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Navajo water rights: Truths and betrayals

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Editor's note: Our cover stories often elicit a lively response from readers, but Matt Jenkins' story about Navajo water rights really got people riled up in both positive and negative ways. The strongest reaction -- and certainly the longest -- came from some of the main characters in the story, primarily Ron Milford, who was pictured on the cover of that issue of the magazine. Though Milford's statement levels a number of false accusations towards Jenkins, High Country News is running the full response by Milford et. al. here on hcn.org. We stand by the original story; it was not only well-written and comprehensive, but also accurate and balanced, giving Milford and his colleagues plenty of words to air their issues. Nonetheless, in the interest of healthy dialogue, we encourage readers to look at the response, and to add their own comments here on the Web site.

In a time of deceit, telling the truth is a revolutionary act. -- George Orwell.

Featured in the March 17, 2008, issue of High Country News (HCN) and in the April 16 issue of the Navajo Times (the Times) was a Navajo water rights-related article by HCN’s Matt Jenkins titled "Seeking the Water Jackpot." Letters to the HCN editor by concerned readers, like "Felice," who wrote on 3/23/08, said things such as "I agree that Matt Jenkins did seem to have a bias against the grassroots Dine folks ... ." Felice and like-minded reviewers of HCN and the Times do not know the half of it, which is why we wrote this reply.

Navajos’ Massive Unemployment

Jenkins opens his article by describing the deplorable condition of our infrastructure, including our roads, and our unemployment. He correctly said that unemployment is routinely at about 50%, and it has surged to 67%. The unemployment rate for Arizona, as we begin writing, is 4%. For the U.S. it is around 4.8%. During America's "Great Depression" of the 1930s, it averaged 17%. The routine Navajo unemployment rate is therefore 1,150% higher than Arizona's, almost 1,000% higher than the U.S. at large and almost 200% higher than the U.S. average during the Great Depression.

Jenkins' condescending article suggests that Navajos should accept the state of things and the "drinking water" or, more correctly, the faucet water, focus that Navajo Nation water lawyer Stanley Pollack and his Navajo Water Rights Commission are mostly limiting their Arizona/Utah efforts to. The New Mexico settlement has similar and other serious limitations.

Having faucet water, avowedly important, nonetheless remains a minimalist start, e.g., every urban U.S. ghetto has faucet water. Also, economist and Indian law expert, Erik Jensen, has recently observed that "Substantial economic development in Indian Country will not occur without significant infusions of outside capital ... ." Navajo, the largest tribe in North America, requires not a "significant" but an epic infusion of capital—the Navajo Nation is the size of West Virginia. The single major source for this desperately needed, anti-poverty, and pro-employment capital rests in the Navajo Nation's water rights; including sovereign authority over rights, longdenied agricultural rights, and full compensation for waived and lost rights.

Pollack and the Water Commission have failed to even pose the question, “What will the last 30% of Navajos on the Nation, who still lack running water, have when the faucet water arrives?” In the absence of an immense infusion of capital, they’ll have the same 50% unemployment rate that prevails on the Nation now. Plus, without full rights, and the full compensation due for the valuable rights and priority dates waived and lost by Pollack and his Commission, Navajo will still have no sustainable way to maintain its economy or infrastructure like, say, Arizona does. What the Navajo Nation needs is something like the water and related values we already supply to Arizona; which has the fastest growth of any state in the U.S.

CAP, the Page Power Plant, and the Navajo Cost

The Central Arizona Project (CAP) canal is designed to deliver, on average, 1.5 million acre feet of water annually (equivalent to 1.5 million football fields a foot deep) from the Colorado River diversion point at Lake Havasu to the Phoenix and Tucson regions. Without the CAP, which began operations in the '80s, Arizona would have none of today's growth. The CAP canal runs over 330 miles to Phoenix and Tucson. The market value of the CAP water is perhaps $30 billion dollars. But it’s worth more than that because without the water, Arizona would fall into chaos and start to depopulate. The Navajo Nation makes Arizona’s CAP-dependent growth possible. Here's how.

Navajo coal mined on Black Mesa goes by train to the Navajo Generating Station near Page, Arizona. The coal is burned to create steam from Navajo water taken out of the Colorado River at Lake Powell. That steam generates electricity at the plant. The volume of Navajo water used annually in the plant is about 33,000 acre feet. During the past 30 plus years, the total Navajo water used is about 1,000,000 acre feet. At today’s lease prices, that is over $1 billion worth of water, for which Navajo has never received a penny; though the surrounding states acknowledged the water is part of the Navajos’ share of the Colorado River. Pollack failed to tell the Navajo leaders this or the Page Plant's role in CAP.

Another truth about the Page Plant is that the Navajo Nation does not get the electric power generated at the Plant. The power serves the Southwest. And, almost 1/4 of it is dedicated to pumping Colorado River water (which we have been denied to date) through the CAP canal.

Therefore, some 23.7% of the Page Plant electricity goes southwest through power lines across the Reservation and on to the CAP pumps, starting at Lake Havasu, to push Colorado River water 336 miles up hill to central and southern Arizona. Thus, resources from a people with widespread poverty are used to fuel America’s leading growth state—Arizona. Social economists refer to this kind of thing as colonialism and even economic racism. Also, half of Glen Canyon Dam, at Page, was placed on Navajo land.

The power generated goes elsewhere. We get no continuing payments for the land, and none for our water that generates power at the dam. And, to date, we can only look at Lake Powell.

