Evaluating Institutional Success: Regional Water Agreements with Tribal Nations

Abstract

Since the early 1900s, U.S. national, tribal, and state institutions have been addressing conflicts over water entitlements of Native American tribes. The resulting regional water agreements encompass ensuring tribal access to water, defining entitlements for reliable future access, and providing environmental and financial benefits. Identifying approaches to evaluating institutional success in these regional water agreements is useful for effectively addressing current and future water disputes. This article discusses characteristics of eight water agreements that have occurred in the Southwestern United States, applying five economic criteria to evaluate success. The evaluation suggests that newer agreements perform better on the economic criteria, implying that learning about effective agreements is occurring over time. As threats to water quality and quantity intensify worldwide, understanding what contributes to successful regional water agreements becomes increasingly urgent.

This article considers evaluation of institutional success in the context of a multilayered and complex set of institutions that have evolved in the western United States to address regional conflicts over water entitlements of Native American tribes. National-level institutions involved include federal laws and policies related to relationships with indigenous tribes, environmental laws such as the Endangered Species Act, and institutions that govern management of federal water projects. Tribal institutions include tribal constitutions, policies enacted by tribal councils, tribal resource management practices, and tribal customs related to rivers, lakes, land, and wildlife. State government policies also are part of the institutional mix, as states typically are signatories to these agreements. These institutions have been woven together in an evolving, adaptive framework for achieving regional water agreements that settle tribal water entitlements and perform other valuable functions.

Identifying factors that contribute to institutional success in regional water management agreements is a pressing concern in the western United States, where multiple water disputes are being litigated and negotiated. In courtrooms and administrative hearings, tribes, states, federal agencies, and other stakeholders expend considerable time and money, constituting a substantial investment by stakeholders themselves and by U.S. taxpayers as a whole. This article builds upon Ostrom’s substantial body of work related to water institutions and follows upon several recent articles in the Journal of Natural Resources Policy Research that examine institutional success in land and water management (Espey and Espey 2020; Hearne 2020; Ostrom 1990; Ostrom, Stern, and Dietz 2002x).

This article outlines economic characteristics of agreements that contribute to enduring and effective resolution of regional water conflict, focusing on agreements in the Southwestern United States that involve Native American nations. We present and apply five economic criteria for evaluating institutional success in eight agreements that have been formalized and are being implemented. The active role of tribal nations in these water agreements is part of a broader trend of active participation by U.S. indigenous communities in regional natural resource management and governance, including food systems, wildfire management, and public lands ownership and management.

Background on tribal nations and regional water agreements

In this section we provide a brief historical and policy background on tribal water settlements. We also highlight contributions to the literature on this subject by economists and the ways this study extends that literature.

In the western United States, tribes typically have senior water entitlements dating to when the tribal land reservations were established. The western U.S. prior appropriation system (first in time, first in right) makes senior tribal water rights more reliable during drought than junior water rights held by non-Indian farms, industry, and cities. In the early 1900s (Winters v. U.S.), the U.S. Supreme Court affirmed tribal nations’ treaty rights to water. While tribes have legal entitlements to water, quantification and actual tribal use of those rights is a costly, ongoing process. Legal entitlements are referred to as “paper water” when they cannot be utilized fully by tribes due to lack of capital and infrastructure. However, legal entitlements do recognize that tribal nations hold a valuable regional asset and thus are in a position to influence solutions to regional water problems (Aragón 2015; Colby, Thorson, and Britton 2005; Sanchez, Leonard, and Edwards 2023; Young, Colby, and Thompson, 2019). Regional water settlements entail negotiations between tribal nations, federal agencies, state governments, cities, agricultural water districts, and other regional water users over an extended period (Colby et al. 2005; U.S. Department of Justice, Environment and Natural Resources Division 2023). The duration of these water adjudications is likely dependent on the number of bargaining parties, i.e., more parties lead to longer negotiations (Sanchez, Edwards, and Leonard 2020). Tribal water settlements are now an important part of regional water institutions in the Southwestern United States. Since the 1970s, about three dozen tribal water rights settlements have been formalized in the western United States (Thorson, Britton, and Colby 2006; United States Department of the Interior 2023). Sanchez et al. (2020) use the formalized Winters water right settlement cases to predict that between 1.2 and 1.6 million acre feet per year will be settled for 25 reservations with ongoing Winters rights adjudications, as of 2020.

Southwestern U.S. settlements rely on complex mixes of water sources to meet various parties’ needs. In areas with heavy groundwater use and declining groundwater levels, settlements require attention to groundwater. Some settlements restrict non-tribal water users pumping water near tribal reservations to protect groundwater underneath tribal lands. These create buffer zones of additional protection for groundwater, and also for tribal streams and wetlands that rely on maintaining groundwater levels. Settlements sometimes also incorporate the use of treated municipal wastewater (Thorson et al. 2006).

Tribal nations’ participation in western U.S. water policy continues to evolve, as Native American governments negotiate and co-implement regional agreements that formalize tribal water entitlements and address other regional water challenges. Settlement of tribal water rights provides more reliable supplies to cities during drought, maintains essential environmental flows, and stimulates tribal economic development by supporting farming, ranching, fishing, tourism, casinos, and other commercial opportunities (Akee, Spilde, and Taylor 2015; Deol and Colby 2018; Drugova, Curtis, and Kim 2022).

