The Navajo Nation is ready to stake its claim on water for the future.
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In early February, a series of fierce storms racked the Navajo Nation, which sprawls across more than 27,000 square miles of New Mexico, Arizona and Utah. At dawn, the highways were burnished to an icy sheen that sent cars pinballing into ditches. As each day warmed, the misery took on a new quality: The dirt roads that crisscross the reservation melted into
hash glish di'tsidi liba'
, a goopy gray gumbo that sucked pickup trucks into a death grip. By late afternoon, on the cusp of the next storm, many Navajos, still stuck up to their axles in mud, were simultaneously sandblasted with wind-driven grit.
The tribe's woes don't end with the weather. Half the Navajos on the reservation are unemployed, and that number may actually be as high as 67 percent - no one can say for sure. More than 70 percent of those who do have jobs work for government agencies. The closure of a coal mine later this year, on top of another mine shutdown two years ago, will likely reduce tribal revenues by a third. Per capita income on the reservation is a little more than $8,000 a year.
Navajos often speak of the cosmic geography of the Four Sacred Mountains, which mark the boundaries of their ancestral homeland. But the lives of many people here are shaped by a more pragmatic geography, centered on a coin-op water dispenser in a muddy turnaround behind a city maintenance building in downtown Gallup, New ***image3***Mexico. A water pipe with a piece of yellow fire hose hanging off the end sticks out the back of the building. Navajos load water tanks and blue plastic 55-gallon drums into the beds of their pickups and come here for drinking water. On weekends, the line can stretch around the block.
But on a bitter-cold Friday afternoon, the whole operation was seriously dorked. Ernest Leslie, who had driven 22 miles from Tohatchi, couldn't get any water because a quarter was jammed in the coin slot. He tried to coax another coin into the machine with the tip of his pocketknife, but it popped back out like a bad joke and landed in the mud at his feet. "Huh," Leslie said. He looked down at the quarter. "Sometimes we have problems like this."
Even as the Southwest's cities have flourished with water from the Colorado River, the Navajo Tribe has stood on the sidelines, holding an empty bucket - and waiting. For decades, it seems, the tribe has been just one good plan away from prosperity. Now, however, the Navajo Nation is beginning to assert its right to claim water from the river. Many Navajos believe the tribe could soon transform water from something that eats up their quarters at 50 gallons a pop to a virtual jackpot. But as tantalizing as the prospect of river water is, it is also opening painful rifts on the reservation.
The capital of the Navajo Nation is the town of Window Rock, on the eastern edge of the reservation in Arizona. It is a slow-paced place with a couple of gas stations, a supermarket and a clutch of mom-and-pop storefronts that serve up squash soup and roast mutton.
Lena Fowler lives on the other side of the reservation, but came to town in February for a tribal council meeting. A member of the tribe's water ***image4***rights commission, Fowler began by explaining how the language of white-dominated water law, saddled with abstruse notions like "qui prior est in tempore, potior est in jure" - Latin for "first in time, first in right" - often defies translation into Navajo. Then she conceded that water may, in fact, be a language unto itself.
"And when you speak water," she said, "people get real emotional."
"For us, for most of our Navajo people, they wake up in the morning [and] they go out and they pray. And once they're done," she said, "they turn around and have to figure out how much water they have: Is it safe to drink the water at the windmill? Or do I have to go buy Clorox to treat it with? That's where we are today."
The Navajo Nation sits almost exactly in the center of the 244,000-square-mile Colorado River Basin, and it occupies fully one-tenth of the basin's area. Yet when the seven Colorado River states met to divide the river's water between themselves in 1922, they neglected to invite either the Navajo or any of the other Indian tribes with reservations in the basin.
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"Agreements were being made before we even knew how to speak English," Fowler said. Indians weren't recognized as United States citizens until two years after the Colorado River Compact was signed in 1922. It wasn't until almost three decades after the Indian Citizenship Act was passed that Navajos were finally allowed to vote.
When they excluded tribes from the Compact negotiations, however, the seven states disregarded an important fact. In 1908, the US Supreme Court had "paradoxically" dealt Indians a powerful trump card. In what is known as the Winters decision, the court granted Indian tribes the right to retroactively claim water sufficient to create what would later be termed a "permanent homeland."
