Early January, Lake Powell, a reservoir fed by the Colorado River, has reached extremely low levels. The tub’s ring around its receding edges has spent the past year gracing the pages of news publications across the country, accompanied by growing panicked concern over the hydroelectric turbines at Glen Canyon Dam. , which cannot operate reliably if the lake is below 3,490 feet. At the start of 2022, Powell’s water levels were only 46 feet above this threshold.
Drought is an emergency, and water cuts are coming. But the drought is also aggravating another emergency. Indigenous nations in the river basin, excluded from the Colorado River Compact of 1922, worked through state and federal courts to settle their water rights, anticipating a situation like this. The settlement process, however, takes time and money to resolve – resources that, like water, drought saps daily. As is the case with the Rio Grande pueblos, tribes along the Colorado River without defined water rights still face a formidable colonial gauntlet. Currently, the Navajo Nation and the Hopi Tribe are struggling to quantify their rights in Arizona. The lengthy and costly adjudication process, coupled with frequent legal opposition from private users and state and local governments, presents both nations with a familiar choice between short-term concessions and a long-term gamble.
“We believe that a Hopi water claims settlement is a kind of forever settlement, in the sense that it must provide a permanent future homeland for the Hopi people,” said Hopi Tribe General Counsel Fred Lomayesva. “We see the need for water to be able to provide enough water for future Hopi.”
“We see the need for water to be able to provide enough water for future Hopi.”
For years, the Hopi communities of Upper Moenkopi and Kykotsmovi have banned large water users, such as car washes and laundromats, in order to conserve groundwater from the N Aquifer, the main water source. for all Hopi and much 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-President Wayne Taylor Jr. said in a press release that 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 for a future beyond the nitrogen aquifer, the Arizona Water Settlements Act was passed by Congress with the support of a bipartisan delegation from the Arizona. With the stroke of a pen by George W. Bush, the bill sets a maximum annual amount of 67,300 acre-feet for all future settlements between the tribes and Arizona.
When considering such a move, context matters. A process of colonization biased in favor of the state, through federal legislation, is the colonial process that works as intended. As established in Infrastructures as colonial bridgeheads, a 2021 article by geographer Diné and University of Arizona assistant professor Andrew Curley, Arizona’s 2004 bill was only possible because the state was able to rapidly increase its population, and therefore its strength in Congress, in the second half of the 20th century. This growth was a direct result of the Department of the Interior’s decision in the 1960s to build the coal-fired Navajo Generating Station on Navajo land to power the Central Arizona Project canal system. The CAP then diverted waters from the Colorado River to the city of Phoenix, while the federally engineered water rights agreement limited the Navajo Nation’s water claims for half a century.
The decade after the Arizona bill passed was marked by failed settlement negotiations. In 2012, Senator Jon Kyl introduced the Navajo-Hopi Little Colorado River Water Rights settlement, but said he would not move the bill forward without the approval of both tribes. After an initially decisive “No” vote, the Hopi Council narrowly swung and backed the legislation by an 8-7 margin. The Navajo Nation Council, however, voted against for a myriad of reasons, including the fact that it would have continued to lease water from the since-closed Navajo Power Plant, waived future claims on the Little Colorado River, and did not include $800. million dollars in water infrastructure financing for western Navajo communities.
“The question arises, ‘Well, exactly how much water do the Navajos need, because they don’t use a lot of it?'” said Michelle Brown-Yazzie, assistant attorney general for the Unit. Navajo Nation water rights. “We don’t have the capacity to use a lot of it, and when we have water we’re very careful with it, because we don’t know when we’re going to have it again.”
“When we have water, we are very careful with it, because we don’t know when we will have it again.”
Despite the failure of recent negotiations, the Navajo and Hopi governments are once again open to the idea of a settlement. The drought and the pandemic had an undeniable influence on these decisions. But it is also linked to the length and unpredictability of the arbitration process. Consider: It’s been six years since a superior court in Arizona decided to separate the Hopi and Navajo cases into subtrials. The Hopi’s closing arguments for this particular sub-proceeding ended in October 2021. And yet, it could still be a decade or more before the special master appointed to the case completes the necessary hydrographic survey reports and the Superior Court renders a final decree for all shareholders. According to Brown-Yazzie, the Navajo Nation is expected to begin its Little Colorado River Arbitration Sub-Procedure in 2023. This will continue for up to a year, followed by the next two phases of the process, which may also take over. a decade to complete.
“There are 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 could move towards regulation.
Despite reaching a variety of fund- and project-based settlements in New Mexico and Utah, the Navajo Nation is still forced to defend its water rights against appeals. In New Mexico, challenges to that settlement continued until the winter of last year, when the nation received a final order from the New Mexico Supreme Court. “We hope it won’t be too long before we can say that the business of the New Mexico settlement is finally over,” Brown-Yazzie said. The recently enacted Navajo Utah Water Rights Settlement Act is being finalized. The language of the deed and the settlement agreed upon by the parties must be confirmed together, after which the final language will be considered by the court. Brown-Yazzie said she knocked on wood that there would be no dispute over the settlement.
As for Arizona, the Navajo Nation and Hopi Tribe have remained open to settlement talks, even engaging in meetings last April. But Brown-Yazzie and Lomayesva reiterated that while the drought and the pandemic have increased the pressure for everyone to reach an agreement as soon as possible, there are certain lines that will not be crossed.
“We think it’s important to try to continue to negotiate with the parties,” Brown-Yazzie said. “Of course the Navajo Nation will not agree to a settlement that we do not believe is fair and reasonable.”
Pauly Denetclaw is a citizen of the Navajo Nation and Manuelito, New Mexico. She is Haltsooí (Meadow People) born for Kinyaa’áanii (Towering House People). Denetclaw is currently an Indigenous affairs reporter for the Texas Observer. Follow @Pdineclah
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