territory and were squeezed onto three small reservations, one in northeastern Utah. The two reservations within Colorado, the

Southern Ute and Ute Mountain Ute, were both arid and apparently barren, although both turned out to contain energy resources including coal, oil and gas.

The Southern Utes acquired water rights on the Pine, one of eight rivers snaking across their reservation, in the 1930s, and got more water when Lemon Reservoir was built on the Florida River in the 1960s. The Ute Mountain Utes, however, were left high and dry. Even when the Jackson Gulch Project was built in the 1940s to capture flows on the Mancos River, which bisects the reservation, the tribe received no benefit from the project.

Meanwhile, dams were being built across the West to supply water for farmers and growing municipalities. Southwestern Colorado had plans for two major projects, one on the Dolores River in Montezuma County and another on the Animas and La Plata rivers in La Plata County. Both were authorized in the 1968 Colorado River Basin Project Act. However, in the 1970s the tide began to turn against large dam proposals. In 1977, both the Dolores and Animas-La Plata projects were put on what became known as the “Carter hit list,” a list of Western water projects that President Jimmy Carter intended to nix. What ultimately revived both was the prospect of settling the Colorado Utes’ water rights claims.

The rights of American Indian nations to water are rooted in the landmark 1908 Winters v. United States case, when the U.S. Supreme Court ruled that the creation of reservations included an implicit right to enough water for tribes to fulfill the “purpose” of the reservation, which generally included agriculture. Even more shocking to white settlers at the time, the court said Indian water rights dated back to the establishment of either a treaty or reservation—1868 in the case of both Colorado Ute reservations—and could not be lost through non-use.

In Arizona v. California in 1963, the Supreme Court reaffirmed Winters and clarified that tribes need enough water “to satisfy the future, as well as the present, needs of the Indian reservations.” Such rulings had the potential to undermine the foundation on which non- Indian farms, ranches and municipalities had been built throughout the country.

“Tribes were there first and that’s what the law recognizes,” says attorney John Echohawk, executive director and co-founder of the Native American Rights Fund, a nonprofit based in Boulder, Colo., that provides legal help for native tribes, organizations or individuals in significant cases. NARF represented the Utes early in their water litigation; after settlement negotiations began, other counsel took over.

Most tribes have very senior rights, “so when water is short they will get their water before anyone else,” says Echohawk. “That’s why it’s really important for those rights to be quantified.” If the Southern Utes chose to exercise water rights with a priority date of 1868, they could have usurped a significant amount from the cities of Durango and Silverton, as well as irrigators and virtually all users in the Animas Valley. For the Ute Mountain Utes, an 1868 priority date would have made them senior to almost every other user in the Mancos Valley.

As more tribes began pressing for the water to which they were legally entitled, governments, planners and irrigators nationwide felt pressure to resolve those claims outside of court. Such negotiations frequently result in compromises in which cash-poor tribes accept lesser amounts of water and later priority dates in return for help building reservoirs and pipelines to turn what is known as “paper water”—water rights established only on paper— into actual “wet water” available for use.

The negotiating process is slow and arduous. Just 29 tribal water rights settlements have been approved nationwide, Echohawk says, out of more than 500 tribes. When NARF was formed 42 years ago, no settlements had been reached. “Water is a very valuable resource, so the process gets pretty contentious, but over the years people have generally seen that litigation is not the way to go,” says Echohawk. “The states have come to recognize that it is really important for tribes to become part of the water planning process, instead of having this uncertainty out there.”

While it may be difficult for the general public to understand how Indian nations such as the Colorado Utes, whose combined population is less than 4,000, can wield such power over water, both the need for and right to that substance are clear, says Echohawk. “Tribes generally have the right to sufficient water for their present and future uses. That’s one of the things that gets defined in the litigation or the settlement negotiations.” Water can fulfill a multitude of tribal purposes, from economic development to restoring salmon runs. “It can be valuable for spiritual purposes as well,” says Echohawk.

