Abstract

Since the 1970s, negotiated settlements have become the popular method for forging agreement on water provision in the American West between Native American Tribal Nations and Federal, state and local actors. Such settlements require a negotiation process between multiple actors and led by the US Department of the Interior, followed by codification into statute by both of houses of Congress and the president. As of late 2024, 35 negotiated water settlements had been completed and implemented in this manner (Congressional Research Service, 2024. Indian Water Rights Settlements, CRS report to Congress. Washington, DC: Library of Congress). In this paper, I plumb the central tendencies of all 35 completed agreements to see which factors inform their usage and how such factors vary across agreements and over time.

In my analysis, I find the between-agreement variability to be less pronounced than expected. The language of the 35 agreements is generally similar and covers the same topics, which happen to be those addressed in the pre-legislative stage of the process when negotiating parties coordinate with a Secretary-level working group in the Department of the Interior. While generally similar, there is some variation across settlements in size/scope of the water systems and the approach to environmental matters. Water systems vary from small to massive, with all settlement coalitions being broader and more representative than the traditional iron triangles of yesteryear (yet the larger water systems typically have an even larger swath of groups involved). Environmental topics across agreements tend toward similarity, except for settlements in which an endangered or threatened species is identified, requiring more in-depth work.

While cross-settlement differences were not stark, three strong trends emerged across time. First, the amount of Federal money provided in each settlement, controlling for rising costs and water system size, increases dramatically over the time series. In addition, the typical legislative path of negotiated settlements has changed, from stand-alone bills, then to bundled packages with multiple projects, and next to attachments to massive omnibus budget bills. The third trend is the increase in the use of mandatory spending for these projects where discretionary spending has been the historical norm.