The following letter by Larry Hamana of Upper Moencopi is one of the most well-articulated and convincing commentaries that I’ve read on Hopi water rights and SB 2109. His comment in the Preface is especially powerful:

S.2109 can be categorized as a form of genocide:  a conspiracy by outside interests and our present political leaders threatening the Hopi people’s aboriginal existence on and around the Colorado Plateau, as protected by the 1848 Treaty of Guadalupe Hidalgo; and the unconscionable and devious taking of our water, as protected by the 1908 Winters Doctrine.

We Hopis will hopefully have an opportunity to vote on whether to accept or reject SB 2109. If given the chance I will vote to reject it. Once we give up our water rights, we will never get them back. Our indigenous rights (rights to water, land, ceremonies, self-government, etc.) form the pillars of our tribal sovereignty and self-determination. No amount of money- no deal by the U.S. Government – should ever convince us to abandon our rights as Hopi people.

Matthew Sakiestewa Gilbert

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COMMENTARY

Larry Hamana, Hopi Tribal Member

(May 11, 2012)

‘A GOLD MINE ON THE COLORADO PLATEAU’

Preface

As present Hopi and Navajo political leaders and their respective Water & Energy Team, Navajo Nation Water Rights Commission and water attorneys continue to “pad and massage the pockets” of non-Hopi/-Navajo interest groups and boosting the “political egos” of AZ senators Jon Kyl and John McCain, co-sponsors of S.2109 – Navajo-Hopi Little Colorado River Water Settlement Act of 2012 – the grassroots Hopi and Dine’ people are now commanding “authentic transparency and accountability” of their leaders.

This outcry has gained momentum, been elevated and echoed throughout Hopi and Navajo country in recent weeks, gaining national and international attention in vehemently opposing S.2109.

In the meantime, Kyl’s and McCain’s version (S.2109) has advanced and been referred to the Senate Committee on Indian Affairs, and the House of Representative’s companion version (H.B. 4067) to the Subcommittee on Water & Power of the House Natural Resources Committee for review and action.

This proves Kyl and McCain are out to mercilessly ramrod their proposed bill while jeopardizing both tribes’ sovereignty and continued theft of their “superior” rights to water in the Little Colorado River and Lower Colorado River Basin systems while advocating for water rights of non-tribal interests in AZ, CA and NV.

Kyl and McCain are systemically working toward this end knowing they are circumventing established federal protocol for introducing proposed legislation to Congress, and against their own (Republican) Party’s ban on “earmarks”.

This upheaval is threatening the Hopi and Dine’ peoples’ livelihoods today and into the future and is tantamount to the U.S. government’s historical covert attempts to annihilate the Hopi people by providing our elders and ancestors with smallpox-infested blankets under the guise it was doing them a favor – to protect them from severe winter conditions.

As a result, hundreds of Hopis perished throughout the Hopi villages.  One example lies at the bottom of the Village of Old Oraibi on the northeast side of the mesa where a spot is evident to this day.

This spot below the mesa signifies where surviving villagers disposed of their loved ones’ bodies that passed from the dreaded disease, just to safeguard the remaining village population.

I can’t fathom the shock, sorrow and feeling of helplessness and imbalance that came with this experience.

S.2109 can be categorized as a form of genocide:  a conspiracy by outside interests and our present political leaders threatening the Hopi people’s aboriginal existence on and around the Colorado Plateau, as protected by the 1848 Treaty of Guadalupe Hidalgo; and the unconscionable and devious taking of our water, as protected by the 1908 Winters Doctrine.

Brief Historical Perspective

A brief history lesson, through research, reveals that in 1863, the “Arizona Territory” was born.  Already, there were two basic overarching goals to be accomplished in order for the territory to achieve statehood and be admitted into the Union:  1) to “Americanize the territory”, and 2) finding ways “to secure water and electricity for its use”.

In 1900, when AZ was still awaiting statehood, Phoenix already had a population of 5,500, growing in leaps in bounds.

Finally, on February 14, 1912 (Valentine’s Day), the AZ territory obtained statehood facing a population boom of 12,000 residing in Phoenix, within only a 12-year time span.

And, Phoenix and the State of AZ had their sights on conquering and remaking the Colorado Plateau and desert to meet their future water and electrical needs.

During the post World War II era, Phoenix’ population had increased to 250,000; then to 3 million by mid-century.

Today, based on 2010 U.S. Census Bureau data (two year’s shy of a century), the metropolis of Phoenix now boasts a 6.4 million population.