“It’s pretty simple,” agrees Ray Ramirez, grant writer and editor for NARF. “You need water to survive, to live. Without it there is just nothing you can do. When tribes set out to adjudicate their water rights, they aren’t greedy. They try to make sure everyone gets their fair share. It’s not like they win a water rights case and then cut off water rights to everyone else. That’s never the case.”

A New Era of Opportunity
With the Dolores and Animas-La Plata projects facing extinction and concern about tribal rights worrying non-Indian water users, residents of southwestern Colorado realized the projects might move forward if they offered an opportunity to settle the Utes’ claims. In 1977, then-Interior Secretary Cecil Andrus recommended that Carter reconsider the Dolores Project, stating that the Ute Mountain Ute Tribe had “been the victims of a long series of broken promises and failed expectations in their water development plans” and were entitled to “prompt water delivery from the project.” Carter ultimately removed it from his hit list.

Negotiations to resolve the Colorado Utes’ claims began in earnest in the early 1980s among the two tribes, water conservancy districts and the state. Meanwhile, construction began on the first stages of the Dolores Project’s McPhee Reservoir even as the tribes, irrigators and state officials lobbied Congress for appropriations to complete the project.

By 1986, the Colorado Ute Indian Water Rights Settlement had been agreed to by all parties. It was ratified by Congress in 1988, settling the tribes’ outstanding reserved water rights on the Mancos, Animas and La Plata rivers, contingent upon the building of the Animas-La Plata Project and the completion of the Dolores Project.

McPhee Reservoir filled in 1986, and in 1994, municipal and industrial water flowed to the Ute Mountain Ute reservation and its capital, Towaoc. The Dolores Project also provided water for the communities of Cortez and Dove Creek and irrigation water for much of Montezuma and Dolores counties.

The opening of the Ute Mountain Casino on Highway 160/491 provided a draw for tourists and jobs for locals. Today, 83 percent of the casino’s 400 employees are Native American. Such development would not have been possible without the project’s delivery of potable water.

Dolores Project water also supported the creation of the Ute Mountain Farm and Ranch Enterprise, a 7,700-acre spread supporting alfalfa, corn, wheat and sunflowers. The farm is irrigated with 24,000 acre feet of tribal water from the project and another 4,000 acre feet leased annually from the Dolores Water Conservancy District. There is also a 700-head cow-and-calf operation.

The farm is one of the Ute Mountain Ute Tribe’s shining achievements. In 2010 and 2011, it placed third nationwide—and first in the state—in a division of the National Corn Growers Association’s corn-yield contest. It placed second nationwide in 2003 as well. The enterprise, wholly owned by the tribe but operated as a separate business, has 18 full-time employees, 10 of them tribal members, plus up to seven seasonal people.

Thirty-one-year-old Michael Vicenti is the type of worker the enterprise hopes to curry. A senior at Colorado State University pursuing dual degrees in agronomy and agribusiness, the Towaoc native now shifts between school and the farm, where he is rotating through the different departments in order to learn the entire operation and ultimately move into management. “To me, the farm and ranch is another thing we’re proud of,” Vicenti says as he shows off the sophisticated computer system used to monitor irrigation on the farm. “We’re being recognized nationally.”

As important as the Dolores Project proved to the Ute Mountain Utes, it left unsatisfiedthe outstanding claims of both Colorado Ute tribes on the Animas and La Plata rivers. (The Southern Utes had no claims on the Dolores.) As envisioned in the 1980s, the Animas-La Plata Project was to provide both irrigation and municipal and industrial water to the tribes and non-Indian entities. However, environmental and fiscal concerns resulted in the project being downsized and the irrigation component being removed. In 2007, after numerous delays, the project’s Ridges Basin Dam was completed. Lake Nighthorse filled in 2011.

