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.

MacDonald: If Navajo can build casinos, it can build waterlines – Story by Kathy Helms of the Gallup Independent

MacDonald:                                                                                                                                             If Navajo can build casinos, it can build waterlines

Gallup Independent                                                           June 7, 2012

By Kathy Helms

Diné Bureau

WINDOW ROCK — If the Navajo Nation can borrow $200 million to build casinos, why would it give away the Navajo people’s future for $199 million worth of groundwater projects when it could borrow the money, build the pipelines itself and not have to answer to anybody?

That’s what former Navajo Nation Chairman Peter Mac-Donald wants to know.

“It doesn’t make sense to me at all,” he said. “You don’t have to give anything away that belongs to your people and particularly to the future generation.”

But that is exactly what Navajo will be doing if it agrees to the proposed Navajo-Hopi Little Colorado River Settlement and the two water projects it offers, he believes.

“It’s really sickening to see senators and representatives exploit the economic misery of the Navajo people, their constituents, by telling lies and saying that because these people are hauling water with a wagon, we’re going to fix it by this Senate Bill 2109. My God, that’s the kind of rhetoric they have been using over the past 100 years to steal all of Native American precious resources,”MacDonald said last week.

“Everybody hauls water in pickup trucks. How can anyone accept that without asking for an apology? It’s fraud.”

He said rather than having a picture of Dr. Adrienne Ruby and her horses and wagon in the background when U.S. Sen. Jon Kyl introduced S.2109, he should have had a big sign stating, “Help us steal more water from the Indians.”

All of these federal “socalled help for the Indians” attempts have resulted in misery and deprivation, MacDonald said, citing the Navajo-Hopi Land Dispute as example. “It’s the same kind of tactics that are being used on this settlement. ‘We’re going to fix the Indian problem. They’re not going to have to haul water anymore, blah, blah, blah, blah, blah.’ Well, a hundred years from now, it’s going to be even worse than that. We’re going to be taking our buckets down to Phoenix to get some water,” he said.

No matter what anyone says, Navajo has primary rights to all the water within the four sacred mountains, MacDonald said. “The Winters’ doctrine, and the laws that were put in place by the Supreme Court back in 1908 are still there. The Treaty of 1868 has not been changed either. All of us who are aware of these water rights fights know that over the past 100 years, western states have been trying every way they can to get Native American water rights away from Native Americans, even to the point of stealing it.”

MacDonald has written a list of recommendations on how Navajo should go about quantifying its water — something he says is not found in the settlement. Navajo should throw away the Upper and Lower Colorado River Basin Compact — “a method used by the seven states to steal our water” — and pursue litigation against the United States using Winters’ doctrine, which establishes rights prior to Arizona and New Mexico statehoods.

“The lawyers that we have say, ‘Oh, no, Congress says all the water rights litigation has to go through state court.’ That may be what it says, but Winters’ doctrine doesn’t say that. Yes, the states my try to come in and the federal judge may let them come in, but so what. It’s your lawsuit and you are going to assert water rights before the states were drawn.”

Navajo should plan to spend as much as $25 million a year to get the world’s best water rights expert to fight the United States. “For goodness sake, don’t use Window Rock lawyers,” he said.

Meanwhile, Navajo could build two or three water systems similar to Central Arizona Project. “You go get the money just like you got the money for the casino. This is your land. You said you’re sovereign. Use your sovereignty to build the water system for your people, for your nation. You’ don’t need anybody’s approval to build these water lines because you can finance it yourself,” he said.

“All the things that the government is doing here is based on treaty obligation. We don’t have to give up anything for them to build roads, to build hospitals, to build schools for us. Why are we going to give up everything for them to build a water line for us? That’s wrong, wrong, wrong. You don’t have to be a water rights expert to see that that’s wrong,” he said, adding that Navajo Generating Station and Peabody have no place in the water rights question.

Asked whether he supports a referendum on the proposed Little Colorado River settlement, MacDonald said there’s nothing wrong with a referendum, but Navajo also has elected leaders to watch out for the people’s interest. “Why should they be leaders and let the public make a decision unless there’s really two defining issues that are equally one way or the other?

“But this is not that way. This is a case where somebody has stolen 100 head of your sheep and you know where it is and who is herding that sheep with your brand and your earmark on them. The guy is saying, ‘I know this was your sheep, but it’s mine now. If you want something, if you agree not to sue me — any claim you have on these sheep, you’ve got to waive it — in return for you not to bother me, I’m going to give you one old ewe. The other 99 I’m going to keep. Leave me alone.’ That’s the situation. How could you have a referendum on something like that?

“Or to make it even worse, they want to cut the tail off one sheep and they want to give you that tail back for you to shut up forever, and they want to keep the rest of the sheep. You want a referendum on something like that?”