Jenkins' Pre-planned Bias

We are a mixed group politically—Democrat, Republican, and Independent. Although our opinions may often differ, what we have most in common are that we support full Navajo water rights, and we each were directly or indirectly belittled by Jenkins' article—about which the several of us who were interviewed had advance notice of its pre-planned prejudice. We had received a "heads-up" that Jenkins, Water Commissioner Lena Fowler, her husband and Anglo journalist George Hardeen (a Jenkins connection and contributor to HCN, as well as the media man for the Navajo President), Stanley Pollack, Pollack's operative and Anglo engineer and Nation employee John Leeper, Ph. D., and others supported the idea for the subversive Jenkins article.

We consider Pollack and Leeper as the thoroughly informed deceivers. The others, and most Navajo leaders, are caught up in their deceptions. Jenkins, however, must bear sole responsibility for his acquired role of private propagandist and agent of oppression.

Nonetheless, each of us who was interviewed determined to allow Jenkins to speak with us in the hope that either our heads-up information was incorrect, or the aberrant influence of Pollack et al. on Jenkins would be overcome by the truth. We were mistaken.

Jenkins' Reservation Visit

Jenkins was biased from the beginning. He was uninterested and occasionally rude when we separately suggested he consider sources which expose Pollack's strategies of delay, deception, misinformation, non-information, rights reduction, rights minimization, and sovereignty cutbacks. Below are two typical examples of Jenkins' unfairness.

First, as an enticement to provide him what he was angling for, Jenkins promised us he would definitely send a pre-publication draft of his article so we could comment and note corrections. He never sent us a copy, but tribal government conferees advised us he did send a pre-publication copy to Pollack, Fowler, and Hardeen.

Second, Jenkins bothered to mention such irrelevant trivia as his observation of Fowler's "vaguely sexy set of crow's feet at the corners of her eyes." Yet he did not report on the extensive credibility of the man who originally helped us expose what was happening on the Navajo Nation. What Jenkins condescendingly said was that the man "was a guy named Jack Utter, another bilagaana who is a hydrologist (for the Navajo Nation)." Jenkins continued with, "Utter is animated by the thrill of conspiracy, and he keeps a copy of Paolo Friere's antiimperialist screed Pedagogy of the Oppressed - which largely draws its inspiration from the British colonization of India - close at hand." That was it. Jenkins made some gross misrepresentations that go to his own credibility.

First, Dr. Utter did not have a copy of the late Paolo Friere's book "close at hand." We know he used to own a copy, but it went missing two years ago. Second, the book does not draw anything "from the British colonization of India," as Jenkins declared. They are not mentioned in Friere's book. Jenkins obviously has not read or researched the book, and falsely represented it. Pedagogy of the Oppressed, used in hundreds of universities throughout America as part of their diversity curricula, focuses on the poverty-stricken population of South America, including the Indians. We are aware that what upsets people like Pollack, Leeper, and now Jenkins the most is that we and other Navajo grassroots advocates, who see through these deceivers, are not unread, unthinking, uncaring, or uncommitted.

More Than Just "a guy"

Compare, if you will, the following description of Dr. Jack Utter, set down by those of us who know him, with Jenkins' portrayal and determine for yourself if Jenkins concealed from readers cogent information about the man on whose credibility much of the early grassroots argument turned.

Jack Utter, Ph. D., J. D., age 57, has a Bachelor of Science in Agriculture, including irrigated agriculture. He also has a Master of Science in Watershed Management. His Doctor of Philosophy is in Forest Resource Management, with a specialization in wild river management. He completed his law degree in 2007.

Jack is a widely-known Indian-Country author, educator, and lecturer. Annually, he presents several nationally publicized seminars on Indian law, including water law. Additionally, Jack's wife is Navajo. He has two Navajo step-children, now in college, and he has hundreds of supportive Navajo in-laws throughout the Navajo Nation. His loyalty to his Navajo family, his in-laws, and the Navajo people is unquestionable. Moreover, in the early 1990s Jack worked as a water rights negotiator for the Yavapai- Prescott Tribe of Arizona, among whom his step-daughters have blood relatives. He served as a member of the Yavapai-Prescott team that successfully took the Tribe's water rights settlement through Congress in 1994.

It is apparent to us that Jenkins, who we made sure had access to all the information presented in this section, purposely withheld it from his readership.

A Small Part of the Pollack Story

Delay. Water law lawyers Monroe Price and Gary Weatherford, as far back as 1976, published the following law review statement: "Often, non-Indians simply postpone the resolution of Indian rights, hoping they will disappear or that courts will not interfere with a developed pattern of resource reliance (by non-Indians)." Pollack started work for the Navajo Nation in 1985. It took him 20 years to get a single water rights settlement proposal before Congress; and, then, it was only in one of three states in which the Nation is located. Pollack has been here for over 20 years, yet he only began to timely move forward on broader Navajo water rights after grassroots protests in 2000-2001.

Unfortunately for the Navajo people, Pollack’s efforts remain two decades behind. His delay could not have been worse; with war, drought, economic downturns, and climate change now on America's and the world's front burners. These troubles were not front-and-center for Pollack's first 15 years. If he were in the U.S. military all this time, and had served America the way he has “served” the Navajos, he would have been court martialed long ago.

Minimizing Indian water rights

In early 2002, Pollack persuaded the Navajo Council to endorse a 2001 Arizona Supreme Court case which had a few positive aspects, but which ran contrary to federal Indian law. The Council never read the case, and he never read it to them, but he did say it was "a huge win" for the Navajo Nation. He never told them the case calls for taking "a minimalist approach to," Indian water rights. We have asked various Council delegates since if they endorse minimizing Indian rights. Each answered "no." When told of what Pollack did, they look down and say their hands are tied. Treaties. The Navajo Nation has two treaties with the United States; 1849 and 1868.

