Water deal surrenders sovereignty

May 17, 2012

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T his April hundreds of Navajo citizens gathered at chapter houses across the reservation to express their concern and opposition to the Navajo-Hopi Little Colorado River Settlement and its companion Senate Bill 2109.The passionate activism expressed at town hall meetings and protests - echoed in countless posts, photographs, and links that have erupted on the Internet - reveals Navajos' long-held dissatisfaction with how tribal government has managed their resources.

Controversy surrounding water is not new for Diné. Current events recall earlier eras when the Navajo Nation made long-term sacrifices for the benefit of outside development in the Southwest.

During the 1930s, silt carried by the Little Colorado River into the Lower Colorado River threatened to build up behind the Hoover Dam, which was constructed to supply water and electricity for development in southern California and the greater Southwest.

The U.S. Geological Survey argued that overgrazing and erosion from the Navajo Reservation was the primary cause of the silt problem. In its words, the Navajo Reservation became "Public Enemy No.1."

In the name of protecting the dam, the Bureau of Indian Affairs and the Soil Conservation Service forced Navajos to reduce their livestock - their livelihood - by half.

Like the present water issue, Navajo citizens met this measure with protests, town hall meetings, and impassioned letters to tribal authorities. Some mounted violent resistance.

The tribal Council, however, acquiesced to the demands of the federal government, strong-armed by Commissioner of Indian Affairs John Collier with the threat of withdrawal of federal dollars for reservation programs.

Like its predecessors, the current tribal Council is being strong-armed by the likes of U.S. Senator Jon Kyl and his former employer, the Salt River Project - which operates Navajo Generating Station - under threat that the Navajo Nation will be refused federal funding for groundwater development projects unless it rushes to approve the settlement and bill.

The history of Indian water law in the western U.S. tells us that this is a familiar scene for Navajos.

Established in a 1908 U.S. Supreme Court case, Winters v. United States, Winters rights hold that tribes have prior and paramount rights to all water that originates on, borders or crosses a reservation. Such rights are effective on the date of a reservation's creation by federal authority and are considered unquantifiable in order to allow for the beneficial and perpetual development of a permanent homeland.

Currently, the Shelly administration's pro-settlement position rests on the idea of unquantifiable rights to "all of the water arising on, running through, or under the Navajo Reservation." This idea is based on an unrealistic and misleading interpretation of the Winters doctrine.

Over the past 50 years, U.S. and Arizona supreme courts have progressively evaporated tribal Winters rights - one wet acre foot at a time - in the name of protecting municipal, state, federal and private economic interests.

The 2001 Gila River Adjudication is a key example of this. In the case, the court concluded that Winters rights must be determined according to a "minimal need" requirement, which sets a standard whereby claims are quantified according to the least amount of water a tribe might use in the future. Accordingly, tribal water rights must be "measured" with "sensitivity" for existing non-Indian usage in mind.

The minimal need standard is ubiquitous in the current settlement. One critical example is Navajos' entitlement to "unlimited" Coconino Aquifer groundwater. Tellingly, there is no mention of a 2004 agreement signed by former President Joe Shirley Jr. that allowed Peabody Energy to explore the Coconino Aquifer for a 6,000 acre-feet per year drawdown to operate the Black Mesa Pipeline. This figure soars above the current 1,200 acre-feet per year estimate of Peabody's Navajo Aquifer use, and would surely minimize the "unlimited" amount of Coconino Aquifer water purportedly available for Navajos' future use.

Such examples are radically at odds with the claim of unquantifiable water currently offered by the Navajo Nation Water Rights Commission, Assistant Attorney General Stanley Pollack, and the Shelly administration.

The foundation of current tribal government dates to the early 1920s when the federal government needed a central tribal political authority to authorize oil and natural gas leases. The tribal government has struggled from its inception to convince the Navajo people that it acts in their best interest, and not simply as an arm of the U.S. government or corporate interests.

Still, the interests of powerful outsiders continue to dominate Navajo politics. Criticism of the settlement and bill has come primarily from concerned Navajo citizens who are raising hard questions about this history.

The Navajo Nation - as an entity whose legal status was established through treaties that are prior and paramount to any form of 20th century governance - possesses real, enforceable power. By allowing themselves to be strong-armed once again, current tribal leaders surrender Diné sovereignty to those who have clear contempt for the power the nation holds on behalf of the People.

As observant Navajo citizens have implied, this issue begs for a radical reclamation and revitalization of Diné sovereignty for the 21st century. A good place to start would be to reject the settlement and bill as they currently stand, dismiss their architects, and demand a renegotiation of Navajo water claims according to an interpretation of the Winters Doctrine that casts Navajo rights as those that "arise without regard to equities that may favor competing water users."

Melanie K. Yazzie
Teresa Montoya
Khalil A. Johnson
Lloyd Lee
University of New Mexico
Albuquerque, N.M.

