Lawyers abandoning Diné water rights

FROM THE READERS, March 15, 2012

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I live in Oak Springs Chapter, on the headwaters of the Little Colorado River (Black Creek), and was raised in Cameron and Bodaway areas, along the lower Little Colorado River.

I have served as chapter officer; Council delegate from Cameron; member of the Resources Committee of the Navajo Nation Council; member and vice chairman of the Navajo Nation Water Commission; resources specialist in the Department of Agriculture; and deputy director of the Division of Natural Resources.

In these capacities, I worked with George Vlassis, Lawrence Ruzow, Stanley Pollock and others to protect and secure Navajo Nation water rights based on the Winters Doctrine and determinations of "practicably irrigable soils."

I am deeply dismayed and alarmed to see that Mr. Ruzow and Mr. Pollock evidently (1) know nothing about irrigated agriculture; and (2) are willing to abandon the quantification of water rights of the Navajo Nation agriculture in the proposed water rights "settlements."

Here are some of my principal concerns. I ask our Navajo Nation leadership and people to consider and act on what is in the very best long-term interest of our children's children's children.

There is a great deal of confusion, misunderstanding, and misinformation about the "Northeast Arizona Indian Water Rights Settlement Agreement" which was approved by the Navajo Nation Council of 88 in November 2010; and the "Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012" which is U.S. Senate legislation just introduced in February 2012 by senators Kyl and McCain.

Many people, including Navajo Nation Council delegates and community members, have recently been told or led to believe that these two - the settlement agreement and the act - are separate and unrelated.

This confusion is increased by language in the act itself, which calls the settlement agreement the "Navajo-Hopi Little Colorado River Water Rights Settlement Agreement" - not the "Northeast Arizona Indian Water Rights Settlement Agreement."

Some major unresolved concerns with the act, and with the settlement agreement which it authorizes, ratifies, and confirms, include:

  • The Navajo people were never brought fully into the discussion, into full and clear understanding of exactly what the settlement agreement and now the act will affect Navajo wet water for all uses in the future, forever. There is very great and continuing confusion at the grassroots, in tribal offices, and among the Navajo Nation Council as to exactly what is going on. This is not surprising given that the settlement agreement and the act include over 200 pages of dense legal language which almost seems designed to be confusing (e.g., the change in names).
  • The act tangles up unrelated issues which should and must be dealt with separately. Among others, the act requires the Navajo people to approve Peabody Coal Mine leases, Navajo Generating Station leases and water supplies critically important to Phoenix water users in return for very uncertain funding for pipelines to deliver drinking water to some communities.
  • The settlement agreement and the act do not quantify Navajo water rights to the Little Colorado and do not provide the Navajo people with fair compensation either for Navajo water from the Little Colorado, which has been and is now being used in Phoenix and Tucson, nor for Colorado River water which has been used for decades by the NGS.

Altogether these total over 200,000 acre-feet of Navajo water per year worth at least $1,000 per acre-foot per year in fair market value if leased, and worth at least $3,500 per acre-foot if sold outright (in Phoenix markets).

Think about that: the value of Navajo water being used by NGS, Phoenix and Tucson is some $200 million per year or some $700 million if sold outright.

If the Navajo people received full fair market value for Navajo water, there would be enough funding for all the wet water projects needed without any federal appropriations. No one is explaining this to the Navajo people.

(Perhaps the reason that "fair-market Republicans" Kyl and McCain do not want Navajo to receive fair value is because that money would have to come out of the profits of their contributors at APS, SRP and others in Phoenix and Tucson and elsewhere).

This may be the real foundation of a truly fair and just settlement agreement: compensate Navajo for some of their water now being used by others to "serve the purposes for which the reservation was established" (Winters Doctrine) in return for a fully knowledgeable waiver or release of claims to another portion of the water.

  • The settlement agreement and the act both require Navajo to waive now and forever a very long list of possible claims and water rights, including protection of water quality in return for which Navajo get some pipelines for "municipal" water.