While the Ute Mountain Utes had to wait for the Dolores Project before their reservation could start to flourish, the Southern Utes already had a robust and diverse economy based on extensive coalbed methane production, gaming, tourism, sand and gravel development, and numerous investments in off-reservation real estate and energy. Reputed to be the most prosperous Indian tribe in the country, the Southern Utes are La Plata County’s largest employer. Ignacio, the tribe’s capital, is home to the Sky Ute Casino and Resort and the new Southern Ute Cultural Center and Museum.

Although the Southern Ute Indian Tribe generally does not lack water for its present needs, It sees its rights in the Animas-La Plata Project as security for the future. Ute leaders are reluctant to talk about potential uses for the water, but options are numerous. Tribal decrees and state laws allow the tribes to use Animas-La Plata Project water on their reservations—and also off-reservation under certain conditions—but also impose limitations on their ability to sell or lease it to other entities. Out-of-state uses are basically off the table for now because they are not consistent with current state law.

“Members want opportunities to pursue any range of jobs, whether as oil and gas workers, farmers, or even fishing guides,” says Chuck Lawler, head of the Southern Ute Indian Tribe’s water resources division. “They want the water for economic development and probably some level of environmental enhancement.”

There are still questions about how water from Lake Nighthorse will be delivered to the reservations because no pipelines were included in the downsized project. Water can be released down Basin Creek into the Animas to be picked up by the Southern Utes and other project users, but getting it to the Ute Mountain Utes for uses in Colorado will be more difficult. Still, the tribes are pleased to have their claims resolved and the reservoirs finally in place after decades of effort.

“We had some strong leaders that really had vision about getting water based on the 1868 rights,” says Heart of the Ute Mountain Utes. “But they couldn’t do it by themselves, so they had to find ways to partner with water conservancy districts to make it a win-win for everyone.”

Water district officials say the completion of the Dolores and Animas-La Plata projects has benefited both tribes and non-Indian users. “It took years but it was time and money well spent,” agrees Bruce Whitehead, executive director of the Southwestern Water Conservation District, which was involved in the settlement. “This resolved the tribal claims without totally upsetting the water system we have now, and the Utes got wet water. I do
think this worked out for the benefit of all.”

Lawler says the settlements set the tone for continued cooperation among the Utes and non-Indian water users. “Unlike a lot of places in Indian country, both of the [Colorado] Ute tribes have been very good about trying to work with the state,” he says.

The tribes are continuing to work with other entities in a number of efforts. When the Animas-La Plata Project was downsized, each tribe received a $20 million tribal resource fund as compensation for the water they gave up in the downsizing. Three-quarters of the funds must be used to “enhance, restore, and utilize the tribes’ natural resources in partnership with adjacent non-Indian communities or entities in the area,” the legislation stipulates.

The Utes used some of those monies to help build an intake structure on the upper end of Lake Nighthorse for future uses by the tribes, as well as the La Plata West Water Authority, which also gave funding, and potentially other entities by agreement. The structure, which was also funded by the Southwest Basin Roundtable and Colorado Water Conservation Board, is also an essential first step in getting water to the eastern side of the Ute Mountain Ute reservation.

The Ute Mountain Ute Tribe also contributed $3 million from its resource fund toward the $22.5 million cost of Long Hollow Reservoir, a 5,400 acre-foot reservoir being constructed on a tributary of the La Plata River. The project is designed to enable Colorado to meet its obligations to New Mexico under the La Plata River Compact but will also aid non-Indian irrigators in southwestern La Plata County. The Ute Mountain Utes hope to use some storage in the reservoir as well.

The Southern Utes have spent some of their fund on cooperative ecological projects with the city of Durango, mitigating wetlands and protecting natural corridors. And both tribes will be involved, along with several other entities, in the association that will oversee operations of the Animas-La Plata Project.

Whitehead sees numerous opportunities for additional mutually-beneficial projects in the future. Lawler agrees: “Here, there’s a history of cooperation. I think we sort of set the example for how you can have different interests but still try to work together.”

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