Rewriting the Rules

Savannah Maher: The Rio Grande is a wide band of muddy brown water that bisects the city of Albuquerque before making its way to the Gulf of Mexico. I like to walk my dog there sometimes on the Bosque trails that run alongside it. Sally, you want to go see the river? It’s a chilly morning in October. We’re not far from a busy road, but it’s pretty peaceful out here. You see the ducks?  Or I guess it was peaceful until we showed up. I take off my shoes and Sally and I wade into the water that makes our city possible. I guess I knew that a lot of Albuquerque is water supply came from the Colorado, but never really thought about how. We’re standing in the Rio Grande a couple 100 miles from the nearest Colorado tributary. But some of the water we’re standing in comes from the Colorado River system.  This is our drinking water supply. And we only have it because we stole it from somebody else. So how did Colorado River water get here to Albuquerque? The answer lies about 180 miles to the north on the Jicarilla Apache nation.

Savannah Maher: Azotea Tunnel Outlet

Daryl Vigil: Pretty wild.

Savannah Maher: That’s the voice of Daryl Vigil, a big deal in the world of tribal water policy. Back in July, he showed me all around Jicarilla country. We probably put 100 miles on his blue pickup that day. Sorry Daryl starting, here on the eastern edge of the reservation, where something called the Azotea Tunnel lets out. So, how much of this is coming from the Colorado?

Daryl Vigil: All of it. Every single 90,000 acres being taken out of the Colorado system are being put into the Rio Grande system. If it wasn’t for Colorado River water, the Rio Grande would be dry at certain times of the year in certain locations.

Savannah Maher: Back in the 1960s when Albuquerque is population was growing and the Rio Grande was starting to look overtaxed. President John F. Kennedy’s signed off on this plan to throw Colorado River water at the problem. The federal government paid to dam up three of its tributaries in southern Colorado and build this massive concrete tunnel.

Daryl Vigil: And so my father as a teenager, actually, you know, worked and helped dig the tunnel. And he talked about going inside here and helping us excavate and a whole lot of that dirt and rock.

Savannah Maher: The Azotea snakes underneath 26 miles of rugged mountains and high desert forest across the continental divide and dumps out 90,000 acre feet of Colorado River water annually here in the Rio Grande system.

Daryl Vigil: Somebody’s taking a shower today in Albuquerque. or

Savannah Maher: Or fishing in the Rio Chama or irrigating a chile crop in Socorro.

Daryl Vigil: This is where the waters coming from.

Savannah Maher: This project was a huge victory for Albuquerque, but some of the water that was being diverted, rightfully belong to the Jicarilla Apache Nation.

Daryl Vigil: Well, it wasn’t tagged as Jicarilla water yet, right? Yeah. Again, you know, most indigenous folks, you know, this idea of owning waters is as an incredibly new concept. Because, you know, it’s something that was given by the Creator to help us sustain who we are, and sustain life and it gives life.

Savannah Maher: The Azotea tunnel was a massive federal investment in moving Colorado River water out of Indian country without consulting or compensating the tribes that would be affected. This is a familiar story. Throughout the 20th century, while white Westerners were divvying up the Colorado’s flows amongst themselves 30 tribal nations who we now know hold rights to at least a quarter of the river were locked out of those decisions. But the worst drought in 1200 years is tearing up the rulebook. And while the whole system is learning to live with less water, tribal nations see an opportunity to claim their seat at the table and prove they can be part of the solution.

Daryl Vigil: Hydrology has pushed us to the conversation of equity, justice, and basic human rights. We have the opportunity to set some of that shit straight.

INTRO

Savannah Maher: I’m Savannah Maher taking over this week for Amy Scott. Welcome to How We Survive a podcast for Marketplace about people navigating solutions to a changing climate. This is episode 3: Rewriting the Rules. Last week we took you to the healer River Indian Community and explained that tribes decade’s long battle for its water rights and how it became a major power player in the Colorado River Basin. But Gila River’s relative success is a major outlier. Remember, it’s just one of 30 tribes with claims to the Colorado River. Some still haven’t had their water rights acknowledged, most are still struggling to use their water the way they want to. And they’re all fighting for meaningful decision making power when it comes to managing the river during this historic drought. This episode, we’re taking you to northern New Mexico, and the Jicarilla Apache nation.

