Important issues facing the Hopi Tribe

The following post was written and provided by Benjamin H. Nuvamsa….

There are several very important issues currently facing our tribe, but no one from the tribal administration is sharing them with our villages, traditional leaders, and tribal members.  These issues have potentially long lasting and devastating impacts on our tribe.  There are other issues that the current tribal administration is doing, or has done, but tribal members have no knowledge of them.  If you are interested and want to hear about these issues, come to the Hopi Cultural Center on Thursday at 5:00 p.m. for an evening of discussion and dialogue.  We are at a very critical juncture in the history of our tribe that I believe everybody should know what direction the current tribal administration is taking our tribe.  Some of the issues we will discuss include.

1.       Revised Senate Bill 2109 (and House Resolution 4067) “Navajo and Hopi Little Colorado River Water Rights Settlement Act of 2012”.  Despite the overwhelming rejection of this bill by our villages, leaders and tribal members, Leroy Shingoitewa & certain members of the Water & Energy Team are continuing to negotiate this legislation and the Settlement Agreement.  In fact, they are in Washington, DC this week in meetings with Department of Interior Secretary Ken Salazar and Navajo Nation officials.  We recently received a copy of proposed changes to S.2109 that Shingoitewa and his attorneys have been secretly negotiating without our knowledge and approval.  Secretary Salazar and some tribal officials have indicated they want to push this legislation for passage during the lame duck Congress (before the end of this year).  We, past elected tribal leaders, have written to the tribal council to direct Shingoitewa to cease the negotiations and comply with Resolution H-072-2012.  And I sent a letter to Secretary Salazar (with copies to Senator Akaka, Senator Kyl, Senator McCain, Assistant Secretary-Indian Affairs Washburn) that Shingoitewa and the tribal council do not have authority to negotiate and give away our water rights.

2.       Hopi LCR Water Rights Claim in the Apache County Superior Court.  There was a hearing recently in Phoenix on Hopi’s water rights claim to the Little Colorado River.  If Shingoitewa and his team continue with their negotiations of S.2109, any agreements on S.2109 by Shingoitewa may compromise the claim our tribe filed several years ago in the Apache County Superior Court (Little Colorado River Water Rights Adjudication).  What will be the impacts on our aboriginal rights, Spanish law rights, and Federal reserved rights; and what will we lose, if S.2109 is passed into law?

3.       Mishongnovi Case (Tribal Court No. 2011-CV-0023; Appellate Court No. 2012-AP-0002).  Recently the Hopi Appellate Court sent out invitations to villages and others to file Amicus Briefs in a case that may impact the traditional leadership and governance in our villages.  It is vitally important that village leaders are made aware of this issue and that they consider filing their respective Amicus Briefs on behalf of their villages.  You remember the Hopi Appellate Court issued its ruling on the Bacavi Certified Question  in February 2010.  This was an important and historic ruling for our Hopi and Tewa villages.  The Mishongnovi case could have even more significant impacts on our traditional villages.  It is really important that all villages, traditional leaders and others file their briefs to the appellate court before the deadline expires.

4.       RICO Lawsuit Settlement.  In June 1999 the Hopi tribe joined in the Navajo Nation’s lawsuit against Peabody Energy, Southern Cal Edison and Salt River Project for price fixing scheme against the tribes on coal royalties, and breach of coal leases under a law called Racketeering Influenced & Corrupt Organizations (RICO) Act.   Navajo Nation demanded a 20% royalty for its coal but ended up only with a 12.5% rate.  Under RICO, Navajo could potentially claim treble damages (three times) of up to $1.8 billion.  But in August 2011, the Navajo Nation agreed to a settlement for much less than its claim ($600.0 million claim originally filed).  Shingoitewa and Lyttle agreed to a settlement without the knowledge and approval of the Hopi tribal council and the Hopi people.  Questions remain as to: What happened to the settlement funds? What did Hopi give up by accepting the money? What were Robert Lyttle’s fees? Did Shingoitewa agree to certain waivers and release of claims against the Defendants (e.g. release of claims for over-pumping of the N-aquifer)?  The Shingoitewa administration have, so far, refused to answer these and other questions raised by Council Representative Becky Masayesva.

