Hoover's wild Indian clause put off the Indian water rights question for as long as possible. But the costs of that delay, compounded over time, are now coming due. The Navajo Nation is moving to claim its water rights in New Mexico, and may soon do so in Arizona and Utah as well.
Indian tribes can sue for water rights, or they can negotiate settlements with individual states, and then take them to Congress for approval. That's the path that the Navajo Nation has taken in New Mexico. In 2004, the tribe and the state announced a settlement agreement that would award the Navajo 326,000 acre-feet of water from the San Juan River, a major tributary of the Colorado. (An acre-foot is enough for about two families in Phoenix or Las Vegas for a year.) The settlement also authorizes more than $800 million in federal and state money to build a pipeline that will take the water to the east side of the reservation and to the city of Gallup. The Navajo Nation is now seeking congressional approval of the deal, the tribe's first step toward asserting its rightful claims on the Colorado.
"We have learned the language. We have learned the laws. We learned the court system," Fowler said. "Now we're saying, 'Hey! We're back. We're here to reclaim our water rights.' "
In Window Rock, the tribal government operates out of a cluster of rustic-looking buildings a stone's throw from the towering sandstone arch after which the town is named. There's a BEWARE OF FALLING ROCKS sign next to the stone-and-timber hogan where the tribal council meets.
Stanley Pollack, an assistant attorney general for the Navajo Nation's Department of Justice, works out of an unprepossessing, barracks-style building nearby. Pollack exhibits definite left-leaning sensibilities, but he also observes the staid rituals of water lawyering. He keeps a turquoise bolo tie and a gray tweed jacket ready for tribal council briefings. He is also a bilagaana -- a white -- and, as a result, occupies a very complicated place in the Navajo water cosmology.
Pollack, who is 54, arrived here in 1985. Four years later, he suddenly found himself preparing legal briefs for the prosecution of the tribal chairman, Peter MacDonald, on corruption charges that would eventually land MacDonald in federal prison. It was a turbulent time: At one point, MacDonald's supporters rioted in Window Rock and tribal police shot two of them dead.
Pollack is reticent about the experience, but it was obviously a bracing one for him. He worked around the clock, protected by bodyguards from the American Indian Movement, better known for its 1973 standoff at Wounded Knee on the Pine Ridge Reservation. At night as they stood watch outside, the guards warmed themselves by setting fires in empty oil drums. Whenever Pollack took a break, he says, "I'd go out and talk to them and look at the stars. It was really cool."
Compared to the MacDonald drama, you'd think the process of defending the tribal water rights, which now absorbs all of Pollack's time, would be a pretty humdrum affair. But it's not. He's had rocks thrown through his office window, and been called the Navajos' Number One Enemy. And, in 2001, a flier appeared in chapter houses - the reservation's equivalent of town halls - with Pollack's likeness X-ed out and "Osama bin Pollack" written underneath.
Pollack keeps a lot of this stuff in a ring-bound binder in his office. One flier calls him - with more vehemence than orthographical precision - a "water rights sabbotager" and "one of the lawyer oppressors of the Navajo people who's helped cheat us out of hundreds of millions of water rights that is rightfully ours." Another reads: "Pollack infiltrated our government and has us on the path to a form of water rights holocaust."
After I read that one aloud, Pollack -- who is Jewish -- looked a little chagrined and said, "Oh yeah, genocide."
Pollack would really rather not talk about any of this. "It was just 100 percent libelous crap," he says. "Just totally reckless." But the homegrown opposition he has faced attests to the depth of emotion that water inspires - and to local unhappiness with Pollack's role as a compromiser and, to a large extent, a realist.
One wall of Pollack's office is lined with mean-looking filing cabinets, and the rest of the room is filled with steel bookshelves packed with court documents and all manner of hydrologic divination. It is from this mass of paper that Pollack is slowly assembling a Colorado River claim.
A year and a half ago, as the water settlement with New Mexico was working its way toward Congress, Pollack put the federal government and the seven states on notice that the tribe could also justifiably use 336,856 acre-feet in Arizona. When we talked, Pollack indicated that the tribe might claim 80,000 to 100,000 acre-feet in Utah, as well. If you throw in the water from tributaries, that would put the total size of the Navajo Colorado River water right at somewhere around 800,000 acre-feet.
That is a lot of water - one-and-a-half times more than Las Vegas has rights to. And, because much of the Navajo water would have an 1868 priority date, several big, powerful water users would be booted to the back of the line behind the tribe during a drought. The city of Las Vegas and the Central Arizona Project, or CAP, whose massive canal supplies water to Phoenix and Tucson, already have the worst water-rights priorities on the river. With the Navajo ahead of them in the hierarchy, they'd face an even more serious risk of being cut off.