So, since 1863, every farmer, freighter, broker, railroad agent, merchant, and others were posturing to control AZ’s untamed rivers; and representatives in branches of local, county, state and federal governments wanted to see that all rivers were regulated.

At one point, AZ legislators, regulators and industry – public and private alike – also entertained the idea of importing water for especially AZ’s urban industrialized centers (Phoenix and Tucson) from the Pacific Ocean to be transported by atomic-powered plants and delivery systems.

This created controversy among free market, county and state, and federal advocates on how all parties would come together to secure their water and energy needs.  As a result, an alliance among all non-Indian stakeholders came into being.

In the 1950s and ‘60s, the exploration of our natural resources on the Colorado Plateau had already revealed it ranked among the world’s best storehouses of huge deposits of high quality fossil fuels:  coal, oil and gas, oil shale and tar sands; and water.

Early on and in order to harness water and electricity supplies from Hopi and Navajo resources to serve central and southern AZ and southern CA and NV, Phoenix energy interests led by the Salt River Project (SRP) were heading up various consortia to build a coal-fired plant in northern AZ.  And, yes, you guessed it:  the Navajo Generating Station (NGS) was born to produce their electricity.

Around the same time, the Glen Canyon Dam at Page, AZ was built to help generate electricity for AZ, and southern CA and NV.  And, the Central AZ Project (CAP) completed construction of its canal system to channel our water to central and southern AZ for domestic and industrial uses.

The Central AZ Water Conservation District, an AZ political subdivision, was created to operate the CAP, and SRP and AZ Public Service (APS) became the initial operators and regulators of electricity for AZ.

The final ingredient to producing electricity was to mine and provide our coal on Black Mesa to transport and burn at the Mojave Generating Station (MGS) at Laughlin, NV and NGS at Page.

Hopi and Navajo coal and N-aquifer water would be used to generate steam in order to produce electricity.  N-aquifer water was also used to slurry pulverized coal from the Black Mesa Mine to the MGS.  In the 1960s, Peabody Western Coal Company was born, currently known as Peabody Energy.

All the ingredients were now in place, except for compensating the Hopi Tribe and Navajo Nation for past and present uses of their coal, water and generated electricity at fair market value.  This is still the case.

“The future of Arizona’s water supply will not be in the discovery or importation of new water, but in the management of our water supply.”

Karen L. Smith, Scholar and Author, 1987

Today’s Perspective

Before I continue, I ask our present Hopi political leaders, “Where did the burden of providing water and electricity to central and southern AZ, and southern CA and NV become the inherent responsibility of the Hopi Tribe?”

Because rural and urban centers throughout AZ continue to mismanage their water and electrical supplies via runaway industrial development and growth and associated population explosions, shouldn’t it be their responsibility to find solutions to their dilemma without imposing on our federal and 1908 Winters Doctrine reserved water rights?

Theoretically, if this scenario was reversed, you can be certain these outside interests would gawk at both tribes by stating, “’Go find solutions to your own problems, and don’t come begging to us to bail you out!”

These outside conglomerates and entities need to come to terms with themselves and publicly admit they have been “robbing” us of our precious water for the past 150 years while imposing price-fixing schemes on water and electrical users; and turning their backs on the Hopi Tribe and Navajo Nation by not compensating them for the cheap use of their coal, water and generated electricity at fair market value.

Today, as these opportunists continue to profit from our resources, both tribes still lack improved and sustainable programs, services and capital projects on their reservations.  And our water and the electricity generated at the MGS and Glen Canyon Dam continue to bypass both reservations subverting other benefits to the grassroots people, villages and communities.

This is a classic example of being swindled right under our noses with more to come, thanks to Kyl, McCain, and our Hopi political henchmen and their questionable water attorneys.

Original Hopi Tribe Statement of Claimant, First Amended Statement of Claimant, Comments of the Hopi Tribe on the Preliminary Hopi Hydrographic Survey Report, Second Amended Statement of Claimant

There are volumes of history addressing the Hopi Tribe’s pending adjudication case in the Little Colorado River (LCR) basin and recently negotiating the Tribe’s claims to water rights per S.2109.  In order to not confuse the Hopi people, I’d rather summarize the factual highpoints to our “water war”.

Since 1863, non-Indian interests in AZ have been engaged in this water war through 1978 (115 years later), when Phelps Dodge Corporation finally petitioned the State of AZ “to determine the rights of ‘all water users’ in the LCR basin”.

