One hundred years ago this Thanksgiving Day, the Colorado River Commission signed the Colorado River Compact at Bishop’s Lodge in Santa Fe, New Mexico. The commission included delegates from the seven Colorado River Basin states — Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming — and was chaired by Herbert Hoover, President Warren G. Harding’s secretary of commerce. The commission did not incorporate any input or consultation with the basin’s Indigenous peoples, including the 30 federally recognized Indian tribes in the basin today. The compact’s only mention of tribes is in Article 7, an article that ensured that nothing in the compact would affect the federal government’s obligation to the tribes, an article Hoover coarsely deemed the “wild Indian article.” That article has not stood up to its charge.
But what if the basin’s tribes were present at the compact negotiations? What if they were able to participate and exert their rights as they do today? How would things be different? Would the Colorado River be amid the extreme management crisis it currently is? Could the tribes have been able to develop their water rights, many which are still undeveloped and being used without compensation by other users? The story below does not answer these questions. Rather, it seeks to imagine what the scene might have been like, 100 years ago, had the tribes shown up, uninvited, at the final compact negotiations.
The conference room at Bishop’s Lodge was set to receive the commission delegates, but when Chairman Hoover looked out of its large windows, he realized they were going to need a bigger room. Outside, representatives of many of the Colorado River Basin tribes gathered in a clearing in a piñon grove just upslope of the lodge, where they’d set up camp. A large cloth tipi had been raised between some cottonwoods, and Hoover learned the tribes had already been meeting in it for several nights.
To their credit, Hoover and the delegates did not object to meeting at the tribes’ camp. Rather, they went willingly, feeling enabled in their powerful positions. They were surprised, to say the least, that tribal representatives were at the lodge. Given the late stage of the compact negotiations, the delegates assumed the tribes would support the states’ positions and that this venue change would be a moment of symbolic succession. As the 1887 Dawes Act and subsequent federal policies systematically broke apart tribal reservations and cultures, the delegates believed the tribes were close to full assimilation. They assumed the tribes would soon be gone altogether and that the Colorado River waters would be under the states’ dominion, subject to a modest federal overlay. Still, having the tribes at the negotiations would ensure nothing was left to chance. The prospects were good, from their viewpoint: At that very moment, the federal government was flexing its power over the Basin’s tribes. A month earlier, the Interior Department created a Navajo Business Council to facilitate the interests of the government and the oil industry on newly found oil reserves, asserting control over the Tribe’s lands and giving the federal commissioner full “authority to sign all oil and gas leases on behalf of the Navajo Indians.” With the federal government making decisions over tribal lands and resources, the state delegates saw the transition of tribal lands to state control as near.
The mild November day allowed the parties to negotiate outside during the day. When the session started that morning, Hoover began by thanking all in attendance and emphasizing the historic significance of the meeting. But a tribal representative from northern New Mexico stood up and stopped Hoover, asking him to wait for a prayer. The representative motioned to his companion, the Tribe’s leader, who rose and began speaking in his own language, asking the Creator and Holy People for strength, guidance and respect among the negotiators. The tribal leader wore his long, black-streaked gray hair in two tight braids, with a dark headband. A silver bead necklace with a large seashell hung over his light shirt and black jacket, and his buckskin moccasins were weathered. The Colorado River and its waters, he went on, now in English, are not troughs for everyone to gorge at, but rather a connected lifeforce to respect, honor and nurture. For too many years the land has been ripped apart and developed, and the rivers strained. This cannot continue, he said, for water is life, and if we are all to live with the earth, we must agree that this river must also live and be healthy. Or we, too, will dry up and perish with it.
For too many years the land has been ripped apart and developed, and the rivers strained.
He said that the tribal representatives were present because they’d heard that the Great River was being given away. They were at the meeting to protect the water, which held the spirits of the other beings, the Indigenous people who had gone before as well as the spirits of those yet to come, cycling over and over through the generations. He acknowledged that the tribes did not understand all the political and legal machinations that were breaking apart their cultures, taking their children and taking their lands, but they knew the Great River’s importance when it came to recovering those things.
Despite everything, he said, the tribal representatives knew they still had rights to the river’s waters, and that the negotiations had to recognize the promises — the treaties — the federal government made to allow the tribes to live on their lands in peace. These promises, he said, had made it possible for settlers to take and move onto tribal lands and it was the government’s duty to honor the treaties now, at this meeting. His hands opened and he looked slowly around the group, finally stating that the tribes’ presence was not a sign of acquiescence to either the process or the result, and that behind the tribal representatives stood the full strength of the basin’s tribal nations, which intended to push back on the constant taking of the land’s resources.
When he finished speaking, the tribal leader sat down. Some representatives clapped, some responded emphatically in other ways, and Hoover and the delegates knew this was not the meeting they planned for. Still, they pressed ahead with their agenda. They explained that the basin states wanted to keep the compact negotiations out of the federal government’s hands, and made a convincing case for doing so. Throughout the first day, the tribal representatives listened intently, but spoke only among themselves.
The next day, the states discussed dividing the basin into two parts, an Upper Basin and a Lower Basin, and how each division, along with the states therein, would receive a share of water and have the power to govern that allocation. Hoover and the state representatives often referred to the tribes when discussing the allocation scheme, but never with specificity.
After the day’s session ended, the tribal representatives met at the tipi and talked. They felt that their interests were being ignored, that no questions were asked about what they wanted, or needed, to support their people. The representatives knew they had water rights, but the contours of those rights were unclear. How did the tribes get water? What was promised to the rivers? And how much? Most importantly, how could they make sure their interests were heard at this meeting? A non-Native man who had joined the meeting in the afternoon raised his hand and introduced himself. He said his name was Carl Rasch and he was an attorney who had worked on a case involving Montana Tribes, Winters v. United States. In that 1908 decision, he said, the U.S. Supreme Court concluded the treaties gave the Tribes senior water rights on the river. The tribal representatives asked what that meant. Rasch said the tribes were correct, that the deals the federal government struck in the treaties promised the tribes the water they needed to support their people. Rasch explained that the tribes in Montana, and likely here, had older water rights than the states or settlers could claim: tribes were first in line, and the states could do nothing to impede the Tribes’ rights.
Tribes were first in line, and the states could do nothing to impede the tribes’ rights.
Throughout the rest of the night, the tribal representatives talked with each other and with Rasch. They stoked the fire and talked about what a water right represented. One representative said it was a right to live, another said it was the right to be an Indigenous person, and another said that it was a right for the world to continue as it has since the beginning. After all, what good is a right if your world — or how you live in it — cannot continue? Not long before sunrise, the tent grew quiet, but no one slept. Most sat in thought as the wood and tobacco smoke swirled toward the top of the tent poles and out into the sharp night.
When the session started a few hours later, the tribal representatives kept their seats as the state delegates filled in. Hoover began describing the agenda for the day. The New Mexico tribal leader again stood up, announcing that the Tribes demanded to have their interests addressed in the negotiations. The Tribes have strong water rights and, nodding toward his fellow tribal representatives and Rasch, he said the tribes will protect those rights. It was time, he continued, for the commission to listen to the tribes and to meet their needs. The tribes have been on these lands since the beginning of time and we will always be on them, he said, and we will sit here until we create a true agreement that includes us all.
Daniel Cordalis, Diné, is an attorney who advocates for tribes and the protection and restoration of tribal trust resources. He and his family are celebrating the FERC decision to allow Klamath Dam removal from their current home in Arlington, Virginia.
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