Seeking the Water Jackpot

For almost a century, the Navajo Tribe has been left out of the Colorado River water game. Now, they're ready to play their hand.

 

GALLUP, N.M. -- In early February, a series of fierce storms racked the Navajo Nation, which sprawls across more than 27,000 square miles of Arizona, New Mexico and Utah. At dawn, the highways were burnished to an icy sheen that sent cars pinballing into ditches. As each day warmed, the misery took on a new quality: The dirt roads that crisscross the reservation melted into hash glish di'tsidi liba', a goopy gray gumbo that sucked pickup trucks into a death grip. By late afternoon, on the cusp of the next storm, many Navajos, still stuck up to their axles in mud, were simultaneously sandblasted with wind-driven grit.

The tribe's woes don't end with the weather. Half the Navajos on the reservation are unemployed, and that number may actually be as high as 67 percent - no one can say for sure. More than 70 percent of those who do have jobs work for government agencies. The closure of a coal mine later this year, on top of another mine shutdown two years ago, will likely reduce tribal revenues by a third. Per capita income on the reservation is a little more than $8,000 a year.

Navajos often speak of the cosmic geography of the Four Sacred Mountains, which mark the boundaries of their ancestral homeland. But the lives of many people here are shaped by a more pragmatic geography, centered on a coin-op water dispenser in a muddy turnaround behind a city maintenance building in downtown Gallup, N.M. A water pipe with a piece of yellow fire hose hanging off the end sticks out the back of the building. Navajos load water tanks and blue plastic 55-gallon drums into the beds of their pickups and come here for drinking water. On weekends, the line can stretch around the block.

But on a bitter-cold Friday afternoon, the whole operation was seriously dorked. Ernest Leslie, who had driven 22 miles from Tohatchi, couldn't get any water because a quarter was jammed in the coin slot. He tried to coax another coin into the machine with the tip of his pocketknife, but it popped back out like a bad joke and landed in the mud at his feet. "Huh," Leslie said. He looked down at the quarter. "Sometimes we have problems like this."

Even as the Southwest's cities have flourished with water from the Colorado River, the Navajo Tribe has stood on the sidelines, holding an empty bucket - and waiting. For decades, it seems, the tribe has been just one good plan away from prosperity. Now, however, the Navajo Nation is beginning to assert its right to claim water from the river. Many Navajos feel that the tribe could soon transform water from something that eats up their quarters at 50 gallons a pop to a virtual jackpot. But as tantalizing as the prospect of river water is, it is also opening painful rifts on the reservation.

 

The capital of the Navajo Nation is a town called Window Rock, on the eastern edge of the reservation in Arizona. It is a slow-paced place with a couple of gas stations, a supermarket, and a clutch of mom-and-pop storefronts that serve up squash soup and roast mutton.

Lena Fowler lives on the other side of the reservation, but came to town in February for a tribal council meeting. A member of the tribe's water rights commission, she has a cool intensity and a vaguely sexy set of crow's-feet at the corners of her eyes. Fowler began by explaining how the language of white-dominated water law, saddled with abstruse notions like "qui prior est in tempore, potior est in jure" -- Latin for "first in time, first in right" -- often defies translation into Navajo. Then she conceded that water may, in fact, be a language unto itself.

"And when you speak water," she said, "people get real emotional.

"For us, for most of our Navajo people, they wake up in the morning (and) they go out and they pray. And once they're done," she said, "they turn around and have to figure out how much water they have: Is it safe to drink the water at the windmill? Or do I have to go buy Clorox to treat it with? That's where we are today."

The Navajo Nation sits almost exactly in the center of the 244,000-square-mile Colorado River Basin, and it occupies fully one-tenth of the basin's area. Yet when the seven Colorado River states met to divide the river's water between themselves in 1922, they neglected to invite either the Navajo or any of the other Indian tribes with reservations in the basin.

"Agreements were being made before we even knew how to speak English," Fowler said. Indians weren't recognized as United States citizens until two years after the Colorado River Compact was signed in 1922. It wasn't until almost three decades after the Indian Citizenship Act was passed that Navajos were finally allowed to vote.

When they excluded tribes from the Compact negotiations, however, the seven states disregarded an important fact. In 1908, the U.S. Supreme Court had - paradoxically - dealt Indians a powerful trump card. In what is known as the Winters decision, the court granted Indian tribes the right to retroactively claim water sufficient to create what would later be termed a "permanent homeland."