Daryl Vigil: Once you Google Dulce, New Mexico, it’ll talk a whole lot about Archuleta Mesa and that that’s an alien base.

Savannah Maher: Is that true?

Daryl Vigil: I’d say I can’t verify it myself. But there’s others who claim that they’ve seen the mountain open up and…

Savannah Maher: Almost everyone who lives on the Jicarilla Apache Reservation, including Darrell Vigil lives in the town of Dulce. Dulce is rugged and remote, way up in the southern San Juan Mountains just below the nation’s border with the Southern Ute reservation.

Daryl Vigil: So that’s 9000 feet. And so right over there, at the top of that mountain over there, there’s some Southern Ute land right there. I tease them about poaching their Christmas trees.

Savannah Maher: Daryl is in his 60s. He’s got short salt and pepper hair, and he’s always dressed like he’s about to go hiking. He’s so steeped in the world of tribal water policy that it’s easy to forget he’s retired from his longtime post as his tribe’s water administrator.

Daryl Vigil: That’s the Tribal Administration Building, ode to bureaucracy.

Savannah Maher: There’s a small grocery store a Chinese restaurant, a gas station and some kids outside selling snow cones but otherwise not much commerce.

Daryl Vigil: And that’s the hotel that my my my family built and operated and opened in 1984.

Savannah Maher: And it doesn’t what what’s happening now?

Daryl Vigil: Nothing, it’s closed.

Savannah Maher: Some of the housing is new, but a lot of it looks pretty rundown.  You

Daryl Vigil: You have mishmash of some HUD housing, maybe one program at one time, mostly mobile homes, again, quick access to housing. And then you have a councilman who built his house.

Savannah Maher: Looks pretty nice. One obstacle to building more and better-quality housing and to developing the economy around here is the limited water supply. A little north of Dulce we stop at a section of the Navajo River, the Colorado tributary that dips into Jicarilla land. Have you spent a lot of time here?

Daryl Vigil: Yeah, this this used to be one of my favorite spots as a kid because the road was in paved and we would walk over here almost every three or four times a week as kids with our fishing rods and we would catch grasshoppers to use a spade we’d catch fish and and just be down here most of the day. And then when it got hot we got in the water when it got cold we got out of the water. And so this played a big part of my childhood for sure.

Savannah Maher: Daryl’s old fishing spot on the Navajo is still a popular hang kids splash around here on hot days there’s a wooden rocking chair sitting on the riverbank somebody’s thinking or reading or selling spot. But to Daryl it looks different. There’s maybe a third as much water flowing through this section of the river now as there was when he was growing up in the 60s.

Daryl Vigil: It’s a lot less for sure. You know like this is probably 20 CFS, maybe 25 at the most.

Savannah Maher: CFS meaning cubic feet per second, a measure of the volume and speed of water flow.

Daryl Vigil: It used to be 60. So it would be way out here where the riverbank would be. It used to run a lot higher.

Savannah Maher: What’s changed of course is the hazard to a tunnel. If all that water wasn’t being delivered to Albuquerque, it would be flowing through this riverbed and promoting water security and maybe economic growth here in Dulce.

Daryl Vigil: And you know the reality is even though we have a lot of water rights so you can see how low this is running. The reality is there’s not enough.

Savannah Maher: When it comes to asserting its water rights. Daryl likes to say the Jicarilla Apache Tribe is operating at a deficit going back over 100 years to when the law of the river was established.

Daryl Vigil: There was a group of men meeting at Bishops lodge in 1922. To to to set the water future for the Colorado River. While my people were barely surviving on government rations.

Savannah Maher: Daryl is talking about the Colorado River Compact. Maybe you’ve seen the old timey black and white photos from it signing. A bunch of stone faced white guys in suits huddled around a desk at bishops lodge in Santa Fe. Dividing up the rivers flows between each of the seven states in the Colorado River Basin. Leaders from the 30 Tribal nations in the basin weren’t invited to those negotiations, or pretty much any other river management discussion since.

Heather Whiteman Runs Him: Because there was a view that they weren’t going to continue to exist into the future.

