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.

“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.

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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

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?”

Former Navajo Nation President Peter MacDonald on SB 2109

[UPDATE April 12, 2012: For a reason unknown to me, “This video has been removed by the user.” I’ve looked around on-line, but I’m unable to find the video through a different source. If anyone comes across the video, please let me know in the “Comments” section of this post]

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

Nuvamsa letter to Hopi Tribal Council and PowerPoint to “Water is Life” forum

Peabody Coal Leases PowerPoint / Nov 12, 2011 / Click to download (24 pages)

                                                                                               November 14, 2011

Honorable Hopi Tribal Council Members:

Enclosed is a copy of a presentation on Peabody Coal Leases that was presented at our recent “Water is Life” forum on November 12, 2011, held at the Hopi Veterans’ Memorial Center.

As you may know, the Hopi Tribe and Navajo Nation entered into three separate leases with Sentry Royalty Company (predecessor to Peabody Western Coal) beginning in the mid-1960’s. The Navajo Nation has a “Navajo Exclusive” lease (No. 8580) and shares another lease with the Hopi Tribe (No. 9910). Peabody pays 12.5% of monthly gross realization (royalty) on Lease 8580 to Navajo; and pays 6.25% monthly gross realization to both Hopi and Navajo under Lease 9910. The leases now provide for renegotiation every ten years, referred to as “Lease Reopener”. Lease 9910 has not been formally approved by Hopi although it was due for renewal in 2007. Navajo approved its portions in April 2011.

Coal from the Black Mesa Mine was dedicated to the Mohave Generating Station (MGS), but MGS shut its operations in 2005. Today, very little if any mining is occurring in the Black Mesa Mine area. Coal mined on the Kayenta Mine area is delivered to NGS and royalties are shared by the two tribes under Lease 9910 Lease; and Navajo receives all royalties under is lease, No. 8580.

Since the inception of the leases, Peabody Coal has not paid Hopi and Navajo at current fair market prices for the coal it mined and the water it pumped for mining operations. During its heyday, Peabody pumped over 3.3 million gallons each day from our precious Navajo Aquifer to slurry coal, over 275 miles from Black Mesa to MGS in Laughlin, Nevada. Since it began mining, Peabody mined over 400 million tons of coal from the Black Mesa and Kayenta mines.

If you review the leases, you will find the leases provided only for leasing of surface acres. No consideration was made on the value of the massive coal and water deposits that were the subject of the leases. No appraisals or valuation of the coal and water deposits were made to determine the fair market value of these resources. As a result, the tribes lost millions, if not billions, of revenues since the inception of the leases. Yet, by virtue of the leases, Peabody obtained exclusive subsurface rights to our vast deposits of coal and water without paying a dime for them. We (the tribes and the federal government) allowed Peabody to build a considerable company portfolio at our expense. This coal and water became an asset to Peabody that it would leverage for other business ventures. Tribal coal and water were “locked in” for the duration of the leases and tribes could not re-negotiate the terms of the leases, or could they leverage the resources. The leases effectively kept the tribes from diversifying their respective economies because the tribes lost control over the resources.

In a typical business scenario, a company would buy raw materials that it would use in manufacturing its products. Not so under the Peabody coal leases. The tribes received no upfront payments for the coal and water Peabody secured under the leases. Instead, tribes are compensated minimally (12.5% and 6.25% gross monthly realization) when Peabody sells the coal to NGS. Incidentally, the royalty rates were the subject of the Racketeering Influenced and Corrupt Organizations Act (RICO) which is a matter for later discussion.

Peabody and owners of NGS receive considerable benefits from the production and sale of electricity using our coal and water. Yet the tribes do not participate in the sharing of profits. See the Value Chain chart in the presentation. The chart depicts that owners of NGS (Arizona Public Service, Tucson Gas & Electric, Bureau of Reclamation, Salt River Project, Los Angeles Water & Power, and Nevada Power) are also “customers” of NGS.