Given that (a) the Navajo Nation is pretty clearly being coerced into agreeing to this settlement and act ("you want wet water? Agree now or it will never happen:); (b) that the facts are not being presented fully and clearly to the Navajo people; and (c) that no one knows the full extent of the rights being "waived," it is evident that this process is very close to being illegal and unethical.

So why are the nation's non-Navajo lawyers pushing so hard for this?

Also at least one of the proposed pipelines (the Gallup-Window Rock pipeline) is supposed to be filled with 4th Priority Colorado River water.

Kwaasini, that water will not be there in times of drought. The current scientific assessment is that Lakes Powell and Meade are 50 percent likely to be bone dry by the year 2021.

Quite the unpleasant surprise for some future Navajo Nation Council to find that they have no water rights left and no money for others' use of Navajo water and no wet water in the pipelines to Window Rock because the Colorado River is running low and folks in Phoenix and Tucson have priority.

So where do we go from here?

Discuss these issues fully in every chapter, so there is full understanding; acknowledge that every chapter has a right to agricultural self-sufficiency and all the water that will require; get a quantified water right with economic value and fair market value compensation for the use of Navajo water by others; develop comprehensive water use plans in every chapter and watershed - all uses; use fair market value compensation to pay for costs of providing coordinated infrastructure, capital and credit, technical assistance and education.

These will provide a strong part of the basis for a fair settlement.

Thank you very much for your attention.

Byron Huskon
Window Rock, Ariz.

Climate change, overgrazing depleting the land

The great Southwest desert is a collage of natural beauty, within this desert splendor lays Navajo land. During the last couple of years an epidemic has confronted the natural beauty around us. Part of the problem is nature taking its course and the other half is human caused.

The phenomenon we call "climate change" is for real and will manifest itself for some time unfortunately. Some problems associated with climate change include warmer temperatures and less moisture, which naturally equates to slow forage growth or lack of it.

We cannot challenge Mother Nature but we can wise up and adapt to these changing conditions.

The other culprit, a human induced catastrophe is livestock overgrazing which has grown to epic proportions here on Navajo land. This disaster can be remedied, but it will take considerable time.

When you combine the two phenomenons the results are devastating as we are witnessing now on the once beautiful range land of Dine bikeyah.

In my travels in and around the Navajo Rez, I've noticed certain areas that are severely impacted. In the Western Navajo Agency, along Highway 160 from Cow Springs the area south indicates signs of overgrazing.

From the railroad underpass where Highway 160 turns south, there is a sandy area that has developed. From here along the south corridor the area is devastated, only stubby snake weeds grow there now.

Further on, from White Mesa to Rare Metals the north corridor is depleted of grass, some spots already showing signs of drifting sand. Furthermore, Tolani Lake and Bird Springs to the southwest face similar circumstances, not to mention Many Farms and the Chinle areas.

Last fall, I took a sightseeing trip to the top of Gray Mountain on the western fringes of the Navajo Rez. While traversing the rocky terrain from the southeast slope we stopped for a short time and walked about the area. The geography is beautiful with its own distinctive character, but something was missing - the waves of swaying grass and the soft rustling vibe of Mother Nature.

Upon further investigation I found bunch grass that had been nibbled down to stubs, a small scrappy pinon tree close by I found to be depleted of its outer foliage.

Next to the dirt road a horse trail parallels the road up the plateau. We drove on further to the top and onto the south plane where we encountered our first herd of horses to the east. By the time we topped the summit in the north before heading down to Highway 64, we counted about 60 horses, mostly in herds of four or more on this stretch of road.

This overgrazing condition begs the question of accountability. On the Navajo Nation website, a proclamation reads, "The Navajo Nation Division of Natural Resources was established in 1976 to manage, protect, preserve and conserve Navajo Nation's natural and cultural resources for the benefit of the Navajo people, per guidance from the Navajo Nation Council."

