(Bloomberg) -- For at least 60 years there were no salmon in the Umatilla River. The water that the fish needed was being drawn off by the US government and used to irrigate 45,000 acres of former desert. But the Walla Walla, Cayuse, and Umatilla tribes, who lived beside the river, had not forgotten the fish that had sustained them for centuries. They wanted them back. A 1988 act of Congress returned some water to the river. Then, in 2004, the three tribes (legally organized as the Confederated Tribes of the Umatilla Indian Reservation) hired Joe Ely to help them get the rest.

Ely, 64, is one of a handful of professional Indian water rights consultants and the only one who is himself an American Indian. “I’m going to try to obtain as much water as I can,” Ely tells his clients. “You’re going to have to deal with the conflict.” Ely learned all about conflict when he won water for his tribe, the Pyramid Lake Paiutes of Nevada. His brothers would act as bodyguards, escorting him from meetings. Now he works for other tribal nations trying to settle their water rights. “Settle” often means wresting water from White irrigators, but it also means satisfying enough stakeholders—states, cities, farmers, industry—that the majority sign on to the deal voluntarily, or under the threat of litigation.

As a conservative, an evangelical Christian, and an arch pragmatist, Ely is an outlier in Indian country. Although “water keepers” protesting the Dakota Access pipeline near the Standing Rock Reservation in 2016 received tremendous sympathy and attention, their goal, Ely points out, was negation. “Anybody can stop something,” he says. “It’s easy to stop something. It’s hard to start it and then keep it moving and get it done.” Of the hardline idealism that prevailed at Standing Rock, he says, “it sells well in Indian country, and people clap their hands, but it gets nothing done.” Ely gets things done.

A decades-long, climate change-fueled mega-drought is parching the American West. Last summer the US government declared a water shortage on the Colorado River for the first time in history. Although the situation in the Colorado basin is painful, it is settled; water users know where they stand. In many river basins, however, this is not the case, especially when rivers run through American Indian reservations. Of 325 reservations in the US, only 38 have settled their water rights. No one knows how much water the remaining tribes are entitled to, but it’s a lot.

Ely was on the Umatilla reservation in eastern Oregon in March for a meeting with Westland Irrigation District, the last major holdout in the Confederated Tribes’ settlement. As one of the tribes’ negotiators, Ely was trying to obtain Westland’s storage rights in a reservoir called McKay. Of four major irrigation districts in the basin, three had already closed, or would soon close, deals with the tribes, which had a lot to offer them. Westland, the fourth, was different, mostly because the tribes didn’t have much to offer it.

The night before their big meeting with Westland, Ely is dining at a Mexican restaurant in downtown Pendleton, Ore., with the other members of the Confederated Tribes’ water rights negotiating team: Dan Hester, the tribes’ attorney; Eric Quaempts, their natural resources director; and Kat Brigham, tribal chairwoman. Like Brigham and Quaempts, Ely’s tribe are inland fishermen who had lost their fish. At Pyramid Lake, the cui-ui (a kind of sucker fish) are coming back, thanks to the settlement Ely brokered when he was tribal chairman in the 1980s, but no one is permitted to catch them because cui-ui is an endangered species. Tribal members can eat only dead fish government scientists have harvested. “If you’re fishermen, you want to fish,” Ely says over a plate of chicken. Getting handed a dead fish isn’t the same thing.

Brigham remembers big family gatherings on tributaries of the Umatilla where, she says, “We used to catch enough fish to bring it home and eat for dinner.” But, from when Brigham was a young woman until she was a grandmother, the fish were gone. “It’s heartbreaking,” she says.

“Kat and Eric and I can remember it, but our kids can’t, and they should be able to. And our grandkids can’t, and they should be able to,” says Ely. There are some salmon in the Umatilla now, but not in abundance—not fish you can eat, which is what the tribes’ settlement aims to achieve.

