In the Pine Valley pipeline debate, a small tribe’s right to water remains largely ignored

Pine Valley • The heat rises in a desolate Great Basin landscape, spurring dust devils to swirl bits of the dry earth into a staggering sky. The only signs of life include the occasional buzzard and roaming herd of wild horses. But traverse a few back roads rife with rock and ruts, and you’ll find the Indian Peaks Wildlife Management Area.

Here, creeks gurgle. Cottonwoods, juniper and pinyon pine sway, and the landscape supports abundant wildlife like mule deer, elk, mountain lions and songbirds.

This is the oasis Tamra Borchardt-Slayton considers home.

“One of my favorite memories of here was when I was pregnant with [my daughter],” she said. “My grandma brought me out here to collect willows to make her cradleboard, because it was significant for her to get those willows here for her first great-grandchild.”

It’s the former gathering grounds and reservation site for the Indian Peaks Band of Paiute. And it still holds an important part of her tribe’s legacy — water.

The band transferred its land to the state of Utah during a brief but dark chapter of U.S. history known as the Termination Era, when the federal government decided to no longer recognize several tribes, encouraging their members to move to cities and assimilate.

“They were essentially forced out of their homelands,” said Borchardt-Slayton, who serves as the Indian Peaks Band chairwoman.

The state continues to own the land as a wildlife management area. But the tribe never gave up its reservation’s water rights, she said.

So when Central Iron County Water came to Pine Valley looking for resources for over-tapped and rapidly growing cities, it took the Indian Peaks band by surprise. A proposed project would drill 15 wells and pipe billions of gallons of the valley’s groundwater more than 60 miles away to thirsty communities like Cedar City.

Borchardt-Slayton worries the pipeline will destroy the lush landscape in the Great Basin desert that supported her family members for hundreds of years. She’s urging the U.S. Department of Interior to cancel the project and uphold its duty to protect her band’s claim to groundwater at Indian Peaks.

“Obviously we need water,” said Borchardt-Slayton, who lives in Iron County herself. “But at what expense to an ecosystem? To the environment itself?”

The Paiute haven’t occupied or farmed the former Indian Peaks reservation in nearly 70 years. But tribal water rights aren’t forfeited due to nonuse, unlike water rights granted under state law, according to a 1908 Supreme Court ruling in Winters v. United States.

Part of the problem, as with many Native American tribes, is that the Indian Peaks Band never had its rights adjudicated, a process that quantifies how much water they’re entitled to and creates a record with the state. That means when Central Iron County Water conducted a review of groundwater available in Pine Valley, the Indian Peaks Band’s claim wasn’t on the district’s radar.

Paul Monroe, the district director, said he only learned of the Paiute band’s concerns recently.

“That’s one of those things that’s hard for somebody to look at and say, ‘You should have reached out to the Indian Peaks Band,’” Monroe said. “There is no record on the state database of the Indian Peaks Band owning water rights.”

In a draft environmental impact statement, the Bureau of Land Management notes some Paiute bands raised concerns the project would impact their unadjudicated water rights. But the document concludes no Native American lands or reservations lie within the potential effects of future drawdown.

In a 19-page comment letter Borchardt-Slayton wrote in response to the draft review, she points out the water district’s own models show its pumping will impact the water beneath the former Indian Peaks reservation, water she says the United States is supposed to hold in trust and protect for her band.

“It’s disheartening,” she said, “especially with the federal policies enacted and forced upon us — we were forced out of our homelands not once, but twice.”

First in time to use the Great Basin’s water

The concept of “first in time, first in right” or prior appropriation is the bedrock of water law in the West, meaning whoever got here first and put diverted water to good use gets priority in times of shortage. But American Indians’ history with both land and water has mostly been an afterthought, if considered at all, in the formation of the United States.

There’s plenty of evidence the Paiute used water for agriculture in the Great Basin desert, including at Indian Peaks, long before European colonists explored the area and Mormon pioneers built settlements.

The 1776 Dominguez-Escalante expedition documented “well-dug irrigation ditches” in Southern Paiute communities in present-day Utah, Arizona and Nevada, for example.

“The Mormons were just as surprised as anyone else they were growing all those crops, and with some of the same irrigation techniques they had,” said Catherine Fowler, a professor emerita of anthropology at the University of Nevada, Reno who spent decades with the Paiute.

But as emigrants with The Church of Jesus Christ of Latter-day Saints began building their own farms and towns, and appropriating water, it created a desperate situation for Indigenous people in the Great Basin.

“Their land was taken,” anthropologist Ronald Holt wrote in his book “Beneath These Red Cliffs,” “and their traditional sources of food depleted in less than twenty years.”

