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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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724 “No Friend of Arizona,” Phoenix Gazette, April 16, 1976 in The Congressional Record, 122:9, p. 11183. Barry Goldwater (R-AZ) staunchly opposed the bill and the efforts of Kennedy, going so far as to state that Kennedy deserved “the Golden Fleece Award of the Century” for his efforts. See also, “Hearings scheduled on bill allowing transfer of water rights to 5 Arizona tribes,” Arizona Republic, May 22, 1977, A-28 and “$2 billion price placed on Indian water transfer,” Phoenix Gazette, May 23, 1977, B-1.

Federal Register, 41:202, October 18, 1976, p. 45889.

725 726 Gila River Indian Community v. United States, 1977, p. 1. “Indians file suit seeking 70% of state’s CAP water,” Arizona Republic, January 5, 1977, A-1.

320 encouraged negotiated settlements. In February 1978, Interior Solicitor Leo M. Krulitz informed Interior Secretary Cecil Andrus that it made more sense to negotiate settlements with each of the central Arizona tribes on a “tribe-by-tribe” basis and that the best way to effect such a plan was to use litigation as an inducement. By April 1979, Interior was caucusing to “plan and execute departmental actions which are calculated to encourage water rights settlement negotiations, or other action which by themselves will make water available in Arizona for use by the Indian tribes.”727 By June, Andrus grew impatient that the Gila River Indian Community was not being “treated equitably” and stated that if the claims of the Indians could not be worked out he would “consider reopening the October 1976 allocation regarding Indian use of CAP water.”728 Arizona officials publicly complained that CAP allocations were being held “hostage” to Indian water claims, with Arizona’s congressional delegates fearing the main stem CAP system would soon be completed before “actual delivery of water” could be made.729 State legislators in June 1980 enacted into law the Groundwater Management Act, which created four Active Management Areas in the populated regions of the state and established the Arizona Department of Water Resources (ADWR).730 The ADWR then began advocating that tribal nations—including the Pima—be required to accept treated 727 “Concern over CAP may speed Indian talks,” Arizona Republic, July 25, 1979, B-4. Memo from Leo M. Krulitz to Secretary Cecil Andrus, n.d., in the Central Arizona Project library, (file Arizona Indian Water Rights). Thomas W. Frederick, Associate Solicitor, to Leo M. Krulitz, Solicitor, dated June 15, 1979, in Central Arizona Project library, (file: Arizona Indian Water Rights). Interior was forcing local water users to come to the table by denying a $7.8 million loan to the Roosevelt Water Conservation District (RWCD) and investigating whether the Salt River Project should enlarge its borders to include part of the Gila River Indian Community.

Associate Interior Solicitor Thomas Frederick concluded non-CAP water would reduce the need for continued negotiations with the RWCD and Salt River Project to provide water to the Indians.

728 See “U.S. accused of pressuring state on Indian water rights,” Arizona Republic, July 14, 1979, B-1 and “Concern over CAP may speed Indian Talks.” 729 “Interior Secretary is delaying delivery of CAP water, 4 congressmen charge,” Arizona Republic, July 30, 1979, B-1. Arizona Republicans Barry Goldwater, John J. Rhodes, Eldon Rudd and Bob Stump signed the letter to the secretary. Democrats Dennis Deconcini and Morris Udall did not, believing it would not help the situation.