5.       Robert Lyttle.  The tribal council recently voted, by a secret ballot, to hire Robert Lyttle as In-House Counsel to the Hopi Tribal Council.  In doing so, they purposely overlooked a highly qualified Hopi tribal member who, along with others, applied for the job opening.  Robert Lyttle did not apply for the job but was selected by Shingoitewa’s supporters on tribal council in a secret ballot vote.  Back in May 2010, Robert Lyttle entered into a contract with Shingoitewa at a time when he was not admitted to the Arizona State Bar; and at a time when there was no “Law Firm of Robert Lyttle” (in fact, there is no Robert Lyttle Law Firm), and despite the requirement for a “law firm” in the contract he signed, and the Council Resolution the tribal council passed.  Since then, millions of the tribe’s money have gone to Robert Lyttle and his purported “law firm”.  The other attorneys who purportedly are partners or members of his “law firm” are members of other law firms.  How much money has been paid to Robert Lyttle?  What work did they perform?  Are there legal contracts between the Hopi Tribe (approved by tribal council) and all of Lyttle’s attorney friends who purportedly work in his “law firm”?  What funds were used to pay Lyttle?  We all have a right to have these, and other questions, answered by the Shingoitewa (and the Treasurer).

6.       Tribal Fiscal Year 2009 Audit.  The tribal council recently approved a Fiscal Year 2009 audit performed by Walker & Armstrong.   The audit firm has worked for the tribe for a long time and may have violated several auditing standards (rules).  They may have violated conflicts of interest rules by acting both as auditors and consultants.  In the audit report, the firm evaluated tribal investments, investment risks, investment quality, past and future investment performance.  This goes well beyond and outside the scope of the audit.  So the question is, did Walker & Armstrong violate Generally Accepted Accounting Principles, Generally Accepted Auditing Standards, and Financial Industry Regulatory Authority (FINRA)?  Walker & Armstrong was deeply involved in the former Treasurer Russell Mockta matter and tribal investments; and may have certain vested interests to continue working for (auditing) the tribe.

7.       Miscellaneous. There are several other issues, such as the APS Right-of-Way, Law & Order Code, Snow Bowl, Grand Canyon Escalade Project, Shingoitewa’s new effort to revise the Hopi Constitution, etc., that will be briefly addressed.

These are only a few issues that face our tribe.  We just want to share them with you for your information since this administration is not keeping us informed.   What you (we) do about them is entirely up to tribal members.  Thank you.

THE ARIZONA REPUBLIC: “An endless tribal water fight” by Jon Kyl and John McCain

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.

“Navajo-Hopi water deal collapses” by Shaun McKinnon

Navajo-Hopi water deal collapses

Kyl unable to close deal before retiring

by Shaun McKinnon – Jul. 23, 2012 11:30 PM  The Republic |

The collapse of a long-sought Navajo-Hopi water settlement this month represents a lost opportunity for the tribes to secure reliable water supplies and for Sen. Jon Kyl to close one last tribal deal before he leaves office in January.

Native American water controversy

Navajo lawmakers voted July 5 to reject the agreement and Kyl’s enabling legislation, which would have authorized funding for water-delivery projects. The Hopi Tribal Council on June 21 narrowly approved the settlement but voted down Kyl’s bill, a necessary component of the deal. The settlement required the approval of both tribes to move forward.

Support for the agreement eroded after Kyl introduced the bill in February. Opponents framed the deal as unfair to the tribes, claiming its central component awarded groundwater that already belonged to the reservation communities.

They also seized on a provision that offered the Navajos extra water if tribal leaders agreed to extend the land lease for a power plant near Page.

The tribes could still try to salvage pieces of the settlement, but time has nearly run out to reintroduce it in Congress, where attention is focused almost exclusively on the election.

Once Kyl retires, the tribes will lose their strongest and most knowledgeable advocate and the driving force behind many of the state’s key water deals. Without a settlement, the tribes’ claims to water would be decided in court, an option that would offer no guarantee of water and no promise of federal assistance to build pipelines, leaving thousands of people with a future of hauling water across the sprawling reservations.

“It’s very disappointing,” said Kyl, R-Ariz. “They have a water right, and they should get it. We have a responsibility to try to get it to them. I would have liked to be able to do that for the people I represent. I’m afraid this might have been their last chance.”

