Posts Tagged 'Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012'

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.

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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.

SB 2109 and Sovereign Rights of Hopi Villages

Below is an email from Ben Nuvamsa, former chairman of the Hopi Tribe, that he sent to a number of Hopis (including myself) on April 25, 2012. Please note that the documents that Nuvamsa refers to are included at the bottom of this post. Many thanks to Mr. Nuvamsa for allowing me to publish his email on BEYOND THE MESAS.

Hello Everyone.

Attached is a copy of the tribal council agenda which contains Action Item No. 053-2012 and proposed council resolution that George Mase (Sipaulovi) endorsed as Chairman of the Hopi Water and Energy Team.  Also attached is a copy of the March 8, 2012 Agreement-in-Principle that attorneys for the parties have signed, including Joe Mentor on behalf of the Hopi Tribe.  Note that the Agreement says they will endeavor to support S.2109, subject to the review and approval of the governing bodies.

Remember, neither Leroy Shingoitewa, George Mase, the Hopi Water & Energy Team, nor the Hopi Tribal Council have the legal authority to commit to endorsing S.2109.  This is the sovereign right of the villages.  Only the villages have a legal and sovereign right to decide on this matter.  In addition, only four (4) villages are represented on the tribal council, leaving out the remaining villages.  None of the traditional villages are represented.

Impose on your representatives to require that Shingoitewa and Mase withdraw Action Item No. 053-2012 as it is not properly before the tribal council.  None of the villages have been consulted on this Action Item.  Also, we urge all villages to enact village resolutions or write letters to the tribal council to withdraw this Action Item as soon as possible; and instead to reject S.2109.

Signed Agreement in Principal (March 8, 2012)

Water Resolution (Action Item No. 053-2012)

Hopi Tribal Council March Agenda 2012 Second Quarter

Hopi and Navajo leaders respond to Senator Kyl’s editorial

To the editor:                                                                     April 5, 2012

We take this opportunity to respond to Arizona Senator Jon Kyl’s April 4, 2012, letter to the editor of the Arizona Daily Sun concerning Senate Bill 2109, the “Navajo and Hopi Little Colorado River Water Rights Settlement Act of 2012”, wherein he suggests that those who oppose this settlement are providing false information and leveling untrue attacks against the settlement.

The fact of the matter is that S.2109 is not an Indian water rights settlement act. It does nothing to quantify the water rights of the Navajo and Hopi tribal nations to the Little Colorado River and is in direct contravention of the Winters Doctrine. Rather, it is a backhanded approach to providing federal benefits and protections to entities that exploited the natural resources of our tribes for their own economic gain. It ensures that non-Indian corporate interests continue mining our coal and pumping our Navajo Aquifer to produce cheap electricity and deliver wet water to benefit southern Arizona, southern California and southern Nevada, under the guise of an Indian water rights settlement.

It requires the tribes to give Peabody Western Coal Company (Peabody) and the Salt River Project (SRP) and other owners of the Navajo Generating Station (NGS) tens of thousands of acre-feet of tribal water annually, without compensation. In other words, it gives NGS, a corporate entity, a federal water right. It also requires the tribes to extend the Peabody and NGS leases to 2044 without regard for past and continuing harmful impacts to our health, water supplies, water quality and damage to our precious Navajo Aquifer, as a necessary pre-condition to receiving minimal domestic water pipelines.

S.2109 requires the tribes to waive all protections against injury to water quality “from time immemorial and thereafter, forever”. It also requires the tribes to permanently waive all water rights to the Little Colorado River “from time immemorial and, thereafter, forever that are based on aboriginal occupancy of land by the (tribes) and Members of the (tribes) or their predecessors”. The settlement Senator Kyl is pushing is not “consistent with previous water settlements in New Mexico, Montana and Arizona”, as he claims.

