Seeking the Water Jackpot

For almost a century, the Navajo Tribe has been left out of the Colorado River water game. Now, they're ready to play their hand.

  • Seeking the water jackpot

  • The coin-operated water dispenser in Gallup, New Mexico, where a quarter will buy 50 gallons of water, if it doesn't get stuck in the slot

  • Bobby Esplain, 77, has jugs for 22 gallons of water that he'll haul the 30 miles from this Tuba City watering point to his home in Cameron, Arizona

  • Trucks line up at the City of Gallup water distribution point on a Friday, before the weekend rush when the waiting line sometimes runs all the way around the block

  • Lena Fowler of the Navajo Nation Water Rights Commission says states have ignored Native American rights to Colorado River water

  • Water pipes stop just short of these homes on the Navajo Nation, which lie between Tuba City and the Colorado River, 50 waterless miles in the distance

  • The Navajo's traditional holy land is roughly twice the size of the current reservation and is bounded by the four sacred mountains, noted in green on this ma

  • Stanley Pollack, assistant attorney general for the Navajo Nation's Department of Justice, collects bumper stickers and fliers from groups that say he isn't doing enough to get the best water deal for the Navajo Nation


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Pollack has been steadily making it harder for the seven states to continue ignoring the tribe. In 2003, the Navajo Nation filed a lawsuit against the states and the U.S. secretary of the Interior to prevent any further water allocations until the Navajo claims are resolved. Pollack and a team of Navajo negotiators have been in ongoing talks with representatives from Arizona, Las Vegas and Southern California over that lawsuit.

But Arizona, in particular, has been pushing back. Because the CAP is so vulnerable to water shortage, the state has been pressuring the Navajo Nation to reduce the size of its water claims. Last fall, the director of the state's water-resources department appeared before Congress to testify against the Navajo-New Mexico settlement, saying it shouldn't be approved unless the tribe also settles its claims with Arizona.

"Arizona's playing the leverage game," Pollack said - seeking to get a deal that the tribe might not otherwise make "on the assumption that because Navajo wants this New Mexico settlement, they'll make concessions to benefit Arizona."

The Navajo Nation's decision to seek water through a settlement, rather than by going to court, reflects a broader trend in Indian Country. Over the past decade and a half, tribes have increasingly turned to settlements, in part because the U.S. Supreme Court has become increasingly hostile to Indian rights. Still, the Navajo are keeping their options open. Last summer, Navajo President Joe Shirley traveled to Washington, D.C., to warn Congress that "if the (New Mexico) settlement were to fail, and the Navajo Nation were forced to pursue the litigation of its claims, the United States would still be exposed to horrific liabilities even if the Navajo Nation were to obtain only modest water rights."

Back on the reservation, however, Pollack was being dogged by critics who accused him of selling out the tribe. Some insisted that the Navajo Nation should settle for nothing less than every last drop of water in the Colorado River.


Peter MacDonald was released from prison and returned to the reservation in 2001. Many Navajos see him as a folk hero, a sort of leader-in-exile, and he seems to be constantly on the road. When we talked by phone, he was headed to Phoenix for the dedication of a Navajo veterans' memorial there.

In the late 1970s, when MacDonald was tribal chairman, he commissioned a study that, he hoped, would form the backbone of a Navajo water claim. Water-rights studies tend to be pretty tedious things, but this one conjured up a vision that was positively messianic.

Rather than focus on the 18-million-acre Navajo reservation to determine what water the tribe might claim, MacDonald directed his engineers to consider the entirety of what he calls "the Navajo holy land": An area roughly twice the size of the reservation itself that lies between the Four Sacred Mountains, which stretch from Flagstaff, Ariz., to the San Luis Valley in Colorado. That territory includes not only the Colorado River and two of its main tributaries - the San Juan and Little Colorado - but the Rio Grande as well.

"Navajos were there even before the states were created," MacDonald said. "So by the Winters Doctrine, Navajo has first and primary right to all that water within the Four Sacred Mountains." (He neglected to mention that the area also includes the ancestral territory of the Hopi, Utes, Zuni, Jicarilla Apache and the 19 Indian pueblos on the Rio Grande.)

MacDonald's engineers began figuring out exactly how much water the tribe could claim, by calculating its "practicably irrigable acreage," or PIA. In 1964, the U.S. Supreme Court had endorsed PIA as a way to determine the size of water-rights claims made under the Winters Doctrine. A PIA determination evaluates how much of a tribe's land can be "practicably" - meaning economically - irrigated, and then uses a formula to derive a total water right for the reservation.

There can be a big difference between what's irrigable and what's practicably irrigable, but the engineers didn't get too hung up on observing that distinction. They ultimately determined that, as MacDonald put it, "Navajo has claim to every drop of the water that's presently being used by New Mexico, Arizona, California, Nevada, Utah, Colorado and Wyoming." As he said this, I suddenly had a vision of the world turning upside down: the bilagaanas forced to drive to the watering point with 55-gallon drums in the backs of their Volvos and Range Rovers, a roll of quarters in their pockets to fill up their backyard swimming pools and keep their lawns lush.

On a roll, MacDonald instructed the engineers to draw up plans for a Navajo version of the Central Arizona Project. But for all the talk about creating an irrigated agrarian utopia in the desert, the real idea, he allowed, was this: For decades, all the thirsty cities downstream had been using water -- Navajo water -- for free. Once the tribe won its water-rights claim, the cities could keep using the water - but only if they finally started paying the Indians for the use of what was rightfully theirs.

"We were ready to go to court" to win that water, MacDonald said. But the dream faded with his own arraignment, and the blueprints for the project apparently vanished into thin air. And now that he was out of prison, all this business about a settlement with New Mexico was pissing him off. "It's like you had a hundred head of sheep, and somebody stole them from you," MacDonald said. "Finally, you find your sheep in somebody else's corral. So you go and say, 'Hey, these are my sheep! Look at the brands, look at the earmarks: They're all mine.' And the guy who stole them says, 'Let's have a settlement here. I'll give you three of these sheep back.' "

But even though the blueprints for an Indian CAP have gone missing, the idea still casts an enthralling spell over more than a few Navajos.


The rumors first came roaring up eight years ago with the appearance of a mimeographed pamphlet, an open letter entitled "Lawyers, Water Rights, Betrayals and the Fate of the Navajo Nation." It was written in the name of a group called the Dine Sovereignty Defense Association, or DSDA. (Dine is the Navajo word for Navajo, and the group's acronym is pronounced "DEZ-duh.") Thanks to the fury of its leafleting campaign, I came to think of DSDA as a sort of Irish Republican Army, minus the bombs and kneecapping.

The letter, which did not mention Pollack by name, alleged that "one or more of the Nation's lawyers are secretly working for outsiders." The water rights issue "amounts to a national emergency for the Navajo people," it said. It asserted - with a phrase that recurred like the come-on in a Nigerian Internet scam - that a Navajo water claim "has a potential value of 100s of $millions and more."

The author of the letter was a guy named Jack Utter, another bilagaana who is a hydrologist for the Navajo Nation's Water Resources Department in Fort Defiance, a couple miles north of Window Rock. Utter works out of a cramped office in the back of a mobile unit parked behind the water resources building -- a forbidding spot that feels a little like Antarctica's McMurdo Station. Utter is animated by the thrill of conspiracy, and he keeps a copy of Paulo Freire's anti-imperialist screed Pedagogy of the Oppressed -- which largely draws its inspiration from the British colonization of India -- close at hand.

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