Savannah Maher: Remember, Heather Whiteman Runs Him from the last episode. She is crow and attorney and an expert on tribal water rights. She says those white Westerners new tribal nations were entitled to a massive share of the Colorado and a voice in managing it because of a 1908 Supreme Court decision in Winters v. United States, where tribes had some unlikely help from the federal government.

Heather Whiteman Runs Him: At that point in time, of course, the United States was heavily engaged in what we call the assimilation policy. In other words, their objective was to convert Indian people from nomadic and hunter gatherer existence, especially into a pastoral sedentary lifestyle.

Savannah Maher: For that to work. Tribes needed water. So mounting a legal case in support of tribes, water rights wasn’t about protecting tribal sovereignty, it was in service of a genocide. The feds thought maybe if we can turn these Indians into farmers and capitalists, they’ll stop being Indians. And if they stop being Indians, we won’t owe them anything. In 1908, the Supreme Court ruled that tribes have a right to enough water to support agriculture on their reservations. And that right dated back to the establishment of those reservations, meaning that in most cases, tribes, water rights are older and more senior than any other user. In theory, tribal nations should always be first in line for water, and last in line to make cuts in times of drought. So excluding tribes from a century of Colorado River management decisions wasn’t an oversight. It was more like the states were making a bet that the genocidal tactics the federal government was engaging in in its dealings with tribes were going to work.

Heather Whiteman Runs Him: The belief was that Indian people would be sort of absorbed into mainstream America, and that, you know, there wasn’t a need to secure and preserve their rights in ways that would, you know, put them in a structurally powerful position with respect to their lands and resources going forward.

Savannah Maher: Even though the law was on their side, the burden was on tribes to insist that the law be followed.

Heather Whiteman Runs Him: You’ll see efforts by tribes to protect water rights intermittently throughout the 20th century. But you know, tribes often didn’t have access to attorneys. During those times it was often unusual for tribes to be able to hire their own attorney of their choice to pursue matters like a water rights dispute.

Savannah Maher: And in the meantime, all the water that tribes were entitled to just flowed down the river for somebody else to use for free.  And

Daryl Vigil: And you know, nobody really talks about it. Why should they because they’re benefiting from it.

Savannah Maher: The Jicarilla Apache Nation caught one lucky break, it turned out this strange, rugged piece of land that had been removed to was rich in oil and gas. Developing those resources is what allowed the tribe to bust out of survival mode and start thinking about the future. Still, it was the 90s, 70 years after the Colorado River Compact was negotiated, and 30 years after the Azotea tunnel began diverting the Navajo river. Before the nation had the resources to pursue a water settlement.  Our He knew just enough about water policy to get through the interview, and apparently enough to get the job.  It was always going to be just a brief stopping point on my way to making millions of dollars. Because that’s what it was all about. I mean, that’s what I need that was always ingrained with me about what was important. And you know, what I should be striving for and what my ambition was about it was about money. And, and that’s why I think, you know, my, my, my participation in my involvement in the wider water dialogue now is it’s something that I would have never imagined.  Daryl had a couple of burning bush moments early on that made tribal water work feel like a calling. One was during a trip to the Colorado River Water Users Association Conference, the first time he encountered a roomful of water managers from cities and rural farming districts around the West and realized he was on the outside looking in.

Daryl Vigil: And they call them water buffalos because our whitewater buffaloes, because that’s been traditionally who has, you know, controlled the policy of the Colorado River. And I remember they were in a conference room, and they’re all sitting around a big table, and laughing and it was pretty monochromatic. And even the age demographic was pretty old. And I was like, I felt really uncomfortable.

Savannah Maher: This drove home what he already knew that there’s a really big difference between having a legal right to Colorado River water, and having a place in the exclusive arcane system that actually manages the river.

Daryl Vigil: Because I’m like, wow, I need to get in there. And so, I shoot, I don’t know what to have me do creator again, because it’s not like me, but I grabbed the chair. I’m like, Can you scoot over. And I just squeezed in.

Savannah Maher: Since the early 2000s or so this is how some tribal leaders have claimed a role in the process by insisting on one.

Stephen Roe Lewis: We should we kind of jokingly call this this was forced inclusion, where we forced ourselves at the table.

