[The following letter was written by Benjamin H. Nuvamsa (Shungopavi), former Chairman of the Hopi Tribe, and Gary LaRance (Upper Moenkopi), former Chief Judge of the Hopi Tribal Court ]
February 24, 2012
Hopi and Tewa Villages Own Winters Rights
Our ancestors, the Hisat Senom, occupied the Colorado Plateau long before the coming of any other ethnic group. Anthropologists referred to us as the Anasazi, Moqui and Sinaqua. Occupation of our ancestral lands is evidenced by our ancient ruins and through documented research by anthropologists. These sites are proof of that our clans historically occupied this region before the settlement of any other people. We, Hopi Senom, practiced our traditional forms of government, ceremonies, and land and water use practices that sustained us back then and still sustain us today.
In the 1848 Treaty of Guadalupe Hidalgo, entered into between the United States and Mexico, indigenous people were recognized as having sovereign rights, including water rights. This included the Pueblos of what is now the State of New Mexico and the Hopi (Moqui). The indigenous people were deemed to be citizens of Mexico; and the United States committed, under Title VIII of the Treaty, to honor and protect the property rights of those citizens that chose to remain in the ceded territories. Some of the Pueblos of New Mexico, after proving their Mexican land grants, were successful in claiming their Guadalupe Hidalgo rights in their water rights settlements. Hopi villages also have a legitimate argument to claim their water rights under the Treaty.
Our villages existed long before the federal government established our homelands in 1882, as a federal Indian reservation, and certainly long before the formation of our modern day central tribal government. In fact, when Oliver LaFarge was sent to our reservation in 1935 by the federal government to craft a new tribal constitution, he consulted with our village Kikmom’nqwit (traditional village chiefs) on how the new tribal constitution should be developed. Our Kikmom’ngwit gave specific instructions to LaFarge to protect the sovereign powers of the villages, and only to provide limited powers to the central tribal government.
Today, our tribal constitution, adopted in 1936, recognizes the inherent, self-governing powers of our traditional villages. It outlines certain limited authorities granted to the new central tribal government by our villages. Other powers not delegated to the central government are inherent to, and remain as reserved powers of the villages. The reserved village rights include aboriginal, ancestral water rights. Recently, the Hopi Appellate Court issued its Final Answer to Bacavi Village’s Certified Question, and said that our villages always had powers called “inherent aboriginal sovereignty”.
But Hopi Chairman LeRoy Shingoitewa tried to change our village traditional and inherent powers when he and his attorney, Robert Lyttle, introduced Draft 24A as a revision to our tribal constitution. Draft 24A would have diminished, and perhaps destroyed the traditional powers of our villages by making the villages a fourth branch of the central tribal government. Some of us saw the dangers of Draft 24A and quickly went to the villages to educate tribal members of these dangers. Shingoitewa’s crazy idea was soundly defeated by tribal members in a referendum vote. Now, we find we must fight again to protect our sacred village water rights that Shingoitewa and the Water and Energy Team may have given away in the pending water rights negotiations.
The United States Supreme Court ruled in the 1908 Winters v. United States case, that when the federal government establishes an Indian reservation, it reserves sufficient quantities of water to sustain the reservation. When this case was decided, there was no central Hopi tribal government. Only the traditional villages existed, as was the case when the 1848 Treaty of Guadalupe Hidalgo was signed. Sothere is sufficient legal argument that our traditional villages own the Winters Rights and Guadalupe Hidalgo rights, not the central Hopi tribal government.
We recently learned that Shingoitewa and the Water & Energy Team agreed to allow Arizona Senator Jon Kyl to introduce Senate Bill 2109, which, if it becomes federal law, would permanently waive our water rights to the Little Colorado River. This Shingoitewa did without first consulting with the villages and the Hopi and Tewa people, much less with the Hopi Tribal Council. More importantly, he did so without having the proper legal authority and without the approval of the villages. Our tribal constitution prevents the sale, disposition, lease or encumbrance of tribal lands, or other tribal property. A water right is treated as a right to property. This means Shingoitewa and the Water & Energy Team violated our tribal constitution and violated the property (water) rights of our villages.
This action by Shingoitewa and the Water and Energy Team may also be an unconstitutional and wrongful taking of property without just compensation under federal and Hopi tribal law. The Indian Civil Rights Act of 1968 prohibits any Indian tribe from taking private property for a public use without just compensation. This means the villages would arguably have a legitimate claim for compensation against the Hopi central government and Shingoitewa for the unlawful taking of their water rights (property) if the Hopi Tribe proceeds with the water rights settlement agreement and waives the aboriginal water rights of the villages.
Our villages may assert their water rights under the following legal theories: (1) “aboriginal, ancestral” water rights derived from time immemorial when our ancestors occupied the Colorado Plateau and settled in the villages; (2) water rights granted the villages from the Spain and Mexico when these countries governed the southwest as documented in the 1848 Treaty of Guadalupe Hidalgo; and (3) water rights established under federal law, specifically the “Winters Doctrine”.
Our constitution also mandates the tribal council to protect our traditions and ceremonies. Water is sacred and is central to our Hopi way of life. As Hopi Senom, we have a sacred covenant to protect our traditions, our ceremonies and our natural resources. Important matters such as land and water are properly addressed by our traditional leaders. Just as he and his attorney did with the proposed constitution, Draft 24A, Shingoitewa continues to ignore and show his disrespect for the traditional powers of our villages and traditional leaders. He fails to recognize and understand why our ceremonies are crucial to the preservation of our culture. Neither Shingoitewa, the Hopi Water & Energy Team, nor the Hopi Tribal Council have the legal right and authority to waive our village aboriginal and Winters Rights. This is why we must stop Shingoitewa and the Water & Energy Team from further damaging and waiving the villages’ federal reserved and aboriginal water rights.
Benjamin H. Nuvamsa Gary LaRance
Former Hopi Tribal Chairman Former Chief Judge, Hopi Tribal Court
Shungopavi Village, Bear Clan Upper Moenkopi Village, Sun Clan