Water rights are ranked by chronological priority, and the priority date of a tribal claim is tied to the year that a particular tribe's reservation was established. In the Navajos' case, that was 1868. If the Navajos received so-called Winters rights, their water rights during times of drought would take priority over those of the West's more recently established urban centers.

Qui prior est in tempore, as the saying goes, potior est in jure.

The seven states' negotiators acknowledged the Indians' dormant power in one small way: They added the "wild Indian article" to the water Compact. The article - whose name came from then-Secretary of Commerce Herbert Hoover, the facilitator of the negotiations - reads: "Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes."

With those 20 words, the negotiators punted all their gnarly Indian problems sometime into the future. "The states have basically ignored that there are Native claims to the river," Fowler said. In the 86 years since the Compact was signed, the downstream cities of Los Angeles, San Diego, Phoenix and Las Vegas have boomed, while the Navajo have been left parked in a dusty time warp high on the Colorado Plateau.

"Even today, it's like there's a curtain," she said. "(The seven states) are over there, making decisions, knowing full well that we're here. They can see our silhouette."

Anonymous
Mar 17, 2008 11:37 AM

The trade a couple years ago to New Mexico was approx. 200,000 acre feet of San Juan River, Navajo water in return for a rural water system for much of the reservation.

Great trade for all really, with the Feds of course supposed to pay for that water infrastructure.

There is are special Fed Programs with the USDA which help /finance build rural water systems.

Those programs are USDA Rural Development, Water and Environmental Programs. Somehow it seems rather odd that several rural water systems for areas of the Navajo have not already begun construction even 25 years ago, with the current USDA prgrams in place since then.

I feel it will be fairly cost effective to actually build a Rural Navajo Water system.There are some Huge underground aquifers spaced at good locations throughout the reservation. The right drilling produces artesian wells in some spots too.

So it seems the key is to focus on those underground aquifer sources instead of river water for the system or systems ( with water source locations spread out it cuts pipe laying costs by large amounts).

I think if the rural water system does not get serious soon the Navajo should simply keep the 200,000 acre feet of water they were going to trade for the system, and sell that water down the river.

Sell it to Arizona or Nevada,  take the money and the Navajo finance and build their own rural water system.

Net affect is still postive for the Navajo because they get rural water.

The only loser is the State of New Mexico because they do not get the 200,000 acre feet of water.  Keep in mind New Mexico could come to the bidding party and BUY the River water from the Navajo just like Arizona and Nevada can.

 

Anonymous
Mar 17, 2008 11:41 AM

There is great fact here, weighed down by the writer's irrelevant personal opinion.  Navajo Nation and the Puebloans have first right to water in the desert; water is worth more than gold to a thirsty man. 

There are many that can see both sides to this never ending argument yet wish Mr. Pollack was more agressive in his defense of Navajo Nation's inherent right.  The job of a DOJ lawyer is to advise to the best of their ability for the interest of the nation, generations before and behind; the job of a leader is to direct the staff with vision.  Mr. Pollack is not Dine', in a day and age when Navajo Nation homegrows sharp lawyers lost to the cities, it makes no sense not to trade up and send him out to pasture.  Unfortunately Navajo Nation has lost leaders like MacDonald, that would fight for the nation against the Yei'ii Tso' of today.  

Congrats to High Country for producing such thought provoking articles.   

Felice
Felice
Mar 23, 2008 12:56 PM

I agree that Matt Jenkins did seem to have a bias against the grassroots Dine folks on the outside of the tribal bureaucracy. And maybe the activists are a little unfair to the white lawyer - after all there are also Indian lawyers, water consultants and bureaucrats who are equally ready to cut deals. 

In these water deals involving tribal rights the devil tends to be in the details. McDonald's inflated claim probably does not pass the legal laugh test but that begs the question: what is a realistic claim for the Navago Reservation? The article never approached this issue. Too bad.

Nor did it focus on the larger question of what role the people themselves - and not just those alive today but also the generations to come - should play in decisions whether and when to negotiate and what sort of deals to cut. When one looks closely at tribe-fed-state water deals across the West the missing element is the People. Where are the educational processes designed to empower the people to understand what is at stake, what is proposed and the alternatives? Where is the consultation with elders (those who speak for future generations)? And where are the referrendums whereby the poeple can let their will be known? 

