The following editorial by Senators Jon Kyl and John McCain appeared in The Arizona Republic on August 13, 2012. The article provides a brief history of Southwest Indian water rights. It also explains their reasons why the Navajo Nation and Hopi Tribe rejected the Navajo-Hopi Little Colorado River Water Rights Settlement Act, and expresses hope that the “Indian parties” will one day agree to a resolution that will provide the people with “wet” water instead of “paper” water.
An endless tribal water fight
Navajos, Hopis opted to let a long-sought settlement slip away
by Jon Kyl and John McCain
“Whiskey is for drinking; water is for fighting.”
That aphorism, long popular among Western water folks, was the prevailing sentiment in the Southwest for the past century. From the riverbank to Congress to the courts, water users fought for water rights.
But victories were not always satisfying. The best one could hope for was a paper decree quantifying water rights. Especially for Indian tribes, what they really needed was not “paper” water but actual “wet” water.
As a result, parties began to negotiate settlements that not only resolved water claims but also included congressionally authorized funding for Indian water projects, upheld federal trust responsibilities and created certainty for non-Indian communities. Even when all the parties are working together, actually achieving a water settlement — particularly coming up with the funding — is usually very hard to do. We saw that recently with the failure of the settlement that included the Navajo Nation and the Hopi Tribe.
We’ve been asked to provide some history, briefly describe the settlement provisions, and discuss the prospect of a congressional resolution to the decades-long dispute.
The U.S. Supreme Court laid the foundation for Indian water-rights claims in 1908, when it ruled that the United States reserved water for Indian reservations. The nature and extent of those water rights, however, remained unclear. Decades of litigation ensued, with tribes, the federal government, states and numerous other claimants fighting it out at the state courthouse. In Arizona, for example, Indian and non-Indian water users have spent more than 30 years trying to resolve claims to the Gila and Little Colorado rivers — expending millions of dollars in the process. Ongoing litigation has also stifled economic growth and development for communities throughout Arizona.
In recent years, those claimants have found a better way to resolve their competing claims. The negotiated water-settlement framework allows the parties to avoid the high costs and uncertainty associated with protracted litigation, while enabling them to define the extent of their water rights and, with legislation, secure funding to put that water to productive use.
Moreover, settlement affords parties the opportunity to proactively address complex and interrelated water issues in a mutually beneficial manner. They can tailor solutions to their specific circumstances by, for example, developing plans to prevent aquifer depletions or to protect sacred springs (two concerns of the Navajos and Hopis). This is why more than two dozen tribes have opted to settle their claims rather than cede that determination to state courts.
The most recent example of such a settlement involves the White Mountain Apache Tribe, which worked with stakeholders to craft an agreement that will provide its Fort Apache Reservation with a reservoir and drinking-water infrastructure while enabling non-Indian parties to better plan for their water future without the high cost of continued litigation against the tribe. The legislation implementing that settlement was enacted into law in 2010.
Likewise, the Navajo Nation and the Hopi Tribe opted to negotiate with the federal government, Arizona and numerous state parties to resolve their water claims. The initial effort centered on both the Colorado River and the Little Colorado River. While we all would have preferred a settlement for both rivers, the Colorado portion ultimately proved too costly in this fiscal climate, so the settlement focused on the Little Colorado only.
The parties’ representatives negotiated both a settlement agreement and legislation that would have recognized and satisfied the tribes’ claims to the Little Colorado River, placed limits on non-Indian water uses, reserved 27,089 acre-feet of water for a future Colorado River settlement and provided more than $350million in funding for three drinking-water projects to serve the Navajo and Hopi people.
Unfortunately, both tribes voted not to proceed with the legislation. There seemed to be three reasons. First, some objected to the fact that we introduced the legislation before formal approval by the parties — but that is standard practice and was agreed to by the parties’ representatives. The object was to protect our place in the legislative queue pending formal approval of the agreement by each party. Given the limited time available this year to request hearings and move the bill, we believed this was prudent, and we assured the parties that formal approval by all parties — including the Navajo Nation and the Hopi Tribe — had to occur before we would move forward in Congress.
A second concern centered on the inclusion of a provision involving Navajo Generating Station in order to provide the Navajo Nation the option of securing Central Arizona Project water for the significant population in and around Window Rock. Without that option, the additional water would not be available until the Navajo Nation resolved its claim to the Colorado River. We believed it was important to find a way to get water to Window Rock, and after a lot of work, the parties, including Navajo and Hopi representatives, crafted that provision. But their tribal councils identified it as one of the reasons they opposed the settlement legislation.
Finally, it appears that some believed the tribes would be better off litigating their claims in state court, notwithstanding the financial drain of protracted litigation and the fact that litigation produces no funding for projects to put the water to use.
While we respect the Navajo and Hopi councils’ decisions, we regret that they have closed the already narrow window of opportunity to pass legislation this year. With tight fiscal constraints in Washington, we see little prospect for settling their claims with supporting legislation in the foreseeable future. We will, of course, continue to work with all the parties. We particularly hope the Indian parties choose to pursue a resolution that will allow them to achieve not just water rights on paper, but to actually secure “wet” water for their people.
Jon Kyl and John McCain represent Arizona in the U.S. Senate.