Wednesday, June 27, 2012 the 22nd Navajo Nation Council will make the final decision on the Navajo-Hopi Little Colorado River Water Settlement Act. We expect a no vote.
For everyone on Navajo there is still time to contact your delegate.
Sen. John Kyl still needs to formally withdraw S. 2109: Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012. You can track this bill yourself.
Next steps: Coming to consciousness about what it takes to keep your house and life running smooth.
Some details about the bill and the issues involved.
We Are Rivers Remembering Ancient Paths
"Some of us that were born and raised in the traditional way, that are still practicing our ceremonies, that still hold our water sacred, we understand what this will do to us. To destroy us."
-Ben Nuvamasa, Former Hopi Tribal Chairman, March 29, 2012
"To state the obvious: when the Europeans came to America there was a clash of civilizations, and through out history the less mature civilization always suffer."
-Senator John McCain
"A water project is a whole concept. . .all water is interconnected in the west, either physically or on paper."
"Philip L. Fradkin, A River No More
The question of water in the Colorado River Basin extends into antiquity. The United States began its exploration in1869 with John Wesley Powell's Expedition down the Green and the Colorado. He was quick to understand "whoever controlled the water and how it was used. . . determined what happened on the surrounding lands; thus its distribution should be carefully planned and carried out, preferably by an entity higher than the water users and individual states." Over 143 years later over 13,000 claims have been filed on the Little Colorado, and only Zuni has settled their rights, as they relate to this river.
United States Senator Jon Kyl [R-AZ] and his cosponsor Sen. John McCain [R-AZ] have offered a final resolution to claims on the Little Colorado: S. 2109: Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012. Their bill was introduced on February 14, 2012, its companion bill H.R. 4067: Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012, sponsored by Rep. Ben Quayle [R-AZ3], was introduced two days later.
Tribes need to clarify their water rights for innumerable reasons. We understand: Water is Life: Tó éí íína'. Our daily lives are shaped by access to water and water quality. Kyl used that fact when he introduced the bill onto the senate floor, claiming to speak from a concern for those daily needs. Navajos and Hopis, in 2012, do not have adequate access to potable water. This fact is abused by this rushed bill that will not provide those families, crops, or livestock with safe water. Hopi and Navajo have water rights, but lack the means required to move water where it is needed. Settling water rights will help us answer domestic, municipal and industrial questions.
Hopi and Navajo exercise their aboriginal rights in reply to individuals and states who desire our water as a resource for their lives and industries, or they can sign this bill. Those living away from the Hopi and Navajo homelands rely on our water for their life and for their livings. The U.S. Federal government, the states of Arizona, Nevada, and California, urban centers likes Phoenix and industries like the CAP and Peabody Coal make constant demands for more water and require us to develop long term plans to provide solutions to economic development, water banking, marketing, leasing and exchange. These plans must be shaped by the fundamental laws of Hopi and Navajo.
S. 2109: Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012 renders that impossible.
Kyl and McCain's bill moves the question of water irrevocably outside the realm of the fundamental laws of Hopi and Navajo into a completely alien and irresponsible legal and market system, declaring, via that same law (S.2109), that the legal and market system will not be accountable for what they do to the water system in the process. Under S.2109 no living creature who depends on water from the Little Colorado may seek redress.
Currently, the Navajo Nation and the Hopi Tribe retain a claim on the Little Colorado by two authorities, one recognized by all entities (United States Federal, State and local) and another, recognized by Navajo, Hopi and the United Nations. In exchange for settling the question of these water rights, and all claims on the Little Colorado, the authors of the bill are asking the Navajo Nation and the Hopi Tribe to relinquish these aboriginal rights and federal reserved rights. They also ask the Navajo Nation and the Hopi Tribe to relinquish their rights (and duty) to hold parties responsible for damages to water rights and quality, in addition to their rights (and duty) to pursue additional water rights in the un-foreseeable and uncertain future. Section 105 details the waivers, releases, and retentions of claims for Navajo and repeats for Hopi. Repeated over and over, as an incantation, is the language: past, present, and future claims for water rights arising from time immemorial and, thereafter, forever, that are based on aboriginal occupancy of land both within and outside of the State by the Navajo Nation, the members of the Navajo Nation, or their predecessors. (emphasis mine)
The United States Supreme Court has consistently upheld the "reserved rights doctrine." These, Winters Rights, apply to groundwater, surface water, rivers, streams (navigable and non-navigable) that "underlie, border, traverse, or are contained within the reservation." They guarantee the tribe access to "as much water as is necessary to fulfil the purpose of the reservation once senior claims, if there are any, have taken their entitlement." The 13,000 claimants to the Little Colorado are relative newcomers to the area. None can make a claim to senior rights. Two questions, under Winters, remain. To what purpose was the reservation created and how much water is needed to full that purpose.
One acceptable definition: the purpose "all Indian Reservations are created is to serve as a permanent and economically viable home for the Indians who live there. Therefore, every reservation is at least entitled to enough water to satisfy its subsistence needs and maintain its viability."
Surrendering Winters Rights makes absolutely no sense for Hopi and Navajo. As wards of the federal government, the United States is legally responsible to protect these rights, not demand them in exchange for water. Yet, throughout our histories the United States has consistently, legislatively, worked to alter our means of subsistence, reflecting no desire to provide access to or maintain what is viable for us, in the past, present, and future arising from time immemorial and thereafter. The United States is not invested in our futures or in the health and wellbeing of our homelands. As an organization they have been successfully getting at water, coal, electricity while polluting our skies in order to create an illusion of easy living in this, the desert.