Savannah Maher: That’s Governor Stephen Roe Lewis of the Gila River Indian Community. We heard from him last episode. He’s remembering one of the first times a handful of tribes asserted themselves this way. Back in 2016, when the basin states were drawing up a plan to share water cuts amid worsening drought. The state of Arizona’s plan involves some sacrifices from tribes that they never agreed to.

Stephen Roe Lewis: Gila River and the Colorado River Indian tribes and the Tohono O’odham Nation. We control a significant amount of water. And we were pretty much not at the table when those negotiations began. In fact, you had the federal government working and meeting with the states and already. We’re looking at ways where they could cut our water without our input.

Savannah Maher: Those three tribal nations said, Hey, you’re breaking the law, you have to include us in this process. And once the Gila River Indian Community was in the room with all those whitewater buffaloes who couldn’t agree, it made sure it was part of the solution. The community agreed to leave a significant amount of its annual allocation in Lake Mead to help shore up dwindling water levels and protect other Arizona users from painful cuts.

Stephen Roe Lewis: We were able to push forward collectively a successful plan. And if it wasn’t for the tribes in Arizona, that would not have been successful.

Savannah Maher: This is a point tribal leaders are constantly trying to drive home, including tribes and river management isn’t optional. It’s the law based on the federal government’s trust and treaty obligations. And it’s not an extra burden heaped onto an already unwieldy negotiation process. It’s part of the solution to the Colorado River crisis. Lorelai Cloud is Vice Chairman of the Southern Ute Indian tribe, which shares its southern border with the Jicarilla, Apache. She says tribal leaders come to these discussions with a different perspective. For them. Water is more than just a resource. And it’s certainly not a commodity.

Lorelei Cloud: Because tribes have a different relationship with nature. And sometimes that’s difficult for other people to understand. But I know that like for you people, we pray for our water and our environment every day. And we use the water in our ceremonies, we know that we have a spiritual mandate to protect our environment.

Savannah Maher: And culturally, Vice Chairman Cloud says indigenous leaders are comfortable with the idea of sharing and collective sacrifice for the good of the whole, something other water managers in the basin seem to really struggle with.

Lorelei Cloud: And so, whether those that inclusion is in meetings, conferences, listening sessions, roundtables, or forums, or whatever it may be, including tribes, and getting them getting them active and participating in those conversations is really, really important. Right now, we have some good momentum, again, having the indigenous voice at the table.

Savannah Maher: Vice Chairman Cloud is a leader in something called the Ten Tribes partnership. It’s a coalition of tribal nations looking to turn that momentum into a formal role for tribes in managing the Colorado River. And right now, tribes have a real opportunity to make that happen. Because the current guidelines for managing the river expire at the end of 2025.

Lorelei Cloud: I’m very optimistic that the 2026 guidelines are going to have inclusion of the indigenous voice.

Savannah Maher: I asked the Vice Chairman, what exactly would that look like? Are we shooting for equal structural inclusion? Each drive gets its own representative and its own vote in management decisions, just like the states.

Lorelei Cloud: You know, for if we’re going to, you know, think big, I would say yes. Again, because you’re you have the United States government, you have each state being represented, those are all sovereigns. So, you have 30 sovereigns within that those that respective area so they also should be included.

Savannah Maher: In the meantime, native people in the basin are living with the impact of short-sighted management decisions. They never had a stand. Remember the Colorado River Compact, that 101-year-old agreement that divides up the rivers flows, those white guys who negotiated it didn’t just exclude most of the relevant parties. They also got their math and their hydrology wrong. The river has been over allocated and over promised since 1922. And drought is driving the system to a breaking point.

Heather Whiteman Runs Him: Each tribe has a different reality in relation to the climate crisis.

Savannah Maher: Heather Whiteman Runs Him again, the law professor,

Heather Whiteman Runs Him: It is frustrating that at the time when tribes have finally secured some access to the resources needed to pursue a role in the process. Now we’re presented with this environmental catastrophe that is no fault of the tribes. Right that that’s now a limiting factor.