We do agree that “it is time to set the record straight”. S.2109 is not a water rights settlement act. It is a license to continue the exploitation of our precious natural resources while threatening our tribal sovereignty. S.2109 is very dangerous for the Navajo and Hopi tribal nations and is not acceptable to members of our respective tribes.

Water is life. Water is sacred; it is central to our way of life, to our ceremonies and traditions. We must protect and preserve it for our future generations.

With all due respect,

Vernon Masayesva, Former Chairman – Hopi Tribe
Ivan Sidney, Former Chairman – Hopi Tribe
Benjamin Nuvamsa, Former Chairman – Hopi Tribe
Milton Bluehouse, Former President – Navajo Nation

Tewa Village “Save Our Water Rights” Forum – Saturday April 7, 2012

Hopi forums scheduled to address S.2109

PUBLIC EDUCATIONAL FORUMS SCHEDULED

“SAVE OUR WATER RIGHTS”

(The Truth Behind S.2109)

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Several public educational forums have been scheduled by grassroots Hopi Senom to inform tribal members on S.2109 introduced by Arizona Senator Jon Kyl (R).  DO NOT BE MISLED.  Come learn the truth about how S.2109, “Navajo and Hopi Little Colorado Water Rights Settlement Act of 2012” will affect the Hopi and Tewa Senom.  Come learn the highlights of S.2109 and how this bill may waive and extinguish our aboriginal and Federal reserved water rights to the Little Colorado River and perhaps the Lower Basin Colorado River.  Learn about the “Inherent Aboriginal Sovereignty” of our traditional villages; and how the villages own the aboriginal and federal reserved water rights – not the Hopi Tribal Council.  Learn the “Big Picture” and how this bill heavily favors non-Indian water interests like Salt River Project, Central Arizona Project, Navajo Generating Station and Peabody Coal Company, and the State of Arizona, at the expense of our tribe.

  • WEDNESDAY, March 21, 2012; 6:00 p.m. – Kykotsmovi Village Community Center
  • FRIDAY, March 23, 2012; 6:00 p.m. – Native Connections Building, 4520 North Central Avenue, Phoenix, AZ
  • MONDAY, March 26, 2012; 1:00 p.m. – Hotevilla Elderly Center
  • WEDNESDAY, March 28, 2012, 6:00 p.m. – Lower Moencopi Community Building

(Note: additional forums are being requested and scheduled)

All tribal members, religious leaders, elders, and youth, are encouraged to attend these forums to learn “The Truth Behind S.2109”.  A special invitation is extended to the Hopi Tribal Council and the Water & Energy Team so they, too, can learn the “Truth Behind S.2109”, and the potential impacts on our culture, our resources and our future.  You are welcome to provide testimony on your reaction to S.2109.  Water is so vital to our life and our culture.  Get informed and get involved!

PRESS RELEASE – Former Hopi Leaders Want Disclosure

PRESS RELEASE

Former leaders of the Hopi Tribe Object to Senator Jon Kyl’s Bill and Introduce Tribal Legislation to Reject Senate Bill 2109, the “Navajo and Hopi Little Colorado River Water Rights Settlement Act of 2012”.

Contact: Benjamin Nuvamsa, (928) 380-6677

Vernon Masayesva, (928) 255-2356

Ivan Sidney, (928) 205-5504

____________________________________________________________________

Vernon Masayesva, Ivan Sidney and Benjamin Nuvamsa, former Hopi tribal chairmen; and Clifford Qötsaquahu, and Caleb Johnson, former Hopi vice chairmen, have endorsed a Hopi Tribal Council Action Item that would require Hopi Chairman Shingoitewa to call a Special Tribal Council Meeting to listen to the testimony of the Hopi and Tewa People on the federal legislation introduced by Arizona Senator Jon Kyl (R) concerning tribal water rights. The former tribal elected leaders are echoing the concerns of tribal members over the provisions of the water settlement bill introduced by Arizona Senator Jon Kyl.

