Federal Reserved Water Rights: Gila River Indian Community Settlement

Abstract

The Akimel O’odham (Pima) Indians and their ancestors, the HuHuGum, practiced irrigated agriculture in central Arizona for over two thousand years. In the late 1700s, the Peeposh (Maricopa) Indians formed a political, economic, and military confederation with the O’odham. The PimaMaricopa Confederation was affluent before the arrival of Euro-Americans. Following their arrival, the Euro-Americans diverted the Gila and Salt Rivers, which deprived the Confederation of water it needed to sustain its agriculture. Consequently, the members of the Confederation were reduced to poverty, malnutrition, and endemic diabetes. The economic basis of Pimas and Maricopas were effectively destroyed by the illegal diversions. The restoration of water to Pimas and Maricopas is unparalleled in the history of Native Americans in the United States and is especially dramatic in the arid Southwest. The determination, tenacity, and patience of Pimas and Maricopas in litigation and negotiations caused this amazing turn of events to occur. The Gila River Indian Reservation was established for the Pimas and Maricopas in 1859 and expanded seven times between 1876 and 1915. The Gila River Indian Community has battled for many decades to regain part of the water that was once theirs in order to reacquire economic independence and return to their agrarian lifestyle. The most recent of the Community’s battles to regain its lost water is the General Adjudication of All Rights to Use Water in the Gila River System and Source (Gila River Adjudication), first filed in 1974. The Winters federally reserved water rights doctrine is an important component of the Community’s legal efforts. The Community has followed a dual path of assertive litigation and arduous negotiation in its endeavors to reclaim its water. It has successfully prevailed in many of the treacherous shoals of water rights litigation and is close to entering the safe harbor of a complete settlement of its water rights claims. We will discuss the history of the Gila River Indian Community’s impending water rights settlement and outline the steps that remain in bringing this long and tortured process to fruition. In order to understand the backdrop against which negotiations were conducted, it is important to discuss Arizona water law and the Winters doctrine and then examine the procedures that have taken place to date in the Gila River Adjudication.