None of the 22 Arizona tribes, except Navajo, has a treaty with the U.S. Of the 23 New Mexico tribes, only Navajo, Mescalero, and Ute have treaties. Thus, Southwest treaties are important for the few tribes who have them. But, only a handful of Navajos even know there is an 1849 Navajo-U.S. Treaty. The Treaties were not even mentioned in the original San Juan Settlement that Pollack told the Council to approve. It was not until grassroots people pressed the issue that the Council was told of the 1849 Treaty, and the two Treaties were mentioned in the Settlement.

But, the 1849 Treaty is not used for water rights, and the 1868 Treaty is employed in a primarily token way. Additionally, the Nation received no specific compensation for reduction of its very valuable Treaty rights. Furthermore, under a 1990s New Mexico court case, language found in the 1849 Navajo Treaty, and copied verbatim in the Mescalero Apache Tribe's 1852 Treaty, was ruled to give the Mescaleros an 1852 water right. The New Mexico courts, relying on the federal "Canons of Construction," found "in favor of the Indians." Thus, Navajo has an exceptional chance of establishing an 1849 water right for some lands in New Mexico. And this could be pressed in negotiations as precedent for certain rights in Arizona.

But, Pollack effectively tossed the Treaty out, and garnered no compensation in specific return. And, he did not tell the Navajo Council or the Water Commission about the Treaty or the favorable New Mexico case. Who would deny a tribe their treaties, their best friend or their worst enemy?

Waiver of the Canons of Construction

The federal "Canons of Construction," or rules of legal interpretation on Indian issues, are over 170 years old and are embodied in the 1849 Navajo-U.S. Treaty; which, again, was effectively tossed out of the San Juan Settlement.

As noted, the New Mexico courts have strongly endorsed the Canons. These court-made rules generally require that treaties, agreements, statutes, and executive orders be liberally construed in favor of Indian tribes; and ambiguities be resolved in favor of tribes.

The San Juan Settlement throws out the Canons of Construction. Unfortunately, the Navajo Council never heard of the Canons until after the Canons were discarded in some obscure Settlement language. Only after James Henderson discovered this and complained did the Council first learn there was such a thing as the Canons of Construction. Pollack then had a memo sent to the Council that effectively said to leave things as they are and, "there's no guarantee a court would apply the Canons to a future Settlement issue anyway." But, with the Settlement as written, now there is a guarantee that the Canons will never be applied, since they have been waived. This uncompensated waiver sets an onerous precedent—and is grossly unfair to the other 566 federally recognized tribes—while our leaders fail to act.

"Senior" water rights

Pollack told the Navajo Council and Commission that, in the San Juan Settlement, Navajo has senior water rights. The truth is that the proposed Settlement language subordinates nearly all Navajo water rights by saying the Navajo Nation will not use its rights in a way that interferes with anyone else's. The true meaning of "senior" rights is that when you have them, you can use them before junior rights to the full extent of your own.

Pollack should have been honest with the Council on this, and should have obtained just compensation for forfeiting senior rights, if the Council agreed.

Use it or lose it

Pollack and Leeper for years have told the Navajo Council, Water Commission, and citizens at public meetings that "use it or lose it" applies to Indian reserved water rights. That is completely false. Indian reserved rights are not lost by non-use. But, Pollack and Leeper told this to Navajos so the latter will agree to reduced or minimized claims because of a Navajo history of relatively low water use, especially in Arizona and Utah, due to poverty, a lack of infrastructure and capital, and more than a century of mass government discrimination in favor of non-Indian water projects.

Fowler and her fellow Commissioners have also unwittingly spouted this "use-it-or-lose it" theme at many public meetings. That is, until Fowler was supplied last summer with 18 legal citations to the contrary. Two of these were even taken from legal seminars Pollack gave off the Reservation. When speaking to non-Navajo lawyers off the Reservation, he gives a different story because he cannot get away with all the falsehoods he spreads here. Thus, Pollack correctly said the following, off the Reservation. "Indian water rights are reserved. These rights ... are not lost through non-use." (1999. Emphasis added.) "Reserved rights exist regardless of whether water has been used by an Indian Tribe. Reserved rights are not lost by non-use or state doctrines of abandonment or forfeiture." (2000. Emphasis added.)

Additionally, after Pollack was exposed on this issue, Fowler had to acknowledge at a public meeting that reserved rights are, by legal definition, not lost by non-use. However, when faced with the reality that Pollack and Leeper had caused the Commission to spread serious falsehoods, and rather than bring these two men to task, Fowler chose to save face and help organize the Jenkins article; thus doing a great disservice to our people.

The upper Colorado River waiver

Pollack told the Navajo Council and Water Commission that the waiver of Navajo water rights on the upper Colorado River in 1969 for 50 years was valid. It is not. The waiver was achieved through documented deceptions, coercions, and falsehoods presented to an uninformed Council. It is therefore void.

He also, for years, told our people that upper Colorado River basin water in Lake Powell could not be used in the Lower Basin. That too is false. Even now, the State of Utah, which had agreed decades ago not to use upper basin water in the lower, is moving ahead to do it anyway.