So far, we've seen no positive development from the tribal government which leads me to believe that there is some squabbling within the tribal bureau of hierarchies.

All entities that are involved, including the Navajo Nation Division of Natural Resources, regional grazing committees, the Department of Agriculture, an "executive department" under the Navajo Nation president and the grazing committee need to sit down with keen and cool heads and formulate a plan to address this serious issue at hand.

In doing so, they must also re-educate the livestock owners about livestock and range management and enforce the rangeland use policy in a concerted effort to head off this disaster before the rez turns to drifting sand.

The other question that needs to be asked is where is the BIA? Do they need to be involved or better yet, should they be involved?

The majority of Navajo land is arid and fragile, but our elders were fortunate to survive through generations as a livestock culture. But now, it needs to re-evaluate its' priorities on the basis of preserving the natural ecosystems that lie within our native home land.

It is only March, and already we have weathered our first dust storm which was horrifying to say the least. The forecast doesn't look promising either.

Ed White
Kayenta, Ariz.

Sanctions, suspensions overdue

The sanction and suspension are long overdue and both are wisely undertaken. I commend the B&F Committee for imposing the sanction on the Division of Community Development officials. They should have taken this action many months ago.

Why the B&F Committee stopped short of imposing sanction on the Local Governance Support Centers staff at the agency office level causes a frown on my face. It is no secret that is where the bottom line inefficiency exists. They should have been given the punishment as well. Progress with this program is moving at a snail's pace.

The entire body of the Navajo Nation Council needs to re-examine this program during their upcoming budget formulation process for FY 2013. It seems they are usually looking for ways to cut funding for various programs. They don't have far to look. It's before their eyes and it's time to make serious changes.

The other matter chapter officials don't seem to understand is the local Government Act will allow them to be self governing and they will be free from the tribal bureaucracy as it currently exist. In order for them do that they need to be certified with the mandated Five Management System. They can become city hall instead of chapter government.

Also, the Division of Community Development needs to develop a uniform model in establishing the FMS rather trying to have each chapter develop their own.

The suspension of the tribal credit cards is not enough punishment for tribal employees abusing it. It should be more than 30 days. The nation needs to impose a strict policy such as what should be allowable and not allowable for purchase should be engineered or researched a little more.

The finance department should enforce strict control on the tribal cards and issue it only for business travel at the time of travel and require its return upon travel. I am sure they can find a mechanism to authorize the use of the cards for the number of days of business travel.

In conclusion, I would to say it's time to replace the old easy money-making tribal employees and make room for new fresh-minded young people to take over the key positions. The nation really needs to consider placing a 25-year limit on tribal employment.

Thank you for allowing me to express my views.

Vern Charleston
Shiprock, N.M.

Credentialed official needed for housing issue

Regarding the Pinon NHA letter, I feel I can comment on this article because I'm familiar with the area ("Pinon NHA office insulting, disrespectful," by Alex Daw, March 8, 2012).

It does seem like Ms. (Maggie) James has no business holding meetings with the community affected by this dislocation agenda. What Pinon chapters need is an official with the credential, authority and an understanding of the housing situation at Whippoorwill, Pinon and all affected communities.

The community needs someone who has first-hand knowledge of their situation and someone who does not hide information but explains the reason for the families' requirement to move out of the current housing.

The Pinon community needs someone who will address them with respect by saying "Shi'ma, Shi'che" gently. The responder here is right in assessing that sheep camps and hogans typically do not have running water or electricity and are considered uninhabitable under tribal and federal regulation.

The community could take this to court if Navajo Nation President Shelly ignores this problem posed by Ms. James and Navajo Housing Authority.

Ms. James is not helping anyone. She has caused a lot of concern, fear and confusion. Pinon community should ask for someone else to coordinate their housing renovation program, and because the area is at higher elevation, to process the changes during springtime or summer when it is not so cold or too hot out.

Yael Begaye
Tucson, Ariz.