According to Washat, the traditional religion of the Walla Walla, Cayuse, and Umatilla tribes, after the people were created, four things offered themselves for sustenance: fish, big game, roots, and berries. The natural world promised to take care of the people, and the people promised to take care of it. If they failed to reciprocate, the planet would become off kilter and eventually destroy itself in a ball of fire. During traditional meals, these “first foods” are bracketed with a serving of water, since nothing can survive without water.

Quaempts grew up with the first foods, but it wasn’t until he was an adult working for the tribe’s Department of Natural Resources that he realized they could also serve as a practical guide to restoring the landscape. A river that supports salmon is ecologically healthy, as is a floodplain that supports elk; foothills that support Xaws (biscuitroot); and mountains full of huckleberries.

When settlers came West, Quaempts explains, “they want to create order: straight lines, square lines, fences, irrigation ditches,” but there already was an order that just didn’t fit their value system. The water settlement is an attempt to assert the tribes’ values while not harming the European ones, which—having dominated the landscape for a century—are very difficult to undo. Overturning “long-term injustices” takes time, says Quaempts. 

“We’re losing our culture, our tradition, because some of these tributaries have no salmon,” says Brigham.

The primacy of indigenous water rights is a direct result of the forced removal of American Indians to often barren Western lands or, more frequently, the restriction of those who were already there to small patches of their former homelands. After the federal government defeated and subjugated them, it made American Indians wards of the state. In 1908 the US sued a man named Henry Winters on behalf of the Gros Ventre and Assiniboine tribes living on the Fort Belknap Reservation in Montana. It argued that, because Winters was irrigating land he owned upstream from the reservation, there wasn’t enough water left in the Milk River for the tribes’ crops and livestock. In Winters v. United States, the Supreme Court ruled that the tribes had seniority, because the 1888 statute creating their reservation predated Winters’ claim and implicitly reserved a right to water.

The case set a precedent. Since reservations were often the first claims made on Western land, the Winters decision gave many tribes the most senior water rights of all. These rights do not expire if they aren’t used, as is the case with most state-granted water rights held by settlers. Yet these “Winters rights” remain theoretical until a tribe either sues to quantify them or settles with other water users in the basin.

American Indian nations are as different from one another as nations on any other continent, and some have refused to quantify their water rights. Traditionalists don’t want to put a number on something that used to be entirely theirs. But few tribes can afford to extract and utilize their water without a settlement, and unquantified rights are difficult to defend in court. The Klamath Tribes of southern Oregon almost had a settlement in 2015 but it fell apart. Now everyone is suing everyone else. Irrigators’ water supplies are being turned off, the fish are still dying, and no one is happy. Contrast this with the recent $1.9 billion settlement dealing with water rights on the Flathead Reservation in western Montana, or the 1985 settlement that gave the Assiniboine and Sioux of the Fort Peck Reservation in northeast Montana rights to twice as much water as Los Angeles uses in a year.

As is often the case, much of the water claimed by the Umatilla tribes is being used by irrigators—farmers whose crops aren’t watered by rain. Early versions of the settlement were simple: Give the irrigators a different water source; switch them from the Umatilla River to the Columbia, only 10 miles away. This works for the three districts that lie between the Umatilla and Columbia rivers, but piping a lot of water to Westland, on the other side of the Umatilla, was too expensive. The tribes have given up on Westland’s river rights, and Ely is trying instead to acquire their right to water stored in McKay Reservoir on a tributary of the Umatilla. He is offering a smaller Columbia River pipeline in trade. Is that a fair deal?

Curtis Engbretson, Westland’s new general manager, hasn’t decided yet. Engbretson oversees a vast network of ditches that feed hundreds of center pivots, self-driving spray rigs that make the irrigated West—when seen from above—into a grid of green circles. Farmers around here grow food that Americans eat every day, such as watermelons, onions, and potatoes, as well as grass seed, sod, and cattle. In mid-March, most of Westland’s 14,700 acres were green with sprouts or brown with planting. Each acre can generate about $5,000, making Westland worth perhaps $73.5 million annually. All this revenue is generated by water that once flowed down the Umatilla River.