Readers can look for themselves on the Internet for the "Lake Powell Pipeline Project." Allottee's water rights. The future water rights of the New Mexico Navajo land allottees were folded into the Navajo Nation's. The land allottees had no proper notice and were not given an informed opportunity to be heard, i.e., their constitutional rights of due process were essentially violated. The Navajo Nation does not control water rights appurtenant to the checkerboard allotments in N.M., which are outside the Reservation. Some 3,000 or more allotments, with perhaps 30,000 Navajo owners, are in the San Juan Basin. The checkerboard allottees' rights, on allotments taken from the public domain, are independent of the Navajo Nation's.

Reduced San Juan Settlement volumes and values

Randomly ask a Navajo Council member how much of the San Juan River Navajo is getting in the proposed Settlement, and they'll say, "Pollack told us 1/2 the River." That volume is incorrect. One half would be roughly 750,000 acre feet, or at least $10 billion worth of rights. The actual rights volume is about 325,000 acre feet. The difference in value between the larger and the smaller figures is roughly $6 billion. What the Council delegates do not understand is that Pollack confined the Navajo Nation to claiming about one half of the roughly one half of the River that was assigned to New Mexico in a non-Indian agreement from the 1940s that the Navajo Nation was never party to.

All our ongoing settlements have complications. But, in each, Pollack and Leeper surrender Navajo rights and opportunities they've hidden from our leaders. In addition, in 1962, the Navajo Nation gave up rights to 110,000 acre feet of San Juan River water that is now pumped under the Continental Divide to the middle Rio Grande River Basin. That volume of rights in the middle Rio Grande, at today's prices, is worth about $3 billion. That is $1.5 billion dollars more than the rough cost of the proposed Settlement. In other words, in light of all this, the Navajos have already more than paid for the Settlement, as well as the Navajo Indian Irrigation Project (NIIP), in what they have given up.

This is a powerful negotiating point that justifies full and fair compensation for what was and is being given up. But, Pollack did not inform the Navajo leadership of these values and the reduced Settlement volumes described. Too, the Jenkins article noted a San Juan Settlement volume of about 325,000 acre feet. The Times published the article. The Times later published a Settlement-related article, declaring the River Settlement volume to be about 600,000 acre feet.

That’s near 100% more than HCN or the New Mexico media report, but the Times, like the Council and the Commission, failed to question the discrepancy because the 600,000 plus figure is the on-Reservation muddled story that Pollack and Leeper give. Water values. Several years ago we reported to the Council that the value of Southwest region water rights was, conservatively, at least $1,000 per acre foot. Pollack told them we were either lying or crazy. Within a year Navajo’s NIIP water was professionally appraised at approximately $15,000 per acre foot. Now, regional surface water values generally fall between $10,000 and $55,000 per acre foot—the latter in Santa Fe. But, unfortunately, only we have challenged Pollack for this proven falsehood.

The Winter's Doctrine

The centennial of the "Winter's Doctrine" of Indian reserved water rights is being celebrated this year, but Pollack essentially waived the doctrine in the San Juan Settlement, and is doing the same in Arizona and Utah while our leaders ignore it.

The Water Rights Commission

Pollack is, in essence, telling the Water Commission and Council that Navajo cannot even claim the greater rights it was expected to for decades. And, he gets deceived Commissioners, like Fowler, to work against their people's rights; while they are rewarded with the power, prestige, travel, and additional advantages that go along with a leadership position. Fowler and the other Commissioners were unaware the original proposal to create the Commission came from the grassroots group Dine Sovereignty Defense Association, or "DSDA."

The idea was derived from Montana's Reserved Rights Commission. DSDA refined their model to serve as a people's commission, separate from Pollack’s manipulation, and urged the Council to pursue it. They did, but Pollack and Leeper, and several Council Delegates (who they had in their pockets), intervened and stole the Commission from the people. Now the Commission's education and decision-making are controlled by and/or filtered through Pollack. They have effectively become his misled pawns, and thus frequent spokespersons for outside interests.

Tribal Patriotism

Jenkins' article mocks us for having feelings of patriotism for our own people. Even in the 1890s, one of the most anti-Indian decades in history, an Interior Department publication recognized that tribal members "owe immediate allegiance to their ... tribes."

We think Sitting Bull, the assassinated Lakota leader, may have said it best for us. "Is it wrong for me to love my own? Is it wicked that my skin is red? Because I am (an Indian); ... because I would die for … my people?" Feelings similar to these are behind the irony that American Indians have perpetually had the highest rate of U.S. military service of any ethnic group. Indians protect America because it is their homeland. Peter, for example, honorably served as a Navajo Code Talker in the U.S. Marine Corps during World War II. Milton, too, served honorably in the Army, both stateside and in Europe. Also, James is an honorably discharged and wounded combat veteran of the Viet Nam war. This is why Jenkins' referring to Navajos, like ourselves, as "insurgents" is so offensive to us—who are peacefully struggling for our people's rights.

All of us have relatives who have served in Iraq and Afghanistan. Max and Ron have children who served there against real "insurgents." These veterans have done this sacrifice while Pollack, Fowler, and the others childishly support Jenkins' insult to us, our families' veterans, and the veterans of numerous other Navajo patriot families. Despite this disrespect, we will continue with the great respect we have for the service and sacrifice of all our veterans. We also say shame on you to Jenkins and his co-schemers. We further ask him and similar interlopers to kindly keep their anti-Navajo propaganda to themselves.

Fabricated Sympathy for Pollack

This was a goal of Jenkins. Ron had written an opinion in the Times in December that, among other things, called for investigations into potential ethics violations by Pollack and other Navajo Nation attorneys who may knowingly join in his subversive efforts.