730 The four AMAs were Prescott, Phoenix, Pinal and Tucson. A fifth AMA was added in 1994 for Santa Cruz County.

321 effluent water in exchange for some of their CAP allocations. In the case of the Pima, the ADWR wanted the tribe to accept up to 50,000 acre-feet of Chandler effluent water and another 25,000 acre-feet of effluent from the City of Phoenix. The Bureau of Indian Affairs opposed these proposed exchanges, arguing a combination of treated effluent and saline groundwater “could have disastrous long-term effects” on Indian agricultural lands.731 Andrus indicated he would act “upon suggestions” made by Arizona officials freeing up additional CAP municipal and industrial (M&I) water for non-Indian use. The Gila River Indian Community opposed such an exchange, asking for an additional 103,476 acre-feet of CAP water in addition to the 173,100 acre feet already allocated in 1976.732 By October, the Gila River tribal council acted to officially oppose any mandatory exchange of CAP water for treated effluent. In December, Andrus announced a revised CAP water allocation plan. Gila River retained its 173,100 acre-feet of water but nonIndian M&I users now “share[d] a first priority,” meaning the Indians’ priority could be reduced by 10% in time of shortage, placing their water on equal terms with non-Indian M&I users.733 The ADWR then filed suit against Andrus to bar the Indian’s “share[d] first priority” and the lack of effluent exchange.734 Nonetheless, by mid-December, eleven Arizona tribes—but not Gila River—signed water contracts. Pima Tribal Governor 731 Evaluation of Sewage Effluent Usage on Arizona Indian Reservations Under CAP Conditions, Bureau of Indian Affairs, Phoenix Area Office, Trust Protection Office, October 1980, pp. 1-11.

732 Federal Register, 45:155, August 8, 1980, p. 52940. Federal Register, 45:239, December 10, 1980, p. 81268. The Gila River Indian Community argued that all land with San Carlos Irrigation Project rights—whether developed or not—should be irrigated with CAP water.

733 Federal Register, 45:239, December 10, 1980, p. 81272.

734 “Arizona files suit to block Andrus on water shares,” Arizona Republic, December 2, 1980, A-1. Senator Dennis DeConcini (DAZ) suggested the lawsuit would be dropped if the in-coming secretary James Watt would remove the Indian priority and require tribes to accept effluent in times of shortages. See “DeConcini seeks CAP compromise,” Arizona Republic, December 20, 1980, C-1.

The lawsuit was dropped in March 1981, even though no concessions were made by Watt. Representative Morris Udall (D-AZ) had much to do with this as he believed the lawsuit to be “a mistake.” Udall thought the Indians could be induced to accept effluent by offering money. See “Udall says legislation could solve Indians’ CAP problems,” Tucson Daily Citizen, January 13, 1981.

322 Alexander Lewis Sr. suggested the tribe did not sign a contract because it feared a new presidential administration might void it and the Pima did not wish to have two irrigation delivery systems: one for treated effluent and one for CAP water.735 In December 1981, the Bureau of Reclamation issued a draft CAP environmental impact statement, which included a provision that changed the formula for Pima priority water, increasing to 25% its reduction in times of shortages and left the door open for mandatory effluent exchanges. The rationale for these changes was the belief that the Gila River Indian Community sat upon “one of the best developable ground water sources in the State” and that the tribe also had “access to a developed surface supply of irrigation water through the San Carlos Project.”736 Just 75% of Pima CAP water would be first priority and this while 90% of other Indian and non-Indian M&I water would have such priority, a proposition the Pima saw as “unfair” and discriminatory.737 On March 24, 1983, Interior Secretary James Watt published the allocations in the Federal Register making them official.738 The Pima, aware successful litigation might provide “paper” entitlements without financial assistance to put the water to actual use, were encouraged by federal officials to sign a contract. Consequently, after the allocation of CAP water was official, the tribe began negotiating a water delivery contract. In March 1985, Pima Tribal Governor 735 “Tribes sign CAP pacts before judge can act,” Arizona Republic, December 13, 1980, A-1.

736 Draft Environmental Impact Statement, Water Allocation and Water Service Contracting, Central Arizona Project, Volume 1, U.S.

Bureau of Reclamation, Lower Colorado Region in Cooperation with the Bureau of Indian Affairs, US Department of Interior, December 1, 1981, pp. 1-3.

737 “CAP water allotment ‘irrational,’ tribe says,” Arizona Republic, February 19, 1983, A-1. The tribe objected to the quantity, quality, cost and poor monitoring efforts of such water.