Literature related to tribal water, resource economics, and institutional success

We briefly consider first a broader literature related to institutional success in managing water resources. Ostrom et al. (2003) contribute to understanding of institutional success by summarizing key principles for designing institutions to govern water resources effectively, drawing from a series of studies on water commons. Of particular relevance to this examination of regional water agreements involving tribes, Ostrom et al. argue that water management frameworks need to be conceived of as an adaptable system to address ongoing challenges over time. Ostrom et al. also emphasize that building and maintaining social capital is essential to ongoing monitoring, enforcement, and conflict resolution, and that conflict is an inherent feature of managing uncertain resources. They argue that effective processes to address resource conflicts merit focused attention and careful design.

As an example of recent research considering institutional success related to water, Espey and Espey (2020) examine decades of operation of the U.S. Land and Water Conservation Fund (LWCF) to acquire resources for recreation and conserving ecosystems. The authors’ statistical analyses of LWCF transactions find that acquisition patterns are responsive to demographic changes and to the relative importance of public lands in differing regions. This responsiveness over time can be considered an indicator of LWCF institutional success. As another recent example, Hearne (2020) considers implementation of the U.S. Clean Water Act (CWA) to protect ambient water quality in two contrasting U.S. states, North Dakota and Minnesota. The two states have differing economies and constituencies related to water management. Local urban concerns over water quality led to innovation in CWA activities in Minnesota. In North Dakota’s agriculturally dominated setting, CWA projects focus on reliable water supplies and flood mitigation. The ability of diverse states to implement the CWA to address specific state needs is one indicator of institutional success.

There are only a handful of studies by economists that focus upon tribal water settlements, a subject more typically addressed by legal scholars. Sanchez et al. (2023) find that agricultural activity on many reservations likely has increased due to settlements providing resources for tribes to utilize their water rights. Tribal nations’ inability to use the full extent of their water rights results in lost revenues and lower income compared with non-Indian farms (Ge, Edwards, and Akhundjanov 2020; Sanchez et al. 2023). Some difference in farm income can also be traced to differences in land quality. Under the General Allotment Act of 1887, higher-quality land was allotted to non-Indian settlers and tribal nations’ farming income has been constrained due to lower quality land (Leonard, Parker, and Anderson 2020).

Sanchez et al. (2020) find that the likelihood of a water settlement depends on off-reservation population growth, the size of the anticipated water entitlements, the amount of agricultural land and regional water scarcity level. Sanchez et al. (2023) note that tribal nations’ water right utilization varies with the differing goals of tribal nations. These goals include not only irrigated farming but also restoration of streams, lakes, and wetlands; community access to safe drinking water and indoor plumbing; cultural water uses; leasing water off reservation to earn revenue; and protecting tribal communities against intensifying water scarcity (Sanchez et al. 2023). Understanding the different barriers and goals each tribal nation faces and prioritizes is important in analyzing institutional success.

Dippel et al. (2021) contribute to understanding factors that positively impact economic growth on tribal reservations and how water rights can play a role. Dippel et al. find that adopting secured transaction laws (STLs) that are unique to a particular reservation’s needs (as compared with adopting uniform STLs or not adopting) increases economic growth. To examine economic activity over time, Dippel et al. use data on changing patterns in nighttime lights, in areas with existing economic activity and in reservation areas exhibiting new outdoor lighting. STLs may help foster water transactions, for example, so that tribes can use water rights to earn revenue by leasing water off reservation (Sanchez et al. 2023).

This article contributes to the existing literature in several ways. It demonstrates the application of specific economic criteria to regional water agreements involving indigenous nations, going beyond the more widespread focus on legal characteristics of such agreements and adding to a relatively modest existing literature that considers economic aspects. This research examines the importance of time passing after agreement adoption in order to implement agreement provisions and make information available to apply evaluation criteria. It highlights which criteria can more readily be applied to evaluate agreements, and over what time frame.

Criteria for evaluating water agreements

Regional water agreements are costly in financial and water commitments and involve complex tradeoffs—and thus are a worthy subject for evaluation. The U.S. government, states, cities, and other water users incur large, long-term financial obligations. Commitments of water are significant for regional economies in water-scarce areas. Settlements may include transfers of water rights and federal project water among non-Indian and tribal water users, altering the water use mosaics of the regions.

In addition to the costs involved, regional agreements involving tribal nations produce various benefits. The honoring (though belated and contentious) of historic treaty commitments by the U.S. to tribal nations can be seen as a social benefit. Among their economic accomplishments, settlements address historically low access to reliable water for tribal communities and enterprises. Settlements are key to economic development plans aiming to rectify poverty and high unemployment on tribal reservations. Regionwide benefits include funding of water infrastructure and improved collaboration between tribal and nontribal water interests on regional water challenges. Programs funded through settlements stimulate local economies, and environmental provisions assist restoration of streams, wetlands, and other wildlife habitat—boosting cultural and recreational benefits, along with other ecosystem services.