Also, we are not insensitive to the fate of millions of Jews during the Holocaust, as Jenkins suggested. The opposite is true. One of our group, in fact, counseled with a regional Rabbi after we learned Pollack was Jewish. This was done because we could not understand how Pollack could carry out his oppressive policies against our people. The Holocaust explanations from the Rabbi made our hearts weep, and reminded us of how many of our ancestors, and those of other Southwestern tribes, were treated so inhumanely by first Spain, then Mexico, and finally America in the 19th century. But the Rabbi advised us not to apply any sympathy to Pollack. The Rabbi described a personal disappointment that Pollack was Jewish, because of Pollack's deceptions. And, it was the Rabbi who gave us this quote, “The great masses of the people will more easily fall victim to a great lie than to a small one.”

The Boyden Syndrome

In the late 1940s a lawyer named John Boyden came to the Navajo Nation seeking employment for his Utah law firm. Navajo was full up. Boyden went on to Hopi, where he was hired in 1951. Law professor Charles Wilkinson explains in his 1990s book Fire on the Plateau that Boyden planned to, in effect, take over the Hopi government. He succeeded, by getting "progressive" Hopis to outvote "traditionals," and then pushed development of Black Mesa coal and Hopi acceptance of the Peabody Coal Company lease. Boyden obtained approval of the lease without truthfully informing the Hopi Council on the lease's value, or that of scarce water resources. He also never disclosed whether he had ties to Peabody. However, he did negotiate a groundwater lease, "on behalf of Hopi," whereby the Tribe would receive from Peabody a "laughable" (Wilkinson’s term) $1.67 for every acre foot (326,000 gallons) of pristine N-Aquifer water used to slurry Peabody's coal through a pipeline from Black Mesa. The pipeline went to a Laughlin, Nevada, power plant roughly 300 miles to the west.

Boyden, the deceived Hopi Council, and Peabody always vehemently denied that Boyden ever represented Peabody, but rumors (much less strong than Pollack’s identifiable deceptions) persisted. Boyden died in 1980, and his papers went to the University of Utah. Wilkinson and a researcher gained access to those papers in the 1990s. They discovered an entire file on Boyden's secret work for Peabody. Wilkinson's researcher remarked to Wilkinson about the Peabody materials, "I can't even begin to tell you how bad it is." Wilkinson himself, after going over the file, said "it was a sickening, depressing experience."

Hopi and Navajo coal and water was, and is, wanted by the American Southwest and its boosters for a great buildup of this part of the "sun belt." The vast majority of the benefits have not gone to the tribes but to outside interests.

Navajo tribal member and attorney, Sharon Noel, who was a Navajo Department of Justice (DOJ) lawyer and later chief of staff for President Kelsey Begaye, recognized a kind of Boyden syndrome at work on Navajo before she was forced out by the Pollack faction. She went public with some of this in the Gallup Independent on July 30, 2002. Noel said about the Navajo DOJ, where Pollack works, "DOJ is more about being obstructionist and placing barriers in front of long-standing problems (such as water rights) than it is about seeking remedies on behalf of the Dine people ... . Somebody is making money off the continued suffering of the people." She went on to say about Navajo water rights, "The more I read the more astounded I became, ... I learned our Colorado River water rights claim is huge." Noel was a casualty of telling the truth.

We are confident, however, that in the coming decades the names Boyden and Pollack will be commonly spoken about in the same breath, along with those in Navajo government who helped Pollack achieve his ill ends, whether they were deceived or not. Navajo leaders are currently embarrassed about the loss of $4.7 million to a con man they made a deal with for an on-Reservation project. It turns out the man had a three-year gap in employment history. No one bothered to ask about it. After the fraud became apparent, the employment gap was found to exist because the man had been in prison for another fraudulent scheme. Now, Navajo leaders admit “the signs were there.” Unfortunately, the “gaps” in Pollack’s handling of water rights have been dealt with same way; they’ve been ignored. “The signs are there,” too. But not in over 20 years has there been a fully open and honest presentation to the Navajo leadership and people on water rights potentials, the law, treaty rights, Winters rights, sovereign control values, water values, waiver values, etc.

Conclusion

It is important for the Navajo People to know that they have inalienable rights not to have to cower before the states and outside interests, like Pollack effectively causes our leaders to do. Even a high-ranking Navajo lawyer confided to one of our group, some time ago, that dealing with powerful White corporate, state, and federal lawyers and politicians is far too daunting for him, so he turns a blind eye to Pollack.

The Navajo Nation can rid itself of Pollack and Leeper, and withdraw the proposed San Juan Settlement and make corrections. And, it can re-direct the Arizona and Utah settlements away from the current weakened approach. Furthermore, like non-Indian interests, the Navajo Nation can "maximize all rights at all times and at all places," and begin negotiations from there. We can maintain this philosophy of strength while remaining reasonable, logical, and determined to negotiate the best settlements possible for our people.

Among other tribes and non-Indian interests the motto is “Never give up anything without getting something in exchange;” while Navajo gives away $billions in value. This happens partly because colonialism and racism have multi-generational impacts on affected peoples. There is the observable or disguised despotism of the colonist and racist, and the learned and degrading submission of the oppressed. But we believe these negatives can be overcome.

At the very end of his article, Jenkins quotes Pollack talking about the grassroots people. Pollack says, "You know? They're like, "Well, shit. Why do we have this guy here? I want to be a millionaire."