The Navajos and Hopis represent the largest unsettled tribal water- rights case in Arizona . The failed agreement would have satisfied claims on the Little Colorado River and resolved disputes over groundwater aquifers beneath the two reservations. Claims on the mainstem Colorado remain mired in negotiations over funding and the availability of water.

Kyl, a water attorney before being elected to the Senate, has helped broker deals with other tribes, including an agreement with the Gila River Indian Community in 2004, the largest tribal settlement in U.S. history. The Navajo-Hopi deal would have been his last as a senator.

“He was always finding a way to break the logjam,” said Dave Roberts, water-rights manager for Salt River Project, whose rights on the Salt and Verde rivers make it a player in many tribal cases, including the Navajo and Hopi deal.

“We can work on the agreements here,” Roberts said, “but if we don’t have a strong advocate, someone with the knowledge to work on it in D.C., to educate others in Congress about how things work and what the long-term benefit is, we’d be stuck.”

Like most of the tribal agreements, the Navajo and Hopi settlement included a multitude of non-Indian interests. Among them were SRP, Flagstaff , water users on the upper stretches of the Little Colorado and the Central Arizona Project, which oversees some of the water available for tribal claims.

Although the Navajo and Hopi claims focused on the Little Colorado River, the CAP brought to the table 6,411 acre-feet of mainstem Colorado water if the Navajo Nation would work to extend land and coal leases for the Navajo Generating Station.

An acre-foot is 325,851 gallons, enough to serve two families for a year in urban settings but enough to serve significantly more people on the Navajo Reservation, where water hauling keeps use low.

Power-plant provisions

The power plant, on the Navajo Reservation outside Page, provides almost all the power to move water through the CAP Canal from the Colorado River at Parker to Phoenix and Tucson . The CAP buys the power at reduced rates and would be forced to charge more for water without the plant. Its leases expire in 2019.

Kyl said there would have been no agreement without the power-plant leases. But critics of the plant, who targeted the pollution and the coal mining, used the issue to undermine the agreement, filling the audiences at public hearings leading up to the votes.

Elsa Johnson, a Navajo activist who led some of the opposition efforts, said the Tribal Council’s vote showed that ordinary people could wield as much influence as the companies that own the power plant and the coal mine near Kayenta.

“We’ve been treated like an unwanted stepchild by these corporations and other entities for far too long,” she said. “They have profited in the hundreds of millions and billions off our resources while we endure health and environmental impacts.”

Supporters of a water settlement say they’re not sure what would happen if they tried to propose a deal without the power-plant provisions.

The extra water would be off the table, but tribal leaders might be willing to advance a measure based solely on the groundwater projects and Little Colorado River claims.

An earlier settlement proposal did not include the power plant. That version addressed claims on the mainstem Colorado and called for construction of a pipeline to deliver water from the river to the reservations. When the pipeline plan was dropped because of its high cost, the Colorado River deal also fell apart. The power plant incentives were then added to bring the extra water to the table and retain support from all the parties.

“It seemed like a good majority of the ‘no’ votes on the council were because of the power-plant provision,” said Leo Manheimer, a member of the Navajo Nation Water Rights Commission, which endorsed the Little Colorado settlement.

“I think if there’s ever an opportunity to go back and see what the council would do without these provisions, that would be something we would be willing to try to work on,” he said. “But our window of opportunity is small.”

When that window closes, so will many of the advantages of settling claims out of court, Manheimer said. The rejected deal would have secured water from the Little Colorado and protected the river from further development upstream. It would have placed limits on groundwater use by cities and other non-Indian entities near the borders of the two reservations, slowing the depletion of aquifers.

Congress also could have authorized money to build delivery pipelines to Hopi villages and Navajo communities where existing wells often fail to meet demand. In some areas on the southern Navajo Reservation, shallow alluvial wells dry up during a drought, Manheimer said.

Navajo President Ben Shelly said he was disappointed by the council’s votes to reject the agreement and the legislation. He said he would have preferred to see lawmakers amend the proposal to eliminate provisions they didn’t like, but he accepted the outcome.

