By Kathy Helms : Dine Bureau : Gallup Independent
KYKOTSMOVI, Ariz. – Despite Hopi Tribal Chairman LeRoy Shingoitewa’s claim that “no deal has been made” to settle the tribe’s claims to the Little Colorado River, U.S. Sen. Jon Kyl, R-Ariz., stated in a Feb. 17 letter that Senate Bill 2109 was introduced “based on verbal assurances that the parties’ representatives had reached a conceptual agreement.”
In his letter to Sandy Fabritz-Whitney, director of Arizona Department of Water Resources, Kyl said he was aware of some minor outstanding issues that will be resolved shortly and said he expected the parties’ representatives to send him and co-sponsor Sen. John McCain, R-Ariz., a letter when they reach full agreement.
Although there are 33 parties to the settlement, “Formal approval by the negotiating parties, specifically the Navajo Nation and the Hopi Tribe, is a critical step in advancing this measure through the legislative process,” Kyl said.
While Shingoitewa and the Hopi water team held a closed meeting on the negotiations last Wednesday at the Veterans Memorial Center for Hopi-Tewa tribal members only, former Hopi Chairman Ben Nuvamsa and former Chief Judge Gary LaRance educated the public at an open meeting held simultaneously at the Community Center in Kykotsmovi.
“We have a lot at stake,” Nuvamsa, a member of the Bear Clan from Shungopavi Village, said while showing a slide of an unidentified sacred spring that had dried up. “That is sad. It made me cry because that particular ceremony depended on that spring being full, and it was not.” Without water from the spring, the ceremony could not be held, he said.
“It’s all part of the problems we’re facing with Peabody’s over-pumping. We have ceremonies where we go out and we pay homage to our springs and shrines, and we use that water for medicine, our prayers. That’s why those things are really important,” he said.
In exchange for waiving “past, present and future claims for injury to water rights and injury to water quality arising from time immemorial and, thereafter, forever …” up to $133 million would be allocated for one Hopi groundwater project.
Under the proposed Navajo-Hopi Little Colorado River Water Rights Settlement Act of 2012, the Hopi Tribe would waive its aboriginal water rights derived from time immemorial; water rights granted the villages from Spain and Mexico in the 1848 Treaty of Guadalupe Hidalgo; and federal reserved water rights under the 1908 “Winters doctrine.”
“This bill gives the non-Indians substantial or significant benefits. It gives Navajo Generating Station a water right – 34,000 acre feet,” Nuvamsa said. “How do you gain a water right? You’ve got to own land, and along with that comes a water right. They’re sitting on the Navajo Reservation. They cannot own property, but this law gives them that water right.”
Kykotsmovi Village Gov. Melvin George, told the audience, “The water rights that we’re talking about today, it’s for the younger generation that are just still small. They’re going to be impacted tremendously. … And what are the younger generation going to say? ‘Our people sold us out, just like back in the ’60s when Peabody Coal was negotiated.’ This is what we’re trying to avoid right now.”
LaRance, a member of the Sun Clan from Upper Moenkopi Village, said that when the Hopi Reservation was created in 1882, the government also set aside sufficient water to sustain the Hopi people, not only now but in the future.
“The question is, if the Hopi Reservation was created in 1882 and we were given water rights in 1882, who was the reservation created for and who are the water rights reserved for?” There was no central government in 1882, he said. “It was created for the Hopi people that were then living in the villages that had been here since time immemorial.”
Exactly how much water Hopi has a right to is unknown. “We have to go to trial in the LCR case to prove how much water we’re entitled to. We haven’t done that,” LaRance said. The case is still pending in Apache County.
Even if the Hopi Tribal Council approved the proposed water rights settlement, that agreement could be open to challenge because not all of the villages are represented on Council.
“The Hopi Constitution said that the authority of the central government rests on the aboriginal sovereignty of the villages,” LaRance said. When the villages created the central government they gave it limited powers. They did not delegate aboriginal, ancestral, reserved water rights to the central government.
“Water is not even mentioned anywhere in the Constitution. When it is not mentioned in the Constitution, it is considered a reserved right,” LaRance said. A landmark decision issued in February 2010 by the Hopi Appellate Court affirmed the aboriginal sovereignty of the villages.
Kyl has worked with a number of tribes during his career to settle water rights claims, and tribal leaders are banking on him getting approval for the settlement before he retires in January.
“Just because somebody’s leaving the Senate, we don’t do away with our aboriginal rights,” Former Chairman Ivan Sidney said. “These are things that were taught us, and it really offends me when the senator said that the Hopi have no resources to use this water. Who do they think we are?”
Nuvamsa said the tribes never lose their federal reserved water rights unless they take official action to waive them. “It’s important to quantify water rights,” he said, “but the terms and conditions of this particular agreement are not good. … Let’s go back and come up with something that we can agree to.”
The former leaders want the Hopi Tribal Council to hold a special meeting on S.B. 2109 to hear from the Hopi-Tewa people and place an immediate moratorium on further negotiation of the bill. If not, the Hopi-Tewa Senom could file an injunction to enjoin Council from further negotiations and agreements on the bill and also take legal action to have the tribal courts enforce the villages’ aboriginal, ancestral and reserved water rights.