No, the grassroots patriots for the Navajo Nation only want it to survive, to gain access to full rights, to receive just compensation for waived and lost rights, to have decent infrastructure, and to reduce the devastating unemployment rate at least down to Great Depression levels. This kind of far-better future would be an astounding achievement—one which Pollack and his supporters, like Jenkins, are sabotaging.

This response to HCN's March 17 cover story, "Seeking the Water Jackpot," was written by Max Goldtooth, Peter MacDonald and Ron Milford, joined by Milton Bluehouse, Sr., former Navajo Nation President; James Henderson, Jr., former Arizona State Senator; and Wallace Hanley, former Navajo Water Code Administrator

stop the madness
Steve Cone
Steve Cone
Jul 24, 2008 10:28 AM
I must agree with the grassroots Navajo leaders here that Mr. Jenkins article should best be viewed as an utter embarrassment to High Country News. The fact that the editorial staff ballyhoos the journalistic merits ("well-written, accurate, fair and balanced") of Mr. Jenkins piece speaks volumes to the underlying motives of their enterprise and, frankly, smacks of Fox News. In the spirit of disclosure, Mr. Jenkins interviewed me for about an hour, and I subsequently shared with him detailed documentation of my concerns, none of which were acknowledged in his article. Here I include some of those concerns, beginning with the Administration's statement before Congress and ending with the test of the federal government's policy for the negotiation of Indian water rights settlements:

STATEMENT OF CARL ARTMAN, ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
BEFORE THE COMMITTEE ON ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
27 JUNE 2007

. . . The Administration believes that the policy guidance found in the
Criteria and Procedures for the Participation of the Federal Government
in Negotiations for the Settlement of Indian Water Rights Claims
(``Criteria'') (55 Fed. Reg. 9223 (1990)) provides a flexible framework
in which we can evaluate the merits of this bill. The Criteria provide
guidance on the appropriate level of Federal contribution to the
settlements, incorporating consideration of calculable legal exposure
plus costs related to Federal trust or programmatic responsibilities.
In addition, the Criteria call for settlements to contain non-Federal
cost-share proportionate to the benefits received by the non-Federal
parties, and specify that the total cost of a settlement to all parties
should not exceed the value of the existing claims as calculated by the
Federal Government. As we have testified previously, the Criteria is a
tool that allows the Administration to evaluate each settlement in its
unique context while also establishing a process that provides guidance
upon which proponents of settlements can rely.
. . . We wish to reiterate however that the Administration is committed
to ensuring consistency with the Criteria and Procedures. The
settlement of the Navajo claims to the San Juan River proposed in this
bill has a high Federal cost without appropriate safeguards that
carrying out the authorized activities would accomplish the goals and
objectives of the proposed settlement. These kinds of analyses should
be completed prior to the passage of such a large settlement proposal.
In light of the goal of finality, it is especially troubling that this
bill does not address the distribution systems that must be constructed
before any water will actually reach the homes of those who need it. . .
####

Just as the Colorado Ute Settlement for Animas-La Plata is a fraud, the Navajo Settlement for the Gallup Pipeline is fraudulent in that it fails to recognize and adhere to longstanding, established policy [55FR9223] for the participation of the federal government in the negotiation of Indian water rights settlements.

 In its July 2000 Final Supplemental Environmental Impact Statement for ALP, the Bureau of Reclamation (BOR) repeatedly cited 55FR9223 as justification for construction of ALP. That policy established in 1990 by President George Herbert Walker Bush, establishes the framework and principles under which the United States is required to conduct Indian water right settlement negotiations. In signing the bill that created the policy, that President Bush warned, "Careful attention must be paid when Federal taxpayers are asked to contribute substantially more than they might otherwise pay as a result of litigation involving the Federal Government's alleged breach of specific trust responsibilities." In the case of A-LP Bruce Babbitt's Deputy Secretary of the Interior David Hayes, chose, however, to ignore this dictum and the policy requirements contained in 55FR9223.

 Among the more significant of the ignored policy requirements in the both the proposed Navajo and Colorado Ute settlements are that: (1) the United States determine the legitimacy of Indian claims, including the cost and potential legal success of challenging the claims in court; (2) OMB and Justice be part of the evaluation team for such purposes; (3) competing Indian claims be evaluated simultaneously to avoid embarrassing and unforeseen consequences for the American public; (4) settlement amounts or costs to the American taxpayer should not exceed the value of Indian claims. To ignore these common sense Criteria is to sanction a circus in the settlement process and visit abuse on federal taxpayers.

This failure to recognize the main tenets of federal policy, as outlined in 55FR9223, threatens the long-term harmony and cooperation among parties with an interest in a just settlement and undermines the credibility of government agencies.

THE FOLLOWING IS THE TEXT OF 55FR9223:

55 FEDERAL REGISTER NO. 48 PP.9223-9225
MARCH 12, 1990

DEPARTMENT OF THE INTERIOR
Policy Statement
Working Group in Indian Water
Settlements; Criteria and Procedures
for the Participation of the Federal
Government in Negotiations for the
Settlement of Indian Water Rights Claims

Federal Register / Vol. 55, No. 48 / Monday, March 12, 1990 / Notices page 9223

DEPARTMENT OF THE INTERIOR

Working Group in Indian Water Settlements; Criteria and Procedures for the Participation of the Federal Government in the Negotiations for the Settlement of Indian Water Rights Claims

AGENCY: Department of the Interior

ACTION: Policy Statement

SUMMARY: It is the policy of this Administration, as set forth by President Bush on June 21, 1989, in his statement signing into law H.R. 932, the 1989 Puyallup Tribe of Indians Settlement Act, that disputes regarding Indian water rights should be resolved through negotiated settlements rather than litgation. Accordingly, the Department of the Interior adopts the following criteria and procedures to establish the basis for negotiation and settlement of claims concerning Indian water resources.

