There is an aphorism that occasionally bobs up in water circles and goes like this: The Navajos would rather have 100 percent of nothing than 50 percent of something.
It is an uncomfortable thing to hear, but it may hold some truth.
Back in the 1980s, after Peter MacDonald's engineers drew up the plans for an Indian Central Arizona Project, he spent several years trying to persuade the federal government to fund it. The Bureau of Reclamation repeatedly lowballed the cost estimate and, finally, Sen. Pete Domenici, R-N.M. - who is now co-sponsoring the Navajo-New Mexico settlement legislation - asked MacDonald to accept the lowball figure. MacDonald refused: "I said, 'If that's the case, we may have to do it ourselves.' "
That was roughly two decades ago, before MacDonald's trip to prison and everything that followed. When MacDonald and I talked in February, I asked how him how, exactly, he had planned to finance the project without federal help.
He answered that the tribe could take the seven Colorado River states to court for illegally using Navajo water. The tribe, he said, would fine the states -- "we'll charge them maybe 1 or 2 or 3 cents a gallon and add (that) all up." It wouldn't matter if it took 20 or even 30 years to resolve the case, he said: The Navajo Nation could request that the court require the states to put money in escrow until it was decided. MacDonald had deployed the strategy once already, when he sued Peabody Coal for lost royalties, and the tribe wound up with about a billion dollars.
Yet that strategy was not a sure-fire thing, and Lena Fowler's words echoed inside my head: "Some Navajos out there say, 'This is 100 percent ours,' " she'd said. "Let's say we claim all of that 100 percent. Now where are we going to get the money to put our water to use?" -- to build the pipelines it would take to actually get water to people's homes.
"That's what a settlement does," Fowler said. "When you negotiate, that's what you're negotiating for."
In 2002, MacDonald's daughter, Hope MacDonald Lone Tree, was elected to the Navajo tribal council. Since then, she has shouldered her father's cause. Still, I couldn't help but think that the pair was marching their tribe down a cruel, hard trail: Toward a vision of water in the distance, without a pipe in sight.
When Pollack and I talked in Window Rock, he had just returned from another negotiating session with water bosses from Arizona, Las Vegas and Southern California. "Nobody seemed to be happy," he said. "And when nobody's happy, it's usually a good sign. It means you're coming to 'yes.' "
But Pollack had also been thinking about the opposition he faces on the reservation. "People hear 'Winters,' " he said, "and (they) say: 'Well, Winters stands for the proposition that the tribes get all the water.' That's not what Winters says. It says that water was reserved to create a permanent homeland for tribes."
We talked about how the idea of practicably irrigable acreage lay at the heart of the whopping claims that Peter MacDonald and Ron Milford were calling for. "PIA has been sort of guiding doctrine in terms of trying to put together the basics for (previous Indian) claims," Pollack said. "But PIA isn't necessarily always consistent with a permanent homeland."
In fact, PIA looked more and more like an anachronism, a perverse insistence on turning Indians into farmers at exactly the same time that, in much of the West, agriculture is losing ground to cities. Relying on the principle to claim water -- even if that water might ultimately be leased to cities downstream -- seemed a problematic tactic.
That irony appeared to have been lost on Milford when we'd met at The Hogan, where he had conjured up the same sort of agro-utopian vision that Peter MacDonald had. In the 1960s, the Navajo had won Congressional approval of a big irrigation project near Farmington, N.M. Despite having been heavily subsidized by the federal government, the project only managed to squeak out a profit during the past couple of years. Maybe. Nobody could say that for sure, either. Still, Milford felt the project could be cloned all over the reservation. "There's a lot of open space out here," he'd said. "Down toward Leupp and all of that area? There's tons of flat property down there, you know? You can imagine fields running clear down to Winslow."
But I had talked with white farmers along the San Juan River who were losing money and had to work in the local oil-and-gas supply business to make ends meet. It was a little weird to hear Milford argue that his people's water claim should be calculated according to a standard that would give them enough water to farm their huge reservation. It struck me as an insistence on the Navajos' right to go broke.
Pollack suggested one practical alternative to PIA. In the Pacific Northwest, for instance, the "salmon tribes" such as the Nez Perce and the Yakama have used their treaties to argue for water rights sufficient to protect the salmon runs on which they'd long depended. "What we've said is, 'Look at the fishing cases. Look at what the courts have done there. They've said the real key isn't PIA. The real key is the water necessary to create the permanent homeland.' "
In Navajo's case, Pollack said, mining was a far more realistic moneymaker than agriculture. But, he added, there was a more pressing issue. "In a settlement, you have to put the rhetoric aside and figure out what your goals and objectives are," he said. "And if your goal and objective is to get drinking water to people, claiming millions and millions of acre-feet of water doesn't get drinking water to the hogans."
Pollack regularly works extremely long hours, a habit that I couldn't help but think was a carryover from his days on the Peter MacDonald case. He keeps one of the "Four Lawyers Out" bumper stickers pinned up in his office, like a trophy. And it was clear that, despite Pollack's reluctance to talk about the attacks he'd weathered, they were something that was never far from his mind.
As I gathered my things to go, Pollack shifted into closing-arguments mode. "These are people that have had a lot stolen from them. And they've come up on the short end of the stick all the time," he said. MacDonald and his followers were, he conceded, hawking a pretty alluring vision. "It's this casino mentality of getting free money. If somebody comes along and says, 'Water is your casino' ... you know: 'Your water's worth billions of dollars, and if you just get rid of Pollack, you, too, can be a millionaire!'
"You know? They're like, 'Well, shit. Why do we have this guy here? I want to be a millionaire.' "
Matt Jenkins is a contributing editor of High Country News. Leigh T. Jimmie is a freelance photographer in Sanders, Arizona, on the Navajo Nation.
This article was made possible with support from the William C. Kenney Watershed Protection Foundation and the Jay Kenney Foundation.