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A new Colorado law protects tribal lands in response to a contentious Durango and Southern Ute land dispute

Swimmers jump into Lake Nighthorse, a federal reservoir south of Durango. The city's options to access its water stored in the reservoir could require approval from the neighboring Southern Ute Indian Tribe under a new law meant to protect tribal land. PHOTO Jeremy Wade Shockley
Jeremy Wade Shockley
Swimmers jump into Lake Nighthorse, a federal reservoir south of Durango. The city's options to access its water stored in the reservoir could require approval from the neighboring Southern Ute Indian Tribe under a new law meant to protect tribal land.

The Colorado Sun originally published this story at 3:28 AM on June 20, 2024.

A new law, rooted in a contentious land dispute in southwestern Colorado, says municipalities that want to annex land within a reservation must get tribal approval first.

While the idea made good sense to Colorado’s lawmakers — it breezed through this year’s legislative session — the law might pose a problem for Durango. The city has contemplated plans to spur economic growth and tap water stored in Lake Nighthorse, a federal reservoir south of the city. Some of those plans could involve annexing land within reservation boundaries.

The Southern Ute Indian Tribe, which said the city’s annexation discussions were secretive and dishonest, brought the matter to the state legislature.

“These are all my community members. I really want to see the tribe be successful, the city of Durango be successful, and the private landowners (be) successful,” said Sen. Cleave Simpson, an Alamosa Republican whose district includes the Southern Ute Reservation and Durango and who was one of the bill’s prime sponsors. “I really find it unfortunate that we got to this point, and all those involved couldn’t craft a different path forward.”

Senate Bill 193, named Protect Tribal Lands from Unauthorized Annexation Act, was a late arrival to the legislative session: It was introduced on April 1, about five weeks before the session ended. But it flew through the state House and Senate with unanimous support, and on June 6, Gov. Jared Polis signed it into law, effective immediately.

Under the new law, cities and towns that want to annex land within the boundaries of a sovereign, federally recognized tribe’s reservation must first get the tribal government’s approval. Private landowners looking to manage their own affairs would not be impacted: The law is limited to annexation efforts by cities and towns.

This is a big deal to the Southern Ute Indian Tribe, a federally recognized tribe with a reservation in Colorado.

Over time, the Ute bands in the West saw the U.S. government chip away at their territory, reducing it from beyond what is now Colorado to the two reservations in the state’s southwestern corner. Federal land allotment policies, like the Dawes Act of 1887, further reduced the tribe’s land by opening it up to non-native landowners.

In 1984, Congress confirmed the boundaries of the reservation, and this state law reinforces the existing federal statutes. But because of policies like the Dawes Act, the reservation is marked by a patchwork of Native, municipal, federal and private land — and a complicated jurisdictional puzzle — within its boundary.

Southern Ute officials said Durango’s recent handling of annexation discussions continued that history, alleging the city hid or did not adequately communicate with the tribe.

An aerial view of Durango looking west toward Smelter Mountain on the left, U.S. 160/550 running toward Perins Peak and the La Plata Mountains in the background.
An aerial view of Durango looking west toward Smelter Mountain on the left, U.S. 160/550 running toward Perins Peak and the La Plata Mountains in the background.
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Josh Stephenson, Special to The Colorado Sun
An aerial view of Durango looking west toward Smelter Mountain on the left, U.S. 160/550 running toward Perins Peak and the La Plata Mountains in the background.

“On issue after issue, the city has repeatedly failed to consider the tribe’s interest in our lands, our inherent judicial authority, and our regulatory powers,” Lorelei Cloud, chairman of the Southern Ute Tribal Council, while testifying to lawmakers on April 17.

“Any attempt to annex reservation land is a violation of federal law,” she said.

Durango City Attorney Mark Morgan said it was a communication breakdown; the tribe’s allegations were fictional; and tribal officials’ decision to reach out to state lawmakers was a political strategy.

“It makes a very, very sensational argument if you go up to the legislature and say that we’re secretly trying to force annexation. That’s the language they used,” Morgan said. “That’s where the fiction is. We didn’t secretly do anything. We didn’t force anything.”