Letter writer doesn't understand river guides

Ya'tééh, I am Kinyaa'áanii Clan, born for Reed People Clan. Maternal grandparents are of the Water That Flows Together Clan, and paternal grandparents are of the Many Goats Clan.

I am from Blue Gap and Shonto, and I currently reside in Flagstaff. It is in the capacity as Grand Canyon River Guides president that I am writing to you today.

As a Diné woman, I was raised to respect and follow the fundamental concepts of the Diné culture. I have undergraduate and master's degrees in forestry from Northern Arizona University.

I have been very fortunate to have many opportunities to experience life through various institutions including the university sector, nonprofit organizations, and the commercial river industry. One of those experiences is becoming one of the few Native American licensed commercial river guides on the Colorado River, Grand Canyon and San Juan River, Utah.

As our mission states, guides strive to protect the Grand Canyon, and we will act whenever a canyon resource is threatened or the quality of the Grand Canyon experience is compromised.

The guides have been involved with many issues over the years, including uranium mining, protecting the natural quiet in the Grand Canyon, and the operation of Glen Canyon Dam.

Our most recent concern centers on the proposed Little Colorado River tramway and resort by the Navajo Nation government and their partners. Grand Canyon River Guides will be submitting our official comments of concern and opinion to the Navajo Nation government regarding this issue.

At this time, we wish to respond to Ivan Gamble's recent letter to the editor at the Navajo Times (April 5, 2012, "Times not objective in Confluence coverage") in which he stated: "The proposed development will not touch any site considered holy by any First Nation but will protect, in plain site, those areas that are currently being defiled by the Grand Canyon River Guides Association, Grand Canyon Nation Park Service, and thousands of private rafters who play at the Confluence with the Park's approval."

If Mr. Gamble took a little time to learn more about our organization, he would find that the river guides group was founded by a passionate group who wanted to express their long-term vision for the management and protection of the Grand Canyon and Colorado River because they spent so much of their lives immersed in the Grand Canyon experience.

Since its inception, this organization has educated commercial river guides and the interested public about human, natural and cultural history of the area and the continual resource management challenges facing Grand Canyon - a profoundly special place that is important to not only to park visitors but also to 11 Native American tribes who consider Grand Canyon their spiritual home.

Mr. Gamble's statement shows his lack of knowledge and respect for our organization, the park service and for the commercial river outfitters, river guides and boaters who are the caretakers of the canyon and river, and the surrounding areas.

If he hasn't yet had the opportunity, Mr. Gamble is welcome to book a commercial river trip to see their active stewardship of the Grand Canyon, their knowledge of canyon resources, and their respect for all archeological sites and areas that are culturally sensitive to Native peoples.

In fact, Grand Canyon National Park has a mandate in the commercial requirements, which requires enhanced interpretation about Native American perspectives of the Grand Canyon, specifically, "A guide must possess knowledge of American Indian perspectives on Grand Canyon resources, natural and human history, points of interest encountered, and the ability and willingness to impart this knowledge to clients."

This specific mandate gave birth to the Native voices of the Colorado River, a cultural interpretive program funded by the commercial river outfitters to educate their guides about Native American perspectives of the Grand Canyon.

This successful program involves the 11 tribes of the Grand Canyon: Havasupai, Hopi, Hualapai, Diné, Kaibab Band of Paiute Indians, Paiute Indian Tribe of Utah (representing the Shivwits Paiute), Las Vegas Paiute, Moapa Band of Paiute Indians, San Juan Southern Paiute, Yavapai-Apache (representing the White Mountain, San Carlos, Yavapai and Tonto nations), and the Pueblo of Zuni.

Additionally, Mr. Gamble should know or be reminded that the Little Colorado River corridor and confluence is very culturally and spiritually significant to the other tribes, which he and the Navajo Nation government should not discount or ignore.

The Grand Canyon is the place of emergence into this world for the Hopi and Zuni tribes. It is the homeland for the Hualapai and Havasupai peoples, and it is a living, sacred place for all affiliated tribes.

The fundamental laws of the Diné state that "it is the duty and responsibility of the Diné to protect and preserve the beauty of the natural world for future generations."

As a Diné woman, I will continue to walk the fine line between the two worlds, and follow this philosophy as much as I can.

Contrary to Mr. Gamble's assumption, Grand Canyon River Guids, commercial river outfitters, Grand Canyon National Park, private boaters and hikers (Native American or non-Native alike) care and work together to ensure the Grand Canyon and Colorado Rivers and respective tributaries and lands remain unique and natural as much as possible.

I invite Mr. Gamble to sit down with myself, Grand Canyon River Guids Executive Director Lynn Hamilton and other board members to learn more about our organization and discuss both sides of the issue.