When he was first getting to know Ely, Engbretson said to him, “Just give us all of our water from the Columbia and we’ll sign right now.” Ely laughed and said he couldn’t do that, but if Westland wanted to fight for it, the tribe could sue and shut the river down. Engbretson was taken aback. For months the two sides butted heads, he says, but lately the posturing has fallen away and both sides say they’re making progress. “In a Zoom meeting, some people act tougher than others. Some talk the talk, and some stand off and don’t want to say anything, but in person you’re face to face. You can’t shut your screen off and hide your face and act tough,” says Engbretson, who met the tribal negotiating team in person for the first time in March.

 “They want to protect their fish, which we understand,” he says, “but they’re also understanding that we still have an obligation to deliver water.” It’s hard for farmers to fathom why anyone would take water that could grow millions of dollars-worth of food and just let it flow out to sea. A common refrain around the district is “fish are ruining irrigation,” says Engbretson, but people are slowly learning that the tribes are “not trying to take your water, they just want to have the equal rights you have.”

Average annual rainfall here is eight to 10 inches. Six months can pass without a drop, and crops start to die after three days without water. In two of the past 10 years, Engbretson’s district has had to stop providing water early because the river was low and it had used up its reservoir rights. Irrigating until October instead of August can be the difference between planting potatoes and planting wheat, between turning a profit and breaking even. The tribes have agreed to use those two dry years—some of the driest ever recorded, comparable to the 1930s Dust Bowl—as a benchmark for the settlement. Under a worst-case scenario, farmers hope to still get three-quarters of a season, but the tribes’ in-stream rights would have priority. In extremis, the fish would win.

Whatever is given or taken, lost or won in these negotiations, will be permanent. “Once we settle,” explains Quaempts, “we’re waiving our claims to any more water rights in the Umatilla basin forever. We’ll never come back and seek more water.” Even once they’ve agreed on terms, the challenge for the irrigation districts and the tribes will be to sell the deal to their constituents. The tribes will have to explain why they don’t have rights to the entire Umatilla River or all of McKay Reservoir. Engbretson will have to explain why the Columbia River pipeline isn’t bigger, and why he gave away as much of McKay as he did. The managers of the other irrigation districts will have to explain why they traded water rights from the early 1900s on the Umatilla for ones from the 1990s on the Columbia. (Answer: Columbia River water is much more abundant.)

When it comes to the changing climate, “everybody’s worried,” says Ely.

Scott Oviatt measures snowpack in the Oregon mountains for the Natural Resources Conservation Service, which issues quarterly water supply forecasts that farmers rely on. “It’s really tough to make assumptions and try to plan infrastructure—or plan anything,” he says. The NRCS bases its forecasts on the previous 30 years of snow and rainfall data, but now, “we just can’t find those simple relationships anymore.” The past can no longer be used to predict the future. It’s not just drought: Warmer temperatures turn snow to rain, leading to more flooding and extreme rainfall at unusual times. The only thing water managers can do is plan for the high highs and the low lows.

Variability aside, “What if you had climate change and no water right?” asks Quaempts. “If things do change, you’re better off with a water right.” And the settlement isn’t just about fish, it also provides ample water for municipal, industrial, and residential uses, as well as irrigation—ideally enough to power the reservation’s economy for the next century. 

Ely isn’t worried about droughts, mega- or otherwise. “There’s enough water,” he says. “There’s not enough cheap water.” The federal government built dams and delivery systems to store and move water a century ago, and it could build more if it wanted to. “In the West, we fight over cheap water,” he says.

Nevada’s Pyramid Lake was the victim of one such cheap water project. In 1905 the United States Reclamation Service began diverting a portion of the Truckee River away from the lake and out into the desert. The Reclamation Service included Paiute lands in the irrigation project, but disregarded the ecology of the lake. Like the Great Salt Lake and the Dead Sea, Pyramid Lake is a hydrological dead end. Cui-ui and Lahontan cutthroat trout evolved, similar to salmon, to live in the salty waters of the lake and spawn in the fresh waters of the Truckee River. Once the diversion began, the lake level fell by 80 feet, and both fish—onetime Paiute food staples—neared extinction.

