Water rights task force member resigns

By Marley Shebala
Navajo Times

ST. MICHAELS, Ariz., October 4, 2012

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W hen Byron Huskan was selected by his community to be as an advisory group member on the Water Rights Settlement Task Force, he felt it was a chance to truly voice the concerns of the Navajo people.

But at the first public meeting of the task force meeting on Sept. 28, Huskon immediately resigned when Navajo Nation Department of Justice Deputy Attorney General Dana Bobroff requested that all members of the task force sign confidentiality statements since they would be present during executive sessions.

"I felt that it was a great honor for me but my wings were chopped so I want to express that concern and I will no longer be involved with the task force as an advisory member," said Huskan, who is one of six community members serving on the task force. "My concern is the Navajo people own the water and I wanted to work to establish that. But it appears that we're going to be going through the same scenario."

Grassroots people and organizations called for the task force so that their voices could be heard regarding the Navajo-Hopi Little Colorado River Water Rights Settlement because they believed that the executive branch was strong-arming the tribal council and people to approve the settlement. The task force is made up of nine council delegates, including Speaker Johnny Naize, and six community members, who serve as the advisory group.

Huskan said that after he read the confidentiality contract, he felt that it was closing the door on the voices of the people and his ability to represent them. He added that he believed that the door had finally opened to the people and that the council had accepted and welcomed the recommendations from the people to change the method of negotiating and settling Navajo water rights.

But, according to Huskan, nothing has changed because the executive branch is still in charge. For example, he said, Stanely Pollack, the Navajo Nation Water Rights Commission and tribal water rights attorney, is present at the meetings and will be involved with the task force.

Right now, he said, the discussion is based on the rules of the outside world because there are no Navajo-speaking attorneys involved.

"We want the attorneys to only see, think and then secure the maximum amount of Navajo water rights," Huskan said. "It seems to me that we all agree that there ought to be a method to do that, whether it is through litigation or settlement. Opportunities exist for both."

At the onset of her presentation, Bobroff said she believed that none of the task force members wanted their discussions released if it would damage the tribe's ability to get the best settlement, which is what the attorney-client privilege is all about.

The attorney-client privilege is about full disclosure between attorneys and their clients, which is legally protected and so it cannot end up in court or in the possession of the opposing parties, she explained.

For example, she said, the task force discussion will definitely include legal strategies and legal theories that in the best interest of the tribe should not end up in the hands of the Hopi tribe and other opposing parties in Arizona to use against the Navajo Nation.

And Bobroff noted the attorney-client privilege is "fragile."

If a task force member discloses information from an attorney that was disclosed during an executive session, the court could view that disclosure as a waiver of the attorney-client privilege, which means it could no longer be legally protected and could be given to third parties, which includes the opposing parties, she added.

Bobroff added that a member could also be subject to a subpoena to testify in court.

Delegates LoRenzo Bates (Nenahnezad/Newcomb/San Juan/T'iistoh Sikaad/Tse Daa K'aan/Upper Fruitland) and Jonathan Nez (Navajo Mountain/Oljato/Shonto/Ts'ah bii Kin) urged Huskan to reconsider his resignation, until after he spoke with community members, who nominated him to the task force.

Huskan put his resignation on pending status until the next task force meeting, which is scheduled for Oct. 2 at 2 p.m. at the Division of Economic Development conference room.

Advisory group member Rita Gilmore, a respected traditional practitioner, said that as she listened to the discussion, she started to analyze it and would be sharing some of her thoughts at the next meeting.

"But like Jack (Utter), this is a learning experience," Gilmore said.

She added that she did not have an immediate response to the confidentiality contract because she wanted to thoroughly review it.

Jack Utter, another advisory group member, said his greatest concern was that the Diné Water Rights' concept of the task force, which was supported by the Council when it voted down the proposed Navajo-Hopi Little Colorado River Water Rights Settlement in July, was not being used.

"The people are looking for a new beginning," he said.

The new beginning, Utter explained, involved the people being informed and replacing the Department of Justice and the Navajo Nation Water Rights Commission with Navajo water rights experts, who are hired as consultants.

The DWR asked that Resources and Development Committee Chair Katherine Benally (Chilchinbeto/Dennehotso/Kayenta) to head the task force.

Other task force members are Delegates Elmer P. Begay (Dilkon/Greasewood Springs/Indian Wells/Teesto/Whitecone), Joshua Lavar Butler (Tó Nanees Dizí), Walter Phelps (Cameron/Coalmine Mesa/Leupp/Tolani Lake/Tsídii To'ii) and Dwight Witherspoon (Forest Lake/Hardrock/Kíts'íílí/Piñon/Whippoorwill).

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