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«Item type text; Electronic Dissertation Authors DeJong, David Henry Publisher The University of Arizona. Rights Copyright © is held by the author. ...»

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The success of off-reservation irrigated agriculture in south-central Arizona placed a long-lasting strain on the Pima that, in time, deprived them of the means of earning a living. This reality points to several important final thoughts. First, the Pima were not passive participants in these events. In fact, they were most versatile in dealing with this water crisis. To the extent possible, they adapted to water shortages in creative ways. For one they reduced the amount of land they cultivated, demonstrating their commitment to an agricultural economy. They also eliminated the least productive lands from their crop rotation, a measure that resulted in further crop reductions. In a number of instances, they abandoned villages most impacted by water losses and relocated them downstream in order to maintain a shadow of their former economy. Perhaps most telling

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intensive. The practical result of these shifts demonstrates the Pima desired to remain farmers, even though their economy had been reduced to mere subsistence by 1890.

Secondly, it was not Pima ineptness or inability to adapt to a Western-style economy that resulted in their displacement from the national market. Liberal American resource policies—including the improvidence they engendered, the political schemes they fostered, and the land severalty policies they encouraged—created challenges that Social Darwinist attributed to “survival of the fittest.” If the Pima were unable to adjust, then it was they—not federal law—that was responsible. Ignored completely is the fact that the Pima were afforded no legal protection of their water resources, without which their economy could not be sustained.

In the final analysis, the evidence supports the thesis that had Pima farmers not been deprived of their rights and access to the waters of the Gila River, they would have continued their successful adaptation to a commercial economy. In fact, they would not only have continued this course but they also would have equaled and perhaps even surpassed their neighbors in economic output had they not been handicapped by economic liberalism. It was through the vehicle of federal and territorial laws that the Pima were denied the right to continue their extraordinary agricultural economic success in the riverine deserts of Arizona.

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In 1923, insufficient water in the Gila River led to a complete loss of the Pima wheat crop, prompting Commissioner of Indian Affairs Charles Burke to request legal

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recommended the Justice Department file a general adjudication on the Gila River in federal court to determine priorities. While Congress enacted into law the San Carlos bill in 1924, creating the San Carlos Irrigation Project (SCIP) and Coolidge Dam, Truesdell pushed forward with litigation.710 On October 4, 1925, nearly forty years after the Pima had originally requested government intervention on their behalf, the Justice Department initiated proceedings against upstream users in United States v. Gila Valley Irrigation District.711 When Congress agreed to construct Coolidge Dam, the Pima were to receive their water before all other users. Truesdell, however, worked toward securing water for ten irrigable acres for each of the Pima and Maricopa (totaling 49,896 acres plus 650 acres for government purposes) rather than asserting Pima claims to the entire natural flow of the river based on the proposition that if it were not for upstream users the Pima would have continued to expand their agricultural endeavors. On December 5, 1927, when suit was filed in the U.S. District Court in Tucson, many expert witnesses were called upon to testify but none was Pima, completely disenfranchising them. By 1934, government attorneys had agreed in principle to equally divide the water that would be stored behind Coolidge Dam, despite the protests of the Pima that the intent of the San Carlos bill was to provide them with all the water they might need before any other user was served.712 710 San Carlos Irrigation Project, House Report 618, May 1, 1924, House of Representatives, 68th Congress, 1st Session (Washington, DC: GPO, 1924), p. 1. See also An Act For the Continuance of Construction work on the San Carlos Federal irrigation project in Arizona, and for other purposes, 68 Stat. 475.