On February 14, 2012, Senator Jon Kyl (R), introduced Senate Bill, 2109, the “Navajo and Hopi Little Colorado River Rights Settlement Act of 2012”, that contains several dangerous provisions for the Hopi Tribe and which requires a permanent waiver of the Hopi Tribe’s rights to the Little Colorado River and possibly the Lower Colorado River, in exchange for municipal groundwater delivery projects for the Hopi villages.

Former Chairman Nuvamsa said: “We are in the fight of our life. Our tribal government is in the process of negotiating away what remains of our sovereignty, our precious water rights. The Hopi Tribal Council does not have the legal authority to permanently waive and extinguish our aboriginal and ancestral rights to our water. Those rights belong to our traditional villages. The aboriginal rights and powers of our traditional villages have never been, nor will they ever be delegated to the Hopi Tribal Council.”

Former Chairman Masayesva said “Hopi Chairman Shingoitewa and the Water & Energy Team are in the process of permanently waiving our traditional water rights without first consulting with, and gaining approval of our traditional villages and the Hopi – Tewa people.”

Former Chairman Sidney said “Arizona Senators Jon Kyl and John McCain are pressuring our tribal government to permanently sign away our water rights, in exchange for giving outside corporations and interests, exclusive life-of-mine leases to our remaining coal fields and all the free water they need to process the coal to make electricity and ensure the Central Arizona Project canal continues to provide water to non-Indian lands.”

Senate Bill 2109, when it becomes federal law, may permanently waive and extinguish Hopi’s rights to the waters in the Little Colorado River system and possibly the Lower Colorado River system; and will prevent Hopi from filing future claims for damages to water quality and quantity.

This means Hopi cannot file claims for damages to the Navajo Aquifer, for contamination of domestic water supplies, and for the drying of sacred Hopi springs.

“The bill contains empty promises for funding of groundwater delivery projects but exempts the federal government from liability if Congress does not provide funding for the projects. It heavily favors non-Indian interests and will give federal water rights to the Navajo Generating Station. It will ensure that Peabody Western Coal Company continue mining coal and pumping the Navajo Aquifer. If this bill becomes federal law, Hopi may permanently lose all sovereign rights or authority over its coal leases”, said former Vice Chairman Qötsaquahu.

The former Hopi tribal elected leaders said, “Water is sacred and is central to our Hopi and Tewa Way of Life; and we have a sacred covenant to protect our traditions, our ceremonies and our resources. Our ancestors occupied the Colorado Plateau, the Colorado River, and Little Colorado River basins since time immemorial so we have superior aboriginal, ancestral, federal reserved rights to the surface and subsurface waters in the river systems. We have aboriginal water rights under the 1848 Treaty of Guadalupe Hidalgo. The Kyl bill could extinguish these rights. Water rights belong to our traditional villages. These rights have never been delegated to the Hopi Tribal Council so neither Chairman Shingoitewa, the Water & Energy Team, nor the Hopi Tribal Council have the legal authority to waive these rights.”

“We want Hopi Chairman Shingoitewa to honor this request and hold a Special Hopi Tribal Council meeting immediately so that our members can have a say in this important matter. If he does not honor this request, then he will be in direct violation of the Hopi Tribe’s constitution; and we will have no option but to pursue our remedies through our courts.

“We believe it should be our traditional villages and our people, the rightful owners of water rights, who should decide on this matter and not the Hopi Chairman, the Water and Energy Team, and Hopi Tribal Council.”

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Click here for the official press release.

Hopi and Tewa Villages Own Winters Rights

[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


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© Matthew Sakiestewa Gilbert and BEYOND THE MESAS, 2009-2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Matthew Sakiestewa Gilbert and BEYOND THE MESAS with appropriate and specific direction to the original content.

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Matthew Sakiestewa Gilbert (Hopi) is Professor and Head of the Department of American Indian Studies at the University of Arizona.

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