The various Paiute bands, including Indian Peaks, Kanosh, Koosharem, Cedar City and Shivwits, became destitute. They relied on the Latter-day Saints for charity and odd jobs, like domestic work for women and farm labor for men.

Although Paiute cheap labor became a foundational part of southern Utah’s agricultural economy, the tribe continued to face discrimination, poverty and starvation.

The U.S. Bureau of Indian Affairs officially recognized the Paiute tribe by forming the Shivwits reservation near St. George in 1891. The Indian Peaks reservation in Pine Valley came next, created by executive order in 1915, and eventually included 10,240 acres. But the Paiute had to keep working for white settlers to get by.

Children, meanwhile, were removed from their families and sent to boarding schools in an attempt to integrate them into white culture.

“The boarding schools trained them to [work in] subservient, menial jobs,” Fowler said. “Many people didn’t see their children for a long time, and that’s been going on way since the 1880s.”

Band members continue to feel the effects of separating all those families and altering their livelihoods.

“Historical trauma is still trauma inflicted and carried from one generation to the next,” Borchardt-Slayton said.

‘We didn’t want this’

On a soothing day in August, with a rare rain cloud building in the distance and the last of summer’s heat fading, Borchardt-Slayton and her husband Mike Slayton wandered the grounds, hand-in-hand, near a small pond at the former Indian Peaks reservation, as they often do. Their children, Chanel, 14, and Carver, 8, looked for bugs, lizards and fossils.

“That was our village,” Borchardt-Slayton said, pointing to a small modular building the Utah Division of Wildlife Resources appears to occasionally use as an office.

The village included five simple log houses. There’s no trace of them left.

“They relied on the pond and the fish,” Borchardt-Slayton said. “We also had an extensive farm where they grew corn. We had cattle out here.”

Having a reservation and federal recognition as an Indian tribe meant the Paiute had some land to sustain themselves and their way of life, even if that land was remote. It also meant the tribe received certain government benefits, like health care and education, although the services rendered were often marginal at best.

But only a few decades after the Indian Peaks Band gained their reservation lands and recognition, Utah Sen. Arthur Watkins went on a crusade to end tribal reliance on the federal government, apparently believing assimilation into white culture was the best cure for Native American indigence, even though the expansion of white settlement kept exacerbating Indians’ problems.

Several Utah-based Paiute bands were the first to lose their federal trustee relationships as the Termination Era began in 1954.

“We couldn’t afford to go to [Washington], D.C. and testify on our own behalf,” Borchardt-Slayton said. “… We didn’t want this. And we were eventually terminated [anyway].”

The Bureau of Indian Affairs left it to executives with Salt Lake City-based Walker Bank to manage the tribal members’ assets. Holt called it a “convoluted logic” that asserted the Paiute were both independent enough to no longer need federal aid, but also incapable of managing their own resources.

Walker Bank sold the Indian Peaks reservation to the state of Utah in November 1957 for $39,500. The bank trustee kept nearly $1,000 of the sale, the equivalent of more than $10,000 today.

“A majority of the band members didn’t understand English” or read, Borchardt-Slayton said. “… They tricked them into deeding it over.”

As part of the transaction, the Department of Fish and Game (now the Division of Wildlife Resources) allowed 26 band members to harvest one deer per person each year from the site, along with cedar posts and Christmas trees, but those “privileges” could not transfer to heirs.

Importantly, the deed notes the tribe and its successors retained the right to develop subsurface water, the crux of the band’s claim to water rights today.

The Division of Wildlife did not provide an interview for this story but did send information about the former reservation, which is now the Indian Peaks Wildlife Management Area. A spokesperson said the state does not hold any water rights on the property.

“Because this happened so long ago,” the spokesperson wrote in an email, “we don’t have the documentation to substantiate any claims of illiteracy at the time of the transaction.”

The division last issued a permit to band members for harvesting deer and trees around five years ago.

“We view the Tribe as important partners,” the spokesperson wrote, “and work to maintain a good working relationship with them.”

The federal government re-recognized the Indian Peaks band again through the Paiute Indian Tribe of Utah Restoration Act in 1980. Its subsurface and water rights were transferred to the Bureau of Indian Affairs, part of the U.S. Department of Interior, to manage in trust for the tribe once again.

‘They have blatantly been ignored for years’

The Great Basin is one of the driest places in the nation, a land slowly pulling itself apart.

The resulting cracks and faults produced a rolling system of small mountain ranges and small valleys, followed by another mountain and another valley. Pine Valley is four of these undulations over from the Wasatch Range, which supports most of Utah’s cities.