Diné are vital part of the nation

The other day it came to my attention that some of the people on this great reservation did not like the smell from the coal fire generators. Then on the other hand, other people did not mind. I am concerned because of my former association with Raymond Nakai.

I built and operated radio station KCLS in Flagstaff and back in the 1950s Raymond came to see me about putting a broadcasting program on the air for the Navajos. He convinced me of the need to keep the people informed about what was going on especially about the weather and the powwow.

The program was on the air from 5 to 6 every morning. I don't believe Raymond ever missed a program for many years. His popularity was very great.

The program advertised products like milk, bread, flour, and even cigarettes which the people called "Nakai Cigarettes." Many of the people learned for the first time what a great place the Navajo Reservation was. They made powwow time in Flagstaff a great event which lasted for many years.

More than that, during World War II the Navajo Code Talkers did their share in confusing the Japanese. Later as time went on the people were able to bring in the 50,000-watt station to cover the reservation so Navajos in other parts of the state of Arizona know what is taking place. That was a very comforting situation.

Not only was this big land good for grazing sheep, but also making scientific instruments that needed uranium. Most important it produced a people that are a vital part of the foundation of the nation. Soon electricity will reach every home on the reservation for power lights and equipment.

My friend Raymond Nakai has left the scene and so has attorney Danny Deschinny who followed him. And it is up to those that follow to see what grows properly. Nuclear things might fail but coal can burn forever.

Charles Saunders Sr.
Scottsdale, Ariz.

Laws protect, serve Diné with disabilities

On Feb. 16, 2012, President Ben Shelly signed into law the Vulnerable Adult Protection Act to protect vulnerable adults against abuse, neglect and exploitation.

Shelly stated that the "invisible and forgotten people must be afforded their legal and human rights as Navajo citizens."

He was referring to the need for Navajos with disabilities to be legally protected and be given the equal opportunity to achieve their fullest potential despite their disability.

At the national level, on July 26, 1990, President George H.W. Bush signed into law the Americans with Disabilities Act, saying these words: "Let the shameful walls of exclusion finally come tumbling down."

The ADA prohibits discrimination against people with disabilities in requiring state and local governments to be accessible to their delivery of program services, activities and employment practices.

In addition, Section 504 of the Rehabilitation Act of 1973 made it illegal for the federal government, federal contractors and any other entities receiving federal assistance to discriminate on the basis of a disability which could include certain Navajo programs receiving federal assistance.

The ADA covers all state and local governments including those that receive no federal assistance including private businesses under certain circumstances.

On the Navajo Nation the contention is that due to its sovereignty status it does not have to comply with the ADA. On the other hand, there is a general lack of awareness that the Navajo Nation has a comparable law to the ADA which is the Vocational Rehabilitation and Opportunities for the Handicap Act of 1984 that was passed by the Navajo Tribal Council six years prior to the ADA.

The VR Act recognizes that all of the Navajo people are entitled to participate fully in the economic, social, cultural and political life of the Navajo Nation regardless of a person's disability.

It also requires that both public and private entities provide reasonable accommodations for the special needs of persons with a disability, including the need to site accessibility in regards to employment, housing, public accommodations, social services, transportation, recreation, educational and training opportunities and community services and ensure the availability of these services on an equitable and non-discriminatory basis.

It is with this Navajo VR Act that the Navajo Nation Advisory Council on Disabilities, the Native American Disability Law Center and other Navajo disability organizations have begun to collaboratively address the lack of accessibility and accommodations for Navajos with disabilities in the areas of housing, public building accessibility, employment, transportation and voter rights.

As these disabilities initiatives are introduced into the Navajo government for needed corrective action, they will bring more awareness and education to the general public and government officials of the mandates of this Navajo VR Act.

Navajos with a disability, family members and disability service providers are encouraged to become knowledgeable of this 27-year-old Navajo act.

Hoskie Benally Jr.
Native American Disability Law Center
Navajo Nation Advisory Council on Disabilities
Farmington, N.M.

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