Nikki Cooley
Grand Canyon River Guides Association
Flagstaff, Ariz.
(Hometown: Shonto, Ariz.)

Our water should not be used for cities

Water is sacred. I am very surprised our Navajo Nation president, Mr. Ben Shelly, did not explain this to (senators) Kyl and McCain on behalf of our Navajo Reservation.

Our water should not be taken and limited to us and instead to be used to benefit non-Native, southwestern towns and cities. We cannot have our water be used for swimming pools, water parks, and other water activities in the cities.

We put the Little Colorado River to use for our livestock, crops, and ceremonial purposes.

Livestock is essential. Not only do we use our livestock as food, but for clothing, rugs and blankets or for trading. All is our Navajo history, which we still carry on today.

Next, watering our crops. Crops give us our medicinal herbs and our corn. Corn, or naadaa, Navajos use for traditional ceremonies.

The corn pollen, also known as taadadiin, is used for offerings to the Holy People.

Above all, water, better known as tó to our Diné people, is used for ceremonies. Navajos use water to cleanse our people, much like blessing them.

Also, water is used for mixing our traditional herbs. Even in our creation stories, water plays a huge part in our tradition.

I speak out on behalf of the elders of the Navajo Nation whose voices are unheard and who would like to see their younger generations keep the tradition without feeling they are limited to their water.

Say no to the SB 2109.

Ashley White
Tuba City, Ariz.

Shelly, Hale don't deserve re-election

I have read the interview of Stanley Pollack ("Water attorney: We're not giving anything away," April 26, 2012) and the letter to the editor by Jaques Seronde of Flagstaff ("A response to the water lawyer," May 10, 2012) on the Little Colorado River settlement.

I agree with Seronde's position on the issue and I consider Pollack's answers as a bunch of legal mumbo-jumbo.

I agree with Seronde's argument that the Navajo Nation must first quantify its water needs and then assert its water rights based on the available water resources pursuant to the Winters Doctrine of 1908.

In the 1980s, the Navajo Nation engaged the Williams Brothers Engineering Co. of Tulsa University to begin the quantification of Navajo water resources to assert Navajo water rights based on a scientific study and data.

A new administration came to power and the $3 million study and research were put in a warehouse in Fort Defiance where they have been gathering dust to this day.

This valuable study should have been given to Diné College at Tsaile so the young Diné can study the data of Navajo water rights. Without the benefits of the Williams Brothers studies and data, we, the Navajo people, are being asked to settle our water rights without any basis as to our water rights. This rush to settlement is dead wrong and wrong, wrong.

Arizona state Rep. Albert Hale, in a letter to the editor ("Hale supports L. Colo. River settlement," May 10, 2012), has endorsed the settlement as in the best interest of the Navajo people, just as President Ben Shelly has done prior to the outcry from the Navajo people.

They both don't deserve to be re-elected. Rep. Hale is entitled to express his position as an individual and as an attorney, however, he cannot take a position as a state legislator. No state elected officials, whether as legislator or governor, has no business getting involved in federal/tribal issues.

The quantification of Navajo water rights has been put on the backburner some quarter century ago and it is sad how we, the Diné people, had played politics with one of our most precious resources when we should all be together on this issue that is the basis of our future survival.

If we are to prevail, if we are to survive, we must be together fighting for our water and other resources. We cannot afford to be divided. The aim of the mainstream society is to divide us under the well established concept of divide and conquer. It has worked in the past and it will work in the future if we become divided.

It is time to be united with one voice and one fist against all challenges to what is rightfully ours, our future, our hopes and our sovereignty.

Daniel Peaches
Kayenta, Ariz.

Apache Co. treasurer not suspended

Last week, on my way to Window Rock, I stopped at Sanders to purchase a bottle of water and I picked up a newspaper and was surprised to read the headline about the suspension of the Apache County treasurer.

I had attended the board of supervisor's special meeting a few days before and there was no such action that took place. Thereafter, I read a few other newspapers and it all alluded that the treasurer was suspended.

This is false information and I felt that clarification needs to be made so that the people don't have the wrong impression.

According to the Arizona revised statutes, only a unanimous vote by the board of supervisors on that day would put the treasurer on suspension, which in this case did not occur.

What actually took place at the board's special meeting of May 8 was the board of supervisors voted 2-1 so it was not unanimous and therefore the county treasurer was not suspended but she has the right to request for a hearing through a written request. This would give her the opportunity for due process and to obtain an attorney, which in this case is vital to address the situation.

I firmly believe in the legal system of our nation and that all men and women are created equal and that all are protected by the laws of this great country. So I would urge everyone to withhold any judgement until this matter has completed its due process.

And currently, our Apache County treasurer and her staff are hard at work because I had just stopped by their office to say "ya'at eeh" before I left.

LeNora Y. Fulton
Apache County
Window Rock, Ariz.

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