Water rights are ranked by chronological priority, and the priority date of ***image6***a tribal claim is tied to the year that a particular tribe's reservation was established. In the Navajos' case, that was 1868. If the Navajos received so-called Winters rights, their water rights during times of drought would take priority over those of the West's more recently established urban centers.
"The states have basically ignored that there are Native claims to the river," Fowler said. In the 86 years since the Compact was signed, the downstream cities of Los Angeles, San Diego, Phoenix and Las Vegas have boomed, while the Navajo have been left parked in a dusty time warp high on the Colorado Plateau.
"Even today, it's like there's a curtain," she said. "[The seven states] are over there, making decisions, knowing full well that we're here. They can see our silhouette."
Now, the Navajo Nation is moving to claim its water rights here in New Mexico, and may soon do so in Arizona and Utah as well.
Indian tribes can sue for water rights - or they can negotiate settlements with individual states and then take them to Congress for approval. That's the path that the Navajo Nation has taken here. In 2004, the tribe and the State of New Mexico announced a settlement agreement that would award the Navajo 326,000 acre-feet of water from the San Juan River, a major tributary of the Colorado. (An acre-foot is enough for approximately two families in Phoenix or Las Vegas for a year.) The settlement also authorizes more than $800 million in federal and state money to build a pipeline that will take the water to the east side of the reservation and to the city of Gallup. The Navajo Nation is now seeking congressional approval of the deal, the tribe's first step toward asserting its rightful claims on the Colorado.
"We have learned the language. We have learned the laws. We learned the court system," Fowler said. "Now we're saying, 'Hey! We're back. We're here to reclaim our water rights.'"
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In Window Rock, the tribal government operates out of a cluster of rustic-looking buildings a stone's throw from the towering sandstone arch after which the town is named. There's a BEWARE OF FALLING ROCKS sign next to the stone-and-timber hogan where the tribal council meets.
Stanley Pollack, an assistant attorney general for the Navajo Nation's Department of Justice, works out of an unprepossessing, barracks-style building nearby. Pollack keeps a turquoise bolo tie and a gray tweed jacket ready for tribal council briefings. He is also a
bilagaana
- a white - and, as a result, occupies a very complicated place in the Navajo water cosmology.
Pollack, who is 54, arrived here in 1985. Four years later, he suddenly found himself preparing legal briefs for the prosecution of the tribal chairman, Peter MacDonald, on corruption charges that eventually landed MacDonald in federal prison. It was a turbulent time: At one point, MacDonald's supporters rioted in Window Rock and tribal police shot two of them dead.
Pollack is reticent about the experience, but it was obviously a bracing one for him. He worked around the clock, protected by bodyguards from the American Indian Movement, better known for its 1973 standoff at Wounded Knee on the Pine Ridge Reservation. At night as they stood watch outside, the guards warmed themselves by setting fires in empty oil drums. Whenever Pollack took a break, he says, "I'd go out and talk to them and look at the stars. It was really cool."
Compared to the MacDonald drama, you'd think the process of defending the tribal water rights, which now absorbs all of Pollack's time, would be a pretty humdrum affair. But it's not. He's had rocks thrown through his office window, and been called the Navajos' No. 1 Enemy. And, in 2001, a flier appeared in chapter houses - the reservation's equivalent of town halls' with Pollack's likeness X-ed out and "Osama bin Pollack" written underneath.
The homegrown opposition he has faced attests to the depth of emotion that water inspires - and to local unhappiness with Pollack's role as a compromiser and, to a large extent, a realist.
One wall of Pollack's office is lined with mean-looking filing cabinets, and the rest of the room is filled with steel bookshelves packed with court documents and all manner of hydrologic divination. It is from this mass of paper that Pollack is slowly assembling a Colorado River claim.
A year and a half ago, as the water settlement with New Mexico was working its way toward Congress, Pollack put the federal government and the seven states on notice that the tribe could also justifiably use 336,856 acre-feet in Arizona, and indicated in an interview that the tribe might claim 80,000 to 100,000 acre-feet in Utah, as well. Throw in the water from tributaries and that would put the total size of the Navajo Colorado River water right at somewhere around 800,000 acre-feet.