Concerning tax revenues, while the Navajo Nation and the State of Arizona receive some tax revenues, the Hopi Tribe receives no tax revenues because it does not impose taxes on Peabody because of a reported covenant to not tax Peabody. In its 2005 report, Peabody reported that the Navajo Nation received over $82.9 million in various forms of taxes during the period 1986 to 2004, while the State of Arizona received over $67.5 million during the same period.

Payments made by Peabody are not commensurate with the profits they earn from our resources. Hopi only receives about $11.0 million to $13.0 million in royalties and other benefits each year from Peabody, very little, if any, of which goes to our people. But Peabody reported that its revenues rose 21% to a record $2.0 billion; and its operating profits rose 41% to $458 million for the Quarter ending June 2011. Peabody’s Chairman and Chief Executive Officer alone received a salary of $11.9 million in 2009; and its Executive Vice President and Chief Financial Officer earned $4.1 million. And the Salt River Project recently reported a profit of over 26% in 2011.

After almost 50 years of mining, we have nothing to show how the mining of our coal and the pumping of our precious Navajo Aquifer has benefited us. Simply look around. We have dilapidated infrastructure, dismal housing conditions, limited water supply, contaminated drinking water, limited scholarships, limited or no jobs, etc. Our socioeconomic conditions remain dismal while Peabody, NGS and their holding companies make significant profits from our resources. It is time to make a change in the structure of the coal leases so that our tribe, our villages, and our people can all benefit from sale of our resources:

  • Demand upfront payments for coal and water that will be the subject of the leases on an annual basis at fair market prices.
  • Increase the monthly royalties to reflect current fair market rates (instead of a minimum 12.5% and 6.25%).
  • Demand that Peabody complies with the leases and find alternative sources of water, other than using the Navajo Aquifer; and reclaim and repair the area including damages to the aquifers.
  • Limit the leases to coal and water, and exclude other “kindred” products.
  • Enact a tax ordinance and begin imposing possessory interest taxes, business activity taxes, sales taxes, fuel excise taxes, severance taxes, etc. on Peabody.
  • Hold Peabody accountable for damage done to our resources, including damages to our archaeological resources.
  • If Peabody refuses to amend its lease and agree to these conditions, seek competition to find a more responsible and accountable lessee.
  • Develop alternative uses of our resources and transition to use of alternative energy.
  • And impose on the Secretary of Interior Salazar to declare that Material Damage has occurred on Black Mesa and the Navajo Aquifer. There is clear evidence of damages done to our resources.

Benjamin H. Nuvamsa

Shungopavi Village

Former Hopi Chairman

“Water is Life” Forum – Saturday November 12, 2011

Click image to download flyer

A message from Ben Nuvamsa…

We are at a Cross Roads!  Critical issues face the Hopi Tribe and the Navajo Nation concerning our tribal water, coal, environment, our culture and our economy.  We must become informed of the big issues that will affect our tribes for hundreds of years to come.  Our tribal councils are not informed of, nor do they understand the complex issues that lie before them.  As tribal members and stakeholders, we must become educated and informed of these issues so that we can educate the elected tribal officials to make the proper and informed decisions.  This is an opportunity for everyone to share their concerns and participate in setting a direction to addressing these important issues.  We will have common issues.  How do we work together to preserve and conserve our resources for our future generations? Come and learn about these issues and express your concerns.

The attached flyer announces our forum to be held November 12, 2011, at the Hopi Veterans’ Memorial Center.  Spread the word to Hopi and Navajo citizens. Everyone is welcome.  Tribal council representatives and delegates are especially encouraged to attend.  Traditional Hopi meal will be served.

One of the most important topics to be covered concerns the recent findings by Dr. Daniel Higgins of the impacts on the N-Aquifer from years of pumping by Peabody Coal.  We will also discuss the proposed Northeastern Indian Water Rights Settlement Agreement and what provisions it contains.  There are many other important issues facing our tribes such as the Kayenta Mine Life of Mine Permit.   What does all of this mean to you?  Come learn and express your concerns.