If Mr. Pollack and the tribal leaders for whom he works are at fault it is because they have not taken the extra step of educating - and thereby empowering - the people. This is nothing new in Indian Country.

It is often the case that tribes do not do well when negotiating with feds, states and water interests behind closed doors. Democracy is a messier process but - when the people are empowered by unbiased education on the issues - they will do better than their elected leaders and the hired (often white) lawyers who negotiate in their name. 

History will judge whether the (predominantly) white lawyers and consultants negotiating the current round of western water deals will be seen as heroes of Indigenous peoples or as representatives of a colonial power intent on extending the long history of appropriation of Indigenous resources by conquering societies. That judgment should not be based on ideology but rather on the specifics of the deals that are made and on whether the process of tribal approval is truly democratic.   

   

 

Anonymous
Mar 24, 2008 06:08 PM

An interesting side not of MacDonald's downfall coincides with his battle against Sen. Goldwater and the assasination of Don Bolles, an investigative reporter with the Arizona Republic and his research into plots to overthrow "the most powerful Indian in America."  Some people claim MacDonald was victim of entrapment, set up ruthlessly by the federal government (BIA), Sen. Goldwater, and their Navajo allies in an attempt to stop MacDonald from continued successful litigation against powerful mining interests and banks from Phoenix, part of the so-called Phoenix 40.  Those banks and business interests were more interested in dividing the Navajo and Hopi nations and seizing control of the coal and water rights in the Black Mesa region.  Had MacDonald been able to continue a more aggressive approach to water back then one wonders what would have been the result today?  Today our Navajo leaders beg to Congress and allow large companies and the federal governmentto rape our land and to call the shots on a right Navajo Nation and the Puebloans can lay first claim to.

Anonymous
Apr 04, 2008 11:28 AM

Great news for the Navajo Tribe in NM.  In 50 years when all the sun bathing whites in Phoenix are severely dehydrated from the over allocation of water in the Colorado River I bet the Navajo Tribe will hold their ancestral ground to farm with and drink the water that belongs to them.

 

I am white and I support the tribes getting their people out of poverty.  The water rights will help them accomplish just that.

 

Jared Considine

Orange County, CA 

Anonymous
Apr 14, 2008 11:16 AM

In my opinion what matters here most is not how much water the Navajo have a right to, or how much they can prosper from it, but how much they really need to begin an economic upgrade on their reservation(s). They can begin proving how much they care for the cause by acquiring a new quarter machine where they retrieve their water. Then pave some of those roads that lead to it and back from wherever the residences are and so on and so forth. Maybe they could build a reservoir if it is viable. That would impress how much the water is needed there. Water litigation is a mostly terra incognita territory and can take forever to resolve especially for an Indian Nation nobody really notices or cares much about anyways living out there in there 100 year old hogans in the desert out there in no-mans land. Or maybe they'll be exemplary for this type of proceeding when water becomes really scarce.

Anonymous
Apr 22, 2008 11:42 AM


At the time Bolles was murdered, there was also a petition against McDonald signed by a significant number of tribal representatives--rumors of vigilante groups were rampant and profoundly frightening. Bolles death served to enflame fear of cultural resistance to big money and Peabody Coal Company mining of deep aquifir waters and low sulfur coal for Las Vegas, et all. The depth of that patronizing deal with the Hopi and Navajo tribal councils "to help the Indians" is really in the cultural genocide of self-reliant peoples. Now, the  result, mental illness, alcoholism, meth and dope, bitter self-depricating humor and, ever present rumors and the psychological power of witchcraft. 



But the conduct of respect and traditional knowledge has survived just as the truth always does. The memory of water as the gift of the Holy Ones is still expressed in the arts and poetry, in the schools, homes and the language.



Given all this, the fundamental point of water rights is " a permanent home." That means, as an elder sees it, healthy land, healthy mountains, healthy carpets of vegetation and animal life-and in turn healthy people. The health of the mountains, Black Mesa  and its aquifirs are the most fundamental goal of "practical irrigation" for the people to return to the peaceful times. The mountains are the reservoirs of springs of strength -- the pipes to communities can only supplement that deepest truth.