711 United States v. Gila Valley Irrigation District, Globe Equity 59, decided June 29, 1935.

712 Shelley C. Dudley, Pima Indians, Water Rights, and the Federal Government: U.S. v. Gila Valley Irrigation District (Master’s Thesis, Department of History, Arizona State University, 1996), p. 107. See also “Nathan Margold to Secretary of the Interior,” February 19, 1935, National Archives, RG 75, Central Classified File Pima. In 1948, George Truman Jones, the first secretary of the Pima Tribal Council in 1939, testified that insufficient water—despite Coolidge Dam—limited the Indians to farming just one-quarter of their irrigable land and was the prime reason agricultural production could not be increased. See Bridge Canyon Project: Hearings before a Subcommittee of the Committee on Public Lands, US Senate, 80th Congress, 1st session on S.1175, June and July 1948, (Washington, DC: GPO, 1948), p. 196. See also Bridge Canyon Project, Senate Report 832, 81st Congress, 1st session, August 3, 1949, 315 By June of 1935 the federal district court in Tucson prepared to issue its ruling calling for an equal division of stored and pumped water. The Pima, having priority rights to the natural flow of the Gila, objected and did not consent to the decision, attempting to intervene on their own behalf, an effort that was rejected by the court when it confirmed the Gila Decree. Federal attorneys representing the Pima feared the court would not sustain reserved rights and instead agreed to accept 210,000 acre feet of water for the Pima under time immemorial rights. Upper Gila Valley and Florence-Casa Grande farmers retained their rights to water.

The ink on the decree was barely dry when the first challenge appeared in 1939.

Upper Gila Valley users argued all water flowing into San Carlos Reservoir was temporarily impounded and was technically stored water subject to allocation. The court rejected this argument and ruled water flowing into the reservoir with an equal amount flowing out was not stored water. Not yet five years old, upstream users were already seeking to gain access to Pima priority rights to the natural flow of the Gila as determined in the Gila Decree.713 Over the next sixty years government attorneys litigated Pima rights, with the Pima even filing suit in 1951 under the provisions of the Indian Claims Commission Act. Despite appeals and intervention, the Pima still had insufficient water for their land. Having water rights to 50,000 acres of land under the SCIP system, insufficient water meant the Pima were unable to cultivate more than 35,322 acres.714

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In 1948, Pima Tribal Governor David A. Johnson informed Senator Ernest W.

McFarland (D-AZ) that the Pima were open to a plan that might bring Colorado River water to central Arizona. “If it will do us good, we want it,” Johnson explained, but “if it will take us into court later on, we don’t want it.” McFarland opened hearings on a proposal to bring Colorado River water to central Arizona to be used, in part, for Indian tribes without adequate water. As elected leader of the Pima, Johnson, all too familiar with empty commitments and insufficient water, stressed the desire of the Pima to secure water to meet their needs.715 Because Colorado River water was some of the last remaining unappropriated water available in Arizona, there was little chance of the Central Arizona Project (CAP) being approved by Congress until the matter of Indian water rights was settled. In 1957, U.S. Attorney General David Warner informed Simon H. Rifkind, special master for the Colorado River in the Arizona v. California case, that Indian tribes along the river were entitled to water as well. Rifkind also recognized Colorado River water might be used to satisfy Indian water claims in central Arizona— including the claims of the Gila River Indian Community. There was “enough [Colorado River] water,” Rifkind argued, “to satisfy the future expanding agriculture and related water needs of each Indian reservation” in central Arizona. This opened the door to bringing Colorado River water to the Pima to be used as a substitute source for an overappropriated Gila River.716

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When the Central Arizona Project was authorized by Congress, in 1968, the political maneuvering regarding allocation of the water began. In 1971, five central Arizona Indian tribes—Gila River Indian Community, Salt River Pima-Maricopa Indian Community, Fort McDowell Yavapai Nation, Ak-Chin Indian Community and Tohono O’odham Nation—requested 1,219,168 acre-feet of CAP water based on the application of the practicably irrigable acreage (PIA) standard to each of the reservations. Non-Indian users requested an additional 4,175,137 acre-feet, for a total request of 5,394,305 acrefeet, nearly four times the expected annual delivery capacity and two times Arizona’s total entitlement of 2.8 million acre-feet.717 The following year, the Pima encouraged the secretary of the interior to approve their rights to irrigate all of their San Carlos Project (50,000 acres), Gila Crossing (2,900 acres) and Haggard Decree (1,500 acres) lands as well as an additional 25,000 acres of irrigable land.718 At the same time, the Gila River Indian Community feared “non-Indian interests [were] actively conniving to steal [its] water rights.”719 In 1975, Interior Secretary Rogers C. B. Morton printed in the Federal

