Navigating the Maze: The Gila River Indian Community Water Settlement Act of 2004 and Administrative Challenges

On December 10, 2004, the Gila River Indian Community (Community) concluded its long-standing water rights dispute when President George W. Bush signed into law the Arizona Water Settlements Act (wsa), restoring an average annual tribal water budget of 653,500 acre-feet.¹ Three years later, on December 14, 2007, Interior Secretary Dirk Kempthorne proclaimed the enforcement of the settlement in a historic ceremony at the Colorado River Water Users Association meeting in Las Vegas, Nevada.² The settlement set into motion the means by which the Community seeks to restore its economic self-sufficiency. Plans to develop 100,000 acres of agricultural land in a region of the country where similar land surrounding the reservation is being displaced by residential subdivisions have been in place since 1985. In 1995 the Community established the Pima-Maricopa Irrigation Project (p-mip) to construct a state-of-the-art irrigation water delivery system to and throughout the reservation.³

The Community is in a prime location for agricultural development. Maricopa County on the northern boundary of the reservation has experienced a 66.04 percent decline in agricultural land (1,429,539 acres to 485,469 acres) since 1982 as developers gobbled up some of the most productive farmland in the Southwest and converted it to urban uses.⁴ Although initiated later, a 56.44 percent decline (2,403,901 acres to 1,047,112 acres) has occurred in Pinal County on the southern boundary of the reservation as once-small farming communities exploded in growth.⁵ Upward of one million people living adjacent to the southern boundary and more than eight million on the northern are projected by 2040.⁶ The upshot of this development and the awsa is that the Community seeks to position itself as the breadbasket of Arizona, a role it has not enjoyed since the middle decades of the nineteenth century before water deprivation and environmental changes in the Gila River watershed decimated its agrarian-based economy.⁷

The Gila River Indian Community Water Settlement Act (Title II of the awsa) was the culmination of two decades of intense negotiations between the Community and thirty-four state and federal parties to the agreement. It was also premised on nearly a century of litigation, threatened litigation, and legal maneuverings that facilitated and brought about the agreement. Passage of the awsa by Congress in 2004 led to water planning certainty for central Arizona irrigation districts, utilities, cities, and towns by resolving “permanently … all water rights claims … on behalf of the Community, its members and allottees, the Community, and its neighbors.” The act also authorized, ratified, and confirmed the Gila River agreement made by and between the Community, the United States, and the neighboring San Carlos Irrigation and Drainage District.⁸

Despite passage of the awsa and its related agreements, the Community faces administrative challenges in putting its water to use. These challenges arise from centuries-old Bureau of Indian Affairs (bia) policies that are often counterproductive to agricultural development and an overall hindrance to tribal economic development. While the Community has established an aggressive goal of developing upward of 100,000 acres of agricultural land over the next twenty years, bia administrative policies threaten to undermine this development and preclude the Community from fully utilizing all of its settlement waters. This essay considers the most significant challenges facing the Community by examining some of the major obstacles the bia, as the local executor of federal policies and the trust responsibility, has placed in front of the Community as it seeks to put its water to beneficial use through agricultural development.

The Context

The Gila River Indian Reservation encompasses 371,792 acres and lies in the middle Gila Valley, a 72-mile stretch of the Gila River in south-central Arizona that varies from 3 to 13 miles in width. The valley has a low western gradient of 579 feet, with the reservation portion of the valley containing a number of significant landforms, including the Sierra Estrella, Salt River, Santan, and Sacaton Mountains. Fringing...