738 Federal Register, 48:58, March 24, 1983, p. 12452. The Pima continued to meet with Salt River Valley cities to solicit their support in encouraging the Interior Department to drop its mandatory exchange clause. Chandler, Mesa and Gilbert all agreed and sent letters in support of the tribe. This urban support largely grew from self-interest, as cities that exchanged effluent for Indian CAP water would have been forced to reduce their M&I CAP water supply by a like amount. In effect, the cities—now finding urban uses for the water—would have given up such effluent without a tangible benefit. In November 1983, Arizona Governor Rose Mofford informed Interior Secretary Donald Hodel that Arizona would agree to the dropping of the mandatory exchange.

323 Donald Antone reiterated the tribe’s need for “a stable supply of water sufficient to sustain the expansion of the reservation’s economy,” a concept that gained added value when the tribe released its 1985 Master Plan Report for Land and Water Use. The plan outlined a goal of irrigating 146,330 acres of land, requiring an annual water budget of 771,581 acre feet of water.739 After years of fruitless talks, the tribe and the Salt River Project—the largest utility and water supplier in the Salt River Valley—agreed to begin discussing a “comprehensive water rights settlement proposal.” In October 1990, the tribe appointed a water negotiating team to press forward toward a negotiated settlement with all parties that might be included in a comprehensive settlement. By 1991, a framework that included a proposed annual water budget of 653,500 acre-feet of water and funding to rehabilitate or construct the water delivery system was in place.740 In June of that same year, the Bureau of Reclamation informed Pima Tribal Governor Thomas White that the mandatory effluent exchange provision would be dropped, clearly an effort to entice the tribe to sign a water delivery contract and mitigate one component of the Damoclean threat.741 On October 22, 1992, the Gila River Indian Community signed its delivery contract for 173,100 acre-feet of CAP water.742 739 Gila River Indian Community Master Plan Report for Land and Water Use, 1985, pp. 5-9, 5-15 and 5-52 to 5-57. The acreage was a lofty goal and was primarily intended to serve a political function of encouraging water settlement.

740 See Indian Water Rights Claims: Settlement Update, Arizona Department of Water Resources, Phoenix, Arizona, May 12, 1994.

741 White had argued in March 1992 that no other “CAP contract had been held hostage to settlement of its rights.” The Central Arizona Water Conservation District Board had opposed the provision as it feared Pima contracted water would not be credited to its Winters rights. Dropping the mandatory effluent exchange would enable the Pima to effect any potential water exchange on more agreeable terms.

742 Central Arizona Project Water Delivery Contract Between the United States and the Gila River Indian Community October 22, 1992 (in author’s files). Contracted water may only be used on lands deemed arable by the Secretary. Furthermore, the tribe was required to accept CAP water in exchange for Gila River water that would be used in the upper Gila River system.

324 A water delivery contract was not a full and complete water settlement, as tribal claims against upstream users, mining corporations, neighboring irrigation districts and cities remained. Consequently, the Interior Department sought to discharge its trust responsibility and encourage a final settlement to all tribal water claims and supported the Pima in the Gila River General Stream Adjudication, which the State of Arizona initiated in 1976 with the goal of clarifying and quantifying all water rights within the state. In 1979, the adjudication hearings were transferred to the Maricopa County Superior Court and, by 1981, were consolidated and styled In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, being classified W-1 (Salt River), WVerde River), W-3 (Upper Gila River) and W-4 (San Pedro River) consolidated.

As settlement talks progressed, the question remained from whence settlement water (above the CAP delivery contract) would come? While many elderly Pima longed for Gila River water, such water was not politically practical or feasible. Consequently, short of buying out existing water users—an unpopular proposition as evidenced by the 1976 Kennedy bill—the only source of settlement water was the reallocation of 240,000 acre-feet of uncontracted CAP non-Indian agricultural water, a proposition agreed to in principle by the Central Arizona Water Conservation District (CAWCD) board of directors in 1995.743 The Pima also remained concerned with how the water would be delivered to the reservation so it could be put to beneficial use.

On October 13, 1995, the water delivery question was answered when the Gila River Indian Community and the Bureau of Reclamation agreed to an annual funding

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