Image credit: Gabriella Trujillo/High Country News, republished with permission
In early January, Lake Powell, a reservoir fed by the Colorado River, reached critically low levels. The bathtub ring around its receding edges has spent the last year gracing the pages of news publications across the nation, accompanied by increasingly panicked concern about Glen Canyon Dam’s hydropower turbines, which cannot operate reliably if the lake is lower than 3,490 feet. At the start of 2022, Powell’s water levels were just 46 feet above that threshold.
The drought is an emergency, and water cuts are coming. But the drought is also compounding another emergency. Indigenous nations within the river basin, left out of the 1922 Colorado River Compact, have been working through state and federal courts to settle their water rights, anticipating a situation like this. The settlement process takes time and money to resolve, however — resources that, like water, the drought saps daily. As is the case for the Rio Grande’s pueblos, tribes along the Colorado River without defined water rights still face a daunting colonial gantlet. Right now, the Navajo Nation and Hopi Tribe are working to quantify their rights in Arizona. The lengthy and costly adjudication process, in tandem with frequent legal opposition from private users and state and local governments, presents the two nations with a familiar choice between short-term concessions and a long-term gamble.
“We do believe a settlement of Hopi water claims is a forever sort of settlement, in the sense that it has to provide for a future permanent homeland for the Hopi people,” Fred Lomayesva, general counsel for the Hopi Tribe, said. “We see the need for water to be able to provide sufficient water for the future Hopi.”
For years now, Hopi communities in Upper Moenkopi and Kykotsmovi have banned heavy water users, like car washes and laundromats, in order to conserve groundwater from the N-aquifer, the primary water source for all of Hopi and a large swath of the Navajo Nation. But, as the laundromat ban shows, Hopi leaders have long recognized that the N-aquifer cannot meet their growing water needs. In 2004, then-Chairman Wayne Taylor Jr. said in a press release that in order to build a permanent homeland — the goal of Diné and Hopi leaders — they “must look outside our reservation.”
But the state of Arizona already had a plan to minimize the reach of the seven tribes that lacked settlements or decreed rights. In 2004, the same year as Taylor’s call to plan a future beyond the N-aquifer, the Arizona Water Settlements Act was passed by Congress thanks to the support of a bipartisan Arizona delegation. With a stroke of George W. Bush’s pen, the bill set a maximum annual quantity of 67,300 acre-feet for all future settlements between tribes and Arizona.
When reflecting on such a move, context matters. A settlement process skewed toward the state, through federal legislation, is the colonial process working as planned. As established in Infrastructure as Colonial Beachheads, a 2021 paper by Diné geographer and University of Arizona assistant professor Andrew Curley, the 2004 Arizona bill was only possible because the state was able to rapidly boost its population, and thus its strength in Congress, in the latter half of the 20th century. That growth was a direct result of the Interior Department’s decision in the 1960s to build the coal-powered Navajo Generating Station on Navajo lands in order to power the Central Arizona Project canal system. CAP then diverted Colorado River waters to the city of Phoenix, while the water-rights agreement devised by the federal government limited the Navajo Nation’s water claims for a half-century.
When we do have water, we’re very conservative with it, because we don’t know when we’re going to get it again.
– Michelle Brown-Yazzie, assistant attorney general for the Navajo Nation Water Rights Unit
The decade following the Arizona bill’s passage was defined by failed settlement negotiations. In 2012, Sen. Jon Kyl introduced the Navajo-Hopi Little Colorado River Water Rights Settlement, but said he would not advance the bill without approval from both tribes. After an initially decisive “No” vote, the Hopi Council narrowly flipped and supported the legislation by an 8-7 margin. The Navajo Nation Council, however, voted against it for a myriad of reasons, among them the fact that it would have continued leasing water to the since-shuttered Navajo Generating Station, waived future claims to the Little Colorado River, and failed to include $800 million in water infrastructure funding for western Navajo communities.
“The question comes up, ‘Well, exactly how much water do Navajos need, because they don’t use very much?’” Michelle Brown-Yazzie, assistant attorney general for the Navajo Nation Water Rights Unit, said. “We don’t have the ability to use very much, and when we do have water, we’re very conservative with it, because we don’t know when we’re going to get it again.”
Despite the recent failed negotiations, both the Navajo and Hopi governments are again open to considering a settlement. The drought and the pandemic have had an undeniable influence on those decisions. But it’s also tied to the length and unpredictability of the adjudication process. Consider: It has been six years since an Arizona Superior Court decided to separate the Hopi and Navajo cases into sub-proceedings. The Hopi’s closing arguments for that particular sub-proceeding wrapped in October 2021. And still, it could be another decade or more before the special master appointed to the case completes the necessary hydrographic survey reports and the Superior Court issues a final decree for all the shareholders. According to Brown-Yazzie, the Navajo Nation is scheduled to begin its sub-proceeding for the Little Colorado River Adjudication in 2023. That will continue for up to a year, followed by the next two phases in the process, which could likewise take over a decade to complete.
“There’s often good reasons to try to settle a case when you don’t know what the courts are going to do,” Lomayesva said. “You may have a good idea or an educated guess, but sometimes, fundamentally, you don’t know. To reduce the risk of uncertainty, one might move towards settlement.”
While it has reached a variety of fund- and project-based settlements in New Mexico and Utah, the Navajo Nation is still being forced to defend its water rights against appeals. In New Mexico, challenges to that settlement continued until winter of last year, when the nation received a final order by the New Mexico Supreme Court. “We’re hoping that it won’t be too much longer before we can say that the cases in regards to the New Mexico settlement are finally completed,” Brown-Yazzie said. The Navajo Utah Water Rights Settlement Act, recently signed into law, is in the process of being finalized. The language in the act and the settlement agreed upon by the parties has to be confirmed together, after which the final language will be reviewed by the court. Brown-Yazzie said she is knocking on wood that there won’t be any challenges to the settlement.
As for Arizona, the Navajo Nation and the Hopi Tribe have remained open to settlement talks, even engaging in meetings last April. But both Brown-Yazzie and Lomayesva reiterated that while the drought and the pandemic have increased the pressure for everyone to come to an agreement as soon as possible, there are certain lines that won’t be crossed.
“We think it is important to try to continue to negotiate with the parties,” Brown-Yazzie said. “Of course, the Navajo Nation is not going to accept a settlement that we don’t think is fair and reasonable.”
This story was originally published by High Country News on March 1, 2022. High Country News is an independent magazine dedicated to coverage of the Western U.S. Subscribe, get the enewsletter, and follow HCN on Facebook and Twitter.
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