EFFECTIVE DATE: March 12, 1990.

ADDRESSES: Comments may be addresed to: Mr. Tim Glidden, Department of the Interior, MS6217-MIB, 18th and C Streets, NW., Washington, D.C. 20240

FOR FURTHER INFORMATION CONTACT: Mr. Tim Glidden, Chairman, Working Group on Indian Water Settlements, 202-343-7351

SUPPLEMENTAL INFORMATION: These criteria and procedures were developed by the Working Group on Indian Water Settlements from the Department of the Interior.

These criteria and procedures supersede all prior Departmental policy regarding Indian water settlement negotiations. The criteria provide a framework for negotiating setlements so that (1) The United States will be able to participate in water settlements consistent with the Federal Government's responsibilities as trustee to Indians; (2) Indians receive equivalent benefits for rights they, and the United States as trustee, may release as part of a settlement; (3) Indians obtain the ability as part of each settlement to realize value from confirmed water rights resulting from settlement; and (4) The settlement contains appropriate cost-sharing by all parties benefiting from the settlement.
Dated: March 6, 1990
Timothy Glidden
Chairman, Working Group on Indian Water Settlements.

Criteria and Procedures for Indian Water Rights Settlements

Preamble

Indian water rights are vested property rights for which the United States has a trust responsibility, with the United States holding legal title to such water in trust for the benefit of the Indians.

It is the policy of this administration, as set forth by President Bush on June 21, 1989, in his statement signing into law H.R.932, the 1989 Puyallup Tribe of Indians Settlement Act, that disputes regarding Indian water rights should be resolved through negotiated settlements rather than litigation.

Accordingly, the Department of the Interior adopts the following criteria and procedures to establish the basis for negotiation and settlements of claims concerning Indian water resources. These criteria and procedures supersede all prior Departmental policy regarding Indian water settlement negotiations. The criteria provide a framework for negotiating settlements so that (1) The United States will be able to participate in water settlements consistent with the Federal Government's responsibilities as trustee to Indians; (2) Indians receive equivalent benefits for rights they, and the United States as trustee, may release as part of a settlement; (3) Indians obtainsthe ability as part of each settlement to realize value from confirmed water rights resulting from settlement; and (4) The settlement contains appropriate cost-sharing by all parties benefiting from the settlement.

Criteria

1. These criteria are applicable to all negotiations involving Indian water rights claims settlements in which the Federal Government participates. Claims to be settled through negotiations may include, but are not limited to, claims:
(a) By tribes and U.S. Government to quantify reserved Indian water rights.
(b) By tribes against the U.S.Government.
(c) By tribes and the U.S. Government against third parties.
2. The Department of the Interior will support legislation authorizing those agreements to which it is a signatory party.
3. Settlements should be completed in such a way that all outstanding water claims are resolved and finality is achieved.
4. The total cost of the settlement to all parties should not exceed the value of the existing claims as calculated by the Federal Government.
5. Federal contributions to a settlement should not exceed the sum of the following two elements:
a. First, calculable legal exposure--litigation costs and judgment obligations if the case is lost: Federal and non-Federal exposure should be calculated on a present value basis taking into account the size of the claim, value of the water, timing of the award, and likelihood of loss.
b. Second, additional costs related to Federal trust or programmatic responsibilities (assuming the U.S. obligation as trustee can be compared to existing precedence.)--Federal contributions relating to programmatic responsibilites should be justified as to why such contributions cannot be funded through the normal budget process.
6. Settlements should include non-Federal cost-sharing proportionate to the benefits received by the non-Federal parties.
7. Settlements should be structured to promote economic efficiency on reservations and tribal self-sufficiency.
8. Operating capabilities and various resources of the Federal and non-Federal parties to the claims negotiations should be considered in structuring a settlement (e.g. operating criteria and water conservation in Federal and non-Federal projects).
9. If Federal cash contributions are part of a settlement and once such contributions are certified as deposited in the appropriate tribal treasury, the U.S. shall not bear any obligation or liability regarding the investment, management or use of such funds.
10. Federal participation in Indian water rights negotiations should be conducive to long-term harmony and cooperation among all interested parties through respect for the sovereignty of the States and tribes in their respective jurisdiction.
11. Settlements should generally not include:
a. Local contributions derived from issuing bonds backed by or guaranteed by the Federal Government
b. Crediting to the non-Federal share normal project revenues that would be received in absence of a cost-share agreement.
c. Crediting non-Federal operation maintenance, and rehabilitation (OM&R) payments to non-Federal construction cost obligations.
d. Imposition by the Federal Government of fees or charges requiring authorization in order to finance the non-Federal share.
e. Federal subsidy of OM&R costs of Indian and non-Indian parties.
f. U.S. participation in an economically unjustified irrigation investment; however, investments for delivery of water for households, gardens, or domestic livestock may be exempted from this criterion.
g. Per capita distribution of trust funds.
h. Crediting to the Federal share existing annual program funding to tribes.
i. Penalties for failure to meet a construction schedule. Interest should not accrue unless the settlement does not get budgeted for as specified in item 15 below.
j. Exemptions from Reclamation law.
12. All tangible and intangible costs to the Federal Government and to non-Federal parties, including the forgiveness of non-Federal reimbursement requirements to the Federal Government and items contributed per item 8 above should be included in calculating their respective contributions to the settlement.
13. All financial calculations shall use a discount rate equivalent to the current water resources planning discount rate as published annually in the Federal Register.
14. All contractual and statutory responsibilities of the Secretary that affect or could be affected by a specific negotiation will be reviewed.
15. Settlement agreements should include the following standard language: Federal financial contributions to a settlement will normally be budgeted for, subject to the availability of funds, by October 1 of the year following the year of enactment of the authorizing legislation (e.g., for a settlement enacted into law in August 1990, funding to impement it would normally be contained in the FY 1992 Budget request and, if appropriated, be available for obligation on October 1, 1991).
16. Settlements requiring payment of a substantial Federal contribution should include standard language providing for the costs to be spread-out over more than one year.

