The Navajo Nation is still trying to eke out a deal on Little Colorado River water rights, although an ambitious goal of trying to get it through during Congress’ Lame Duck session is looking unlikely.
The Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012 and its companion Senate Bill 2109 caused a furor among grassroots activists on both reservations when senators Jon Kyl and John McCain unveiled it last spring. Protests across Navajo and Hopi lands culminated in a Navajo Nation Council action rejecting the bill in July.
Many Navajo and Hopi tribal members have said all along that while some of the bill’s concessions were unsavory – especially those favoring outside interests including the Navajo Generating Station and Peabody Coal – some of the benefits of the settlement are too significant to ignore. Chief among those are pipelines to bring safe, clean drinking water to parts of both reservations that are in need of it.
In fact, the executive branches of both tribes – as well as the Hopi legislative branch – were willing to make concessions to those outside interests to secure a water supply for their people.
“Everything hinges on a pipeline and safe drinking water,” said Navajo Nation President Ben Shelly, in a recent interview with Indian Country Today Media Network, “even a school. The federal government won’t fund projects that don’t have infrastructure. Water is life, quality of life, for the Navajo people.”
But without the Navajo Nation Council’s approval of a settlement, Congress is unlikely to take action to pass it. That means that Shelly and the Hopi Tribe are at the mercy of ongoing negotiations between the Interior Department and the Naa’bik’iyati’ Water Rights Task Force, appointed by the Navajo Nation Council to try to work out a better deal.
According to a letter from the task force to Interior Secretary Ken Salazar, such a deal isn’t going to come easily. Salazar has told task force members that seven of their requests are manageable. For example, the Navajo Nation can probably secure water for a major pipeline, the Navajo-Gallup Water Supply Project, without extending the Navajo Generating Station plant site lease or leasing additional coal to Peabody. And the Secretary saw no real issue with eliminating provisions in the initial settlement that required the Navajo Nation to waive claims against industries for injury to water quality. He also acquiesced to continued consultations with the tribes about sacred sites.
But he said other Navajo priorities – including a numerical quantification of its water apportionment to the Little Colorado, and authorization for the Navajo Nation to market its water outside the Navajo Nation – couldn’t be approved without revisiting the issues with non-tribal parties to the settlement agreement, like the state of Arizona.
“Despite the Department’s belief that these issues cannot be resolved quickly, the Nation would like the opportunity to meet with Arizona negotiating parties to hear directly from them on each of the Nation’s positions,” reads the letter to Salazar. The letter is written on behalf of the Naa’bik’iyati’ task force and signed by Johnny Naize, speaker of the house for the Navajo Nation.
The document also takes some swipes at the Hopi Tribe, alleging that they’ve not been forthright in talks following the settlement’s downfall.
“The Hopi Tribe has already accepted the current terms of the Navajo-Hopi Little Colorado River Water Rights Settlement and should not attempt to thwart the Navajo Nation by asking for more in the current round of talks,” the letter reads.
Attempts to reach the Hopi chairman’s office by phone and e-mail were not answered on Thursday or Friday.
Ed Becenti, a Navajo grassroots activist who has been present at many of the task force meetings, said the real sticking points on the settlement are not between the Navajos and Hopis but between both tribes and non-tribal water users.
“Most of the agreement was worked out for non-Native, non-Navajo, non-Hopi water users,” he said. “NGS, Peabody, the users down toward Phoenix and Tucson – all of those parties have access to water. When you really look at the bill, there’s hardly anything for Navajo and Hopi. It’s like, whatever’s left, you guys are entitled to it.”
Still, without a settlement, the tribes will be left to fend for their water rights in court; hearings in Maricopa County Superior Court have already begun. There, Hopis are making the case that they are the longest-running inhabitants of the land and have the most senior claims to the water.
“We believe we have far superior rights than any other negotiating party,” said Ben Nuvamsa, a former Hopi tribal chairman and a vocal opponent of SB 2109.
As for hopes of pulling negotiations back out of the courts – and getting an agreeable settlement through the Lame Duck session of Congress – Nicole Horseherder isn’t overly optimistic or especially hopeful. She’s a Navajo grassroots activist who’s been appointed to a special advisory team to the Naa’bik’iyati’ task force.
“Anything that gets through Lame Duck is not going to be representative of what the Navajo people should get,” she said. “A lot of work has to be done. We have yet to get back to that settlement agreement and rework a lot of the language in there.”
And that’s just as well, as far as Nuvamsa is concerned. He and his team of SB 2109 opponents included two other former Hopi tribal chairmen and four former tribal vice chairmen. They were united in believing that their elected officials didn’t have the authority to enter into water rights negotiations in the first place.
“I think the better effort is to get rid of 2109 and begin anew – and this time, involve the villages,” he said. “Why the rush? When this is so important to the future of our people, why is everyone rushing? Is it simply because Jon Kyl is retiring? Let him retire. Let him enjoy his retirement. We have generations and generations to come, and we’re thinking about them.”