Posted by on Jun 8, 2012 in Uncategorized

Last Real Indian Givers Part Naaki: An Update on the Navajo-Hopi Little Colorado River Settlement

By:  Jihan Gearon

The last piece I wrote for lastrealindians was entitled Last Real Indian Givers, and laid out a few key arguments against the Navajo-Hopi Little Colorado River Water Settlement Agreement and Act of 2012.  Back then, the settlement was on the fast track with the goal of being signed, sealed and delivered to Congress by the end of May.  Thanks to the collective efforts of many Navajo and Hopi grassroots organizations and people, the decision has been taken out of AZ Senator Jon Kyl’s retirement timeline, but is still potentially fast approaching.  I’m proud of all the folks who have been asking questions and researching the settlement, educating themselves and others, and taking action to stop the settlement.  As we enter June, we may be entering a pivotal moment on this issue, as well as for energy and water issues in the southwest.  So I’d like to take this time to check in and share my thoughts about where we stand now: When and how will the decision be made?  How can and should we engage in the decision, and what should we base our decision on?

Our efforts as Navajo and Hopi grassroots organizations and individuals have educated and engaged thousands of Navajo and Hopi people, forced tribal leaders to take a second look at and get a second opinion about the settlement, and forced settlement supporters of the bill to step up their game- and boy, have they!  For example, because of the well known Tuba City protest in April (Remember “Recall Shelly! Recall Shelly!”), Navajo Nation President Ben Shelly and the Navajo Nation Water Rights Commission (NNWRC) announced they would host seven “town hall meetings” to educate the public about the settlement.  It’s important to acknowledge that our central government would not have even bothered to explain the settlement to us if they hadn’t been pressured by grassroots organizations and individuals.

Since then, they’ve held the seven town hall meetings as well as other individual chapter meetings across the rez, and these are still ongoing.  It’s good that the central government is talking to people directly about the settlement.  Yet they’re quite obviously advocating for the settlement, in fact pushing an ultimatum on the Navajo people- rather than providing thorough information from which we can make a fully informed decision.  The meetings highlight the pros of the settlement yet address none of the cons.  They do not allow adequate time for Q&A and dance around the important questions that are asked.  Meanwhile, we grassroots organizations have organized several educational forums across the reservation as well.  We’ve also attended every one of the town hall meetings and as many of the chapter meetings as possible sharing information and trying to gain clarity on the settlement.  While champions of the bill– namely AZ Senator Jon Kyl, Navajo Nation lawyer Stanley Pollack, President Shelly, and the NNWRC– paint us as “opponents” spreading “misinformation,” I see us providing much needed information that balances out the larger discourse happening on this issue.

The truth is that the bill is extremely complicated and confusing.  Add to that a messaging and media battle between proponents and opponents of the settlement and I understand why grassroots people may be confused about where to stand on this issue.  In some cases, confusion is caused by simple world play.  For example, in the NNWRC sponsored meetings a key point they reiterate over and over is that “we’re not waiving rights, we’re waiving claims,” which they present as a super important distinction.  To me though, there is no real distinction between these words.  In my understanding when you give up your claims, you’re essentially giving up your rights.  In fact, when you read the settlement agreement itself, it says the waivers are for “Past, present, and future claims for Water Rights for Navajo Land….”  So these claims are actually claims to water rights!  This makes me ask who is really spreading misinformation here?  In other cases, confusion is caused because there are extremely confusing parts in the settlement.  Although we are not lawyers, many of us have read the settlement and pulled out some key questions that we need our central government to clarify and answer.  I’ll highlight a couple here.

First, why isn’t the specific amount of water allocated to the Navajo Nation clearly quantified in the settlement?  We have heard verbally from Stanley Pollack and the NNWRC that we will get approximately 160,000 acre-feet of surface water, but this is never actually stated clearly in the settlement itself.  Why not?  Also, what happened to the additional 100,000 acre-feet or more at Blue Spring, which is also Navajo and Hopi water.  Why isn’t Blue Spring even mentioned in the settlement?  In the NNWRC ad in the Gallup Independent, they state “…Right now big city developers could buy land upstream from the Nation and take water from the Little Colorado River so it never reaches the Nation…This agreement ensures that nobody except Tribal members will have access to that water…”  However, the settlement itself states that the Navajo and Hopi may not “…object to, dispute, or challenge…the withdrawal and use of Underground Water from a well even if it is determined that the Well is capturing or will capture the subflow of any surface water source….”  Including the surface flows of the Little Colorado River (LCR)!  Doesn’t this mean exactly the opposite of freezing the amount of LCR water used by non-Indians?

Second, why does the settlement prohibit Navajo and Hopi from ever marketing or selling LCR surface water that we are not using yet?  Stanley Pollack justifies this by saying that no other Tribe can do it either.  So?!  Imagine if we had charged the Navajo Generating Station fair market prices for the 34,100 acre-feet/year we’ve been giving them for free since 1969.  Let’s do the math: 43 years x 34,100 acre-feet/year x $1,000/acre-foot to $3,500/acre-foot = $1,466,300,000 to $5,132,050,000 that we have simply given away!  Furthermore, this settlement extends this lease to NGS for another 32 years meaning we will be giving them another $1,091,200,000 to $3,819,200,000 for free!  Someone please explain to me how this is fair.  With that kind of money we wouldn’t have to depend on federal handouts to develop wet water projects like the pipelines promised in this settlement.  We would be truly self-sufficient.

These are only two basic questions of many that I’ve chosen to highlight here but they are extremely important and need to be addressed before we as the Navajo Nation sign this settlement agreement.  Proponents of the settlement will have us believe that this is the best they can do and the most that we can get, but I do not agree with that defeatist, pessimistic, and lazy argument.  You see, I come out of the environmental justice movement and tend to look at this issue through an environmental justice lens.  From this perspective I understand that the water and energy delivery system, the legal system, and the political system in this region depends on the exploitation of Navajo and Hopi people and resources.  This settlement is simply a product of that very system.  Senator Jon Kyl, President Shelly and the NNWRC tell us we have only two choices:  sign this settlement or enter into costly litigation that we’ll never win.  I believe this choice is about our vision for Dinetah. Our decision on this water settlement; our decisions regarding NGS and the various power plants and coal mines on and surrounding our homeland; our priorities about economic development will build the vision we have for ourselves.  For me, the settlement represents a choice between joining the dominant society, essentially sending our resources and therefore ourselves and future generations down to the valley.  Or we can stay true to our Navajo selves by protecting, preserving, and prioritizing our homelands.  I believe our ancestors envisioned the latter as well.

At the beginning of this piece, I asked three questions: When and how will the decision be made?  How can and should we engage in the decision, and what should we base our decision on?  The answers to all three of these questions are up to you.  My goal here and with the educational forums, and the factsheets, and the questions is to give you– Navajo, Hopi, and other Indian and non-Indian friends and allies– transparent information with which you can make an informed decision.  I encourage you to do your research, connect to what’s important to you, and develop your basis for making this decision.  I’ve done my homework, thought about the issue for hours (even in my dreams), and I am against the Navajo-Hopi Little Colorado River Water Settlement Agreement and Act.  I believe it doesn’t have the best interests of our people at heart, but don’t take my word for it.  Make the decision yourself.