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That is a lot of water - 1
1/2
times more than Las Vegas has rights to. And, because much of the Navajo water would have an 1868 priority date, several big, powerful water users would be booted to the back of the line behind the tribe during a drought. The city of Las Vegas and the Central Arizona Project, or CAP, whose massive canal supplies water to Phoenix and Tucson, already have the worst water rights priorities on the river. With the Navajo ahead of them in the hierarchy, they'd face an even more serious risk of being cut off.
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 US 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***image9*** settlements, in part because the US 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, DC, 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 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 he hoped would form the backbone of a Navajo water claim. 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." (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 US 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***image10*** 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."
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 down - stream 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. Now that he's out of prison, this business about a settlement with New Mexico is pissing him off. "It's like you had 100 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.'"
While 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. 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 that a Navajo water claim "has a potential value of 100s of $millions and more."
The letter's author was 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, and 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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In the years since he wrote the letter, Utter has become circumspect to the point of silence, but his theme of colonial victimization resonates deeply on the reservation. During the 1960s and 1970s' call it the high era of Western natural resources treachery - the tribe was cheated in a massive royalty deal with a company called Peabody Coal. Indian Country also has long grappled with the federal government's failure to honor its trust responsibility to the tribes. Navajo grassroots groups like DSDA were also fighting against what they saw as a breach of trust at home.
Not long after the Lawyers-and-Betrayal letter appeared in 2000, DSDA - as part of a broader grassroots coalition called
Dine Bidziil
, or Navajo Strength - called for major reform in the Navajo government. Much of their wrath focused on the tribal council, but DSDA also targeted four white lawyers, including Pollack. People on both sides of the fight reported having their tires slashed and the lug nuts on their wheels loosened. There was an allegation that someone had slipped poisoned cough drops into a tribal council member's desk drawer. There were dark rumors that the -
adlaaniis
- the notorious Navajo drunks - had been recruited into the fight. Several people made mention of witchcraft and "evil way" ceremonies secretively held in the remotest reaches of the reservation.
Finally, when the votes were counted in the 2000 tribal election, more than half of the council's 88 delegates were unseated. Pollack survived: After weathering subpoenas to appear before two tribal council subcommittees, he was exonerated from the charges in the Lawyers-and-Betrayals letter. The three other white lawyers left, however. Then DSDA and
Dine Bidziil
melted back into the shadows.
The annual tribal fair, held each September in Window Rock, is one of the few times when Navajos from across the reservation come together in one place. Last year, some of the old DSDA hands ran into each other there and shared concerns that their government had again grown complacent. Not long afterward, a tribal member named Ron Milford resurrected the fight with a letter to the Navajo Times that insisted, "We must maximize Navajo water rights now."
***image12***"Our starting point should be 5 million acre-feet of water," Milford said in a recent joint interview with DSDA organizer Max Goldtooth. That's considerably less than Peter MacDonald's idea of a winning number, but is still more water than the entire state of California is entitled to, and nearly twice as much as Arizona gets.
"If we had receipts from leasing water and stuff like that, we would be investing in our infrastructure," Milford said. "We could pump a lot of money into different things."
The tribe's quest to build its economy has been fitful, at best. Last year, the tribal council approved the Navajo Nation's first casino and began negotiating a $100 million loan from JPMorgan Chase to finance the project. But the deal became controversial when the bank asked the tribe to pledge $125 million worth of its assets as collateral.
"There's money flowing all around us. We're sittin' on a national treasure here," Goldtooth said.
Instead, more and more of the river's water has rolled away downstream. Just last year, the seven Colorado River states negotiated a new round of drought-protection agreements for themselves. "Now that global warming and everything has spanked them in the butt, they're over here divvying up what's left," Milford said. "I bet they're just smiling from ear to ear because Navajo is not gonna file this big ol' claim for the water that we said we were entitled to."
There is an aphorism that occasionally bobs up in water circles and goes like this: The Navajos would rather have 100 percent of nothing than 50 percent of something.
