Little Colorado settlement bill worries some leaders

By Alistair Mountz
Special to the Times

PIÑON, Ariz., March 15th, 2012

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S en. Jon Kyl's introduction of the Navajo-Hopi Little Colorado River Water Rights Settlement Act (SB 2109) on Feb. 12 was intended to end nearly 30 years of legal battles regarding Navajo Nation's and Hopi Tribe's claims to water from the Little Colorado River.

It hasn't.

Instead, the bill has inflamed controversy and speculation about each tribe's access and ancestral rights to the Southwest's most valuable resource.

The bill would confer congressional approval on a proposed settlement negotiated by representatives of the two tribes and the federal government.

It provides that in return for waiving their legal claims to surface water from the Little Colorado River, the Hopi and Navajo people would receive a commitment from the federal government to fund water development projects to tap the area's groundwater reserves and deliver drinking water to reservation communities.

The settlement agreement specifies two such projects for Navajo, one in the Leupp/Dilkon area and one in Ganado. Hopi would receive one project that would distribute drinking water to all the villages on its mesas.

Both tribes' claims to the Little Colorado River are extensive, as Kyl noted in his speech on the Senate floor introducing SB 2109.

"Legally, the Navajo Nation and Hopi Tribe may assert claims to larger quantities of water, but as seen here," said Kyl, motioning to a billboard-sized photo behind him that showed a long line of Dilkon residents hauling water from a remote tank, "they do not have the means to make use of those supplies in a safe and productive manner."

Although the proposed water rights settlement was approved by both the Navajo and Hopi governing councils, not all tribal leaders support the bill to incorporate it into federal law, which must happen in order for it to take effect.

Former Hopi Chairman Ben Nuvamsa, addressing a Feb. 17 water forum at Greyhills Academy High School in Tuba City, listed many grievances.

"This means the tribes will be required to waive their aboriginal water rights, or Winter's (Doctrine) rights, in order to receive groundwater delivery projects," he said, referring to the landmark 1904 U.S. Supreme Court ruling that affirmed Native water rights.

"But funding for these projects is not guaranteed," Nuvamsa said. "In fact, the bill relieves the federal government from funding the operation and maintenance of the projects."

The current Hopi chairman, Leroy Shingoitewa, thinks Nuvamsa's alarm is premature.

"He thinks it's a done deal, but it's not a done deal," Shingoitewa said about the bill.

"All of the parties are in initial agreement but final details still need to be worked out," he said. "We're in the final throws. This week is a critical time.

"We've come a long way," Shingoitewa said. "We've gone back and made more protections for the people and betterment of the tribe. The bill as written will provide us with water."




Water that comes at a steep price, argues Nuvamsa.

"If the bill becomes federal law, we would permanently waive our water rights to the Little Colorado River," Nuvamsa stated in an open letter he co-wrote with Gary LaRance, former chief justice of the Hopi Tribe.

"This Shingoitewa did without first consulting with the villages and the Hopi and Tewa people, much less with the Hopi Tribal Council," they stated. "More importantly, he did so without having the proper legal authority and without the approval of the villages.

"Our tribal constitution prevents the sale, disposition, lease or encumbrance of tribal lands, or other tribal property," Nuvamsa and LaRance stated. "A water right is treated as a right to property. This means Shingoitewa and the Water & Energy Team violated our tribal constitution and violated the property rights of our villages."

"Sovereignty is sometimes interpreted differently," Shingoitewa countered. "This was a government-to-government agreement. If there was no sovereignty this legislation couldn't happen, and we'd just be told what to do.

"This bill will not affect our future water rights," Shingoitewa added. "Once the deal is finalized we'll have village meetings to discuss it. We want to go to the people and talk directly to them, not tell scary stories."

While not providing a timetable for when the bill will be finalized, Shingoitewa did acknowledge that the Hopi Tribal Council recently hired Seattle water-rights attorney Joe Mentor.

Mentor will help with the finishing touches of the bill, Shingoitewa said.

Mentor did not respond to the Navajo Times request to discuss his role in the process.

Although Navajo opposition to SB 2109 is not as public as on Hopi, some leaders have concerns about it.

SB 2109 goes beyond the Little Colorado water rights settlement, and includes language to assist the Navajo Generating Station, which is located outside the Little Colorado River Basin. This does not please Katherine Benally, chair of the Resources and Development Committee of the Navajo Nation Council.

"As a committee, we don't really approve of the bill," she said. "We would prefer for the entire NGS issue to not be a part of the legislation. We think it's a separate issue."

Benally noted that her committee has not formally seen SB 2109 nor approved it.

As written, Kyl's bill not only assists NGS with its lease renewal, but also would extend greater water rights to the power plant and to the coal mine on Black Mesa that supplies it.

Joe Hack, Kyl's press secretary, did not respond to the Times' request for comment on this point, nor did Hopi negotiator Joe Mentor.

So how did Kyl propose a bill that would have major impact on the Navajo and Hopi tries, without first gaining the approval of either tribe's government?

"That's how they do it," Benally said with a slight laugh. "That's politics."

A public forum on SB 2109 is scheduled March 26 at 5:30 p.m. at the Hopi Veterans Memorial Center in Kykotsmovi, Ariz., sponsored by Nuvamsa.

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