To consider institutional success, criteria are needed to define what is meant by success. The five criteria applied in this study relate to economic considerations relevant to water agreements with indigenous communities. These five criteria are briefly introduced and then applied to eight regional water agreements. These criteria were selected from a broad array of possible components of institutional success for their emphasis on economic aspects and their anticipated feasibility of being applied to evaluate water settlements, based on relatively modest data requirements. The criteria are (1) measurable objectives and clear documentation protocols, (2) incentive compatibility to support agreement implementation, (3) positive economic effects, (4) adaptive mechanisms providing flexibility, and (5) improved regional problem-solving processes.

These five economic criteria represent only a subset of broader considerations that could be applied to evaluate water agreements. A focus on legal, environmental, or cultural factors would produce other criteria. The economic criteria introduced here, while only a subset of relevant factors, can facilitate discussion among the parties’ negotiating agreements and stimulate inclusion of factors that otherwise might be overlooked.

Measurable objectives with clear documentation protocols

Well-defined and measurable objectives are essential to an effective, implementable water agreement. Water agreements often emphasize broad, vague goals that make them subject to further dispute when the time comes to implement them. Agreements need to specify improvements or changes required, computed from a mutually agreeable baseline. Details of this type frequently are absent in negotiated agreements and consequently some water settlements, hailed as successful initially, flounder during implementation.

Clear documentation protocols are essential to ongoing implementation of a settlement. Mandatory reporting of water and financial data is necessary to monitor compliance and to make progress toward achieving settlement goals. Requiring parties to report their implementation expenses and their progress on specific implementation activities provides data to monitor cost-sharing among the parties and provides a foundation for successful ongoing implementation.

Incentive compatibility

Incentive compatibility means that the settlement agreement includes pricing and other incentives that assist successful implementation (Chakravorty, Dar, and Emerick 2023; Rockefeller Foundation 2015; Sheng and Webber 2017). Incentive compatibility gives parties ongoing motivation to support the settlement and its implementation. With respect to incentives for better water management, some regional water agreements include various types of water transactions to secure water for on-reservation needs and to provide tribes with revenues from leasing their water. Transaction prices signal changing water values and can motivate regional water users to adopt improved water management practices that create “saved water” to lease.

Incentive-compatibility principles often are neglected but have the potential to help resolve water conflicts. Prices charged for resource use (water, electricity, access to lakes) should reflect scarcity values, and water rates can be designed to encourage reduced water use. Subsidized water and energy prices are not compatible with the goal of more efficient use of scarce resources and are linked to resource degradation. Many water problems can be more effectively addressed by altering incentives rather than by expensive technical solutions. Settlements can reduce costs by incorporating incentive-based mechanisms and requiring parties to set resource prices and user fees to assist in achieving the objectives of the agreement.

Positive economic effects for disadvantaged communities

This criterion considers communities affected by the settlement and assesses various potential impacts. Examples of potential economic effects include changes in unemployment, housing availability and costs, poverty rates, and access to indoor plumbing and sanitation. Water infrastructure improvements are one pathway by which disadvantaged communities receive economic benefits from regional water agreements.

Regional economic modeling tools are used to measure how economic impacts spread in a local economy. For example, Bickel, Duval, and Frisvold (2019) estimated jobs and local economic activity linked to changes in water available for crop irrigation in a farming area of Arizona facing water cutbacks. That study demonstrates several approaches to provide estimates of how changes in agricultural water use affect farm earnings, employment, and tax revenues. Similar methods can be used to look at effects of improving water access for tribal communities.

Adaptive mechanisms

This criterion relates to provisions that enable a settlement agreement to withstand changing conditions and unexpected events. Agreements are more effective over time when they anticipate natural contingencies (drought), as well as political and economic contingencies—such as a change in federal administration or a recession.

Settlement provisions that allow trading water rights can promote flexibility. However, simple water purchases may not be sophisticated enough to meet regional needs. Consider, for instance, an agreement that requires restoration of a tribal fishery or wetland ecosystem. This may require releases from an upstream dam to provide flows that vary seasonally to maximize environmental restoration. Another flexible type of arrangement could be a contingent water lease, in which water is freed up from irrigation use for other purposes only during dry years. To include effective adaptive mechanisms, water agreements need to consider which natural contingencies may affect implementation. Examples include drought, floods, earthquakes, and wildfires. Agreements that specify how the parties will address natural contingencies help make agreements more enduring.

Improved capacity to address regional water challenges

This criterion considers a region’s ability to address future challenges. Stakeholders in water conflicts confront multiple challenges over a period of years. While the conflict one year may be over providing for reservation water needs, the same stakeholders may face a water quality problem or an endangered fish problem a few years down the road. The ability to work together effectively is an important regional asset. Productive negotiations engage a region’s stakeholders in problem solving, which can make it more straightforward to address the next problem the group faces. Agreements can explicitly require the parties to maintain ongoing consultations and to use a specific forum for conflict management.

Over time, after an agreement has been adopted, it may be possible to observe specific indicators of improved problem-solving capacity. These could include (a) reciprocity—stakeholder groups providing mutual assistance, (b) collaborative long-range planning and proactive identification of emerging regional water problems, (c) diverse groups sharing information and creating more capacity to share information, and (d) more unified, coordinated responses of diverse groups to crises (natural disasters, political disruption). Though it may be difficult to tie these indicators to a particular water agreement, monitoring these indicators can help signal changes in regional problem-solving capacity.

