RDC wants comprehensive approach to water rights

By Marley Shebala
Navajo Times

WINDOW ROCK, Dec. 20, 2012

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The Resources and Development Committee on Tuesday directed the Navajo Nation attorney general "to proceed with litigation representing Navajo Nation claims on the Upper Colorado River."

The unanimously passed legislation, which is a couple of pages and simply a directive to the attorney, now heads to the Law and Order Committee and then to the Navajo Nation Council's Naa'bik'iyati' Committee, which has final approval or disapproval over it.

Delegate Dwight Witherspoon (Black Mesa/Forest Lake/Hard Rock/Pinon/Whippoorwill) is the sponsor and he's also an outspoken member of the Navajo Nation Water Rights Task Force.

Witherspoon said that he originated the legislation as a continuation of the position statement of the Water Rights Task Force, which called for a comprehensive settlement of all Navajo water rights.

"We need to put a claim on our water rights in the Upper Colorado River to begin the comprehensive settlement of all our water rights, he explained.

The "Position Statement of the Navajo Nation on Comprehensive Water Rights Settlement" was developed by the task force for their meeting with Secretary of the Interior Ken Salazar last month.

Salazar had asked to meet with the elected leaders of the Navajo Nation and Hopi Tribe over the revival of the defunct Navajo-Hopi Little Colorado River Water Rights Settlement in October, which he hoped would be re-introduced to Congress and approved during the lame duck session.

But Salazar's plan fell apart after a meeting between Navajo and Hopi elected leaders and Arizona stakeholders.

Salazar organized the meeting, which was held in Phoenix, for all the parties in the Little Colorado River settlement to re-negotiate the LCR agreement based on portions of the task force's position paper that he identified as doable in the short time frame of the lame duck Congressional session.

RDC's Committee Chairperson Katherine Benally (Chilchinbeto/Dennehotso/Kayenta), who is also a task force member, noted that the RDC's directive to the attorney general was actually a decision of the Council "long ago."

"As long as we continue to negotiate our water rights in a piecemeal fashion, we continue to use the rules of the outside, which is a lot of divide and conquer," Benally said. "A comprehensive settlement of all our water rights is an ideal approach."

Committee member Leonard Tsosie (Baca-Prewitt/Casamero Lake/Counselor/Littlewater/Ojo Encino/Pueblo Pintado/Torreon/Whitehorse Lake), who is not on the task force but who regularly attends task force meetings, said that the committee's unanimous vote for Witherspoon's legislation was based on the Council's desire for a comprehensive settlement.

"I, for one, see nothing wrong in tackling this issue," Tsosie said. "I regard this as the bigger fight and we need to start addressing all our water rights to the Colorado River. Otherwise we're not going to be at the negotiating table."

Tsosie sponsored the task force's position statement before the Naa'bik'iyati' Committee in November. The committee unanimously approved it.

Witherspoon said Salazar's effort to get the lame duck Congress to approve a new Little Colorado River settlement is over.

He added that some recommendations surfaced at the meeting that the task force "might entertain as a move forward and to improve leverage to settle water rights."

Witherspoon said that the next task force meeting would probably be sometime in January.

According to the position statement recommended by the task force and approved by the Naa'bik'iyati' Committee, "The Navajo people (Diné) have a strong cultural tie to water as one of the four elements of life. For the Dine, water is sacred and its value immeasurable.

"In recognition of the importance of water, the Navajo Nation supports settlement of the nation's water rights claims when the settlement is in the best interest of the Navajo Nation. The nation's water rights claims should be addressed through a comprehensive approach that maximizes the nation's aboriginal, treaty, and Winters federal reserved water rights and ensures a strong future for the Navajo people by securing water for all users necessary for a Diné permanent homeland."

Indian reserved water rights were first recognized by the U.S. Supreme Court in Winters v. United States in 1908. Under what has become known as the Winters Doctrine, when Congress reserves land (i.e., for an Indian reservation), it must also reserve water sufficient to fulfill the purpose of the reservation.

The position paper introduction is followed by "policy positions" to "guide the nation in negotiations and consideration of any water rights settlement" involved in the Little Colorado River Basin in Arizona, the Lower Basin of the Colorado River in Arizona, the Upper Basin of the Colorado River in Arizona, and the Upper Basin of the Colorado River in Utah."

Among the policy positions is that "any and all of the nation's water rights settlement should:

A. Permit marketing of Navajo Nation water outside of the Navajo Reservation,
B. Place no restrictions on taking tribally owned fee land into trust,
C. Include mandatory funding so that funds are available upon enactment,
D. Provide that construction of water delivery projects can begin upon the appropriation of funds,
E. Preserve and not waive claims for injury to water quality,
F. Require the Navajo Nation to waive only the claims of the Navajo Nation and not waive the claims of members of the nation."

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