Southern Ute Reservation includes a patchwork of tribal and non-tribal lands within the reservation’s exterior boundaries.
U.S. Bureau of Reclamation, Contributed
Southern Ute Reservation includes a patchwork of tribal and non-tribal lands within the reservation’s exterior boundaries.

Contemplating development in Durango

The land dispute centers on one road, La Posta Road, which branches off Colorado 160 south of Durango’s downtown, follows the Animas River, then turns farther south before crossing into the reservation.

Durango, La Plata County, and local partners have been exploring ways to expand light industrial and business development along the road for several decades. Over time, residential development became another priority. But there’s a significant and expensive challenge: the lack of a central sewer and water system.

In 2013, the partners developed a district plan that would inform an annexation agreement if any or all of the planning area was annexed into the city. Over time, private landowners have come to the city to discuss annexing the land to obtain services, including water and sewer.

The plan makes no mention of consulting with the Southern Ute Indian Tribe, despite some of the land involved lying within the reservation’s boundaries.

Tribal officials said they expressed concerns multiple times about annexation around La Posta Road in a community notice published in the Southern Ute Drum on May 17. The city staff indicated its plans were on hold, but a Southern Ute open records request produced emails from city staff that continued to discuss annexation petitions, according to the tribe.

“The Tribe will stand firm in protecting its lands and sovereignty. We will protect the health, safety, and welfare of our tribal members and future generations,” the notice said, quoting a letter from Chairman Melvin Baker. “Your staff’s conduct has been deceitful and dishonest. The responsibility lies with you to take the necessary action to address and rectify the issue and repair the relationship with the Tribe.”

Morgan said the city was fulfilling its obligations to communicate about the annexation process with the tribe and to community members who were interested in it.

“The city felt like they were doing everything they were supposed to do to communicate with the tribe about the private landowners inside the reservation that were requesting city services, and as part of that, were requesting annexation,” Morgan said.

Accessing Lake Nighthorse

The new law could also impact Durango’s attempts to access water stored in Lake Nighthorse, a reservoir also known as the Animas-La Plata Project that can store up to 123,541 acre-feet of water.

One acre-foot roughly equals the annual use of two to three households.

The city only has space to store water in one reservoir, Terminal Reservoir, which can hold about 279 acre-feet or just over two weeks of storage, depending on demand. However, Durango has access to up to 3,800 acre-feet of water per year in Lake Nighthorse.

If Durango could access that water, it would increase the city’s storage capacity to over four months of water, according to a December 2023 analysis outlining three alternatives to draw water from the federal reservoir.

One alternative involves building a pipeline through the Southern Ute Reservation to La Posta Road, then following La Posta Road north into Durango. The analysis said this is the most expensive pipeline alternative, but it would provide an option to work with others who have water rights in Lake Nighthorse.

The Southern Ute Indian Tribe also has rights to water stored in Lake Nighthorse but has not built a pipeline system to access the supply in part because of costly fees and infrastructure costs.

The Ute Mountain Ute Indian Tribe, which also has reservation land in Colorado, is also working to access its water stored in the reservoir.

Morgan said the pipeline along La Posta Road—one of three alternatives explored in the analysis—could help the Southern Ute tribe with those access issues while also helping businesses and private landowners along the road. The other two alternatives do not involve building within the exterior boundaries of the Southern Ute Reservation.

This La Posta alternative might involve annexation discussions. The city could seek permission to cross tribal and private properties without pursuing annexation, Morgan said, but complicated jurisdictional issues related to city infrastructure would arise that could cost millions of dollars to resolve. If a security problem arose, say someone stole water from the pipeline, who would respond to that issue—Durango or the tribe?

“For the jurisdictional reasons and the security of the pipeline, that would be, you know, a reason for annexation,” Morgan said.

Durango has not chosen a plan to access its water in Lake Nighthorse. Under federal law — and now under state law as well — it will need approval from the Southern Ute Indian Tribe on any plans that involve annexation.

Morgan said there needs to be a cooling-off period before taking other steps. He was encouraged to communicate more with the tribe over records requests instead of not communicating at all.

“There’s definitely been an olive branch held out on how to start working together again,” Morgan said.

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