Water agreements evaluated

The eight Southwestern U.S. regional water agreements included in this study represent years of history and negotiations among parties that often found themselves in conflict over water in their regions. Full descriptions that do justice to their context and complexity would involve a lengthy article on each agreement or, in some cases, a book. A brief overview of each agreement is provided in this section, with references providing for more details. These eight water settlements were selected for this evaluation of institutional success because they involve tribal nations and other stakeholders in the intermountain Southwestern states (Arizona, New Mexico, Colorado, Utah, and Nevada), and each agreement was adopted over a decade ago. This passage of time makes it feasible to apply most of the five criteria for effects of the agreements for each case. Table 1 provides a list of tribal nations and U.S. states that are signatories in the eight agreements evaluated, along with the year each agreement was authorized by the U.S. Congress and key water sources and uses addressed by the agreement.

Colorado Ute water rights settlement

The Colorado Ute tribes (Southern Ute Tribe and Ute Mountain Ute Tribe), along with the state of Colorado, the United States, and local water users, negotiated water rights for the Colorado Ute Reservation. The negotiations began in the mid-1980s and were constrained by endangered species controversies over the Animas–La Plata Project (ALP). Both Colorado Ute tribes favored construction of the Dolores Project and the ALP. The Dolores project was already under way, and the ALP had been authorized by Congress but not yet started. The ALP diverts water across basins to provide water to the tribes and for non-Indian water users in Colorado and New Mexico (U.S. Bureau of Reclamation 2018; Colby et al. 2005). The settlement negotiations aimed to quantify tribal water rights and to secure economic development funds to complete both water projects. The ALP played a big role in the settlement, with a new reservoir and more secure water storage for all parties (Colby et al. 2005).

The ALP sparked widespread controversy and was ruled to likely jeopardize the endangered fish by depleting flows into the San Juan River. Eventually, a reasonable and prudent alternative was designed to save the endangered fish species and improve San Juan River conditions. To aid the pikeminnow population, Navajo Dam operations were set to mimic natural seasonal flows and the ALP was reconfigured, with benefits downsized for all parties. Law makers and politicians declared that this was the best deal feasible for the tribes (Colby et al. 2005). Congress amended the settlement in 2000 and work on the ALP began in 2001.

Lake Nighthorse filled in 2011, and the Navajo Nation Municipal Pipeline was completed in 2012. However, despite rights to utilize Lake Nighthorse for irrigation being granted, no irrigation facilities have been developed for the Colorado Ute tribes, discouraged by mandatory fees placed on whoever utilizes the water (U.S. Bureau of Reclamation 2022; Glenn 2022). While most tribal members living on the reservation now have access to clean water in their homes, funding for the water delivery systems from Lake Nighthorse to the reservations was removed when the ALP redesign was negotiated. Thus, the threat of water insecurity for the reservation remains, and long-promised benefits to the tribes remain unfulfilled (Glenn 2022).

Jicarilla Apache water settlement

The Jicarilla Apache Nation Reservation, established in 1887, is located in the San Juan River Basin in northern New Mexico (U.S. Bureau of Reclamation 2018). There are lakes on reservation lands as well as a portion of the Navajo River, home to three endangered fish species. The parties involved in this settlement are the Jicarilla Apache Indian Tribe, the state of New Mexico, the United States, and local non-Indian water users.

The water rights of the tribe were infringed upon by a federal water project that diverts water upstream, leaving little to benefit the reservation (University of New Mexico 1996) and threatening endangered fish species (Colby et al. 2005). Water is central in the Jicarilla Apache Tribe’s economy, along with water’s cultural significance. Water is used heavily in reservation oil and gas production.

The agreement (authorized by a federal court in 1998) established that the tribe is entitled to 40,000 acre-feet per year from the Navajo Reservoir and the San Juan–Chama Project, water delivered from the adjacent Colorado River basin (University of New Mexico 1996). The settlement established a $7 million Jicarilla Apache Water Resource Development Trust Fund for water resource development and protected Jicarilla Apache Tribe future water uses. Much of the tribe’s water rights is leased off-reservation, generating revenue for the tribe. Their largest lease is to the Public Service Company of New Mexico, used for generating coal energy at the San Juan Generating Station.

The tribe continue to face water challenges. They struggle to secure funding for water development projects, and lack of water delivery infrastructure inhibits their water leasing and revenue potential. The quality of reservation water is declining due to oil and gas production. Climate change constrains water supply on the reservation, with several lakes having dried up. Water availability is sparse, causing many residents to have to live and work off-reservation. Wastewater systems in the tribal capital are deteriorating, and failure to receive federal funding slows progress in upgrading the wastewater systems (U.S. Bureau of Reclamation 2018). The authorized settlement of 1998 does not adequately consider constraints facing the tribe today.