“The people had the opportunity to learn the details about this complex issue from the day it was brought into public,” he said in a written statement. “We didn’t hide anything. I also stood by my promise to get water infrastructure to the people. We need to get them running water, and this settlement was a good way to do so.”

Although the Hopi Tribal Council rejected Kyl’s legislation, it endorsed the settlement, and tribal officials said they were willing to work on amendments to the bill, mostly to remove the power-plant provisions.

“Those provisions have nothing to do with our settlement,” Hopi Chairman LeRoy Shingoitewa said.

Kyl seemed especially disappointed that the Navajo council didn’t leave that same door open. He said he invited the tribe to help craft amendments, but the council simply voted to reject the bill, an approach that hurt any chance to reopen negotiations with the other state interests. Pursuing the claims in court, he said, “will cost a lot of people a lot of money.”

“There will be a court decree, the tribes will ‘win’ money, but then what will they have? They will have a piece of paper that says they’re entitled to so much water. They have that now,” Kyl said. “With a settlement, they actually get the money to build projects to get water to people. That’s not going to happen if it just goes to court.”

The Hopi Tribe Fact Sheet and FAQ on Navajo-Hopi Little Colorado River Water Rights Settlement Agreement

Thanks to Micah Loma’omvaya, Chief of Staff for the Hopi Tribe, for sending me the following documents to post on BEYOND THE MESAS. Click images to download.

The Hopi Tribe Fact Sheet on LCR Settlement Agreement, July 10, 2012- Click image to download (2 pages)
Hopi Tribe LCR Settlement Agreement FAQ, May 1, 2012 – Click image to download (9 pages)

“Navajo Truth – STOP SB 2109” A group worth following on Facebook

This morning I want to direct your attention to a Facebook group called “Navajo Truth – STOP SB 2109.” It’s a group that I regularly follow (even though I’m not officially on FB) to get updated information on the proposed legislation. If you have a minute, head over to their page and join the conversation. It’s a great resource for anyone interested in this topic. Here’s  the description about the group from their page: “Working to ensure accountability and transparency for the Navajo Nation. Calling our people and friends to ACTION.”

Senator Kyl and staff deceive public

The following letter was written by Dr. Adrienne Ruby, a veterinarian who has worked on the Navajo and Hopi reservations since 1991. In her letter she argues that Senator Kyl and his staff deceived the public and misrepresented the Navajo people with the water hauling photograph that they used to introduce SB 2109 before Congress. Although Kathy Helms wrote a story about this issue in the Gallup Independent on May 22, 2012, Ruby’s recent letter provides additional context to the photograph and demonstrates yet one more level of deception surrounding this legislation.


To the honorable members of Congress and other interested parties:

I have watched the video of Senator Kyl presenting Senate Bill 2109 to Congress February 15 of this year.  In this video there is a large picture mounted on an easel behind the senator. The picture shows a horse team hitched to a wagon filled with water barrels at a hand pump well.  This picture sets the tone to his speech and reinforces his words, “Legally the Navajo Nation and the Hopi Tribes may assert to larger qualities of water but as you can see here they don’t have the means to make use of the supply in a safe and productive manner.”

The picture could be out of a history book but it isn’t. It was taken in September 2011 at the Seba Dalkai hand pump well.  It was probably the first time in 50 years that a horse drawn wagon had pulled up to that pump to fill up with water. What an opportune moment for the Senator’s staff to drive by!

The picture is not what it seems, it looks like a Navajo family filling water barrels for home use – it is a picture that brings images of an impoverished and backwards culture. In fact, the wagon and team were owned by me – a white woman. I have lived and worked on the Navajo and Hopi reservations since 1991 providing veterinary services. The wagon is recreational. In the picture I am accompanied by two Navajo friends – both are well educated and politically aware. We are on our way from my home near Seba Dalkai to Birdsprings where we are to meet up with the Ranch Ride (a revival trail ride) and continue on to the foothills of the San Francisco Peaks. We are filling the water barrels for our team.

We visited with the Senator’s staff at the water well and had a great time joking around and taking pictures. It’s not so funny now. We were used badly, the picture is a lie. The staff was aware that the wagon was recreational yet used this picture in a very different context.

The message is not only inaccurate but is degrading as well. I want to set the record straight, this is not how Navajo people live today.

Dr. Adrienne Ruby