One year later (in 1979), this matter was transferred to the Apache County Superior Court, St. Johns, AZ and designated as “The General Adjudication of all Rights to Use Water in the Little Colorado River System and Source (Civil Case No. 6417), to be adjudicated by all registered claimants as required by the AZ Department of Water Resources (ADWR).

Federal court decisions from the past have determined that state courts are the proper forum for adjudicating all federally-reserved water rights, including Indian water rights.

Subsequently, the U.S. Department of Justice (DOJ) filed water rights claims “for historic and reserved water rights to surface and groundwater in the LCR basin” including the rights of the Hopi Tribe, Navajo Nation, White Mountain Apache Tribe and the Pueblo of Zuni.

Each of the tribes also filed separate claims.  Since then, the White Mountain Apache Tribe and the Pueblo of Zuni have settled their cases.

In addition, the DOJ also filed claims on behalf of the U.S. Bureau of Land Management, Forest Service and National Park Service.  Altogether, 11,000 total claims were initially filed on behalf of some 3,000 claimants.

The Hopi Tribe ensued by filing its “Original Statement of Claimant” on November 3, 1986 (7 years from the time the civil case was transferred to the Superior Court); filing its “First Amended Statement of Claimant” on January 29, 2004; filing its “Comments of the Hopi Tribe on the Preliminary Hopi Hydrographic Survey Report” on June 30, 2009; and filing its “Second Amended Statement of Claimant” on November 13, 2009.

These collective statements and comments culminated in the Hopi Tribe’s official claims to water rights in the LCR basin.

 

All of the Hopi Reservation lies in the LCR basin.  The Hopi Tribe has purchased land within the LCR basin as provided in the “Navajo-Hopi Land Dispute Settlement Act of 1996”, as contained in the S.2109 language.  Asserting water rights in these lands is set forth in the 1996 settlement act.

Moreover, the Hopi Tribe’s pending case in the Apache County Superior Court is being “adjudicated” while S.2109 is being “negotiated” with certain non-Hopi/-Navajo claimants.

Together, along with the 1996 settlement act, they all have a real bearing on what direction the Hopi Council will take us while protecting, preserving and quantifying our comprehensive water rights into the future.

S.2109:  Navajo-Hopi Little Colorado River Water Settlement Act of 2012

The proposed S.2109 was introduced to Congress February 14, 2012 (Valentine’s Day) by Kyl and McCain, exactly “one century” from the time AZ obtained statehood.  What a coincidence!

The impetus to have Congress honor a settlement agreement and possibly legislate S.2109 come at the coattail of Kyl’s retirement from politics on January 3, 2013.  Another coincidence?

There are high suspicions by grassroots Hopis that the de facto Council, Water & Energy Team and their water attorneys have grossly failed to weigh the merits of especially the 40-page “November 13, 2009 Second Amended Statement of Claimant” and its exhibits against S.2109.

If they did, S.2109 would have never evolved, and we wouldn’t be even challenging dangerous provisos in the proposed bill.

Unfortunately for them, they went on their own tangent in entertaining S.2109, and as a result, they’re facing the consequences of their mistakes.

As professionals in our own right, we’re only pointing out the dangers of S.2109 hoping to get deserved attention, yet, we have not been directly invited into the circle to exchange meaningful dialogue and to shed light on certain harmful provisions detrimental to the Hopi people.

Recent and limited meetings conducted by Hopi Chairman LeRoy Shingoitewa, the Council and its Water & Energy Team with our people were only “token consultations”.  The information shared by their power point presentations only provided “half-truths” and didn’t provide the overall picture on all factors affecting our comprehensive water rights.

If S.2109 was to be enacted by Congress, with the support of the Council, it would forever extinguish and waive our present and future claims to our water rights in the LCR and Lower Colorado River Basin systems, water quantification/quality and tribal sovereignty; and threaten our culture, traditional values, ceremonies and religious secular affairs based on an infinite Hopi Calendar.

These aren’t the only important issues that would be impacted.  If the Council passes a resolution supporting S.2109, it would:

1)    Automatically and directly threaten and undermine the time (26 years), energy and costs spent on filing the Hopi Tribe’s “Original Statement of Claimant” in the Apache County Superior Court; and three years since the Tribe filed its “Second Amended Statement of Claimant”;

2)    Waive all liability for past, present and future damages of mined lands, destruction of the N-aquifer and impacts on the overall regional environment by the federal government, Peabody and NGS;

3)    Not guarantee a “direct congressional appropriation” for planning/designing, constructing, and operating and maintaining the proposed Hopi Groundwater Project.  That funding would be required to come through separate legislation, if Congress ever agreed to such terms;

4)    Coerce the Hopi and Navajo councils to agree that Peabody and NGS continue their operations while uncontrollably using N-aquifer water and coal from the Black Mesa and Kayenta mines, while both tribes and the federal government turn their backs to all past and ongoing destruction to Black Mesa and the surrounding environment with further destruction to the N-aquifer; and

5)    Not require the Council to prove a net benefit to U.S. taxpayers; not require the Council to undermine other programmatic funding already contained in the overall federal budget; and not require the Council to increase the national budget deficit.