Truckee–Carson–Pyramid Lake water settlement

The Truckee and Carson Rivers flow from the Sierra Nevada Mountains in California to the Nevada Desert, providing water for many parties, including the Pyramid Lake Paiute Tribe and the Newlands Irrigation Project. The Pyramid Lake Indian Reservation is located around Pyramid Lake, home of the endangered Lahontan cutthroat trout and cui-ui, a species culturally significant to the tribe. Diverting water from the Truckee River for the Newlands Project has led to large declines in Pyramid Lake, threatening the Pyramid Lake ecosystem (Colby et al. 2005).

Parties involved in the settlement negotiations are the Pyramid Lake Paiute Tribe, the state of Nevada, the federal government, non-Indian water users in western Nevada, and environmental advocates. The U.S. Fish and Wildlife Service played a heavy role in negotiations, as endangered species were at stake. The water supply to help replenish Pyramid Lake came from uncommitted federal storage water, putting the settlement at odds with urban development water needs in the Reno area. Congress passed the settlement in 1990. This settlement helps protect the Pyramid Lake water supply and fisheries, secures water for farms and municipalities, and provides federal money to assist wetlands (Colby et al. 2005).

The agreement provided for acquisitions of irrigated farmland and decreased irrigated acreage for agricultural communities, which spurred litigation. Reservation fisheries were not provided a process to secure water needed to sustain them along the Truckee River. Further agreements are needed to end ongoing litigation, improve water management, ensure water availability, and improve flows to fisheries. However, the tribe’s most prominent recreation activity is sport fishing of Lahontan cutthroat trout, and Pyramid Lake is still home to the cui-ui, which have been around for almost 200 million years (Pyramid Lake Paiute Tribe 2021).

Zuni Heaven settlement

The Zuni Tribe resides on the Zuni Pueblo Reservation in western New Mexico. The tribe engages in longstanding cultural practices at a religious site referred to as Zuni Heaven, located away from the reservation along the Little Colorado River in Arizona (Colby et al. 2005). Zuni religious sites, including Zuni Heaven, were environmentally altered by western settlers during a temporary loss of ownership by Zuni Pueblo between 1877 and 1984. The Zuni Heaven Settlement was catalyzed by environmental damage to the sacred region. Dam construction diverted water away from the once marshy riparian habitat and groundwater pumping near Zuni Heaven also depleted its water supply. Invasive species and grazing damaged the natural habitat on the religious site as well (Colby et al. 2005).

The parties involved in settlement negotiations included the Zuni Tribe, the state of Arizona, the United States, federal and state agencies, power and water companies, and irrigation districts (Colby et al. 2005; University of New Mexico 2003). The Congressional Act of 1984 established the Zuni Indian Resource Development Trust Fund. Twenty-five million dollars were allotted to restore wetlands on Zuni Heaven. To ensure riparian restoration, the Zuni Tribe acquired two ranches upstream of the sacred site on the Little Colorado. Groundwater pumping in areas surrounding Zuni Heaven led to depletion of its water supply, so the Zuni Tribe purchased land to reduce that pumping. The tribe also purchased surface water rights from willing agricultural sellers in the area (Colby et al. 2005).

The Zuni Tribe’s and other parties’ rights to pump groundwater to restore riparian wetlands are clarified by the settlement, which allows the Zuni Tribe to pump up to 1,500 acre-feet of groundwater per year to supplement natural irrigation of the wetlands. Power companies agree not to pump, or to limit, their pumping in order not to interfere with groundwater levels on the Zuni Heaven Reservation. These restrictions on groundwater pumping are called “pumping protection agreements.” In exchange for settlement benefits, the Zuni Tribe waived its rights for any water to be gained through the Little Colorado Settlement (Colby et al. 2005). The Zuni Heaven settlement was established in June 2003 (Colby et al. 2005; University of New Mexico 2003).

Ute Indian Tribe of the Uintah and Ouray Reservation (Northern Ute)

The Northern Ute Indian tribal nation includes members of the Uintah, White River, and Uncompahgre tribes. Their reserved lands are the Uintah and Ouray Reservation in northeastern Utah. Established in 1934, the designated land is 4.5 million acres, the second largest reservation in the United States. The reservation is fragmented by non-Indian land ownership and includes rivers that flow into the Green River (Utah Division of Indian Affairs n.d.).

Historically, the tribe has used water for irrigation, for religious and cultural practices, and for wildlife habitat that supports fishing and hunting. Reservation water shortages are common due to inadequate water storage, and lack of irrigation water limits crop production. In 1906 Congress authorized the Uintah Indian Irrigation Project (UIIP), which was constructed in 1922. Litigation by the United States on behalf of the tribe began in 1916 to protect tribal water rights needed for the project, but there is inadequate water supply to satisfy all parties involved (U.S. Bureau of Reclamation 2018).

As the UIIP was debated, non-Indian water projects under the Central Utah Project (CUP) were approved and constructed, diverting water away from the reservation (U.S. Bureau of Reclamation 2018). The CUP was supposed to have a water storage provision for the UIIP, but it was never built. In 1965, the Ute Tribe signed a deferral agreement where they agreed to defer some water rights in exchange for water projects to benefit the tribe. However, the projects were not built, and the tribe’s water rights could not be used fully. Water rights settlement negotiations began in the second half of the 1970s (Colby et al. 2005).

