In Navajoland, a contentious water deal divides the tribe

by Matt Jenkins

The Navajo Nation sprawls across about one-tenth of the nearly quarter-million-square-mile Colorado River drainage. But ever since the seven states that depend on the river met to divide its water 88 years ago, the tribe has been pushed into the shadows of river politics. About 40 percent of the reservation's roughly 170,000 residents still don't have drinking water piped into their homes and must haul it from miles away.

For years, the tribe has been asserting its right to Colorado River water through a series of legal settlements with the states of New Mexico, Arizona and Utah, each of which includes a portion of the Navajo Reservation. In 2004, the Navajo Nation received rights to 326,000 acre-feet of water from New Mexico; negotiations with Utah are inching closer to completion.

And, in November, the Navajo tribal council approved a deal with Arizona for the right to water from the Colorado River and one of its tributaries, and from two giant aquifers that lie beneath the reservation. Equally important, the settlement includes $693 million to build the pipelines and other infrastructure needed to get water to 20 reservation communities.

But some Navajos are angry about what's not in the settlement: A lot more water. Given the tribe's bitter history of being cheated out of its resources, they believe it should have demanded millions of acre-feet more water, based on treaty rights. "Every time there's a resource found on the reservation, they come after it, like the uranium," says Ron Milford, a principal organizer of opposition to the settlement. "We really got scammed big time."

In order to reach an agreement, however, the tribe had to scale back its water claim in exchange for the money that's needed to actually put the water rights to use, says Stanley Pollack, an assistant attorney general for the Navajo Nation and the tribe's main water negotiator. "Beating your chest and saying that you're entitled to X amount of acre-feet doesn't get water to the people," he says.

In 2003, the Navajo Nation filed a lawsuit that put Arizona and other major water users on notice that the tribe was finally coming after its water. Much of the water needed to satisfy a Navajo claim would have to come from Arizona's 2.8-million-acre-feet share of the Colorado, and most of that was already in use. There is considerable controversy over the matter, but some ambitious commentators have suggested that the tribe could make a claim of 5 million acre-feet or more. Such large claims would require proving that much of the Navajo Reservation could be "practicably" irrigated, but if successful, they would tear the heart out of the water supply on which the rest of the state's economy depends.

Partly to forestall that possibility, state negotiators boxed in the Navajos' bargaining options. In 2004, the Arizona Water Settlement Act designated a chunk of Colorado River water to satisfy outstanding tribal claims. Today, there's just 42,300 acre-feet water unclaimed under that law, and 31,000 acre-feet of that will go to the Navajo.

That's not the only water the tribe will receive; it will also get up to 161,000 acre-feet from the Little Colorado, depending on its water level, plus rights to pump from the two aquifers. But even though the tribe could theoretically lease its Colorado River water to Phoenix and Tucson, the terms of the deal prohibit it from doing so with its much larger supply of Little Colorado River water and groundwater. Milford notes that such leasing could have generated significant revenue for the Navajo Nation, which desperately needs the income. (In recent years, at least half of the reservation's residents have been unemployed.) "Once (the surplus) goes down the Colorado River, it's going to make its way to Phoenix," he says, "and they're going to bank it, free of charge."

The Navajo settlement is "a big step," says Herb Guenther, who headed the Arizona Department of Water Resources until retiring in January. Since 2003, the Central Arizona Project, which supplies Phoenix and Tucson, has been unsettled by the possibility that the Navajo could get more water. "It gives us a lot more certainty on the Central Arizona Project water supply," he says.

It is by no means certain when, or if, Navajos will see "wet water" from the deal, which still needs to be approved by the Hopi Tribe, the Arizona Legislature, and, most importantly, Congress, which will be responsible for funding the water projects.

Still, former tribal President Joe Shirley, who signed the settlement before he left office this January, says that the Navajo Nation holds a trump card: The tribe can sue to stop any new water allocations to other Arizona users until the settlement is funded.  "If Congress balks," he says, "we're back to square one: litigation."

This story was funded by a grant from the McCune Charitable Foundation.

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