Savannah Maher: This is why Daryl Vigil is laser focused on that structural inclusion Lorelai Cloud was talking about. He says it’s the federal government’s responsibility to create a formal role for tribes in the management process. And until that happens…

Daryl Vigil: It’s impossible or it makes it incredibly difficult for a tribe to be able to be self-determinant in what it wants, it feels is in the best interests of its own tribe, in terms of the management of its water and an ability to use that water the way it wants to. And if we don’t have the structural inclusion in this next set of guidelines, tribal water could be a target.

Savannah Maher: So, what’s our next stop?

Daryl Vigil: Gunna go south here, so you can look and see the La Jara Lake and what’s left there. But anyways…

Savannah Maher: We pull off the paved road onto a dusty to track. What’s left of La Jara Lake is a dry field of sagebrush and wildflowers, it’s a casualty of the mega drought.  How long has this been dry for?

Daryl Vigil: A while, at least a couple of decades.

Savannah Maher: This is where Daryl is ancestors from the white Clan of the Jicarilla Apache nation made their home around the turn of the 20th century, before a Dulce was developed. And when there were under 1000 Jicarilla people left in the distance, we can see the little adobe house where his grandfather grew up.

Daryl Vigil: Fishing here and camping here was obviously you know, very special to me. And, and then I’m reminded for, you know, those images that my father talks about in terms of what that wants to look like, you know, back in the day when he was a young man, and they were growing strawberries right on either side of that bank there in Granny, getting mad at him for taking the strawberries when he wasn’t supposed to that kind of stuff. Yeah.

Savannah Maher: Daryl’s family doesn’t really hang out here anymore. His kids don’t have a connection to this place. If you ever as grandchildren, he doesn’t think they will either.

Daryl Vigil: It’s incredibly sad, because I won’t ever get to experience that again in my lifetime. You know, and I’m grateful that I got to experience it. And I’m sad for this generation that maybe the next couple generations who won’t be able to see it either. I mean, it was a beautiful thing.

Savannah Maher: I mean, it sounds like you’ve got some hope that like this won’t always look this way that it might someday look the way that it did when you were a kid.

Daryl Vigil: Yeah, absolutely. I do. And I really I love the notion of hope as a verb. And in sometimes in this environment, right now, I mean, it’s hard to generate that hope sometimes and more than ever, I It’s my opinion, that we need those things that, you know, my grandparents taught me about what we’re grounded in, in terms of who we are as a spiritual people and, and the continued development of that spirituality that we’ve been practicing for thousands of years, which is I think, you know, you know, the salvation of this planet.

Savannah Maher: The Jicarilla Apache nation has already lost control of so much of its water. Securing structural inclusion in the post 2026 Management Guidelines won’t change that. It’s a forward-looking solution meant to protect tribes hard fought allocations, while the system figures out how to live with drought, and ensure that tribal leaders can bring traditional knowledge and innovations to the table. Daryl says it’s tough, sometimes demoralizing work, but he’s grateful for the left turns in his life that brought him back to the river.

Daryl Vigil: It’s like, fly me and then it’s like, why not me? You know, for whatever reason, I’m doing this work and it’s absolutely creator driven for me because I’m the things that I’m doing are unrecognizable in terms of where I was at just you know, 13 years ago. I don’t know where I’d be. And I probably be dead. Because I was pretty morally bankrupt when I finished the casino business. So I always say the the best thing my tribe ever did for me was to fire me.

Savannah Maher: That’s it for this episode. Thanks for listening. If you like what you hear, please leave a review or share with a friend. It really helps. Next episode, what happened when big farms moved in near a small town in the desert?

Jamie Stehly: When their personal wells started to run dry, they bailed. And that’s really the big picture. That’s what we’re talking about is what happens to our town when we start to run out of water.

Savannah Maher: And how they fought back.

OUTRO

Savannah Maher: How We Survive is hosted by Amy Scott. I’m Savannah Maher I report bid and wrote this episode. With help from our production team Hayley Hershman, Lina Fansa, Courtney Bergsieker and Sophia Paliza-Carre. Our Senior Producer is Caitlin Esch. Our editor is Jasmine Romero. Sound design by Chris Julin and audio engineering by Brian Allison. Special thanks to Jon Gordon and John Fleck. Our theme music is by Wonderly. Bridget Bodnar is director of podcasts, Francesca Levy is the Executive Director. Neal Scarbrough is Vice President & General Manager of Marketplace.