The Ute Indian Rights Settlement was authorized in 1992 (Colby et al. 2005; University of New Mexico 1992). There are federal and state obligations to maintain minimum flows to conserve the tribe’s fisheries. Some reservoirs on the reservation are managed by the tribe for recreation purposes (U.S. Bureau of Reclamation 2018; Colby et al. 2005). Even with the 1992 settlement, the tribe continue to face challenges using their water rights. Even though the Ute Tribe have senior rights in the Uintah Basin, there is not enough infrastructure to use their established rights. The Uintah and Ouray Reservation’s agricultural land uses less capital-intensive irrigation and grows significantly fewer high-value crops than surrounding non-tribal farms, likely due to lack of capital (Ge et al. 2020). The reservation still receives an insufficient water supply most years. Plans are under way to create water projects that improve delivery systems and increase supply reliability for the tribe (U.S. Bureau of Reclamation 2018).

Taos Pueblo water rights settlement

The Taos Pueblo Reservation, home to the Taos Indian Tribe, is located in northern New Mexico. Blue Lake, reacquired by the tribe in the 1970s, is a culturally important site on the reservation. Much of the reservation land consists of mountains and buffalo pasture (Taos Pueblo n.d.). Modern water rights negotiations began in the 1980s between the Taos Indian Tribe, non-Indian water users, the state of New Mexico, and the federal government. The 2010 Abeyta Settlement quantified the tribe’s water rights and proposed tools to enable the tribe to use their rights (University of New Mexico 2010).

The parties share hydrologic models and water use data and are working to improve water use monitoring to protect future groundwater levels (Taos Pueblo n.d.). The settlement includes procedures for dealing with extreme drought and for handling disputes. The settlement affirms tribal water rights for irrigation and restoring Taos Pueblo bison pasture, as flows on the Pueblo had been depleted by nearby town water use and non-Indian groundwater pumping (U.S. Bureau of Reclamation 2020; Taos Pueblo n.d.).

The tribe agreed to keep its water use at presettlement levels for irrigation, a level that represents 40% of their total water rights. Extra water used for tribal development will be offset by water from the San Juan Chama Project to prevent depletion of the Rio Grande. The tribe can lease water to others, with the town of Taos having the first option to lease (Taos Pueblo n.d.).

The agreement includes a tribal water code and funding for water development projects that benefit several parties.

Fort Yuma (Quechan) Indian Tribe water rights settlement

The Fort Yuma Indian Reservation, home to the Quechan Tribe, lies along both sides of the Colorado River, in Arizona and also in California. The Tribe obtained quantified water rights under a 2006 court ruling in Arizona v. California (Tribal Water Use n.d.). The tribe’s rights can be used for leasing to non-Indian farmers, tribal farming, and tourism. The tribe, federal agencies, and city governments agreed to collaborate on projects to restore the Lower Colorado River Delta region, much of it located on the Fort Yuma Reservation.

The Quechan Tribe is implementing an updated water use monitoring system and collaborates with other governments to restore wildlife habitat and to address regional water use efficiency and management. Some nearby wetlands have been transformed from being highly polluted and invaded by nonnative plants to being clean, marshy waters and recovering native plant and wildlife populations, including federally listed species (Yuma Crossing National Heritage Area 2019). The Quechan Tribe has active water lease agreements with the Metropolitan Water District of Southern California that provide revenue as well as access to senior tribal Colorado River water (U.S. Bureau of Reclamation 2018).

Gila River Indian Community water rights settlement

This agreement addresses Gila River Indian Community (GRIC) entitlements to Central Arizona Project (CAP) water and settles GRIC water rights. It allocates 102,000 acre-feet per year of CAP water to GRIC, converting paper rights into useable water for tribes and improving water supply reliability (U.S. Bureau of Reclamation 2018). The GRIC Settlement involves the Gila River Indian Community, the states of Arizona and New Mexico, and the United States. Historically, upstream water diversions by other parties decreased tribal water availability. Adjudication began in the 1970s to define GRIC water rights and the Arizona Supreme Court recognized rights to groundwater in 1999 as necessary for tribal reservations (Colby et al. 2005). GRIC leases some of its CAP water to municipal and industrial water users. These leases help make the overall settlement acceptable to non-Indian water users, while also securing a consistent water supply and revenues for GRIC (Colby et al. 2005).

Methods: evaluation of agreements using economic criteria

The eight Southwestern regional water agreements were each evaluated against five criteria. The evaluation consisted of reviewing the provisions of the agreements themselves and reviewing published information on their effects, focused on the period five years or more after the agreements were ratified by the U.S. Congress. The discussion for each criterion specifies the time frame in which that criterion could be evaluated. Table 2 lists the eight water agreements evaluated and provides brief comments on how each performed relative to the five evaluation criteria described earlier. A simple ranking of high (H), medium (M), or low (L) is provided on Table 2 for each criterion and each case. For some of the criteria, a clear evaluation can be reached for many of the eight agreements. That evaluation is indicated in this section and summarized in Table 2. Information needed to operationalize specific other criteria proved to be unavailable for one or more agreements, indicated in Table 2 as NA (not available). The NA finding suggests that a specific criterion may be difficult to implement as an indicator of institutional success for complex regional water agreements.

