Seeking the Water Jackpot

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."

• Water