Procedures

Phase I-- Fact Finding

1. The Department of the Interior (Department) will consider initiation of formal claims settlement negotiations when the Indian tribe and non-Federal parties involved have formally requested negotiations of the Secretary of the Interior (Secretary).
2. The Department will consult with the Department of Justice (Justice) concerning the legal considerations in forming a negotiating team. If Department decides to establish a team, the Office of Management and Budget (OMB) and Justice shall be notified, in writing. Justice should generally be a member of any negotiating team. a. The Department's notification should include the rationale for potential negotiations, i.e., pending litigation and other background information about the claim already available, makeup of the team (reason that Justice is not a member of a team, if applicable), and non-Federal participants in the setlement process.
b. The date of the notification marks the beginning of the fact-finding period.
3. Not later than nine months after notification , a fact-finding report outlining the current status of litigation and other pertinent matters will be submitted by the team to the Department, OMB, and Justice. The fact-finding report should contain information that profiles the claim and potential negotiations. The report should include:
a. A list of all involved parties and their positions.
b. The legal history, if any, of the claim, including such relevant matters as prior or potential litigation or court decisions, or rulings by the Indian Claims Commission.
c. A summary and evaluation of the claims asserted for the Indians.
d. Relevant information on the non-Federal parties and their positions to the claim.
e. A geographical description of the reservation and drainage basin involved, including maps and diagrams.
f. A review and analysis of pertinent existing contracts, statutes, regulations, and legal precedent that may have an impact on the settlement.
g. A description and analysis of the history of the United States' trust activities on the Indian reservation.
4. During Phase I, II, and III, the Government (through negotiating team or otherwise) will not concede or make representatives on likely U.S. positions or considerations.

Phase II--Assessment and Recommendations

1. As soon as possible, the negotiating team, in concert with Justice, will conduct and present to the Department an assessment of the positions of all parties and a recommended negotiating position. The purpose of the assessment is to (1) measure all costs presuming no settlement, and, (2) measure complete settlement costs to all the parties. The assessment should include:
a. Costs presuming no settlement-- Estimates for quantifying costs associated with all pending or potential litigation in question, including claims against the United States and claims against other non-Federal parties together with an assessment of the risk to all parties from any aspect of the claim and all pending litigation without a settlement. A best/worst/most likely probablility analysis of the litigation outcome should be developed.
b. An analysis of the value of the water claim for the Indians.
c.Costs Presuming Settlement-- quantification of alternative settlement costs to all parties. This includes an analysis showing how contributions, other than those strictly associated with litigation, could lead to settlement (e.g., facilities to use water, alternative uses of water, and alternative financial considerations).
2. All analysis in the settlement should be presented in present value terms using the planning rate used for evaluating Federal water resource projects.

Phase III--Briefings and Negotiating Position

1. The Working Group on Indian Water Settlements will present to the Secretary a recommended negotiating position. It should contain:

a. The recommended negotiating position and contribution by the Federal Government.
b. A strategy for funding the Federal contribution to the settlement.
c. Any legal or financial views of Justice or OMB.
d. Tentative position on major issues expected to arise.
2. Following the Secretary's approval of the Government's negotiating position, Jusitice and OMB will be notified before negotiations commence.

Phase IV--Negotiations Toward Settlement

1. OMB and Justice will be updated periodically on the status of negotiations.
2. If the proposed cost to the U.S. of settlement increases beyond the amount decided in Phase III, if the negotiations are going to exceed the estimated time (or break down), or if Interior proposes to make significant changes in the Government negotiating position or in the U.S. contribution to the settlement, the original recommendation and negotiating position will be revised using the procedures identified above.
3. Briefings may be given to the Congressional delegations and the Committees consistent with the Government's negotiating position.

[FR Doc.90-5532 Filed 3-9-90:8:45 am] BILLING CODE 4310-RP-M


HCN Coverage on Water Settlements
Jack Stanford
Jack Stanford
Nov 16, 2009 11:52 PM
HCN demonstrates an anti-tribal sovereignty, pro-manifest destiny bias when covering Indian water negotiations. The journal's superficial, polly anna report of the Klamath Basin Restoration Agreement (KBRA) essentially asserts that if a collaboration of historic enemies agrees on something, it must necessarily be positive. Critical, thorough journalism on the Klamath draft agreement would reveal the tongue-in-cheek "restoration" is lip service contrasted with the heart of the deal: the transference of senior Indian water rights over to the Bureau of Reclamation irrigators in the Upper Basin, and too much of it for any assurance of restoration. HCN chose to ignore analysis of the fact that the Hoopa Valley Tribe, arguably the entity that has done more than any other to protect and restore Klamath-Trinity Basin salmon, opposes the KBRA for various sensible reasons. What happened to the HCN that dug below the surface?

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