Measurable objectives with clear documentation protocols

This criterion is evaluated by examining the content of the agreement itself, as well as documentation protocols used by the parties as the agreement is implemented. More recent agreements tend to be more complete in satisfying this criterion, perhaps learning from challenges in implementing earlier settlements. The agreements of the 1990s (Pyramid Lake, Jicarilla Apache, and Northern Ute) all became embroiled in disputes during implementation revolving around quantities of water and changes in water management provided for in the agreement. The Quechan Indian Tribe, Zuni Heaven Settlement, and Gila River Indian Community agreements each are examples of improved specificity with respect to objectives and documentation protocols needed to implement the agreements. This criterion generally can be evaluated by reviewing the provisions of an agreement in public documents and expert critiques of agreements as they are implemented over time.

Incentive compatibility

This criterion requires that settlement provisions include pricing and or other incentive features to promote compliance and timely implementation (Rockefeller Foundation 2015; Sheng and Webber 2017; Chakravorty et al. 2023) This criterion is evaluated by examining the contents of the agreement itself, and by noting incentives that are utilized during implementation—but were not specified in the agreement. We find that water pricing tools to incentivize water conservations are rarely applied as part of regional agreements for tribal and agricultural water users. Water agreements do not routinely consider incentive compatibility. Providing economic assistance to tribal water users often is a primary goal of an agreement, and so water prices for tribal water use are deliberately kept low. Many non-Indian agricultural water users historically have received low-cost access to water and energy under federal agricultural policies, and regional agreements tend to avoid disrupting this in order to be politically acceptable. However, urban water providers involved in these settlements have adopted incentive-compatible water pricing. The Pyramid Lake Settlement explicitly required participating cities (Reno and Sparks) to install water meters and to begin charging households and businesses on the basis of water used (D’Estrée and Colby 2004). Moreover, a number of agreements (indicated in Table 2) explicitly authorize tribal nations to lease some of their water for use by non-tribal cities and farms. Water leasing serves to promote incentive compatibility by establishing a regional price for water. This criterion can be evaluated by examining pricing and leasing provisions related to water agreements in public documents and noting how these provisions are implemented in the years following an agreement.

Positive economic effects for disadvantaged communities

This criterion is evaluated by examining information on economic effects, information that only becomes available as an agreement is implemented, extending years after the initial agreement is reached. All eight agreements recognize that the federal government has an obligation to fulfill treaty obligations and trust responsibilities toward tribal nations, expressed through significant financial contributions by the federal government and low costs imposed on tribal governments. The federal government generally pays for infrastructure and environmental improvements, and Native American tribes do not pay the capital costs to develop water supplies for their reservations. To varying degrees, the agreements also confer financial obligations on nontribal water users in the region.

Several agreements founder on a specific aspect of this criterion by failing to provide reliable water supplies for tribal communities. The Northern Ute and Colorado Ute agreements both encountered environmental opposition to proposed water projects, and the portions of those projects intended to benefit the tribes were downsized or never constructed. A number of other agreements (noted in Table 2) provide improved water supplies and other tangible benefits of various types to tribal communities.

Household access to indoor plumbing can serve as one indicator of water-related economic improvements. Table 3 provides data for tribal reservations involved in four of the regional water agreements examined in this article, for which data are available for the time period following the agreement. All four tribal reservations show some improvement in access to complete plumbing for reservation households in years following implementation of a regional water agreement. (Households that have hot and cold running water, flushable toilets, and a bathtub or shower are considered to have complete plumbing facilities; Raglin 2015).

The criterion of positive economic effects is difficult to evaluate fully, as it includes many potential factors for which change is only observable over years following the water agreement and for which reliable data sources are lacking. Our evaluation suggests that economic effects are not systematically analyzed and publicly discussed in water agreement negotiations, even though the economic stakes are high for many affected parties.

Adaptive mechanisms

Many of the more recent agreements include requirements that the parties meet regularly to monitor progress in implementing their agreements and to address unanticipated implementation challenges prior to initiating litigation. However, litigation has continued in the cases of the Pyramid Lake Settlement and the Northern Ute agreement. The Taos Pueblo Settlement is encountering litigation in implementing groundwater protection measures.

Many of the agreements (noted in Table 2) include water leasing, an adaptive mechanism that allows water to move among the settlement parties in order to adapt to changing climatic and economic conditions over time. Leases of senior tribal water to non-Indian water users helps address tribal government needs for revenues and access to reliable water supplies for non-Indian farms, cities, and industry.

This criterion can be evaluated by examining leasing provisions and other adaptive mechanisms included in water agreements and other public documents and noting how these provisions actually are implemented in the years following an agreement.

Improved capacity to address regional water challenges

This is a difficult criterion to operationalize until some years have passed after an agreement has been achieved. Information on changes in ways of addressing regional challenges becomes available years after the initial agreement is reached. Changes in litigation patterns over time are one observable indicator that capacity to address regional challenges may have improved in the period following adoption of a water agreement. Some of the parties involved in settlements of the 1990s (Pyramid Lake and Northern Ute) continue to engage in litigation over provisions of the agreements, as well as other water issues not directly addressed by the settlement agreement. However, there has been a notable shift away from litigation and toward negotiations intended to address water challenges in the other cases examined.