Yes, and Shingoitewa and George Mase, chairman of the Council’s Water & Energy Team; Robert Lyttle, the Council’s questionable general counsel; and Joe Mentor Jr., the Council’s supposed and recently hired water attorney, are in a hurry to have the Council pass a resolution to enact S.2109.

The “proof is in the pudding”.

• On the Hopi Tribal Council March 1, 2012 Second Quarter Session Agenda/9^th Amendment, per Action Item #053-2012, Mase had already submitted said Action Item and an accompanying proposed resolution “to endorse the proposed settlement of its claims to the Little Colorado River and its sources”, which is currently pending Council action.  (Note:  The proposed resolution is poorly written and misleading, and needs a total overhaul to ensure that all Hopi rights and interests are protected.)
• On March 8, 2012, Mentor, along with Navajo Nation water attorney Stanley Pollack and 30 other non-Indian claimants to S.2109, signed a letter addressed to Kyl and McCain confirming their support for S.2109.  In the letter, the 32 signees, as counsel and representatives of the respective claimants, also advised their governing bodies (i.e., Hopi Council) would be informed of their support for S.2109, and their support would be considered, subject to review and approval of its attached exhibits.  Furthermore, the governing bodies would still be required to conduct a final review of the settlement documents and make an independent and final decision.  Let it be known that Mentor does not speak for the grassroots Hopi.
• Most recently, Hopi Vice Chairman Herman Honanie was willing to sign an Action Item to be included on the Council’s March 2012 agenda, that was received and date stamped April 3, 2012 by the Tribal Secretary’s Office.  Suspiciously enough, another date stamp indicated it was received April 16, then received and date stamped April 17 by the Office of General Counsel.

This Action Item recommended that Council: 1) explain to tribal members, including traditional leaders and practitioners, the terms and conditions of the Agreement-In-Principle and provisions of S.2109, 2) allow a forum for tribal members and practitioners to express and present their concerns to the Council relative to S.2109, 3) enact legislation that expresses the Will of The Hopi Senom, 4) prohibit any further negotiations by the Hopi Tribe, its Chairman and Water & Energy Team on S.2109 until a special hearing is conducted, 5) mandate that any and all further and separate negotiations of Tribe’s water rights be conducted with full and open disclosure and with full consultation with the Hopi Senom, and 6) not pursue further and separate water rights agreements without the formal vote of tribal members via a Voter Referendum.

It has now been 13 working days since Lyttle has sat on the Action Item signed by former chairmen Vernon Masayesva, Ivan Sidney Sr. and Benjamin Nuvamsa; and former vice chairmen Caleb Johnson, Clifford Qotsaquahu, Phillip Quochytewa and Todd Honyoama Sr.

There is absolutely no reason or logic, legally or technically, for Lyttle to hold up the Action Item from being placed on the agenda, considering it is coming directly from grassroots Hopi representatives opposing S.2109, not any tribal government arm.  Is he illegally tampering with the submittals?

Perhaps it is because he, Shingoitewa and Mase are conspiring and hoping Mase’s Action Item/resolution will be entertained and passed by the Council before the grassroots’ Action Item and resolution even come before the Council.

In any case, it is the Hopi villages that have the ultimate authority to act on water matters of this magnitude, not Lyttle, Shingoitewa, Mase, Mentor, Water & Energy Team nor the Council.  The Constitution and By-Laws of the Hopi Tribe and Hopi Tribe Ordinance 21, combined, prevent this.  In February 2010, the Hopi Appellate Court upheld the villages’ authorities, and has never been vacated.  The court’s decision was based on case law, and the rule of law.

“If you’re not at the table, you’re probably in the menu.”

Oren Lyons, Six Nations Iroquois Confederacy

11^th Session of the United Nations Permanent Forum on Indigenous Issues

New York City, May 2012

Our collective voices will no longer be suppressed by fly-by-night and arrogant Hopi politicians and attorneys, and their backers.

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