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Register a proposed allocation of 176,000 acre-feet of CAP water for the Gila River Indian Community.720 Pima Tribal Governor Alexander Lewis, Sr., objected to this allocation in a letter to Morton, arguing the proposed amount would limit the tribe to “presently-developed lands” when there were more than 250,000 acres of “reasonably irrigable lands” that could be served with 1,350,000 acre-feet of water. Nonetheless, Lewis, desirous of a “friendly settlement,” suggested the tribe would accept “not less than 278,000 acre-feet per annum.” Z. Simpson Cox, the lead attorney for the Pima, threatened to initiate litigation “and legal and political protests” if the tribe did not receive its fair share of water.721 By 1975, the five central Arizona tribes formally joined together to invoke Indian reserved rights to irrigate all Practicably Irrigable Acreage land (lands that could be reasonable irrigated) and demanded that the rights of each of the tribes be determined before any CAP water was allocated. In October, the Senate opened hearings on central Arizona Indian water rights, during which Lloyd A. Allison, a Pima farmer and spokesman for the Five Central Tribes of Arizona, requested the Senate not to confirm any CAP allocations “until there has been a full and final settlement of the water rights of each of the five tribes.”722 The following March, Senator Edward Kennedy (D-MA) introduced the Central Arizona Indian Water Resources Act of 1976, a bill that directed 720 Federal Register, 40:76, April 18, 1975, p. 17299. The Indian response can be found in Comments, Suggestions and Objectives Regarding Proposed Allocation of Central Arizona Project Water for Indian Use, (Phoenix, Arizona: The Five Central Arizona Indian Tribes, 1975), in Indian Water Rights of the Five Central Arizona Indian Tribes, Central Arizona Project Library.

721 Letter of Alexander Lewis Sr., to Rogers C. B. Morton, April 1, 1975. See “5 tribes weigh legal fight to CAP allocations,” Arizona Republic April 22, 1975, B-1.

722 Indian Water Rights of the Five Central Tribes of Arizona: Hearings before the Committee on Interior and Insular Affairs, United States Senate, 94th Session, 1st Session, on Water Rights of Ak Chin Indian Reservation, Ft. McDowell Reservation, Gila River Indian Reservation, Papago Indian Reservation, and Salt River Pima-Maricopa Indian Reservation, October 23 and 24, 1975 (Washington, DC: GPO, 1976), p. 4.

319 the secretary of the interior to “acquire, by purchase or eminent domain,” 170,000 acres of non-Indian land with surface water rights and transfer them to the five central Arizona tribes for the purpose of removing “the cloud over water rights in central Arizona.”723 The bill represented a tangible Damoclean sword to state interests and was bitterly opposed and ultimately put to rest when the Bureau of Reclamation reported it would not solve Indian water rights because it dealt only with surface rights.724 In October, Interior Secretary Thomas Kleppe published a revised decision of CAP water allocations in the Federal Register, providing the Pima with 173,100 acre-feet of water.725 The Pima then filed suit against the federal government, seeking 1,188,000 acre-feet of CAP water, “all the water” behind Coolidge Dam and “not less than ten percent of the Salt River Project.”726 In April 1979, the Arizona legislature enacted a bill transferring all water rights determinations to the Arizona Superior Court and, despite the appeals of the Pima and other tribes, the U.S. Supreme Court upheld the transfer with the San Carlos decision of 1983.

In the meantime, as the courts moved toward state jurisdiction and quantification of water rights, President Jimmy Carter initiated a plan for water policy reform that 723 “Central Arizona Indian Water Resources Act of 1976” in The Congressional Record, April 13, 1976, 122:9, pp. 10644-10645.

Water would have been allocated for the following acres: Ak Chin Indian Community 19,000 acres; Fort McDowell Yavapai Nation 3,300 acres; Tohono O’odham Nation 29,500 acres; San Xavier District 9,000 acres; Salt River Pima-Maricopa Indian Community 30,500; and Gila River Indian Community 118,000 acres. The Kennedy bill was designed to force a settlement of Indian water claims prior to a final allocation of CAP water. See ibid, p. 10644. The lands to be purchased were to be in the Wellton-Mohawk Irrigation District in southwestern Arizona. Kennedy targeted these lands under the assumption it would be less expensive to purchase the land and transfer the water rights rather than construct a “$1 billion” tax payer assisted desalting plant to fulfill US obligations to Mexico.

See The Congressional Record, June 21, 1976, 122:16, p. 19446. The Pima’s claims to the Salt River would not have been affected by the act.

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