Conclusions

This article, focused on Southwestern U.S. regional water agreements, evaluates the performance of eight agreements and aims to better understand challenges of evaluating institutional success. It contributes to understanding of regional water agreements involving tribal nations and of institutional success in several ways. It develops specific economic criteria and applies them to regional water agreements, adding to a modest literature on economic aspects of tribal water and on economic aspects of institutional success. It identifies which criteria can be applied to evaluate agreements given available data, along with relevant time frames for applying criteria.

This research suggests several lessons learned about both regional water agreements and evaluating institutional success. Patterns can be observed in differences between older and newer agreements through the five criteria explored here. Newer agreements tend to perform better on all five criteria, indicating that learning occurs from difficulties encountered in implementing earlier agreements. However, the economic effects on regions and specific communities typically are not considered systematically in water agreement negotiations, even despite the high stakes for affected groups.

This research contributes to developing more systematic evaluation protocols for understanding and evaluating institutional success. It highlights the importance of time passing after agreement adoption, allowing more information to become available to apply evaluation criteria. We also find that data needed to rigorously apply some criteria are an obstacle to evaluating institutional success. For the practice of assessing institutional success to mature, data collection protocols need to play a key role and become embedded in the institutions being evaluated. For regional water agreements, this could be accomplished by a central public database that provided information on implementation and on measured progress in achieving goals of the agreements.

Future work can focus on ways in which technological advances can help measure progress in implementing agreements and provide information for parties while negotiating an agreement. Remote sensing tools can be used to observe changes in water use and to track implementation progress. For example, the USDA’s Cropland Data Layer indicates land cover on a fine spatial scale and can be used to track agricultural and urban expansion in areas where water rights are or have been negotiated. Remotely sensed imagery also can be used to document changes in irrigated acreage, crop mix, and irrigation technology over time. These data can help improve use of water for crop irrigation and provide estimates of changes in water consumption by irrigated agriculture, the dominant use of water in the study region and in much of the world. Satellite imagery also is helpful in understanding changes in regional groundwater conditions, which can guide agreement implementation in tradeoffs between groundwater and surface water use.

Evaluating economic aspects of institutional success is a compelling challenge. While the criteria applied here provide one specific lens in which to view success, there are additional economic criteria that could be applied and criteria from other disciplines.

A mixed record of “success,” observed in applying a small set of economic criteria for success, naturally leads to considering the reasons for poor outcomes. Are poor outcomes attributable to ineffective design in components of agreements, animosity among negotiating parties, or not having enough water to address all parties’ goals? What do findings of limited success portend for the future? This key question warrants focused consideration and is important, given the increased pressure on water resources around the globe beyond the Southwestern United States. In considering limited success, the role of the baseline used for comparison in evaluation is key. Settlements may not be fully successful when evaluated against specific criteria, but are they superior to what would have occurred in the absence of an agreement? This is a broader and more complex type of framing, one well worth pursuing in future work and that would build on the approach taken here. Identifying a counterfactual, what reasonably would be expected to happen in the absence of a regional water agreement, would involve an interdisciplinary team of legal and technical experts. In the interim, identifying and applying criteria such as those discussed here can inform ongoing water negotiations, structuring of agreements, and evaluation efforts.

Tribal leadership in water agreements is a component of broader social movements in the United States in which indigenous perspectives and tribal government participation are slowly being integrated into larger social dialogues. U.S. tribal nations are active in promoting tribal food sovereignty and more resilient regional food systems (Food and Agriculture Organization of the United Nations n.d.; Native American Food Sovereignty Alliance n.d.; First Nations n.d.). Tribal perspectives and governments are becoming more prominent in regional fire management, reactivating indigenous tools practiced for centuries in what is now the western United States, until loss of land and sovereignty occurred (Roos et al. 2021; National Park Service 2023). The Land Back movement also is occurring alongside tribal water agreements, a movement that supports tribal community land reacquisition. Tribal nations are reacquiring and managing land in ways consistent with tribal farming, forestry, and range management practices (First Nations n.d.). Some U.S. national parks and monuments located on historic tribal lands are now being co-managed by tribal and federal entities, with discussion of their being returned to tribal ownership and management (First Nations n.d.).

With respect to regional water agreements, western U.S. tribal governments often possess the most reliable water rights in their basins (the last water to be cut off during shortage). Since they have sovereign jurisdiction over their water and are not governed by state water law, tribes can tailor innovative approaches to address their own specific needs and to meet broader water challenges in their regions. Examples include groundwater pumping restrictions to protect reservation stream flows and wetlands, new ways of operating storage and delivery systems, water leasing and shortage sharing transactions, groundwater banking, and improved management of crop irrigation.

The United States and many other nations face multiple threats to water supply and quality. Regional water agreements involving indigenous governments are playing a key role in addressing these challenges. In addition to clarifying water entitlements and future water access, many agreements dedicate water to restore streams and wetlands, providing cultural, environmental, and recreational benefits. Methods for defining and evaluating institutional success in these complex water agreements are a worthy subject for ongoing investigation.

Works Cited