In the mid-1980s, Ely, his wife Lu, and their two sons moved back to the Pyramid Lake reservation. Ely had been working as a cowboy in a place called Paradise Valley, but he couldn’t make a living buckarooing on the reservation and took on work for the tribe writing a Paiute language dictionary. Within two years, Ely, then a 27-year-old high school dropout, had become tribal chairman and was facing down some of the most powerful politicians in the West in a fight for the tribe’s water.

Ely’s tribe suffered a resounding initial defeat in the Supreme Court, which ruled that, because of a prior decree, the Paiutes had no in-stream water rights. Ely regrouped to pursue an Endangered Species Act suit on behalf of the cui-ui. That case went to the Supreme Court, too, but the Paiutes won: Stampede Reservoir was supposed to provide Reno and Sparks with a water supply in times of drought, but suddenly it was set aside for fish. The cities couldn’t grow without Stampede, so they called Ely in hopes of settling, as did Sierra Pacific Power. With the help of then-Senator Harry Reid (D.-Nev.), Ely forged a $65 million settlement that brought the Truckee River and the cui-ui back to Pyramid Lake.

And the irrigators? “We hammered them,” says Ely. As he tells it, the Truckee-Carson Irrigation District walked out of negotiations.

“That’s a Harry Reid lie!” fumes Ernie Schank, 72, who participated in the negotiations as a member of the irrigation district’s board, and later became its president. He insists that the district was shut out of the talks. Schank’s Mormon forbearers and thousands of others came here because water had been guaranteed, he says, but when it approved Ely’s settlement, the government broke that promise. Schank’s irrigation district lost a third of its water. Passing Kelly green alfalfa fields watered with last year’s Sierra Nevada snowpack, Schank drives his big white pickup past farmland that, stripped of its water rights, had reverted to gray desert spotted with alkali weed. “It turns your stomach,” he says. In 1994, Schank told an oral historian that, “Personally, I cannot understand how a sucker fish can take precedence over human beings, families.”

Shortly after his victory at Pyramid Lake, Ely was termlimited as chairman. He moved to Arizona to work for Stetson Engineers, the company that had provided the science for the Paiute case. Ely went on to win water rights for the Duck Valley Shoshone. He’s now working on settlements for the Coeur d’Alene Tribe, the Osage Nation, and the Round Valley Indian Tribes.

Three days after the March meeting with Westland, Eric Quaempts took some elk burgers out of the freezer, then walked up Meacham Creek. It was springlike and overcast, though snow still lay in the high hollows of the Blue Mountains. After $2 million and twelve years, the creek looked remarkably natural. The tribes had completely remade it, excavating a new bed for the stream, turning a creek that had been straightened by the railroad back into the meandering brook it had been in the 1930s.

Quaempts, who lives a few dozen feet from the creek in the house of his father and grandfather, doesn’t like the word “sustainability” beloved by Anglo-environmentalists. He prefers “reciprocity.” As in the Washat creation story, the tribes want relationships that work both ways: A healthy landscape gives, providing food. Their 1855 treaty is one of only 17 in the Pacific Northwest that codifies a right to “hunt, fish, and gather” on land beyond their reservation boundaries. The Umatilla tribes have claims in eight river basins, says Brigham. They are already monitoring huckleberries on federal land, and recently built a fish hatchery off the reservation on the Walla Walla River.

Only one other tribe has, to date, secured a legal right to off-reservation water for their fishery, but Quaempts calls the Walla Walla “ripe for litigation.” It is over-appropriated, without reservoirs, and there’s no Columbia River to bail out the irrigators. With conflict inevitable, the Confederated Tribes are in a good position to claim water and send it down the river for the fish. Without water, Quaempts says, everything the tribes are working on—restoring the ecology, their traditions, the first foods—“it just falls apart.”

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