The valley caught the eye of the Central Iron County Water District nearly two decades ago when it became clear growing cities like Enoch and Cedar City used an unsustainable amount of water.

Iron County currently uses about 7,000 acre-feet more than its aquifer can naturally recharge each year, about enough water to supply 14,000 homes. Subdivisions in Enoch are sinking into the earth due to over-pumped groundwater. In 2021, the Utah Division of Water Rights enacted a groundwater management plan that compels Cedar City to address its water deficit.

For the water district, Pine Valley apparently offers a solution. After a legal spat with Beaver County, it now has rights to withdraw 15,000 acre-feet from the ground. The Bureau of Land Management, part of the U.S. Department of Interior, will need to approve plans to move that water to Iron County via a 66-mile pipeline, since it crosses lands they manage.

Critics of the Pine Valley pipeline project point to Las Vegas, which also sought groundwater from eastern Nevada valleys near Indian Peaks. But the city recently abandoned that 30-year effort, choosing instead to support its water demands with conservation. Iron County, still replete with irrigated farms, also has enough water within its own boundaries to support municipal growth, opponents say.

“It’s going to be cheaper to buy out farmers than build this pipeline,” said Kyle Roerink, executive director of the Great Basin Water Network. “They’ve always wanted to have their cake and eat it too.”

Opponents also claim the fragile Great Basin desert can’t handle the amount of pumping Iron County wants, that the aquifer is connected to a vast subsurface water system that supports springs and ephemeral waters important to tribes across the Basin and Range, possibly extending as far as the Great Salt Lake.

“The [Indian Peaks] Band has just been ignored,” Roerink said. “They have blatantly been ignored for years.”

Evaluation of the pumping project has been on hold at the district’s request since May. Monroe, the general manager of Central Iron County Water, said he needs to conduct additional study since inflation raised costs. But he expects the process to resume in the next six months or so.

“We’re trying to diversify our water portfolio here,” Monroe said. “We’ve got growth, we’ve got climate change, we’ve got local water issues and we are striving to solve these challenges.”

The Bureau of Land Management did not provide an interview, instead responding in writing to a list of questions. It said it has not completed an official response to public comments about the water pipeline that would cross its land, including from the Indian Peaks Band, due to the project’s pause.

The draft assessment for the project includes “an adaptive monitoring and mitigation plan,” the bureau wrote, which would require the water district to curtail groundwater pumping if it affects other water right holders. It’s up to the Utah Division of Water Rights to adjudicate any claims to water, the bureau added.

“It absolutely shows the pervasive nature of how difficult it is for tribes to access and utilize water they’re legally entitled to,” said Heather Tanana, a visiting professor of law at the University of California, Irvine, “and the government’s widespread failure to help the tribes do that.”

The Shivwits Band of Paiute successfully adjudicated 4,000 acre-feet through an agreement with the Division of Water Rights in 2003, with help and a $24 million payment from the federal government (most of that money went to the city of St. George to build water infrastructure). But in June of this year, the U.S. Supreme Court found the federal government did not have any obligation to secure water for the Navajo Nation on the Colorado River.

Borchardt-Slayton has deeds with explicit language about the Indian Peaks Band’s subsurface water rights, which could “maybe” put them in a stronger position, said Tanana, a Navajo citizen.

“Regardless, they still have a challenge with this vague, undefined nature of what the [federal] trust responsibility is,” Tanana said. “In the meantime, as long as a tribe’s rights are unquantified or they aren’t utilizing that water, it’s a free-for-all for everyone else to take it, with no compensation for the tribe.”

As late afternoon storm clouds moved in over the Indian Peaks Wildlife Management Area, Borchardt-Slayton and her kids packed up their picnic snacks to take the long, bumpy road back to the traffic and growing subdivisions in Iron County, where the Indian Peaks Band’s restored but much smaller reservation lies.

“We know we have rights out here,” she said of her band’s former reservation land. “You have to consult with us.”

Her band’s primary source of income is the Indian Peaks RV Park, right off Interstate 15 south of Cedar City. It’s hardly enough revenue to support a legal fight for their water claim. Still, Borchardt-Slayton said she’s considering it.

She doesn’t want Pine Valley to face a similar fate as Owens Valley, on the other side of the Great Basin, where the city of Los Angeles bought up all the water, piped it far away and sucked the valley dry. It left members of the Lone Pine Paiute-Shoshone Band choking on dust and fighting to save their environment for decades.

“They want this water, but they don’t ever think about the larger picture,” Borchardt-Slayton said. “It’s not just about trying to preserve the water rights we have. It’s preserving the land.”

Correction: This article was updated with Carver’s correct name.