Phoenix, The Salt River Project, Central Arizona Project, The Navajo Generating Station and Peabody Coal are the entities who benefit from the water and the language of S.2109. The bill will: extend a lease with the Navajo Generating station (NGS) through December 23, 2022; allow NGS use of 34,100 acre feet a year of water; and reopen and extend a life lease to the Kayenta Mine to extract coal from Black Mesa. In order to release water to Hopi and Navajo they must renew contracts with Kayenta Mine and Peabody Coal [Sec 201 (a) (2)]. In violation of the UN Declaration of the Rights of Indigenous Peoples Articles 13 (2), 15 (2), 18, 19, 27, 29 and 32.
The United States Federal Government only acknowledges Winters Rights, waving these rights leaves Hopi and Navajo with no legal footing in courts that continue to make decisions about Hopi and Navajo lands and lives. The allegiance of these courts lies with the United States, culturally, politically and in the reality of fixed systems: sewage, pluming and electricity. Yet they are the tribes representative.
In exchange S.2109 does not even guarantee funding. Congress will need to locate funding for the $233 million in promised water projects [Sec 103 (a) (4) (A), 103 (b) (4) (A), and 109 (c)]. Congressional needs are in no way aligned, sympathetic or subject to either nation, as tribes found out in 1903 with Lonewolf v. Hitchock. Yet Kyl, McCain and some Navajo Nation officials continue to use the reality of poor and inadequate water on Hopi and Navajo as the major selling point for their program.
Every American Indian is intimate with the idea that "what is the law prevails." United States Federal Law shapes every tribal council (since inception), access to sacred sites, and movement across our territories. Every action and decision runs through the sieve of Federal, State and Tribal jurisdiction. The relationship between these entities defines the possible for every Tribe/Pueblo/Nation and every tribal person. Without that understanding, or acknowledgement, there can be no meaningful conversation.
The finality of the terms of S.2109 are particularly onerous for everyone, regardless of their direct membership in the nations or the states directly named in the bill. The N-Aquifer is damaged. Sacred springs are drying up and contaminated. The Arizona Snowbowl plans to use reclaimed water on the face of our sacred mountain. If Hopi and Navajo waive all rights and every means of redress to these water claims, what then? What of the ceremonies? What of supply? What of quality?
Why decolonize and not occupy?
"The foundation of property law and federal Indian law is not the Constitution, but the idealized cognitive model of the conqueror seizing a promised land for a chosen people. The cognitive model involves not simply a historical right of conquest in the past, but an ongoing, contemporary right to conquer in the present." (emphasis mine) For many this foundation seems to be invisible—not for Hopi, Navajo or any other indigenous person within the United States territorial holdings.
S.2109 is a question of law—the law of three courts: federal, state and tribal. The laws of the Hopi and Navajo people, Fundamental Laws, common laws, are not all, or equally represented in these courts. Of the twelve Hopi Villages only four are represented on the Hopi Tribe Council, President Shelly and the Navajo Nation Tribal council does not represent all, especially the most traditional. There has not been transparency. Navajo Nation is holding 7 town hall meetings , yet the rights will be waived of all Navajos regardless of chapter. Nearly every aspect of this bills inception and movement to date have violated some aspect of the UN Declaration of Indigenous Rights.
"Those people who were not raised in the traditional way, perhaps do not understand the magnitude of this bill."
Hopi and Navajo need potable water. Hopi and Navajo also need to apply the fundamental laws they were given. S.2109 is a question of land ethics.
S.2109 requires Hopi and Navajo to dismiss with prejudice all suits, currently pending, and to forfeit the right to pursue further action to protect water access or quality. This includes the pending case regarding the Arizona Snowbowl. United States federal laws are not benign and should not be blindly accepted without analyzing the concepts they are founded on, or the present day injustices they create, enable and enforce. These laws are part of a overall water project, part of an overall historical project—a project acknowledged by the international community, though not by the United States itself. When Ben Navumsa, Former Hopi Tribal Chairman, March 29, 2012, spoke to the people gathered at the Rocky Ridge Boarding School, at Hard Rock, Navajo Nation he asked everyone to become educated (to learn and know their history), to speak up and to require leaders to hold hearings and listen.
These recommendation, to actively follow S.2109, apply to everyone.
"Guaranteed climate change if America fails to do more than what is politically feasible."
It may not be politically feasible to ask everyone to turn to the Fundamental Laws of the Navajo and Hopi, but it is necessary. Minimally, Navajo and Hopi must be able to apply these laws in every arena of life. They must be able to hold people accountable for their actions on and beliefs about our homelands. Hopi and Navajo are organized by a belief in community based on responsibilities not rights. In his introduction to Navajo Courts and Navajo Common Law: A Tradition of Tribal Self-Governance, Raymond Austin reminds us: "Different perspectives are appreciated and needed. The process of using Navajo normative precepts to solve modern problems is not limited to dispute resolution and Navajo Nation governance, but touches every area of Navajo society, life and lands."
At the core of Hopi and Navajo fundamental law is a concern for environmental impact and an understanding of the intimate relationship between all creatures that share and create these, our desert homes. Water is one. These guidelines were shaped and culled from generations of indigenous experience of the land and have been retained through language and culture. Embedded in these laws is a respect for and access to power, not electricity, but power. Imperial cities, like Phoenix, want electricity and water, no matter what cost paid by human and natural powers that supply them. Hopi and Navajo fundamental laws ask us all to be conscious of our place in the world.
(for full citations email me)
- ▼ 2012 (8)
- ► 2009 (13)