It is an uncomfortable thing to hear, but it may hold some truth.
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Back in the 1980s, after Peter MacDonald's engineers drew up the plans for an Indian Central Arizona Project, he spent several years trying to persuade the federal government to fund it. The Bureau of Reclamation repeatedly lowballed the cost estimate and, finally, US Sen. Pete Domenici, R-NM - who is now co-sponsoring the Navajo-New Mexico settlement legislation - asked MacDonald to accept the lowball figure. MacDonald refused: "I said, 'If that's the case, we may have to do it ourselves.'"
That was roughly two decades ago, before MacDonald's trip to prison and everything that followed. When asked last month how he planned to fund the plan without the federal government's help, he said the tribe could take the seven Colorado River states to court for illegally using Navajo water. The tribe, he said, would fine the states - "we'll charge them maybe 1 or 2 or 3 cents a gallon and add [that] all up." It wouldn't matter if it took 20 or even 30 years to resolve the case, he said: The Navajo Nation could request that the court require the states to put money in escrow until it was decided. MacDonald had deployed the strategy once already, when he sued Peabody Coal for lost royalties, and the tribe wound up with approximately $1 billion.
In a recent negotiating session with water bosses from Arizona, Las Vegas and Southern California, Pollack noted that "Nobody seemed to be happy. And when nobody's happy, it's usually a good sign. It means you're coming to 'yes.'"
But Pollack also had been thinking about the opposition he faces on the reservation. "People hear 'Winters,'" he said, "and (they) say: 'Well, Winters stands for the proposition that the tribes get all the water.' That's not what Winters says. It says that water was reserved to create a permanent homeland for tribes."
And while the idea of practicably irrigable acreage lies at the heart of the whopping claims that Peter MacDonald and Ron Milford are calling for, "PIA isn't necessarily always consistent with a permanent homeland," Pollack said.
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In fact, PIA looks more and more like an anachronism, a perverse insistence on turning Indians into farmers at exactly the same time that, in much of the West, agriculture is losing ground to cities. Relying on the principle to claim water - even if that water might ultimately be leased to cities downstream - seemed a problematic tactic.
In the 1960s, the Navajo won Congressional approval of a big irrigation project near Farmington, NM. Despite having been heavily subsidized by the federal government, the project only managed to squeak out a profit during the past couple of years. Maybe. Nobody could say that for sure, either. Still, Milford feels the project could be cloned all over the reservation. "There's a lot of open space out here," he said. "Down toward Leupp and all of that area? There's tons of flat property down there, you know? You can imagine fields running clear down to Winslow."
Pollack suggested one practical alternative to PIA. In the Pacific Northwest, for instance, the "salmon tribes" such as the Nez Perce and the Yakama have used their treaties to argue for water rights sufficient to protect the salmon runs on which they'd long depended. "What we've said is, "Look at the fishing cases. Look at what the courts have done there. They've said the real key isn't PIA. The real key is the water necessary to create the permanent homeland.'"
In the Navajos' case, Pollack said, mining was a far more realistic moneymaker than agriculture. But, he added, there was a more pressing issue. "In a settlement, you have to put the rhetoric aside and figure out what your goals and objectives are," he said. "And if your goal and objective is to get drinking water to people, claiming millions and millions of acre-feet of water doesn't get drinking water to the hogans."
Pollack regularly works extremely long hours. He keeps one of the "Four Lawyers Out" bumper stickers pinned up in his office, like a trophy. And it's clear that, despite Pollack's reluctance to talk about the attacks he's weathered, they are never far from his mind.
***image15***At the end of the interview, Pollack shifted into closing-arguments mode. "These are people that have had a lot stolen from them. And they've come up on the short end of the stick all the time," he said. MacDonald and his followers were, he conceded, hawking a pretty alluring vision. "It's this casino mentality of getting free money. If somebody comes along and says, "Water is your casino"... you know: "Your water's worth billions of dollars, and if you just get rid of Pollack, you, too, can be a millionaire!"
"You know? They're like, "Well, shit. Why do we have this guy here? I want to be a millionaire.'"
